Ex Parte Huang

Patent Trial and Appeal Board

Jun 23, 2016

13034324 (P.T.A.B. Jun. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/034,324 02/24/2011
106095 7590 06/27/2016
Baker Botts LLP
2001 Ross Avenue, 6th Floor
Dallas, TX 75201
FIRST NAMED INVENTOR
Ai Huang
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
063170.9603 1559
EXAMINER
MAHMOOD, REZWANUL
ART UNIT PAPER NUMBER
2164
NOTIFICATION DATE DELIVERY MODE
06/27/2016 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):
PTOmaill@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte AI HUANG
Appeal2014-006698
Application 13/034,324
Technology Center 2100
Before ALLEN R. MacDONALD, JEFFREY S. SMITH, and
HUNG H. BUI, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejections of claims 1-20. We have jurisdiction under 35
U.S.C. § 6(b ).
We AFFIRM-IN-PART. 1
1 Our Decision refers to Appellant's Appeal Brief filed November 11, 2013
("Br."); Examiner's Answer mailed March 14, 2014 ("Ans."); Final Office
Action mailed July 08, 2013 ("Final Act."); and original Specification filed
February 24, 2011 ("Spec."). No Reply Brief has been filed.
Appeal2014-006698
Application 13/034,324
STATEMENT OF THE CASE
Appellant's Invention
In typical data backup systems, a file may be divided into one or more
chunks that are stored on a backup storage device and all these chunks of a
single file can be written sequentially or in different segments on the backup
storage device before the next file is written. Spec. 5: 14--18.
Appellant's invention seeks to multiplex data backup using next
relative addressing. Id. at 5:5---6. According to Appellant, various files may
be backed up simultaneously, and the chunks of a file may be interleaved
with chunks of other files as they are written to the backup storage device.
Id. at 5:18-20.
Claims 1, 9, and 15 are independent. Claim 1 is representative of the
invention, as reproduced with disputed limitations emphasized below:
1. A method, comprising:
receiving a first chunk associated with a first file and a
second chunk associated with the first file;
appending a next relative address for the second chunk to
the first chunk, the next relative address indicating a position in
a storage device;
prior to receiving a third chunk associated with the first
file, setting a next relative address for the third chunk;
prior to receiving the third chunk associated with the first
file, appending the next relative address for the third chunk to
the second chunk;
writing the first chunk with the next relative address to
the storage device at a first address; and
writing the second chunk to the storage device at the
position indicated by the next relative address of the first chunk.
2
Appeal2014-006698
Application 13/034,324
Emmett
Gorobets
Gos by
Evidence Considered
US 200710150877 Al
US 200710156998 Al
US 2009/0077028 Al
Examiner's Rejections
Jun.28,2007
Jul. 5, 2007
Mar. 19, 2009
(1) Claims 1, 2, 9, 10, 15, and 162 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gorobets and Gosby. Final Act. 6.
(2) Claims 3-8, 11-14, and 17-20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Gorobets, Gosby and Emmett. Final
Act. 14.
ISSUE
Based on Appellant's arguments, the dispositive issue on appeal is
whether the Examiner's combination of Gorobets-Gosby teaches or suggests
the disputed limitations: "prior to receiving a third chunk associated with the
first file, setting a next relative address for the third chunk" and "prior to
receiving the third chunk associated with the first file, appending the next
relative address for the third chunk to the second chunk" as recited in
independent claims 1, 9, and 15. Br. 12-14.
2 Appellant's argument indicates that claims 1-3, 5-11, 13-17, and 19-20
stand rejected under 35 U.S.C. § 103(a) under the combination of Gorobets
and Gosby. Br. 12. However, the Final Rejection indicates that claims 1, 2,
9, 10, 15, and 16 were grouped together under the Gorobets-Gosby
combination. See Final Act. 6. We will use the grouping from the Final
Rejection, not Appellant's grouping as presented in the Appeal Brief.
3
Appeal2014-006698
Application 13/034,324
ANALYSIS
§ 103(a) Rejection of Claims 1, 2, 9, 10, 15, and 16
based on Gorobets and Gosby
Appellant argues the Examiner erred because the combination of
Gorobets and Gosby fails to teach or suggest the disputed limitations: (1)
"prior to receiving a third chunk associated with the first file, setting a next
relative address for the third chunk" and (2) "prior to receiving the third
chunk associated with the first file, appending the next relative address for
the third chunk to the second chunk" as recited in independent claims 1, 9,
and 15. Br. 12-14. According to Appellant,
Gorobets merely discloses that data is continuously written as it
is received and that where file A is too big for a metablock 183
it will be written into two metablocks 183 and 185. However,
Gorobets only discloses that it is written as it is received. There
is no disclosure in Gorobets that the relative address for
metablock 185 is set for file A before the data is received.
Thus, there is no disclosure of setting a next relative address
for a data file before the data file is received.
Id. at 13 (emphasis added).
Gosby, as a secondary reference, does not cure the deficiencies of
Gorobets and, as such, cannot be combined to arrive at the claimed subject
matter. Id. at 13.
We are not persuaded of Examiner error. At the outset, we note that
claim terms are given their broadest reasonable interpretation consistent with
the Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369
(Fed. Cir. 2004). The timing of the setting and appending of steps as
claimed, i.e., (1) "prior to receiving a third chunk associated with the first
file, setting a next relative address for the third chunk" and (2) "prior to
receiving the third chunk associated with the first file, appending the next
4
Appeal2014-006698
Application 13/034,324
relative address for the third chunk to the second chunk" as recited in
independent claims 1, 9, and 15, are not described by Appellant's
Specification.
During prosecution, Appellant amended each of independent claims 1,
9, and 15 to include the disputed limitations, but did not provide support for
the disputed limitations. See Amendment filed March 8, 2013. On appeal,
Appellant indicates support for these disputed limitations at pages 12:21-
14:3 of the Specification. See Br. 8 "Summary of Claimed Subject Matter."
However, after review of the cited portion of Appellant's Specification, we
find no matching language specifying the timing of the setting and
appending of a next relative address for a third chunk. The language ''prior
to receiving a third chunk" is neither present nor explained in the cited
portion of Appellant's Specification. 3 In the absence of support or
explanation from Appellant's Specification, we agree with the Examiner that
the disputed limitations can be broadly but reasonably to encompass
Gorobets' disclosure of "setting the next relative address for the third chunk"
and Gosby's disclosure of "appending the next relative address for the third
chunk to the second chunk." Ans. 30-32 (citing Gorobets i-fi-f 159-165; Figs.
11, 15A-15D, and 18; and Gosby i-fi-189, 98, 99).
3 The language "the next relative address of the data chunk may be set
before it is written to storage" is the closest language found from
Appellant's Specification. Spec. 13:27-29. However, Appellant's
Specification indicates only setting the address, and not appending the
address. Likewise, the Specification also indicates doing the setting before
writing to a storage device, and not prior to receiving. As such, in the event
of further prosecution, we recommend the Examiner to consider rejecting
claims 1, 9, and 15 under 35 U.S.C. § 112(a) for lack of a written
description.
5
Appeal2014-006698
Application 13/034,324
Appellant also argues the Examiner erred because the proposed
combination of Gorobets and Gosby would change the principle of operation
of Gorobets. Br. 14. According to Appellant, Gorobets describes that data
is written to the memory cell blocks as they are received streaming from the
host. See Gorobets, i-f 124. In contrast, Gosby discloses that an entire
document must be received before the document can be reconstructed and
stored in a storage device. Gosby i-fi-198-99. As such, Appellant argues any
modification of Gorobets to include the features of Gosby would
impermissibly change the principle of operation disclosed in Gorobets. Br.
14.
We are not persuaded of Examiner error. The difference in operation
between Gorobets and Gosby "is not so credible or persuasive of a contrary
teaching that it would have deterred the skilled artisan from using the
teachings" of Gorobets and Gosby. See In re Young, 927 F.2d 588, 592
(Fed. Cir. 1991). Here, Gosby is only relied upon for teaching particular
aspects of setting and appending pointers into file chunks. One of ordinary
skill in the art would have been able to apply these aspects adjusting for the
differences in operation.
For the reasons set forth above, Appellant has not persuaded us of
Examiner error. Accordingly, we sustain the Examiner's obviousness
rejection of Appellant's independent claims 1, 9, and 15 and their respective
dependent claims 2, 10, and 16, which Appellant does not argue separately.
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Appeal2014-006698
Application 13/034,324
§ 103(a) Rejection of Claims 3---8, 11-14, and 17-20
based on Gorobets, Gosby, and Emmett
With respect to dependent claims 3, 5-8, 11, 13-14, 17, and 19-20,
Appellant presents no separate patentability arguments. Br. 14. As such,
claims 3, 5-8, 11, 13-14, 17, and 19-20 fall together with independent
claims 1, 9, and 15. See 37 C.F.R. § 41.37(c)(l)(vii) (stating that "the failure
of appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately"). Therefore, we also sustain
the Examiner's rejection of claims 3, 5-8, 11, 13-14, 17, and 19-20.
With respect to dependent claims 4, 12, and 18, Appellant argues the
Examiner's combination of Gorobets, Gosby, and Emmett does not teach or
suggest "in response to determining that the second chunk is in the top
position of the chunk queue, placing an empty chunk associated with the
third chunk in the chunk queue" as recited therein. Br. 16.
The Examiner responds that "the last written chunk is interpreted to
be in a top position after determining that there is no more associated
chunks." Ans. 36. The Examiner also responds that "[t]he empty memory
block portion can be interpreted as an empty chunk placed as a third chunk
in response to the determination." Id.
We disagree with the Examiner, however. The cited Figures 15A-
15D of Gorobets do not support the Examiner's position. For instance,
Figures 15A-15D show file data chunks A, B, and C being written onto
flash memory blocks, as reproduced below.
7
Appeal2014-006698
Application 13/034,324
File Data
File Data as
Datil G ic~ fi$ in
Fla$h Blocks
File Oata as
Data Groups in
Flash Bloe~.5
BLO BL1 BL2
f,__ _ 1 .....
WP
FIG. 15A Start of writing File A
File Data as
Data G rcups in
fla5h Blocks
BLO BL1 BL2 ......,......., _____ .,.. File Oataas
l···:••A'::.·j .. s?•if~~, I ..... Data Groups In
.... ___ .,._ +-· ---· fla$h Slock~
WP
FIG. 15C Afterwriting File B
BLO BL1 BL2
I ...._''A!'j ...... 1-.--f __ · I·---·
WP
FIG. 158 After wtiting File A
BLO Ell1 Sl2
I ~,rJ~mH,f!i~ I I .....
WP
FJG. 15D After writing File C
Gorobets' Figures 15A-15C illustrate the state of a write pointer just
before writing file A, after writing file A, after writing file B, and after
writing file C.
As shown in Gorobets' Figures 15A-15C, the empty spaces are empty
data blocks (BLO, BLl, BL2) of flash memory where the file data is to be
stored. The blocks naturally start completely empty in Figure 15A and then
are gradually filled with data from chucks A, B, and C in Figures 15B-15D.
The Examiner appears to equate the empty blocks of storage space
with empty chunks of data to be processed. However, we are unpersuaded
by this line of reasoning. File chunks, i.e. the file portions, have already
been interpreted as the data to be written to storage (i.e. the chunks A, B,
and C) and not blocks of data available to be written on the storage device
(BLO, BLl, BL2). Final Act. 6-7. As such, the Examiner's position that an
empty data block teaches an empty chunk associated with a third chunk is
not supported by evidence.
"[O]bviousness requires a suggestion of all limitations in a claim."
CFMT, Inc. v. Yieldup Intern. Corp., 349 F.3d 1333, 1342 (Fed. Cir. 2003)
8
Appeal2014-006698
Application 13/034,324
(citing In re Royka, 490 F .2d 981, 985 (CCP A 197 4)). In the absence of a
teaching or suggestion of all limitations of claims 4, 12, and 1 7, we do not
sustain the Examiner's obviousness rejection of these claims.
CONCLUSION
On the record before us, we conclude Appellant has not demonstrated
the Examiner erred in rejecting claims 1-3, 5-9, 10, 11, 13-17, and 19-20
under 35 U.S.C. § 103(a). However, we conclude that the Examiner's
rejection of claims 4, 12 and 18 under 35 U.S.C. § 103(a) should be
reversed.
DECISION
As such, we AFFIRM the Examiner's final rejection of claims 1-3, 5-
9, 10, 11, 13-17, and 19-20, and REVERSE the Examiner's final rejection
of claims 4, 12 and 18.
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
9