Ex Parte Martin

Board of Patent Appeals and Interferences

Oct 4, 2010

11015866 (B.P.A.I. Oct. 4, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte CHRISTOPHER MARTIN
________________

Appeal 2009-007480
Application 11/015,866
Technology Center 2100
________________

Before JAMES D. THOMAS, HOWARD B. BLANEKNSHIP, and
CAROLYN D. THOMAS, Administrative Patent Judges.

J. THOMAS, 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 2009-007480
Application 11/015,866

2

STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1 through 35. We have jurisdiction under 35 U.S.C. §
6(b).
We affirm.

Invention
A sequential storage device and method for storing boot image data
and for booting. Data, such as a tag or flag, indicative of boot image data is
stored in non-volatile memory associated with the sequential storage
medium. (Abstract ll. 1-3, Figs. 1-3.)
In accordance with a preferred embodiment of the invention the
sequential storage medium itself is used as the non-volatile memory for
storing of the data indicative of the boot image data. Alternatively a
cartridge memory of the sequential storage medium is used for storing the
data indicative of the boot image data. Preferably the data indicative of the
boot image data is stored in a predefined storage location of the non-volatile
memory. (Spec. 5, ll. 18-22, Summary of the Invention.)

Representative Claim

1. A tape drive apparatus operable to
receive boot image data,
transfer the boot image data to a sequential storage medium,
transfer to a non-volatile storage location indicator data indicative that
the data transferred to the sequential storage medium is boot image
data.

Appeal 2009-007480
Application 11/015,866

3
Prior Art and Examiner’s Rejections
The Examiner relies on the following references as evidence of
anticipation and unpatentability:
Gold EP 0978785 A1 Feb. 9, 2000
Ikeda US 6,425,042 B1 Jul. 23, 2002
Hirooka US 2002/0105749 A1 Aug. 8, 2002
Claims 1-2, 5-16, 19-25, and 27-35 stand rejected under 35 U.S.C.
§102 (b) as being anticipated by Gold. This reference is utilized in
combination with Ikeda to reject dependent claims 3, 17, and 26 under 35
U.S.C. §103. Correspondingly, Gold is also used along with Hirooka to
reject dependent claims 4 and 18 under 35 U.S.C. §103.

Claim Groupings
Based upon the Appellant’s arguments in the principal Brief on
appeal, we and Appellant consider independent claim 1 as representative of
all claims on appeal, inclusive of all the independent claims which are all
rejected under 35 U.S.C. §102. As to the rejections under 35 U.S.C. §103,
the principal Brief relies upon those arguments presented with respect to
representative independent claim 1 as to the dependent claims within the two
rejections under 35 U.S.C. §103.

ANALYSIS
We refer to, rely on, and adopt the Examiner’s findings and
conclusions set forth in the Answer. Our analysis here will be limited to the
following points of emphasis.

Appeal 2009-007480
Application 11/015,866

4
Initially, as to the subject matter of representative independent claim 1
on appeal, the tape drive apparatus recited in the preamble is not repeated in
any manner in the body of this claim. Instead, the body of this claim merely
recites, in a substantially broader manner, a sequential storage medium. In
contrast to arguments presented in the principal and Reply Briefs, the main
recitation of a non-volatile storage location within the disputed transfer
clause at the end of representative claim 1 on appeal does not require,
necessarily, a separate or different storage medium. Therefore, we agree
with the Examiner’s remarks in the paragraph bridging pages 13 and 14 on
this point.
As the invention statement in this opinion indicates, Appellant’s own
disclosed invention permits the storage of indicator data, indicating that data
transfer to the sequential storage medium is boot image data as required
within the disputed clause of representative claim 1 on appeal, on the
sequential storage medium itself. At least in one perspective, a
corresponding teaching is noted in Gold as pointed out by the Examiner. As
also noted by the Examiner in the Answer, the discussion beginning at
paragraph [0074] of Gold indicates, and Figure 2 shows, a bootable CD-
ROM image 200 that is indicated in this figure and the discussion at page 9
of Gold teaches what a person of ordinary skill in the art would consider to
be plural different types of indicator data that may be construed to indicate
that data transfer to the sequential storage medium or tape in Gold’s instance
is boot image data to the extent recited in the disputed clause at the end of
representative claim 1 on appeal. The nature of some of this data generally
illustrated in Figure 2 is detailed more specifically in the table at the bottom
of page 9 of Gold. These teachings are confirmed by the related discussion
Appeal 2009-007480
Application 11/015,866

5
relied upon by the Examiner beginning at paragraph [0093] in Gold that,
within a normal disaster recovery (DR) operation, the tape media 175 within
the tape drive 140 in Figure 1 is read and searched for the appropriate boot
identifier information consistent with that which already had been described
was written, and illustrated in Figure 2, on the tape that is consistent with the
table at the bottom of page 9 of Gold.
In this manner, the disclosure in Gold is consistent with Appellant’s
own disclosure for a corresponding invention. Moreover, the actual
recitations in representative claim 1 on appeal, as insisted upon by the
Examiner, do not distinguish over these teachings.
In a separate teaching context, Gold may also be viewed as separately
teaching the disputed functionality at the end of representative independent
claim 1 on appeal. The buffer 160 in Figure 1 within the tape drive 140 in
this figure is discussed initially in paragraph [0030] as providing a buffering
for formatting data of varying sizes, such as would be utilized in a normal
data backup operation. The use of this buffer is appropriately taught within
the ability of Gold’s system to actually provide a separate non-volatile
storage medium per se to store indicator information that data transferred to
the sequential storage medium is boot image data as taught in paragraphs
[0077] and [0105].
In addressing Appellant’s separate remarks at page 2 of the Reply
Brief, we observe that the two transfer steps recited in representative
independent claim 1 as recited may occur in any order, and at any time, even
contemporaneously. Thus, the transfer of the non-volatile storage location
indicator data itself may occur before, at the same time as, or after the
Appeal 2009-007480
Application 11/015,866

6
transfer of the actual boot image data to the claimed sequential storage
medium itself.
To the extent page 2 of the Reply Brief presents arguments as to
dependent claims 2 and 3, these arguments will not be entertained here since
they have been presented in an untimely manner. No arguments had been
presented as to these claims or any dependent claim in the principal Brief on
appeal. Correspondingly, the combination of Gold and Ikeda, which
comprises the first rejection within the 35 U.S.C. § 103, had also not been
contested in the principal Brief on appeal.

CONCLUSION and DECISION
Appellant has not shown that the Examiner has erred in finding that
Gold anticipates the subject matter of representative independent claim 1 on
appeal. Therefore, the Examiner’s separately stated rejections under 35
U.S.C. §§ 102 and 103 of various claims on appeal 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)(v).

AFFIRMED

Erc
Appeal 2009-007480
Application 11/015,866

7

HEWLETT-PACKARD COMPANY
Intellectual Property Administration
3404 E. Harmony Road
Mail Stop 35
FORT COLLINS, CO 80528