Ex Parte Iyengar et al

Patent Trial and Appeal Board

Dec 19, 2014

12142886 (P.T.A.B. Dec. 19, 2014)

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.
12/142,886 06/20/2008 Arun Kwangil Iyengar YOR920030490US2
(19CON)
8212
49267 7590 12/19/2014
TUTUNJIAN & BITETTO, P.C.
425 Broadhollow Road, Suite 302
Melville, NY 11747
EXAMINER
UDDIN, MD I
ART UNIT PAPER NUMBER
2169
MAIL DATE DELIVERY MODE
12/19/2014 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARUN KWANGIL IYENGAR,
RICHARD P. KING,
LAKSHMISH MACHEERI RAMASWAMY,
DANIELA ROSU, and
KAREN WITTING
____________

Appeal 2012-008463
Application 12/142,886
Technology Center 2100
____________

Before LEE E. BARRETT, JEAN R. HOMERE, and
CARL W. WHITEHEAD JR., Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–21. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

THE INVENTION
The invention relates to a system having different consistency levels.
Claim 1 is reproduced below.

1. In a system comprised of a plurality of objects, each stored
on computer readable storage media, a method for maintaining
consistent copies of objects, the method comprising:
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providing a plurality of consistency policies including at least a
first and second consistency policy, wherein each consistency policy
specifies how to reconcile multiple versions of an object;
selectively applying the first consistency policy to achieve a
degree of consistency above a consistency level at a first overhead;
selectively applying the second consistency policy to achieve a
degree of consistency below the consistency level at a second
overhead which is less than the first overhead, to thereby achieve
greater system performance by reducing the overhead for maintaining
consistency.

THE PRIOR ART
Lev Ran et al. (Lev Ran) US 7,139,811 B2 Nov. 21, 2006
(filed July 31,2002)
Iyengar et al. (Iyengar) US 2003/0172236 A1 Sept. 11, 2003
(filed March 7, 2002)
Lowery et al. (Lowery) US 2002/0107935 A1 Aug. 8, 2002
Islam et al. (Islam) US 6,202,l32 B1 Mar. 13, 2001
Challenger et al. (Challenger) US 6,567,893 B1 May 20, 2003
Krishnamurthy et al. US 2003/0061272 A1 Mar. 27, 2003
(Krishnamurthy)

Stenström, “A Cache Consistency Protocol for Multiprocessors with
Multistage Networks”, ACM, 1989, pages 407–415.

THE REJECTIONS
Claims 1–21 are rejected on the ground of nonstatutory obviousness-
type double patenting over claims 1–14, 17–22, and 29 of Iyengar et al.,
US 7,395,279 B2, issued July 1, 2008.
Claims 1, 3–6, 18, 19, and 21 are rejected under 35 U.S.C. § 102(e) as
anticipated by Lev Ran.
Claims 2, 17, and 20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lev Ran in view of Stenström.
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Claim 8 is rejected under 35 U.S.C. § 103(a) as unpatentable over Lev
Ran in the view of Iyengar.
Claims 9 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Lev Ran and Iyengar in view of Lowery.
Claims 11 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lev Ran in the view of Islam.
Claims 13 and 15 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Lev Ran in the view of Challenger.
Claims 7 and 12 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Lev Ran in the view of Challenger and Islam.
Claim 14 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Lev Ran in view of Krishnamurthy.

ANALYSIS
Nonstatutory obviousness-type double patenting
Appellants state that the “rejections on the ground of nonstatutory
obviousness-type double patenting are not presented for review in this
appeal.” Br. 13. No reason is provided. The Examiner maintains the
rejection in the Examiner’s Answer. Ans. 6–7.
“An appellant’s brief must be responsive to every ground of rejection
stated by the examiner that the appellant is presenting for review in the
appeal. If a ground of rejection stated by the examiner is not addressed in
the appellant’s brief, that ground of rejection will be summarily sustained by
the Board.” Manual of Patent Examining Procedure § 1205.02 (8th ed., Rev.
8, July 2010). Appellants do not address the obviousness-type double
patenting rejections, therefore they are summarily affirmed. To do
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otherwise would result in inefficient piecemeal examination and delay. All
outstanding issues of patentability should be decided in the same appeal.
The rejection of claims 1–21 based on nonstatutory obviousness-type
double patenting is affirmed.

Anticipation
Claims 1, 3–6, 18, 19, and 21 are argued to stand or fall with claim 1.
Appellants argue that Lev Ran does not teach the limitations of
selectively applying the first consistency policy to
achieve a degree of consistency above a consistency level at a
first overhead; [and]
selectively applying the second consistency policy to
achieve a degree of consistency below the consistency level at a
second overhead which is less than the first overhead, to
thereby achieve greater system performance by reducing the
overhead for maintaining consistency

in claim 1. Br. 19–23.
As a matter of claim construction, the phrase “to thereby achieve
greater system performance by reducing the overhead for maintaining
consistency” refers to “selectively applying the second consistency policy to
achieve a degree of consistency below the consistency level at a second
overhead which is less than the first overhead.” Because the second
consistency policy is defined to have a lower overhead than the first
consistency policy, applying the second consistency policy must reduce the
overhead for maintaining consistency and therefore result in greater system
performance due to the lower overhead. Thus, we agree with the Examiner
that “to thereby achieve greater system performance by reducing the
overhead for maintaining consistency” simply states the intended result of
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applying the second consistency policy and is akin to a whereby clause
which does not add any further limitations to the claim. Minton v. Nat’l
Ass’n of Securities Dealers, Inc., 336 F.3d 1373, 1381 (Fed. Cir. 2003) (“[a]
whereby clause in a method claim is not given weight when it simply
expresses the intended result of a process step positively recited.”).
Appellants argue that “to thereby achieve greater system performance
by reducing the overhead for maintaining consistency” is not simply an
intended result but is material to patentability. Br. 22. “For example, a first
and second consistency policy may both include strong consistency policies
and, thus, would not necessarily ‘achieve greater system performance by
reducing the overhead for maintaining consistency.’” Id. However, this
does not explain why, if one strong consistency policy has a lower overhead
than the other, applying that consistency policy does not “thereby achieve
greater system performance by reducing the overhead for maintaining
consistency” as recited in claim 1. Appellants do not explain how the
limitation does more than just state the result from applying a second
consistency policy having a lower overhead than the first overhead.
The Examiner cites to column 36, lines 10–17 and 39–57, column 41,
lines 4–6, and column 20, lines 50–53, of Lev Ran for “selectively applying”
two consistency policies. Ans. 8; Final Rej. 9–10. Appellants argue that
“the cited portions of Lev Ran do not provide any discussion at all of
selectively applying consistency policies to achieve greater system
performance by reducing overhead for maintaining consistency, as in
claims 1, 18, 19 and 21,” Br. 20, and “[i]n fact, nowhere in the cited portions
of Lev Ran is a first and second consistency policy selectively applied to
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achieve greater system performance by reducing the overhead for
maintaining consistency.” Id.
It appears that Appellants’ arguments are based solely on looking at
the “cited portions of Lev Ran.” In an anticipation rejection, Appellants are
charged with knowledge of the entire reference. In the portion of Lev Ran
cited by the Examiner, Lev Ran states: “Preferably, the VFN-system
supports three levels of consistency, which can be configured, for example,
for individual files, file types, origin servers, or a combination of these
parameters: Strict consistency . . . High consistency . . . Relaxed
consistency.” Lev Ran, 36:39–51. “Configuring” one of three levels of
consistency for individual files, file types, and origin servers indicates
“selectively applying” the consistency levels (policies). As described in the
Background in Lev Ran, 2:46–3:28, it was known that weak consistency
levels have lower overheads than a strong consistency and may be selected
to improve performance: “Because achieving single copy semantics [for
strong consistency] incurs a high overhead in a distributed file systems,
many file systems opt for weaker consistency guarantees in order to achieve
higher performance.” Lev Ran, 2:57–60. In another portion Lev Ran cited
by the Examiner, Lev Ran states that “VFN receiver 48 preferably records
the type of server from which each resource originates, in order to apply the
appropriate level of consistency, as described below.” Lev Ran, 20:50–53.
“Apply[ing] the appropriate level of consistency” indicates “selectively
applying” the consistency levels (policies). Thus, the Examiner has
established a prima facie case of anticipation. Lev Ran describes applying
appropriate levels of consistency in more detail as follows:
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The VFN system preferably employs different
consistency levels as appropriate for each resource type. For
example, the VFN system typically provides strong consistency
for resources held by file servers and weak consistency for
resources held by Web servers. . . . In order to apply the
appropriate level of consistency, the VFN system keeps track of
the type of server from which each resource originated, as
described above. These general rules may be varied by
directives issued by the VFN administrator, so as to provide
stronger or weaker consistency for specific resources or types
of resources, as described above.

Lev Ran, 43:29–44. Thus, Lev Ran teaches selectively applying different
consistent policies for different resource types.
Appellants’ argument that the Examiner erred in relying on
column 41, lines 4–6 of Lev Ran has been considered but does not show
error in the anticipation rejection as discussed above.
For the reasons stated above, the rejection of claims 1, 3–6, 18, 19,
and 21 is affirmed.

Obviousness
Claims 2–10, 13–17, and 20
Appellants state that claims 2–10 and 12–17 stand or fall together
with claim 1 and claim 20 stands or falls with claim 19.1 Br. 13. In the
Appeal Brief, Appellants place the separate rejections under separate
headings and address why the additional references do not cure the
deficiencies of Lev Ran with respect to the independent claims, but do not
address the separate patentability of the dependent claims. Therefore, we

1 Because claim 12 depends on claim 11, which is separately argued,
claim 12 is treated as standing or falling with claim 11.
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agree with Appellants’ statement that the claims stand or fall with the
independent claims. Because we affirm the rejection of claims 1 and 19, the
rejections of dependent claims 2–10, 13–17, and 20 are affirmed.

Claims 11 and 12
Claim 11 depends on claim 1 and recites “further comprising choosing
a consistency policy for at least one object which maximizes system
performance.” First, we must understand what is meant. The Specification
describes: “The consistency level may also be varied depending on the
performance of the system. When performance is poor due to the overhead
of the consistency policy, a weaker consistency policy may be used.”
Spec. 51:14–17. Claim 1 states that greater system performance is achieved
by selecting a consistency policy which reduces the overhead for
maintaining consistency. Accordingly, “choosing a consistency policy for at
least one object which maximizes system performance” broadly means
selecting a consistency level that reduces overhead. While there may be
many ways of measuring “performance,” no specific way is claimed.
The Examiner states that Lev Ran does not explicitly teach choosing a
consistency policy which maximizes system performance and applies Islam.
However, the Examiner notes that Lev Ran teaches selectively applying one
of different consistency levels. Final Rej. 5. Appellants argue that applying
an appropriate level of consistency as taught by Lev Ran “does not
necessarily consider system performance, and certainly does not suggest
maximizing system performance.” Br. 33.
Because the Specification does not define “performance,” it is
consistent with the claims to say that reducing overhead for an object will
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maximize system performance. It is not necessary to look to the Islam
patent. Lev Ran discloses that “the VFN system uses caching to improve
performance.” Lev Ran, 36:11–12. Lev Ran discloses three consistency
levels. Lev Ran, 36:39–57. Lev Ran discloses choosing an appropriate
consistency level for resources, Lev Ran, 20:50–53; 43:29–44, which
necessarily maximizes system performance both in terms of overhead and
latency. Lev Ran discusses strong consistency versus weak consistency and
that file system can achieve strong consistency by employing single copy
semantics, but notes: “Because achieving single copy semantics incurs a
high overhead in a distributed file systems, many file systems opt for weaker
consistency guarantees in order to achieve higher performance.” Lev Ran,
2:57–60. Lev Ran also discloses using a reduced consistency level for
improved access performance. Lev Ran, 3:10–16. Accordingly, we find
that Lev Ran alone is sufficient to teach selecting a consistency policy which
reduces overhead and maximizes system performance.
The rejections of claim 11 and claim 12 are affirmed.

CONCLUSION
The nonstatutory obviousness-type double patent rejection of
claims 1–21 is affirmed.
The anticipation rejection of claims 1, 3–6, 18, 19, and 21 is affirmed.
The obviousness rejections of claims 2, 7–17, and 20 are 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).

AFFIRMED

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