Ex Parte Lora et al

Board of Patent Appeals and Interferences

Aug 5, 2010

10784605 (B.P.A.I. Aug. 5, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte BRIAN LORA, FRANK BRICK, STEVEN HORAN,
RANDY WHITEHEAD, STEVE SIEGEL, and DAN LEWIS
____________
Appeal 2009-005752
Application 10/784,605
Technology Center 2100
____________
Before JEAN R. HOMERE, ST. JOHN COURTENAY III, and
STEPHEN C. SIU, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-005752
Application 10/784,605
2
STATEMENT OF THE CASE
Appellant(s) seek our review under 35 U.S.C. § 134 of the Examiner’s
final decision rejecting claims 1-60. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
We Affirm-in-part.
BACKGROUND
Appellants’ invention is directed to the management of data storage
systems. (Spec. 1).
Claims 1 and 39 are illustrative:
1. A data storage management system for managing a
plurality of remotely located, independent data storage systems,
comprising:
a central monitoring system located at a geographical
location different from a geographical location of each
respective remotely located, independent data storage system,
wherein the central monitoring system comprises a central data
repository for data regarding the status of each of the remotely
located, independent data storage systems; and
a plurality of remote agent systems, wherein each remote
agent system communicates with a respective one of the
remotely located data storage systems, wherein each remote
agent system collects metadata regarding the data stored at a
respective remotely located data storage system, converts the
collected data to a standardized format, and stores the collected
data in the central data repository.
Appeal 2009-005752
Application 10/784,605
3
39. A method of managing a remotely located, independent
data storage system, comprising:
collecting data regarding the status of one of the remotely
located, independent data storage systems from the remotely
located data storage system;
converting the collected data to a standardized format;
storing the standardized format collected data in a data
repository of a central monitoring system, wherein the
central monitoring system is located at a geographical location
different from a geographical location of the remotely located
data storage system; and
analyzing the collected data to identify data patterns that
precede fault conditions at the remotely located data storage
system.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Goldstein US 2002/0198984 A1 Dec. 26, 2002
Giffords US 2004/0102925 A1 May 27, 2004
Appellants appeal the following rejections:
1. Claims 50-60 under 35 U.S.C. § 101 as being directed to non-statutory
subject matter.
2. Claims 1-60 under 35 U.S.C. § 103(a) as unpatentable over Goldstein and
Giffords.
Appeal 2009-005752
Application 10/784,605
4
APPELLANTS’ CONTENTIONS
Appellants contend that the cited references fail to teach or suggest
metadata. (App. Br. 8) (Claims 1, 6, 10, 11, 13, and 27).
Appellants contend that the cited references fail to teach or suggest
data storage systems. (App. Br. 8) (Claims 1, 6, 10, 11, 13, and 27).
Appellants contend that the cited references fail to teach or suggest
consolidating collected data. (App. Br. 12 and 18; claims 40, 41, 48, 51, 52,
and 59).
Appellants contend that the cited references fail to teach or suggest
identifying patterns. (App. Br. 16-17, and 20; claims 42, 43, and 54).
Appellants contend that the cited references fail to teach or suggest
communicating corrective action information to each respective remote
agent system, and each remote agent system is configured to implement the
corrective action in response thereto. (App. Br. 16; claims 45, 55).
Appellants contend that the cited references fail to teach or suggest a
remote agent filtering collected data prior to communicating the collected
data. (App. Br. 13 and 18; claims 46, 57).
Appellants contend that the cited references fail to teach or suggest
action logic at each remote agent system that performs corrective actions.
(App. Br. 13-14 and 18-19; claims 47 and 58).
Appellants contend that the cited references fail to teach or suggest an
agent system that includes an activity director. (App. Br. 14 and 19; claims
49, and 60).
Appeal 2009-005752
Application 10/784,605
5
FACTUAL FINDINGS
1. Appellants do not contest the Examiner’s rejection of claims 50-60
under 35 U.S.C. § 101. (App. Br. 7).
2. Appellants’ Specification defines “metadata” as known to those
skilled in the art as “a definition or description of data.” (Spec. 17, ll. 6-8)
3. Giffords discloses arranging at least some of the data values of the
first performance metric data according to the common representation
format. (Abst., ll. 11-14)
4. Goldstein discloses that “agents 32 could be configured to ‘filter’ the
transaction execution data.” (Para. [0143]).
5. Goldstein discloses that agent computers may be programmed to
capture sequences of screen displays and to transmit the screen displays to
the reports server for viewing when a transaction fails. This feature allows
the user to view the sequence of events that led to the error condition. (Para.
[0017]).
6. Goldstein discloses analyzing collected performance data and as a
result of the analysis performing a corrective action. Corrective actions are
performed according to a set of predefined rules. For example, when a router
is the source of network delay, a notification message is sent to the
responsible ISP. (Para. [0261]).
ANALYSIS
At the outset, we note that Appellants have grouped certain claims
together in the principal Brief. However, we observe that several of these
claims differ in scope and we find the limitations argued by Appellants are
Appeal 2009-005752
Application 10/784,605
6
not always applicable to all of the claims in the particular groups designated
by Appellants. In this context, any limitations not argued by Appellants are
waived and will not be addressed in the analysis infra.2
§ 101 Rejection
Claims 50-60 are rejected under § 101 as being directed to non-
statutory subject matter. We note that Appellants have not presented any
arguments regarding this rejection. (FF 1). See App. Br. 7: “Appellants are
not appealing the rejection under 35 U.S.C. § 101 at this time.”
Consistent with the holding of BPAI precedential opinion Ex Parte
Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008), Appellants may not reserve
arguments for some later time. See note 2 infra (Arguments not made are
deemed to have been waived). Accordingly, we sustain the Examiner’s
rejection of claims 50-60 under 35 U.S.C. § 101.
Claims 1-38
Appellants contend that the cited references fail to teach or suggest
“metadata regarding the data stored,” as recited in independent claims 1, 15,
and 27. (App. Br. 7-8).

2 With respect to all claims before us on appeal, arguments which Appellants
could have made but chose not to make have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2009-005752
Application 10/784,605
7
Issue
Under §103, do the cited references teach or suggest the collection of
“metadata regarding the data stored at a respective remotely located data
storage system” as claimed? (Independent claims 1, 15, and 27).
Analysis
As a matter of claim construction, we adopt Appellants’ definition of
the term “metadata” as being a definition or description of data (i.e., data
about data). We conclude that Appellants’ definition comports with the
plain, ordinary, and customary meaning of the term. (FF 2).
In light of the above construction, we do not find the Examiner has
established that Goldstein in particular teaches or suggest metadata as
claimed. See Ans. pp. 6, 29, 30. We agree with Appellants that Goldstein
discloses transaction performance data such as server response times.
(Goldstein Para. [0014]). However, we find data regarding a performance is
actual data, and is not reasonably a description or definition of data, i.e.,
metadata or “data about data.” Therefore, we do not find the Examiner’s
claim construction on pages 6-7 and 30 of the Answer to be reasonable, nor
does the Examiner rely on or establish that Giffords remedies the
deficiencies of Goldstein.
Therefore, we find the Examiner erred in rejecting independent claims
1, 15, and 27 under § 103. Accordingly, we reverse the Examiner’s § 103
rejection of claims 1, 15 and 27, and associated dependent claims 2-14,
16-26, and 28-38.
Appeal 2009-005752
Application 10/784,605
8
Independent claims 39 and 50
While independent claims 1, 15 and 27 similarly recite the term
“metadata,” we observe that independent claims 39 and 50 do not recite
“metadata.” Accordingly, Appellants’ arguments regarding “metadata” are
inapplicable to independent claims 39 and 50. See App. Br. 17-18.
Appellants further contend that the cited references fail to teach or
suggest “data storage systems.” (App. Br. 7). Appellants rely on the
arguments made regarding claim 1. (App. Br. 17-18).
Issue
Under §103 do the cited references teach or suggest “data storage
systems,” as claimed? (Independent claims 39 and 50).
Analysis
We disagree with Appellants. (App. Br. 7-8; Reply Br. 2-3). While
Goldstein may be directed to transactional servers, Giffords is clearly
directed to data storage systems. (See Giffords, Abst. ll. 1-4: “a first storage
system configured to store digital data”; Para. [0018]” “data storage system
10”; Fig. 1, ref. 10). Moreover, we find the cited references are a
combination of familiar elements that yield a predictable result;3 therefore,

3 “[W]hen a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than one
would expect from such an arrangement, the combination is obvious.” KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v. Ag
Pro, Inc., 425 U.S. 273, 282 (1976)).
Appeal 2009-005752
Application 10/784,605
9
we find the Examiner’s proffered combination teaches or suggests “data
storage systems” as claimed. (Independent claims 39 and 50).
Accordingly, we sustain the Examiner’s § 103 rejection of
independent claims 39 and 50, as well as dependent claims 44 and 55 (not
argued separately) which fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).
Dependent claims 40, 48, 51, 52, and 59
For dependent claims 40, 48, 51, 52, and 59, Appellants rely on the
arguments previously made regarding dependent claim 3. (See App. Br. 18
referring to page 12). We select claim 40 as representative of this group. See
37 C.F.R. § 41.37(c)(1)(vii). More specifically, Appellants state that the
cited references merely disclose arranging data values and therefore fail to
teach or suggest consolidating collected data, as claimed. (App. Br. 12).
Issue
Under §103(a) did the Examiner err in determining that the cited
references teach or suggest “consolidating collected data” as claimed?
As a matter of claim construction, we conclude that the scope of
collecting and “consolidating” data encompasses “arranging” data because a
collected consolidation of data elements is a specific arrangement of data
elements. As noted above, Giffords discloses arranging at least some of the
data values of the first performance metric data according to the common
representation format. (FF 3). Thus, given our claim construction, we find
Giffords teaches or strongly suggests collecting and consolidating data
within the meaning of representative claim 40.
Appeal 2009-005752
Application 10/784,605
10
Accordingly, we sustain the Examiner’s § 103 rejection of
representative claim 40, and claims 48, 51, 52, and 59 which fall therewith.
Dependent claim 41
Claim 41 depends from dependent claim 40 that we have sustained for
the reasons discussed supra. Because Appellants present no separate
arguments for dependent claim 41, we sustain the Examiner’s § 103
rejection of claim 41 for the same reasons discussed supra regarding
independent claim 39 and dependent claim 40. (See App. Br. 17, last
paragraph).
Dependent claims 42, 43, 53, and 54
For claims 42, 43, 53, and 54, Appellants rely on the arguments
previously made regarding dependent claim 12. (App. Br. 20). We select
claim 42 as representative of this group. See 37 C.F.R. § 41.37(c)(1)(vii).
Issue
Under §103 did the Examiner err in determining that the cited
references teach or suggest “identifying patterns known to data storage
problems?”
Analysis
We particularly note that for claims 42, 43, 53, and 54, Appellants
rely on the arguments previously made regarding dependent claim 12. (App.
Br. 20). In traversing the Examiner’s rejection of claim 12, Appellants
Appeal 2009-005752
Application 10/784,605
11
contend that the cited references, notably Goldstein, do not disclose
“identifying patterns known to precede data storage problems.” (App. Br.
16).
We observe that the arguments Appellants advanced with respect to
claim 12 are not commensurate with the scope of claim 42 which instead
recites “identify[ing] data patterns that precede fault conditions . . . .” (App.
Br. 16-17). Cf. In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir.
1991) (“It is not the function of this court to examine the claims in greater
detail than argued by an appellant, looking for nonobvious distinctions over
the prior art.”). Thus, we agree with and adopt the Examiner’s findings with
respect to the actual claimed limitation of “identify[ing] data patterns that
precede fault conditions.” (Ans. 17 and 32; claim 42).
Moreover, we find that Goldstein discloses that agent computers may
be programmed to capture sequences of screen displays and to transmit the
screen displays to the reports server for viewing when a transaction fails.
This feature allows the user to view the sequence of events that led to the
error condition (FF 5), which we find teaches or suggests the claimed data
patterns that precede fault conditions. (Claim 42).
Accordingly, we sustain the Examiner’s § 103 rejection of
representative claim 42, and claims 43, 53, and 54 which fall therewith.
Dependent claims 45 and 56
For claims 45 and 56, Appellants arguments rely on the arguments
previously presented for claim 10. (App. Br. 16).
Appeal 2009-005752
Application 10/784,605
12
Issue
Under §103 did the Examiner err in determining that the cited
references teach or suggest communicating corrective action information to
each respective remote agent system, and wherein each remote agent system
is configured to implement the corrective action in response thereto, as
recited in commensurate form in dependent claims 45 and 56?
Analysis
Appellants contend that the cited references fail to teach or suggest
the central monitoring system communicating corrective action information
to each respective remote agent system, and wherein each remote agent
system is configured to implement the corrective action in response thereto.
(See App. Br. 16, regarding the rejection of claim 10).
However, unlike claim 10, we note that claims 45 and 56 do not
require the central monitoring system to communicate corrective action
information to each respective remote agent system. Therefore, Appellants
are arguing limitations that are not claimed. We also agree with and adopt
the Examiner’s findings regarding the remote agents configured to
implement the corrective action. (Ans. 40). Accordingly, we sustain the
Examiner’s § 103 rejection of claims 45 and 56.
Dependent claims 46 and 57
For dependent claims 46 and 57, Appellants arguments rely on the
arguments previously made for dependent claim 4. (App. Br. 18).
Appellants contend that the cited references fail to teach or suggest: (1) an
agent system filtering collected data, and (2) filtering the collected data prior
Appeal 2009-005752
Application 10/784,605
13
to communicating the collected data. (See App. Br. 13 - regarding the
rejection of claim 4). Appellants contend that Goldstein refers to a filtering
option that users of the system can apply when viewing information on a
reports server. (Id.).
Issue
Under § 103 did the Examiner err in determining that the cited
references teach or suggest that each remote agent system filters collected
data prior to communicating the collected data, as recited in commensurate
form in claims 46 and 57?
Analysis
We find Goldstein expressly discloses that “agents 32 could be
configured to ‘filter’ the transaction execution data,” which we further find
has been “collected.” (FF 4). The filter is a part of the Performance Report
which may be sent to facilitate remote monitoring of the transactional server.
(Goldstein Para. [0123]). Therefore, we find that Goldstein teaches or
suggests filtering collected data (i.e., filtering displayed information) prior to
communicating the collected data (i.e., prior to sending the Performance
Report), as claimed. (Claims 46 and 57).
Based on the record before us, we find that the Examiner did not err in
rejecting representative claims 46 and 57. Accordingly, we sustain the § 103
rejection of claims 46 and 57.
Appeal 2009-005752
Application 10/784,605
14
Dependent claims 47 and 58
For dependent claims 47 and 58, Appellants’ arguments rely on the
arguments previously made for dependent claim 5. (App. Br. 18-19).
Appellants contend that the cited references fail to teach or suggest
action logic at each agent system that performs the corrective actions recited
in claim 5. (App. Br. 18-19; see also pp. 13-14 regarding the rejection of
claim 5).
Issue
Under §103 did the Examiner err in determining that the cited
references teach or suggest action logic that performs corrective actions in
response to identifying a data pattern known to precede a fault condition?
Analysis
Appellants rely on the arguments previously made regarding claim 5.
(App. Br. 18). Appellants state that “cited portion of Goldstein refers to an
automated root cause analysis application that is coupled to the reports
server that may be used to analyze performance data after the agents
transmit the performance data to the reports server.” (App. Br. 13-14).
We find that Goldstein discloses a screen capture process using agent
computers. (Goldstein para. [0147] – [0148]). In the event of a failed
transaction, screen captures are sent to a human operator for viewing. (Id. at
[0149]). Thus, we find the Examiner’s proffered combination of Goldstein
and Giffords teaches or at least suggests the limitations Appellants’ dispute
regarding claims 47 and 58. Accordingly, we sustain the Examiner’s
§ 103 rejection of dependent claims 47 and 58.
Appeal 2009-005752
Application 10/784,605
15
Dependent claims 49 and 60
For dependent claims 49 and 60, Appellants rely on the arguments
previously made regarding claim 7. (App. Br. 19). Appellants contend that
the cited references fail to teach or suggest an agent system that includes an
activity director as recited in claims 49 and 60. (App. Br. 14 and 19)
Issue
Under §103 did the Examiner err in determining that the cited
references teach or suggest an agent system that includes an activity
director?
Analysis
Appellants contend that Goldstein’s “root cause analysis system”
(RCA) relied on by the Examiner as teaching the claimed “activity director”
is coupled to the reports server and operates on data forwarded by the
agents, and thus is not part of a remote agent system. (App. Br. 14).
We find unavailing Appellants’ singular attack on Goldstein. We find
that Goldstein discloses an RCA application (“activity director”) that is also
coupled to end-user agents 32. (Goldstein para. [0193]; Fig. 1). We find that
while Goldstein shows the RCA application (“activity director”) and agent
system to be separate entities, Goldstein strongly suggests that the entities
are linked. Therefore, we find the Examiner’s proffered combination of
Goldstein and Giffords strongly suggests the limitations disputed by
Appellants regarding claims 49 and 60. Accordingly, we sustain the
Examiner’s § 103 rejection of claims 49 and 60.
Appeal 2009-005752
Application 10/784,605
16
DECISION
We affirm the Examiner’s § 101 rejection of claims 50-60.
We reverse the Examiner’s §103 rejection of claims 1-38.
We affirm the Examiner’s § 103 rejection of claims 39-60.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
ORDER
AFFIRMED-IN-PART
pgc
IBM CORPORATION
IPLAW SHCB/40-3
1701 NORTH STREET
ENDICOTT NY 13760