Ex Parte Hayes et al

Patent Trial and Appeal Board

Mar 30, 2017

14323772 (P.T.A.B. Mar. 30, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/323,772 07/03/2014 John Hayes P70479 1260US.1 5069
120626 7590 04/03/2017
Wnmhle Parlvle SanHriHae Rr Rioe T T P
EXAMINER
Attn: IP Docketing
PO Box 7037
TRAN, TRI MINH
Atlanta, GA 30357-0037 ART UNIT PAPER NUMBER
2494
NOTIFICATION DATE DELIVERY MODE
04/03/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ipdocketing @ wcsr. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN HAYES, PAR BOTES, and ETHAN MILLER
Appeal 2016-005728
Application 14/323,772
Technology Center 2400
Before JASON V. MORGAN, NABEEL U. KHAN, and
KAMRAN JIVANI, Administrative Patent Judges.
JIVANI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s final decision rejecting claims 1—20, which are all the claims
pending in the present patent application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify Pure Storage, Inc. as the real party in interest. Br. 1.
Appeal 2016-005728
Application 14/323,772
STATEMENT OF THE CASE
The present application relates to “securing data in a storage grid.”
Abst.
Claim 1 is reproduced below with disputed limitations emphasized
and bracketed material added:
1. A method for securing data in a storage grid, comprising:
generating a storage key from key shares of at least two storage
clusters of a storage grid having at least three storage clusters;
generating a grid key from at least one of the storage key and an
external secret;
encrypting data with the grid key to yield once encrypted
data, wherein the grid key is applied to encrypt the data;
encrypting the once encrypted data with the storage key to yield
twice encrypted data;
storing the twice encrypted data in a first storage cluster of the
storage grid; and
[LI] storing a replicated version of the twice encrypted data in a
second storage cluster of the storage grid.
The Rejections
1. Claims 1—6, 8, 10, 13, and 14 are rejected, under
35 U.S.C. § 103(a), as being unpatentable over Shaw (US 8,457,317
B2; June 4, 2013), Loo (US 2007/0014403 Al; Jan. 18, 2007), and
Humphrey (US 2010/0208889 Al; Aug. 19, 2010). Final Act. 3—11
(April 9, 2015).
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2. Claims 7 and 9 are rejected, under 35 U.S.C. § 103(a), as
being unpatentable over Shaw, Loo, Humphrey, and Shankar
(US 8,601,600 Bl; Dec. 3,2013). Final Act. 11-13.
3. Claim 11 is rejected, under 35 U.S.C. § 103(a), as being
unpatentable over Shaw, Loo, Humphrey, and Hiie
(US 2010/0262714 Al; Oct. 14, 2010). Final Act. 13-14.
4. Claim 12 is rejected, under 35 U.S.C. § 103(a), as being
unpatentable over Shaw, Loo, Humphrey, and Zarfoss
(US 2014/0082350 Al; Mar. 20, 2014). Final Act. 1^U15.
5. Claim 15—19 are rejected, under 35 U.S.C. § 103(a), as
being unpatentable over Shaw, Loo, Humphrey, and Funayama
(US 2014/0044259 Al; Feb. 13, 2014). Final Act. 15-18.
6. Claim 20 is rejected, under 35 U.S.C. § 103(a), as being
unpatentable over Shaw, Loo, Humphrey, Funayama, and
Shankar. Final Act. 18—19.
CLAIMS 1-6: OBVIOUSNESS OVER SHAW, LOO,
AND HUMPHREY (REJECTION 1)
Appellants argue independent claim 1 and depending claims 2—6
together. Br. 15.2 Based on Appellants’ arguments, we decide the appeal of
this rejection because on representative claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
Appellants contend the applied prior art does not teach or suggest
limitation LI. Br. 9—10. More specifically, Appellants contend, the
2 Appellants did not file a Reply Brief, but merely re-filed the Appeal Brief
(originally filed October 5, 2015) on May 23, 2016.
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Examiner errs because the cited art does not teach or suggest (i) a “storage
grid” formed by “storage clusters” and (ii) “a replicated version of the twice
encrypted data in a second storage cluster of the storage grid.” Id.
With respect to Appellants’ first argument, the Examiner finds each
claimed “‘storage cluster’ can be as simple as one storage node, [e.g.,] a
single . . . storage server.” Ans. 3^4 (citing Spec. 124). The Examiner
further finds the claimed “‘storage grid having at least three storage clusters’
is nothing more than just a group of clusters in a storage network.” Id. In
turn, the Examiner finds Shaw’s storage nodes and network thereof
respectively meet the claimed storage clusters and grid. Id. (citing Shaw
col. 1,11. 44—65; Figs. 1—2).
Appellants do not define explicitly in the Specification the terms
“grid” and “clusters.” We apply the broadest reasonable interpretation of
claim terms, consistent with the specification, as would be understood by
one of ordinary skill in the art. In re Am. Acad, of Sci. Tech Ctr., 367 F.3d
1359, 1364 (Fed. Cir. 2004) (citations omitted). Where, as here, the
Specification does not explicitly define a term, the term should be given its
ordinary meaning. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
Applying these principles and having the cited portions of the
Specification and Shaw, we determine the Examiner’s finds are reasonable
and supported, and unrebutted (e.g., by a conflicting, supported meaning of
“cluster” or “grid”). Accordingly, we are unpersuaded by Appellants’
argument that the Examiner erred in finding Shaw teaches a “grid” of
“storage clusters” within the claimed context.
With respect to Appellants’ second argument, we are not persuaded
that Shaw lacks “a replicated version of the twice encrypted data in a second
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storage cluster of the storage grid.” The Examiner cites Shaw, Loo, and
Humphrey as collectively suggesting this claim limitation, not Shaw alone as
teaching the limitation. Ans. 2, 6. Where, as here, a rejection is based on a
combination of references, one cannot show non-obviousness by attacking
references individually. See In re Keller, 642 F.2d 413, 426 (CCPA 1981);
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner particularly finds (a) Shaw teaches generating of an
encryption key from respective key shares supplied by the nodes, (b) Loo
teaches generating of an encryption key from another encryption key, (c)
Humphrey teaches double-key encrypting of data, and (d) Shaw teaches
replicating of encrypted data within two nodes. Ans. 2, 5—7; Final Act. 3—5.3
The Examiner also finds these teachings collectively suggest performing
these techniques, in series (a) to (d), and in turn suggest a resultant
replication of double-key encrypted data within two storage clusters. Id.
These findings are also reasonable and supported on the record before
us. The findings present a collection of predictably chainable prior art
techniques that generates two encryption keys for data (steps a and b), twice
encrypts the data via two encryption keys (step c), and replicates the finally
encrypted data (step d). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007) (“Common sense teaches . . . [that] in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents together
like pieces of a puzzle.”). The Examiner’s findings additionally include
3 The Examiner’s Answer includes a statement analogizing Shaw’s and
Loo’s cited encryption keys respectively to the claimed grid key and storage
key. Ans. 6. However, the Final Rejection and the features of Shaw’s and
Loo’s cited keys together indicate that the Examiner finds Shaw’s keys meet
the claimed storage key and Loo’s keys meet the claimed grid key.
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articulated, supported rationales for combining these techniques for their
disclosed benefits. Ans. 6—7; Final Act. 4—5; see also KSR, 550 U.S. at 417
(“[I]f 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.”). We note Appellants do not contend
that the resulting arrangements were “uniquely challenging or difficult for
one of ordinary skill in the art” or “represented an unobvious step over the
prior art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157,
1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418-19).
Appellants further contend that Humphrey’s teaches away from the
Examiner’s above combination of prior art techniques. Appellants
particularly state:
The Examiner has erred by citing Humphrey paragraph
17, selecting “only the teaching of double encryption to data for
storage” from the cited passage (see Response to Arguments in
the Office action), and ignoring the teaching away in the
remainder of the same cited passage. Below is the original
Appellant argument [within a prior Amendment:]
. . . Humphrey specifies that the twice encrypted data be
split and stored as separate portions for the two party
storage mechanism. . . . Thus, Humphrey requires
splitting the double encrypted data into two portions[.]
. . . Humphrey cannot be modified from splitting the data
into 2 portions as this would change the principle of
operation[.]
Br. 13 (Appellants’ blockquote indented).
Appellants fail to identify in the record before us a teaching of
Humphrey that would have discouraged an ordinarily skilled artisan from
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attempting the cited combination, and cause the artisan to “be led in a
direction divergent from the path that was taken by the applicant.” In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (citations omitted). Humphrey’s
above-cited disclosure of splitting the storage of confidential information
(e.g., splitting a credit card number) between a client and repository server is
rather an improvement on the background art’s less secure storing of
confidential information at only a central repository. See id. at || 2
(background art), 17 (client-server split). Thus, Humphrey’s
client-repository split would be understood as an advantageous
implementation of the art, but not as evidence that storing encrypted data
within a singular storage node (i.e., no client-server split) was unobvious to
artisans. See DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009) (“A reference does not teach away ... if it
merely expresses a general preference for an alternative invention.”).
Accordingly, we are unpersuaded by Appellants’ argument that
Humphrey teaches away from the Examiner’s applied combination of prior
art. For the foregoing reasons, we sustain the rejection of claims 1—6.
CLAIMS 8, 10, 13, AND 14: OBVIOUSNESS OVER
SHAW, LOO, AND HUMPHREY (REJECTION 1)
Independent claim 8 and depending claims 10, 13, and 14 stand
rejected over Shaw, Loo, and Humphrey. Claims 1 and 8 recite similar
methods; however, claim 8’s method plainly differs by “producing a
replicated version of the twice encrypted data . . .from the once encrypted
data,” (emphasis added) whereas claim 1 does not specify “from the once
encrypted data.”
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Appellants argue, and we agree, the rejection of claim 8 does not
address this plain difference between claims 1 and 8; that is, does not state
how the applied prior art teaches or suggests replicating of the double-key
encrypted data “from the once encrypted data.” Br. 16—17; see also Final
Act. 10 (stating “see rejection in claim 1” with respect to claim 8’s at-issue
replicating step). The Answer neglects Appellants’ arguments for claim 8:
“Applicant’s arguments concerning the other claims [2—20] under appeal are
based on the arguments [for claim 1] discussed above.” Ans. 7.
Accordingly, because the Examiner fails to address the above feature
of the claimed replicating step, we do not sustain the rejection of claims
8, 10, 13, and 14.
CLAIMS 7 AND 9: OBVIOUSNESS OVER SHAW,
LOO, HUMPHREY, AND SHANKAR (REJECTION 2)
Claims 7 and 9 respectively depend from claims 1 and 8, addressed
above. Because Appellants advance no further arguments for claim 7, we
sustain its rejection. Br. 13. Because the Examiner’s findings for claim 9
(Final Act. 12) do not cure the error for incorporated claim 8, we do not
sustain the rejection of claim 9.
CLAIM 11: OBVIOUSNESS OVER SHAW,
LOO, HUMPHREY, AND HUE (REJECTION 3)
Claim 11 depends from claim 8, addressed above. Because the
Examiner’s findings for claim 11 (Final Act. 13—14) do not cure the error for
incorporated claim 8, we do not sustain the rejection of claim 11.
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CLAIM 12: OBVIOUSNESS OVER, SHAW,
LOO, HUMPHREY, AND ZARFOSS (REJECTION 4)
Claim 12 depends from claim 8, addressed above. Because the
Examiner’s findings for claim 12 {id. at 14—15) do not cure the error for
incorporated claim 8, we do not sustain the rejection of claim 12.
CLAIMS 15-19: OBVIOUSNESS OVER SHAW,
LOO, HUMPHREY, AND FUNAYAMA (REJECTION 5)
Appellants contend, with respect to independent claim 15, “The
Examiner has erred by repeating the errors discussed in sections A.l and A.3
regarding claims 1 and 8, and applying this to the rejection of claim
15. Claim 15 is hence allowable for similar reasons as discussed above
regarding claims 1 and 8.” Br. 19. As to depending claims 16—19,
Appellants contend only: “Claims 16—19 are thus allowable by virtue of
dependency from claim 15.” Id. at 20.
As reflected by Appellants’ arguments for claim 8, the independent
claims vary in scope. Id. at 16. We will not unilaterally consider whether
claim 15 requires the argued features of claims 1 and 8, much less
unilaterally apply the corresponding arguments to claim 15. If Appellants
view the arguments as applying to multiple claims, the perceived application
must be meaningfully explained for each such claim. See, e.g., In re
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (affirming in part because
appellant “merely argued that the claims differed from [the prior art], and
chose not to proffer a serious explanation of this difference.”); In re Baxter
Travenol Labs, 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of
this court to examine the claims in greater detail than argued by an
appellant[.]”).
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We have, however, reviewed claim 15 for the unaddressed subject
matter of claim 8 (see supra). Claim 15 requires a replication of the
double-key encrypted data (claims 1 and 8), but not such a replication
produced from the once encrypted data (only claim 8). Thus, Appellants’
argument for claim 8 does not apply to claim 15.
Accordingly, for the foregoing reasons, we sustain the rejection of
claims 15—19.
CLAIM 20: OBVIOUSNESS OVER
SHAW, LOO, HUMPHREY, FUNAYAMA,
AND SHANKAR (REJECTION 6)
Claim 20 depends from claim 15, addressed above. Because
Appellants advance no further arguments for claim 20 (Br. 20), we sustain
its rejection.
DECISION
We affirm the Examiner’s decisions rejecting claims 1—7 and 15—20.
We reverse the Examiner’s decisions rejecting claims 8—14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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