Ex Parte Karonde et al

Patent Trial and Appeal Board

Apr 18, 2016

12941180 (P.T.A.B. Apr. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/941,180 11/08/2010
131406 7590 04/20/2016
Gilliam IP PLLC (CA)
7200 N. Mopac
Suite 440
Austin, TX 78731
FIRST NAMED INVENTOR
Pratap Karonde
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.
2586.054US 1 9177
EXAMINER
CARDWELL, ERIC
ART UNIT PAPER NUMBER
2131
NOTIFICATION DATE DELIVERY MODE
04/20/2016 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):
uspto@gilliamip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRAT AP KARONDE and PRASHANT PARIKH
Appeal2014-06679
Application 12/941, 180
Technology Center 2100
Before HUNG H. BUI, JOHN F. HORVATH, and KEVIN C. TROCK,
Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Office Action rejecting claims 1-20. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.2
1 The real party in interest is Computer Associates Think, Inc. App. Br. 2.
2 Our Decision refers to Appellants' Appeal Brief filed November 25, 2013
("App. Br."); Reply Brief filed May 21, 2014 ("Reply Br."); Examiner's
Answer mailed March 21, 2014 ("Ans."); Final Office Action mailed June
24, 2013 ("Final Act."); and original Specification filed November 8, 2010
("Spec.").
Appeal2014-06679
Application 12/941, 180
STATEMENT OF THE CASE
Appellants' Invention
Appellants' invention relates to a block level backup of a hard disk in
which, in addition to a full machine restore, only few sets of files, folders,
and applications are selected for backup (not the entire disk) and then
restored. Spec. i-f 1; Abstract.
Claims 1, 13, and 19 are independent. Claim 1 is illustrative of
Appellants' invention, as reproduced below:
1. A computer implemented method comprising:
creating a child disk for a machine
identifYing a configuration of a backed up disk drive from
a storage container that includes a block level backup copy of
the disk drive; and
populating the child disk with selected data from blocks
of data corresponding to selected files desired to be used on the
machine.
App. Br. 16 (Claims App'x.) (disputed limitations in italics).
Examiner's Rejections
(1) Claims 13-17 stand rejected under 35 U.S.C. § 101 because the
claimed invention is directed to non-statutory subject matter. Final Act. 2-3.
(2) Claims 1-20 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Le (U.S. Patent 8,209,680). Final Act. 3-10.
ANALYSIS
At the outset, we note Appellants do not address the rejection of
claims 13-17 under 35 U.S.C. § 101 as directed to non-statutory subject
matter. Final Act. 2-3; Ans. 2. As such, the final rejection of these claims is
summarily affirmed. Turning now to the rejection of claims 1-20 under 35
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U.S.C. § 102(e) as being anticipated by Le, we will address these claims in
tum.
With respect to independent claims 1, 13 and 19, the Examiner finds
Le teaches Appellants' claimed "computer implemented method" including
the disputed limitation: "identifying a configuration of a backed up disk
drive from a storage container that includes a block level backup copy of the
disk drive." Final Act. 4--5 (citing Le 2:29-30, 7:44--48, 19:3-9, 19:56-59,
20:51-52, 22:4--8, 57:38-39). According to the Examiner, Appellants'
claimed "block level backup copy of the disk drive" can be interpreted to
encompass Le's "sector-based image files." Id. at 4.
Appellants acknowledge Le teaches creating sector-based images or
creating a file-based image by streaming file data to create a backup image.
App. Br. 8 (citing Le 23:16-28:12). However, Appellants argue Le does not
disclose Appellants' claimed "identifying a configuration of a backed up
disk drive from a storage container that includes a block level backup copy
of the disk drive" because Le's "sector-based image files" are not the same
as Appellants' claimed "block level backups." Id. at 8-11. According to
Appellants, "the block level backup is distinct from a sector based or file
level backup, at least because of the difficulties realized in block level
backups that are not realized when performing a file or sector based backup
as in Le." Reply Br. 3.
We do not find Appellants' arguments persuasive. Rather, we find the
Examiner has provided a comprehensive response to Appellants' arguments
supported by a preponderance of evidence. Ans. 2---6. As such, we adopt the
Examiner's findings and explanations provided therein. Id. For additional
emphasis, we note that claim terms are given their broadest reasonable
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Application 12/941, 180
interpretation consistent with the specification. Jn re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). "Absent an express definition in
their specification, the fact that appellants can point to definitions or usages
that conform to their interpretation does not make the PTO' s definition
unreasonable when the PTO can point to other sources that support its
interpretation." In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997).
Contrary to Appellants' arguments, the term "block level" is not expressly
defined in Appellants' Specification and, in the absence of such a definition,
the Examiner can broadly interpret such a term according to its plain
meaning to encompass "file level" or "sector-based image files" as disclosed
by Le. Ans. 4 (citing Le 20:51-52). Moreover, as correctly recognized by
the Examiner, "blocks are merely groupings of sectors" and individual block
"can be any size length of sectors, even one sector can be a block." Id. The
Examiner's interpretation is consistent with Appellants' Specification,
particularly, when Appellants' Specification describes such a "block level
backup" as a "single block level backup" for a single "file/folder restore" or
a set of files on the disk and that a "user is not restricted to always
performing a full machine restore just to recover a few files or one of many
applications from the source machine." See Spec. i-fi-121, 25, 30.
For the reasons set forth above, we sustain the Examiner's
anticipation rejection of independent claims 1, 13, and 19 and their
dependent claims 2, 7-12, 14, 18, and 20, which Appellants do not argue
separately.
Dependent claims 3 and 15 further recite that "portions of the disk
drive that do not have data do not have a corresponding block [in the block
level backup]." Appellants argue the sector based image created as
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Application 12/941, 180
disclosed by Le would not have a corresponding empty sector. App. Br. 12.
We disagree and adopt the Examiner's findings and responses on page 6 of
Examiner's Answer.
Dependent claims 4 and 16 further recite that "the block level backup
comprises an incremental block level backup that includes blocks of the data
that have changed since an immediately previous last backup." Appellants
argue the "redo logs" of Le do not appear to include blocks of data that have
been changed. App. Br. 12. We disagree and adopt the Examiner's findings
and responses on pages 6-7 of Examiner's Answer. In addition, we note the
"redo logs" disclosed by Le refer to "modifications to the file" and specify
"which sector locations in the original disk were written and contain[ s] the
modified contents for those locations." See Le 11 :56-67. Such modified
contents can be seen as Appellants' claimed "immediately previous last
backup."
Dependent claims 5 and 17 further recite that "the incremental block
level backup comprises a pair of merged incremental backups." Appellants
argue Le fails to describe merging two deltas and the application of "a delta"
to another "delta" to create a new image of Le do not appear to include
blocks of data that have been changed. App. Br. 13. Again, we disagree and
adopt the Examiner's findings and responses on pages 7-8 of Examiner's
Answer.
Dependent claim 6 further recites that "the incremental block level
backup comprises a plurality of merged incremental backups corresponding
to a selected period." Appellants argue Le fails to describe merging two
deltas and, likewise, merging a plurality of deltas corresponding to a selected
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period. App. Br. 14. We disagree and adopt the Examiner's findings and
responses on pages 8-9 of Examiner's Answer.
CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1-20 under 35 U.S.C.
§ 102( e) as anticipated by Le.
DECISION
As such, we AFFIRM the Examiner's final rejection of claims 1-20.
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
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