Ex Parte Kidney et alDownload PDFPatent Trial and Appeal BoardFeb 22, 201612462427 (P.T.A.B. Feb. 22, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/462,427 08/04/2009 57299 7590 02/24/2016 Kathy Manke A vago Technologies Limited 4380 Ziegler Road Fort Collins, CO 80525 FIRST NAMED INVENTOR Kevin Kidney 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. 09-0124 9172 EXAMINER AHMED, HAMDY S ART UNIT PAPER NUMBER 2133 NOTIFICATION DATE DELIVERY MODE 02/24/2016 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): kathy.manke@broadcom.com patent.info@broadcom.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEVIN KIDNEY, BRIAND. McKEAN, and ROSS ZWISLER Appeal2013-010938 Application 12/462,427 Technology Center 2100 Before JOSEPH L. DIXON, ERIC S. FRAHM, and NORMAN H. BEAMER, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal2013-010938 Application 12/462,427 STATEMENT OF THE CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 8-10, and 17-19. Claims 2-7, 11-16, and 20 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse the Examiner's anticipation rejection of claims 1, 8-10, 17, and 18, and we affirm the Examiner's obviousness rejection of claim 19. Exemplary Claims The invention concerns data management and storage using mirroring and multiple drives which can be operated in active and passive modes (Spec. i-fi-1 2 and 4--7; Abs.). An understanding of the invention can be derived from a reading of exemplary claims 1 and 19, which are reproduced below with emphases and bracketed lettering added to the key disputed limitations: 1. A method for utilizing mirroring in a data storage system to promote improved data accessibility and improved system efficiency, comprising: establishing a first set of drives of the system in active mode; establishing a second set of drives of the system in passive mode, passive mode being a lower power mode than active mode; writing a first portion of data to a first drive, the first drive being included in the first set of drives; [A] writing a copy of the first portion of data to a second drive, the second drive being included in the first set of drives; [BJ updating metadata to indicate that the copy of the first portion of data is located on the second drive; activating a third drive, the third drive being included in the second set of drives, the third drive being activated from passive mode to active mode; 2 Appeal2013-010938 Application 12/462,427 writing a second copy of the first portion of data to the third drive; re-establishing the third drive in passive mode; updating the metadata to indicate that the second copy of the first portion of data is located on the third drive; deleting the copy of the first portion of data from the second drive; and when the first drive fails, re-activating the third drive from passive mode into active mode to allow for host access to the second copy of the first portion of data. 19. A data storage system, comprising: [CJ a first set of drives, the first set of drives being established in active mode, a first drive included in the first set of drives being configured for storing a portion of data, a second drive included in the first set of drives being configured for storing a first copy of the portion of data; and a second set of drives, the second set of drives being established in passive mode, passive mode being a lower power mode than active mode, a first drive included in the second set of drives being configured for being activated from passive mode to active mode, when the first drive included in the second set of drives is activated from passive mode to active mode, the system is configured for writing a second copy of the portion of data to the first drive included in the second set of drives, re-establishing the first drive included in the second set of drives into passive mode, updating metadata of the system to indicate that the second copy of the portion of data is located on the first drive included in the second set of drives and deleting the first copy of the portion of data from the second drive included in the first set of drives, wherein, when the first drive included in the first set of drives fails, the system is further configured to activate a third drive, the third drive being included in the second set of drives, 3 Appeal2013-010938 Application 12/462,427 the third drive being activated from passive mode to active mode, write a second copy of the first portion of data to the third drive, re-establish the third drive in passive mode, update the metadata to indicate that the second copy of the first portion of data is located on the third drive and delete the copy of the first portion of data from the second drive, re-activating the third drive from passive mode to active mode to allow for host access to the second copy of the portion of data, and wherein Controlled Replication Under Scalable Hashing algorithms are implemented by the system for data mapping. The Examiner's Rejections (1) The Examiner rejected claims 1, 8-10, 17, and 18 under 35 U.S.C. § 102( e) as being anticipated by Radhakrishnan (US 2009/0217067 Al; published Aug. 27, 2009). 1 Final Act. 2-5; Ans. 3---6. (2) The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as being unpatentable over Radhakrishnan and Petruzzo (US 7 ,822, 715 B2; issued Oct. 26, 2010).2 Final Act. 5-8; Ans. 6-10. Issues on Appeal Based on Appellants' arguments in the Brief (Br. 5-1 7), the principal contentions are whether or not Radhakrishnan discloses ( 1) limitations [A] 1 The Examiner mistakenly includes claims 2---6 and 11-15 in the statement of the rejection at page 3 of the Answer. This is harmless error, because only claims 1, 8-10, 17, and 18 are discussed on the merits (see Ans. 3---6), and claims 2---6 and 11-15 were canceled in an After Final Amendment received August 29, 2012 (see Advisory Act. mailed Sept. 14, 2012 at p.2). 2 Although the Examiner mistakenly includes a discussion on the merits as to a rejection of claim 20 over Radhakrishnan and Petruzzo (see Ans. 9), we consider this as harmless error, because only claim 19 is rejected due to the cancelation of claim 20 in an After Final Amendment received August 29, 2012 (see Advisory Act. mailed Sept. 14, 2012 at p. 2). 4 Appeal2013-010938 Application 12/462,427 and/or [BJ recited in independent claims 1 and 10; and/or (2) limitation [CJ recited in remaining independent claim 19. Because we are presented on appeal with an anticipation rejection and an obviousness rejection, and independent claims 1 and 10 differ in scope from independent claim 19, the following two issues are presented for appeal: (1) Did the Examiner err in rejecting claims 1, 8-10, 17, and 18 under 35 U.S.C. § 102(e) because Radhakrishnan fails to disclose limitations [AJ and/or [BJ, as recited in independent claims 1 and 1 O? (2) Have Appellants shown that the Examiner erred in rejecting independent claim 19 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Radhakrishnan and Petruzzo because Radhakrishnan fails to teach or suggest limitation [CJ, as recited in claim 19? ANALYSIS We have reviewed the Examiner's rejections (Final Act. 2-8; Ans. 3- 8) in light of Appellants' contention in the Appeal Brief (Br. 5-17) that the Examiner has erred, as well as the Examiner's responses in the Advisory Action mailed September 14, 2012 and the Examiner's Answer (Ans. 9-10). Anticipation Rejection of Claims 1, 8-10, 17, and 18 Limitations [A J and [BJ in claims 1 and 10 recite "writing a copy of the first portion of data to a second drive, the second drive being included in the first set of drives," and "updating metadata to indicate that the copy of the first portion of data is located on the second drive," and the Examiner relies upon Radhakrishnan's disclosure in Figure 1 as anticipating claims 1 and 10 (see Final Act. 2 and 4; Ans. 4, 5, and 9). Radhakrishnan's Figure 1 only discloses a first set of drives 130 being separate from a second set of 5 Appeal2013-010938 Application 12/462,427 drives 132 (see Fig. 1 and accompanying text). We agree with Appellants' arguments (Br. 7-8 and 11-12) that limitations [A] and [BJ recited in claims 1 and 10 are not disclosed in Radhakrishnan' s Figure 1, because Radhakrishnan merely discloses writing a copy of data to a second set of drives, and not to a second drive that is part of the first set of drives. Accordingly, we do not sustain the Examiner's anticipation rejection of claims 1, 8-10, 17, and 18. In addition, we note that the Examiner has improperly combined multiple embodiments from Radhakrishnan in formulating the anticipation rejection. See, e.g., Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008) (For anticipation, "'[t]he [prior art] reference must clearly and unequivocally disclose the claimed [invention] or direct those skilled in the art to the [invention] without any need for picking, choosing, and combining various disclosures not directly related to each other by the teachings of the cited reference."' (parenthetically quoting In re Arkley, 455 F.2d 586, 587 (CCPA 1972))). Specifically, the Examiner relies upon at least two different embodiments in formulating the anticipation rejection: (1) Radhakrishnan's embodiment shown in Figures 1 and 4 and described in paragraphs 15, 18, 25--41; (2) Radhakrishnan's embodiment shown in Figure 3 and described in paragraphs 17 and 57----62; and (3) Radhakrishnan's embodiment shown in Figure 5 and described in paragraphs 19 and 69-77. Although "[s]uch picking and choosing may be entirely proper in the making of a 103, obviousness rejection ... it has no place in the making of a 102, anticipation rejection." In re Arkley, 455 F.2d at 587-8. 6 Appeal2013-010938 Application 12/462,427 In view of the foregoing, we do not sustain the Examiner's rejection of independent claims 1 and 10, as well as claims 8, 9, 17, and 18 depending respectively therefrom, as being anticipated by Radhakrishnan. 3 Obviousness Rejection of Claim 19 With regard to independent claim 19, Appellants have not shown the Examiner erred in relying upon Radhakrishnan as teaching or suggesting limitation [CJ. Appellants' argument (Br. 15-16) that Radhakrishnan fails to disclose limitation [CJ as recited in claim 19 is unpersuasive in light of Radhakrishnan's disclosure of reducing power consumption in array 107 using active/passive modes for first and second sets of drives (Fig. 1, drives 130 and 132, respectively) in paragraphs 37, 39, and 67 (see Final Act. 5-6; Ans. 6-7). Because Radhakrishnan teaches or suggests the active/passive modes for first and second sets of drives as recited in limitation [CJ, Appellants have not shown that the Examiner erred in rejecting claim 19. Therefore, we sustain the Examiner's obviousness rejection of claim 19 over the combination of Radhakrishnan and Petruzzo. CONCLUSIONS (1) The Examiner erred in rejecting claims 1, 8-10, 17, and 18 under 35 U.S.C. § 102(e) as anticipated by Radhakrishnan because Radhakrishnan fails to disclose limitations [A J and [BJ as recited in independent claims 1 3 Our finding is directed to a determination of whether or not Radhakrishnan anticipates the invention set forth in independent claims 1 and 10, not whether it would have been obvious to utilize and/or combine different embodiments ofRadhakrishnan (e.g., the embodiment of Fig. 3 and i-fi-f 17 and 57---62). We leave such a conclusion to the Examiner's consideration during subsequent prosecution. 7 Appeal2013-010938 Application 12/462,427 and 10, as well as in claims 8, 9, 17, and 18 by way of their respective dependency on claims 1 and 10. (2) Appellants have not adequately demonstrated that the Examiner erred in rejecting claim 19 for obviousness under 35 U.S.C. § 103(a), because Radhakrishnan' s teaches or suggests reducing power consumption using active/passive modes for first and second sets of drives as recited in limitation [CJ of claim 19. DECISION4 We reverse the Examiner's anticipation rejection of claims 1, 8-10, 17, and 18, and affirm the Examiner's obviousness rejection of claim 19. 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 4 The Patent Trial and Appeal Board is a review body, rather than a place of initial examination. We leave to the Examiner to consider the appropriateness of further rejection( s) of independent claims 1 and 10 and their respective dependent claims under 35 U.S.C. § 103(a) over Radhakrishnan and/ or other prior art. We note that Radhakrishnan' s alternative embodiment, shown in Figure 3 and discussed in paragraphs 1 7 and 57----62, appears to be most applicable to the subject matter recited in claims 1 and 10. 8 Copy with citationCopy as parenthetical citation