Ex Parte Jones et alDownload PDFPatent Trial and Appeal BoardJun 21, 201613459217 (P.T.A.B. Jun. 21, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/459,217 78650 7590 Nelson and Nelson 775 High Ridge Drive Alpine, UT 84004 04/29/2012 06/23/2016 FIRST NAMED INVENTOR Carl E. Jones 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. TUC920110020US2 9502 EXAMINER NAMAZI, MEHDI ART UNIT PAPER NUMBER 2139 NOTIFICATION DATE DELIVERY MODE 06/23/2016 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): dan@nnpatentlaw.com alexis@nnpatentlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CARL E. JONES and SUBHOJIT ROY Appeal2015-000663 Application 13/459,217 Technology Center 2100 Before BRUCE R. WINSOR, KEVIN C. TROCK, and AARON W. MOORE, Administrative Patent Judges. MOORE, Administrative Patent Judge. DECISION ON APPEAL Appeal2015-000663 Application 13/459,217 STATEMENT OF THE CASE Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-11. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. THE INVENTION The application is directed to "[a] method for preserving data availability and I/O performance when creating a virtual RAID volume." (Abstract.) Claim 1, reproduced below, is illustrative: 1. A method for preserving data availability and I/O perfor- mance when creating a virtual RAID volume, the method com- pnsmg: exposing a set of backend virtual volumes, wherein the backend virtual volumes are implemented on a set of physical storage devices residing on a storage system; enabling selection of the set of backend virtual volumes to create a virtual RAID volume having a selected RAID level; and providing verification that the backend virtual volumes will be implemented on the physical storage devices in a way that preserves data availability and I/O performance associated with the selected RAID level. 1 Appellants identify International Business Machines Corporation as the real party in interest. (See App. Br. 2.) 2 Appeal2015-000663 Application 13/459,217 THE REFERENCE AND REJECTIONS 1. Claims 1-11 stand rejected under 35 U.S.C. § 102(b) as anticipated by Tim Warden, Storage Pooling, Thin Provisioning And Over Subscription (http ://www.las-solanas.com/storage_ virtualization/thin _provisioning.php), updated July 3, 2010. (See Final Act. 4--7.2) 2. Claims 1-10 stand provisionally rejected for nonstatutory obviousness-type double patenting, as unpatentable over claims 11-20 of co- pending Application No. 13/170,165. (See Final Act. 2--4.) ANALYSIS Anticipation Claim 1 is directed to a "method for preserving data availability and I/O performance when creating a virtual RAID volume." The method comprises "exposing a set of backend virtual volumes ... implemented on a set of physical storage devices residing on a storage system," "enabling selection of the set ofbackend virtual volumes to create a virtual RAID volume having a selected RAID level," and "providing verification that the backend virtual volumes will be implemented on the physical storage 2 The rejection is under pre-AIA Section 102(b), which can raise a bar where the invention "was patented or described in a printed publication ... more than one year prior to the date of application." (See Final Act. 4.) As the only cited reference, Warden, dates to July 2010 and this application was filed on June 27, 2011, it appears that Section 102(b) does not apply. Because Appellants have not raised this issue, however, we will treat the rejection as though it were made under Section 102(a), the distinction being immaterial in any event given our decision to reverse. 3 Appeal2015-000663 Application 13/459,217 devices in a way that preserves data availability and l/O performance associated with the selected RAID level." According to the Specification, the invention is intended to address the problem that, for example, on-demand allocation of physical storage to a virtual RAID volume could "defeat the very purpose of creating [a] three- way striped [RAID] volume" or "reduc[ e] or eliminat[ e] the data availability characteristic that [a] mirrored virtual RAID volume was intended to create," because data written to the virtual RAID volume may not be written to the physical storage as would be required to ensure the benefits of the chosen RAID level. (See Spec. i-fi-13-5.) The Warden reference is a white paper that provides an overview of storage pooling, thin provisioning, and over subscription. The reference explains that in storage pooling, "the disks - whether physical or logical- can be aggregated into pools from which the logical volumes are allocated." (Warden 1.) The reference further explains that thin provisioning "improve[ es] storage utilization by only allocating to a volume the physical storage required to hold its data," assuming that "until an application writes a particular block or group of blocks in a virtual volume, there is no need to allocate the physical space to accommodate those blocks." (Id.) "Over subscription" is the practice of using thin provisioning to provision more storage than is physically available in the pool, the idea being that a given volume may not use all the space it has been allocated. (Id. at 2.) The Examiner finds that Warden discloses the claimed "enabling selection of the set ofbackend virtual volumes to create a virtual RAID volume having a selected RAID level" and "providing verification that the backend virtual volumes will be implemented on the physical storage 4 Appeal2015-000663 Application 13/459,217 devices in a way that preserves data availability and l/O performance associated with the selected RAID level" at pages 1-3, which describe thin provisioning and "wherein by determining the size of data requirements, allocating additional capacity for each of the volumes table 1 shows the current size of data and sizes of the volumes will be created." (Final Act. 4.) We do not agree. Pages 1-3 of the reference simply describe examples of (a) storage without thin provisioning, (b) thin provisioning without pooling, and (c) thin provisioning with pooling, the author's point being that example ( c) can avoid (at least temporarily) the purchase of additional physical storage. The discussion does not include virtual RAID volumes, the problem addressed in the instant Specification, or the claimed solution of "verif1ying] that the backend virtual volumes will be implemented on the physical storage devices in a way that preserves data availability and I/O performance associated with the selected RAID level." While Warden does mention "RAID," it does so in the context of describing the physical storage, not virtual RAID volumes. 3 Moreover, even 3 See, e.g., Warden 1 ("For instance, the logical volume may be remapped to a particular set of blocks on several physical disks that comprise a 'partition' in a RAID-5 group."); id. at 2 ("We will not concern ourselves with the specific composition of the storage - the type of disks or the RAID groups employed."); id. at 4 ("Since our Thin-Provisioned volumes are based on a virtual geometry and not on any particular physical disk structure or RAID group, we can easily add more disks or LUNs to the storage pool without modification to those volumes and without informing their associated application servers."); id. at 6 ("The typical scenario involves setting up a test SANmelody server that may have a few small drives in a RAID group, with which they make a LUN of maybe 270GB of storage."). 5 Appeal2015-000663 Application 13/459,217 if Warden did discuss virtual RAID volumes, it does not describe the claimed verification. The Examiner states that "specification paragraph 0041 indicates that the verification is allocating different physical disks or using disk pools as way of providing verification." (Final Act. 5; see Ans. 6.) That is not accurate. The verification is ensuring that the allocation is done in a way that "preserves the data availability and I/O performance associated with the selected RAID level," not simply allocating itself. Warden does not describe such verification. In the Answer, the Examiner states for the first time that "the phrase 'in a way that preserves data availability and I/O performance associated with a selected RAID level' is an intended benefit and does not further limit the claim." (Ans. 6.) We agree with Appellants that this is not "an intended benefit," as it is a substantive aspect of the affirmative "verifying" step. For these reasons, we do not sustain the Section 102 rejections of claims 1-11. Provisional Obviousness-type Double Patenting The Examiner also provisionally rejected claims 1-10 for obviousness-type double patenting over claims 11-20 of co-pending Application No. 13/170, 165, which is also before us. As no patent has issued from that co-pending Application, and as Appellant presents no arguments on this issue, we find that it would be premature to address this provisional rejection. See In re Moncla, 95 USPQ2d 1884, 1885 (BP AI 2010) (precedential). 6 Appeal2015-000663 Application 13/459,217 DECISION The rejections of claims 1-10 are reversed. REVERSED 7 Copy with citationCopy as parenthetical citation