Ex Parte McLaren et alDownload PDFPatent Trial and Appeal BoardMay 18, 201613140603 (P.T.A.B. May. 18, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/140,603 06/17/2011 Moray McLaren 56436 7590 05/20/2016 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 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. 82728107 8642 EXAMINER WADDY JR, EDWARD ART UNIT PAPER NUMBER 2135 NOTIFICATION DATE DELIVERY MODE 05/20/2016 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): hpe.ip.mail@hpe.com mkraft@hpe.com chris.mania@hpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MORAY MCLAREN, EDUARDO ARGOLLO DE OLIVEIRA DIAS JR., and PAOLO F ARABOSCHI Appeal2014-009475 Application 13/140,603 Technology Center 2100 Before ELENI MANTIS MERCADER, CARL L. SILVERMAN, and SCOTT B. HOWARD, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-19, which constitute all of the claims pending in this application. Claim 20 has been cancelled. App. Br. 5. We have jurisdiction under 35 U.S.C. § 6(b ). We affirm. 1 Appellants identify Hewlett-Packard Development Company, LP ("HPDC"), as the real party in interest. HPDC is a wholly-owned affiliate of Hewlett Packard Company. The general or managing partner of HPDC is HPQ Holdings, LLC. App. Br. 2. Appeal2014-009475 Application 13/140,603 THE INVENTION The claimed invention is directed to a redundant data storage for uniform read latency. Spec. i-f 19. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A memory apparatus, comprising: a plurality of memory banks, wherein a write or erase operation to said memory banks is slower than a read operation to said banks; and wherein said memory apparatus is configured to read a redundant storage of data instead of a primary storage location in said banks for said data in response to a query for said data when said primary storage location is inaccessible due to undergoing at least one of a write operation and an erase operation, and said memory apparatus comprising a uniform read latency for data stored in said plurality of memory banks. REFERENCES The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Stolowitz us 6,018,778 Jan.25,2000 Dvir et al. US 2003/0145176 Al July 31, 2003 Orsley US 2004/0059869 Al Mar. 25, 2004 Christenson et al. US 2006/0026375 Al Feb.2,2006 Holman US 7,240,145 B2 July 3, 2007 Flynn et al. US 2009/0132760 Al May 21, 2009 Karamcheti et al. US 2009/0157989 Al June 18, 2009 Miller et al. US 7,945,752 Bl May 17, 2011 2 Appeal2014-009475 Application 13/140,603 REJECTIONS Claims 1-3, 6-9, and 12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Christenson and Miller. Final Act. 5-11. Claims 4 and 10 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Christenson, Miller, and Dvir. Final Act. 11-14. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Christenson, Miller, and Orsley. Final Act. 14--16. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Christenson, Miller, and Holman. Final Act. 16-17. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Dvir and Miller. Final Act. 17-20. Claim 14 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Dvir, Miller, and Flynn. Final Act. 20-22. Claim 15 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Dvir, Miller, and Stolowitz. Final Act. 22-23. Claims 16-19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Karamcheti in view of Christenson, Miller, and Stolowitz. Final Act. 23-26. 3 Appeal2014-009475 Application 13/140,603 ANALYSIS We have reviewed the Examiner's rejection in light of Appellants' arguments that the Examiner erred. In reaching this decision, we consider all evidence presented and all arguments made by Appellants. We disagree with Appellants' arguments regarding the pending claims. Appellants argue Miller does not teach or suggest a "redundant storage of data" as recited in claim 1. App. Br. 11. Instead, Appellants argue Miller teaches reconstructing data from a flash drive that cannot be read using a parity reconstruction algorithm. Id. For the first time in the Reply Brief, Appellants also argue Karamcheti does not teach or suggest "a redundant storage of memory" as recited in claim 1. Reply Br. 5-6. The Examiner finds Karamcheti teaches "redundant storage of memory." Final Act. 6 (citing Karamcheti i-f 68); Ans. 24--25. The Examiner further finds Miller teaches "reading a redundant storage of data" as recited in claim 1. Final Act. 7-8; Ans. 24--25 (citing Miller 9:42--47 and 49-53). The Examiner also finds Miller teaches "reading when a storage location is inaccessible ... due to undergoing at least one of a write operation and an erase operation." Ans. 24--25; Final Act. 7-8. We are not persuaded by Appellants' arguments that the Examiner erred. Miller teaches that "[i]f during a read operation one flash device 41 is busy, data can be reconstructed from the other flash devices 41 in that row (or RAID group) by using a simple parity reconstruction algorithm, such as described below." Miller 9:49-53. Miller further teaches that the parity- based reconstruction is performed using memory that stores parity information: 4 Appeal2014-009475 Application 13/140,603 Once the data is read from the other chips in the RAID group, the requested data can be reconstructed from that data, by using a conventional RAID data reconstruction technique, such as RAID-3, RAID-4, RAID-5, RAID-6, or RAID-DP parity-based data reconstruction (one or more additional flash DIMMs may be included in each RAID group for storing parity information that can be used for this purpose). This operation may be performed by a RAID software layer within the storage server 2, as described for the below. Miller 7:9--17. As the Specification makes clear, memory that stores parity information is an example of a redundant storage of data as used in the claimed invention. See Spec. i-fi-17-8, 34--39, Fig. 3; see also App. Br. 21 (Claim 7: "The memory apparatus of claim 6, wherein said redundant storage of data comprises parity data from which said requested data is derived using portions of said data distributed among said plurality of said memory banks.") (emphasis added). Accordingly, we agree with the Examiner that Miller teaches "reading a redundant storage of data" as recited in claim 1 . 2 Appellants also argue that because "Karamcheti and Miller teach away from their combination," the Examiner erred in combining the references. App. Br. 12-13; Reply Br. 7-8. According to Appellants, 2 Because we agree with the Examiner that Miller teaches "reading a redundant storage of data," Appellants' argument that Karamcheti does not teach "a redundant storage of data" is moot. Furthermore, because Appellants' argument was presented for the first time in the reply brief, it has been waived. Optivus Technology, Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006); accord Ex parte Borden, 93 USPQ2d 1473, 1473-74 (BP AI 2010) (informative opinion) (absent a showing of good cause, the Board is not required to address an argument newly presented in the reply brief that could have been presented in the principal brief on appeal); 37 C.F .R. § 41.41 (b )(2) (same) 5 Appeal2014-009475 Application 13/140,603 "Karamcheti teaches away from Miller because one requires that two memory devices are concurrently read from and written to while the other specifically requires that that be prevented." Id. We find Appellants have not established that the prior art teaches away from the claimed invention because Appellants have not demonstrated that "a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed Cir. 1994). "'A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."' Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332 (Fed. Cir. 2008) (quoting Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006)). Appellants' argument is not premised on any specific teaching in Karamcheti-in fact Appellants do not make any citation in the Appeal Brief to Karamcheti. See App. Br. 12-13. Instead, Appellants' argument is premised on the Examiner withdrawing a finding that Karamcheti teaches a limitation and basing a new rejection on the combination of Karamcheti and Miller. See App. Br. 12. However, a reference that does not teach a limitation "does not teach away ... [as] it merely expresses a general preference for an alternative invention but does not 'criticize, discredit, or otherwise discourage' investigation into the invention claimed." DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009); see also In re Fulton, 391 F.3dl 195, 1201 (Fed. Cir. 2004). It is 6 Appeal2014-009475 Application 13/140,603 not enough for Appellants to show that there are differences between two references. In re Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir. 1992). Appellants also argue "that the combination of Karamcheti with Miller renders such modification of Karamcheti unsatisfactory for its intended purpose." App. Br. 13. According to Appellants, "a person would be precluded from combining these references in light of Karamcheti describing writing data to and reading data from secondary storage while concurrently writing data to and reading data from main memory." Id. (emphasis omitted). If a proposed modification would render the prior art invention being modified unsatisfactory for its intended purpose, then there is no suggestion or motivation to make the proposed modification. In re Gordon, 733 F .2d 900, 902 (Fed. Cir.1984). For example, our reviewing Court held that an invention was not obvious where the prior taught the device required rigidity for operation whereas the claimed invention required resiliency. In re Ratti, 270 F.2d 810, 813 (CCPA 1959). Appellants provide no evidence in support of their argument. App. Br. 13. "Attorney's argument in a brief cannot take the place of evidence." In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Accordingly, we are not persuaded that the Examiner erred. Finally, Appellants argue that the claimed invention is not obvious based on KSR Int'! Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007) and Graham v. John Deere Co. of Kansas City, 383, U.S. 1 (1966). App. Br. 13-14; Reply Br. 9. Specifically, Appellants state: The differences between the cited references and the indicated claims are significant because recitation of claim 1, in one 7 Appeal2014-009475 Application 13/140,603 example, provides for a memory apparatus that maintains uniformity in read latency of data stored in a memory device, regardless of whether the memory device is undergoing a write or erase operation. Thus, the claimed subject matter provides features and advantages not known or available in the cited references. Consequently, the cited references will not support a rejection of claim 1 under35 U.S.C. § 103 and Graham. Therefore, for at least the reasons explained here, the rejection based on Karamcheti, Christenson, and Miller of claim 1 and its dependent claims should not be sustained. App. Br. 14 As discussed above, Appellants have not persuaded us that the Examiner erred in challenged factual finding or conclusion of law. In KSR, the Supreme Court held that "if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill." 550 U.S. at 417. We agree with the Examiner; and adopt the Examiner's findings that one with ordinary skill in the art at the time the invention was made would have been able "to combine Karamcheti and Christenson with Miller in order to modify Karamcheti and Christenson for a 'storage location is inaccessible due to undergoing at least one of a write operation and an erase operation' as taught by Miller." Final Act. 8. Accordingly, we sustain the Examiner's rejection of claim 1, along with the rejections of claims 8 and 13, which are argued on the same grounds, and dependent claims 2-7, 9-12, and 14--19, which are not argued separately. 8 Appeal2014-009475 Application 13/140,603 DECISION For the above reasons, we affirm the Examiner's rejection of claims 1-19. 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 9 Copy with citationCopy as parenthetical citation