Ex Parte HallivouriDownload PDFPatent Trial and Appeal BoardFeb 9, 201511797265 (P.T.A.B. Feb. 9, 2015) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTI HALLIVOURI Appeal 2012-006469 Application 11/797,265 Technology Center 2100 ____________ Before JOHN A. JEFFERY, DENISE M. POTHIER, and ANDREW J. DILLON, Administrative Patent Judges. DILLON, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1, 4–8, 11–14, and 21–23. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention is directed to a method and apparatus for processing a sequential file stored in a block-type memory device. See Abstract. Appeal 2012-006469 Application 11/797,265 2 Claims 1 and 14 are illustrative, with key disputed limitations emphasized: 1. A method for processing a sequential file updated by additions attached at the end of the file and stored in a block-type memory device, the method comprising: writing metadata associated with said sequential file into a first memory block of said block-type memory device, and said first memory block containing an ending location of payload data contained in said sequential file, wherein the payload data represents a portion of said sequential file; emptying a second memory block of said block-type memory device; and updating said sequential file by the sub-steps of, after emptying said second memory block, writing, into said second memory block, each of i) payload data of a portion of said sequential file contained in said first memory block, ii) new payload data to be added to the sequential file, and iii) new metadata associated with the updated sequential file, and commanding the first memory block of said memory device to be emptied, wherein said metadata consists of one or more selected from the group consisting of address spaces in the memory device where the payload data can be found, check sums associated with one or more error indicators, time related information associated with the file, conditions on which the payload data is allowed to be read and/ or changed, and file size and/or other structural information about the file. 14. A non-transitory computer readable medium recorded with a computer program configured to instruct a programmable processor to process a sequential file, the sequential file being updated by additions attached at the end of the file and stored in a block-type memory Appeal 2012-006469 Application 11/797,265 3 device, the computer program comprising instructions for controlling the programmable processor to perform the following steps: write metadata associated with said sequential file into a first memory block of said block-type memory device, said metadata being other than an end-of-file marker, and said first memory block containing an ending location of payload data contained in said sequential file, wherein the payload data represents a portion of said sequential file; empty a second memory block of said block-type memory device; and update said sequential file by writing into the second memory block each of i) payload data of a portion of said sequential file contained in said first memory block, ii) new payload data to be added to the sequential file, and iii) new metadata associated with the updated sequential file after emptying said second memory block, and commanding the first memory block of said memory device to be emptied. The Examiner relies on the following as evidence of unpatentability: March US 2003/0120858 A1 June 26, 2003 Jesung Kim et al., A Space-Efficient Flash Translation Layer for CompactFlash Systems, IEEE Transactions on Consumer Electronics, Vo1. 48, No. 2, 366–75 (May 2002) (hereinafter “Kim”). Digital Equipment Corporation, Digital Cobol User Manual, Version 2.4, §§ 6.1.1–6.1.3 (Jan. 1998) (hereinafter “DEC”). Appeal 2012-006469 Application 11/797,265 4 THE REJECTIONS 1. The Examiner rejected claims 14 and 23 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Ans. 4–5.1 2. The Examiner rejected claims 1, 4–8, 11–14, and 21–23 under 35 U.S.C. § 103(a) as unpatentable over Kim, DEC, and March. Ans. 5–182. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions in the Appeal Brief (App. Br. 13–32) and the Reply Brief (Reply Br. 1–14) that the Examiner has erred. We have also reviewed (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2–14), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (Ans. 4–18). We highlight and amplify certain teachings and suggestions of the references as follows. The Examiner rejects claims 14 and 23 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. Specifically, the Examiner finds the claimed phrase “said metadata being other than an end-of-file marker” within claim 14 was not described in the specification in a manner that would reasonably convey to one of ordinary 1 Throughout this opinion, we refer to the Final Office Action (“Final Act.”) mailed April 8, 2011; the Appeal Brief (“App. Br.”) filed December 8, 2011; the Examiner’s Answer (“Ans.”) mailed January 13, 2012; and, the Reply Brief (“Reply Br.”) filed March 13, 2012. 2 The Examiner has withdrawn the rejection of claims 1, 4–8, 11–13, 21, and 22 under 35 U.S.C. § 112, first paragraph. Ans. 4. Appeal 2012-006469 Application 11/797,265 5 skill in the art that the inventor had possession of the invention at the time the application was filed. The Examiner finds that the specification does “not teach all forms of metadata other than an end-of-file marker.” The Examiner also points to the specification at page 5, lines 17–18, which recites that “metadata includes an end-of-file marker.” Ans. 5. Appellant argues the Examiner erred, citing the specification at page 1, lines 12–16, which states: Metadata can express for example those address spaces in the memory device where the payload data can be found, check sums associated with error detection and/ or other error indicators, the time of last update of the file, conditions on which the payload data is allowed to be read and/or changed, as well as the file size and/or other structural information about the file. Appellant then points out that the specification describes “metadata” as located in a memory block “that is either completely or partially reserved for said metadata,” citing the specification at page 2, lines 10–12. Appellant urges that the Examiner’s reliance on the specification at page 5, lines 17–18 is taken out of context and refers only to an area of memory, rather than an indication that the metadata must include an end-of-file marker. App. Br. 28–29; Reply Br. 13–14. We concur with Appellant. Carving out a particular embodiment within the claims of an application is clearly permitted. Appellant’s specification clearly recites a long list of factors that may be contained within metadata. See, e.g., Spec. 1:12–16.. A written “description must ‘clearly allow persons of ordinary skill in the art to recognize that [the inventor] invented what is claimed.’” Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en Appeal 2012-006469 Application 11/797,265 6 banc) (quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991)). “In other words, the test for sufficiency is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date.” Id. (citing Vas-Cath, 935 F.2d at 1563). On the present record, we conclude that Appellant’s written description expressly lists different information which may be included within the metadata. The mere exclusion of one or more of those possible types of information within a claim is not generally a basis to exclude that limitation. However, here we have a negative limitation (e.g., metadata “other than an end-of-file marker”) which, pursuant to MPEP § 2173.05, is only “[a]dequately supported when the specification describes a reason to exclude the relevant limitation. Santarus, Inc. v. Par Pharm, Inc., 694 F.3d 1344, 1351 (Fed. Cir. 2012) (emphasis added). As Appellant sets forth at pages 5 and 6 of the Brief: The skilled person would appreciate that if the EOF were not distinguished from the metadata, and therefore not necessarily located at the ending location 104 immediately following the last instance of payload data (and instead located somewhere else among the metadata in memory area 106), the linear search would fail to halt at the end 104 of the payload data 103 and erroneously read metadata (M) at 106 as payload data. The read operation would therefore fail (e.g., because the checksum against the data would not match). This argument convinces us that one of ordinary skill in the art would conclude that Appellant did have possession of that claimed invention at the time of the application. We therefore find that the Examiner erred in Appeal 2012-006469 Application 11/797,265 7 rejecting claims 14 and 23 under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. With respect to the rejection of claims 1, 4–8, 11–14, and 21–23 under 35 U.S.C. § 103(a) as unpatentable over Kim, DEC, and March, Appellant urges that independent claims 1, 6, and 14 stand or fall together. Appellant argues that the Examiner erred in rejecting claims 1, 4–8, 11–14, and 21–23 by asserting the rejection is “non-specific and incomplete” which prevented Appellant from having a “reasonable opportunity to respond.” App. Br. 13. Further, Appellant urges that the references cited by the Examiner “fail to lead to the invention recited by the claim.” Id.; Reply Br. 2–5, 7–9. Specifically, Appellant argues that the Examiner has improperly combined Kim, having a teaching of storage of data in block-type devices, with DEC, having a teaching of sequential files and file organization. Appellant argues that the teachings of these two references “contrast so sharply” that no reasonable combination of these references is possible. Therefore, Appellant argues, there would have been no reasonable motivation to modify Kim to store data sequentially as disclosed by DEC. App. Br. 14–16. Additionally, Appellant argues that the Examiner has failed to make it clear how Kim could be modified in view of DEC to achieve the claimed invention, and that such a combination would render Kim unsuitable for its intended purpose. Id. at 18–19. Turning to the merits of the rejection, Appellant argues that the combined references fail to show or suggest the step wherein a second block is emptied, and the payload data of a portion of the sequential file contained in a first block, new payload data to be added to the sequential file, and new Appeal 2012-006469 Application 11/797,265 8 metadata associated with the updated sequential file are added to the second block. App. Br. 20; Reply Br. 5–7. In response to the Examiner’s reliance on section III, B, paragraph 2 and Figure 2(a) of Kim for a teaching of the updating step, Appellant argues that the cited passage describes a “merge operation” which only takes place once “all the free pages in the log block are consumed.” Appellant argues that the “merge operation” merely reclaims the log block by “merging” it with of the unchanged data of the old data block into a new empty block, and thus fails to show or suggest either the payload data copied from the first block to the second block, or new metadata associated with the updated file. App. Br. 20–22. Appellant also argues error in the Examiner’s citation of March for showing or suggesting the first memory block including an ending location of the payload data in the sequential file, wherein the payload data represents a portion of the sequential file. Appellant notes that in the claimed invention the payload data of the first block, written to the second block represents more than an ending location. Appellant urges that the file management system of March teaches that the last “line” of a data block is reserved so that file data may not be written there. File structures are then written to that reserved line. Appellant thus argues that the file structure may comprise pointer data to other locations in the memory space, further departing from the sequential file structure claimed in the present invention. App. Br. 22– 24, Reply Br. 9–11. Finally, Appellant argues that the resultant combination fails to include metadata. Appellant contends the Examiner erred in relying upon the end-of-file marker taught by DEC, as a marker used on tape machines, Appeal 2012-006469 Application 11/797,265 9 which Appellant argues would not be interpreted by one having skill in the art as “metadata.” App. Br. 24–26. The Examiner responds that Kim is offered to teach a block-type device while DEC is cited for teaching subject matter specific to sequential files. The Examiner notes that these two references do not contradict each other nor would such a combination render Kim unsatisfactory for its intended purpose. The Examiner points out that while discussing sequential files, DEC provides an example of storing sequential files in random access memory, such as a disk. Ans. 19. We note that the ability to physically combine two references is not necessary to support an obviousness rejection. See In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”). Rather, “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Here, where the Examiner merely suggests substituting one known storage technique for another, we find no error in the proposal. Consequently, we find no error in the Examiner combining Kim and DEC. In response to Appellant’s argument that the merge operation of Kim fails to show or suggest the claimed updating step because the “merge operation” only takes place once “all the free pages in the log block are consumed,” the Examiner finds that the only way that free pages are exhausted is as a result of writes (updates) to a block of memory. Ans. 20. Appeal 2012-006469 Application 11/797,265 10 The Examiner finds that Kim teaches emptying a second block (e.g., allocating an erased block from a pool of free blocks) and then writing data from the first memory block, along with new data. The Examiner admits that Kim fails to teach adding the metadata at the end of the updated data; however, the Examiner cites DEC for a teaching that metadata is added to the end of a memory block wherein the metadata consists of one or more selected from the group consisting of (1) address spaces in the memory device where the payload data can be found, (2) check sums associated with one or more error indicators, (3) time related information associated with the file, (4) conditions on which the payload data is allowed to be read and/or changed, and (5) file size and/or other structural information about the file. Ans. 6–8. We find the Examiner’s position that the “merge” operation of Kim suggests the claimed “updating” steps is persuasive. Appellant’s argument that the cited references fail to show or suggest “emptying a second block” is not persuasive in view of the teaching within Kim of selecting an erased block from a poll of free blocks. Ans. 6 (citing Kim § II(B) ¶ 2). Further, Appellant’s attempted distinction between a “merge” and the claimed “update” is not compelling in view of the striking similarities described by the Examiner, which suggests at a minimum the recited updating step. See Ans. 6 (indicating the erased block is then filled with up-to-date data). Regarding the Appellant’s argument that the Examiner erred in relying upon March to overcome the deficiency of Kim and DEC with respect to an ending location of a first memory block containing an ending location of payload data, the Examiner points out that Appellant’s argument regarding the nonsequential nature of the data within March is not Appeal 2012-006469 Application 11/797,265 11 persuasive, given the fact that the Examiner has expressly relied upon DEC for a teaching of sequential file systems. The Examiner relies upon March simply for a teaching of a file footer and an ending location. See Ans. 8–9, 20–21 We further find no error in the Examiner’s reliance on March for the teaching of the use of a file footer and ending location. See id. Finally, in response to Appellant’s argument that the cited combination fails to teach the use of metadata, the Examiner points out that March teaches metadata at paragraph 46, described as “file structure.” See Ans. 21. We concur with the Examiner. March teaches the storage of the name, type, location, size, and other attributes of a file, as well as the type of commands that a file system can or cannot use with that file. These types of data meet the broadest reasonable interpretation of “metadata.” We also note Appellant does not dispute this finding in the Reply Brief. CONCLUSION The Examiner did not err in rejecting claims 1, 4–8, 11–14, and 21–23 under 35 U.S.C. §103(a) under § 103. The Examiner did err in rejecting claims 14 and 23 under 35 U.S.C. § 112, first paragraph. DECISION The Examiner’s decision rejecting claims 1, 4–8, 11–14, and 21–23 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). Appeal 2012-006469 Application 11/797,265 12 AFFIRMED msc Copy with citationCopy as parenthetical citation