Ex Parte Mrak et al

Patent Trial and Appeal Board

Feb 23, 2017

13436692 (P.T.A.B. Feb. 23, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/436,692 03/30/2012 Matevz Mrak 82906695 8960
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
CONYERS, DAWAUNE A
ART UNIT PAPER NUMBER
2159
NOTIFICATION DATE DELIVERY MODE
02/27/2017 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
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATEVZ MRAK, MARKO LJUBANOVIC, and
ERVIN ADROVIC
Appeal 2016-007078
Application 13/43 6,6921
Technology Center 2100
Before ST. JOHN COURTENAY III, JAMES W. DEJMEK, and
SCOTT E. BAIN, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—17. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm-in-part.
1 Appellants identify Hewlett Packard Enterprise Development LP as the
real party in interest. App. Br. 1.
Appeal 2016-007078
Application 13/436,692
STATEMENT OF THE CASE
Introduction
Appellants’ claimed invention is directed to backing up a database
without particularly specifying the server on which the database is hosted.
Spec. Title. According to the Specification, databases (including primary
databases and replicas thereof) may be hosted on different servers. Spec. 1.
Over time, the hosting server may change, or a replica of a database may be
considered the primary database. Spec. 1. In a disclosed embodiment, a
backup policy identifies a given database to be backed up (either the primary
database or a replica thereof) via a database designation, rather than
identifying a specific server that may be hosting the given database. Spec. 7.
Claims 1 and 15 are exemplary of the subject matter on appeal and are
reproduced below:
1. A method comprising:
receiving, by a computing device, a backup policy specifying one
or more given databases to be backed up,
where a plurality of servers dynamically host a plurality of
databases including the given databases, such that which of the servers
host which of the databases are changeable over time, the databases
including replicas thereof such that a particular database is hosted on
more than one of the servers,
where the backup policy specifies a predetermined backup
strategy governing how for each given database a given server of the
servers is to be selected from which the given database or a replica
thereof is to be backed up, the backup policy not particularly specifying
from which of the servers the given databases or the replicas thereof are
to be backed up;
selecting, by the computing device, for each given database, the
given server of the servers from which the given database or a replica
thereof is to be backed up, by evaluating the predetermined backup
strategy of the backup policy against a current state of the servers and
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the databases including which of the servers host which of the databases
and which of the replicas thereof; and
initiating, by the computing device, backup of each given
database or a replica thereof from the given server selected for the given
database.
15. The method of claim 1, wherein replication of the given
databases to the replicas thereof is a different process than backup of
the given databases and the replicas thereof.
The Examiner’s Rejections
1. Claims 1—6, 11, 13, 15, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lam et al. (US 2005/0203908 Al;
Sept. 15, 2005) (“Lam”) and Murphy et al. (US 2010/0274762 Al; Oct. 28,
2010) (“Murphy”). Final Act. 6—17.
2. Claims 7—10, 12, and 14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Lam, Murphy, and Shi et al. (US
2012/0054533 Al; Mar. 1, 2012) (“Shi”). Final Act. 17-27.
3. Claim 17 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Lam, Murphy, and Hirashima et al. (US 6,301,589 Bl;
Oct. 9, 2001) (“Hirashima”). Final Act. 27—28.
Issues on Appeal
1. Did the Examiner err in finding the combination of Lam and
Murphy teaches or suggests, inter alia, backing up data from a database or a
replica thereof?
2. Did the Examiner err in finding the combination of Lam and
Murphy teaches or suggests “replication of the given databases to the
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replicas thereof is a different process than backup of the given databases and
the replicas thereof,” as recited in claim 15? (Emphasis added.)
ANALYSIS2
Claims 1—14
Appellants contend the Examiner erred in rejecting, inter alia, claim 1
because the Examiner conflates the terms replica and backup. App. Br. 4—9;
Reply Br. 1—2. Specifically, Appellants argue “[a] replica is a real-time
copy of a database” and “a backup is not a replica.” App. Br. 5.
Additionally, Appellants provide on-line definitions of these terms to
suggest the understanding a person of ordinary skill in the art would have
regarding the distinction between a replica and a backup. App. Br. 9; see
also Reply Br. 2. Further, Appellants contend the prior art “is not concerned
with backing up data from a database or replica [but rather] it is concerned
with the initial storage of the data on a database or a replica.” App. Br. 7
(emphases omitted).
We are unpersuaded of Examiner error. The Examiner finds, and we
agree, Lam teaches, inter alia, receiving a backup policy specifying one or
more given databases to be backed up. Final Act. 6 (citing Lam || 16, 35,
Fig. 5).
2 Throughout this Decision we have considered the Appeal Brief, filed
November 30, 2015 (“App. Br.”); the Reply Brief, filed July 7, 2016 (“Reply
Br.”); the Examiner’s Answer, mailed on May 9, 2016 (“Ans.”); and the
Final Office Action (“Final Act.”), mailed on June 5, 2015, from which this
Appeal is taken.
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Lam is generally directed to “data storage and backup techniques, and
more particularly, to a method and apparatus for managing data replication
policies.” Lam|l. Lam further teaches:
One particular type of data backup technique is known as data
replication, and is sometimes referred to as “mirroring”. Data
replication involves backing up data stored at a primary site by
storing an exact duplicate (an image) of the data at a remote
secondary site. The purpose is that, if data is ever lost at the
primary site, it can be recovered from the secondary site.
Lam 13 (emphasis added). Thus, as used in Lam, the data replication
techniques and processes are a type of backup technique. Further, Lam’s
discussion of the purpose for such data replication (i.e., for recovery from a
secondary site if the primary site were to fail) is consistent with Appellants’
proffered definition for a backup. See App. Br. 9 (stating a backup “may be
used to restore the original [data] after a data loss event”). Thus, contrary to
Appellants’ assertions, Lam is not merely concerned with the initial storage
of data on a database, but rather with the backup of such data.
Murphy, as relied upon by the Examiner, is generally directed to
“placing] multiple copies of data (e.g., replicas) on a variety of disparate
storage nodes to guarantee availability of the data and minimize the loss of
the data.” Murphy, Abstract; see also Final Act. 8—9. Murphy teaches, inter
alia, a replication placement policy may “employ one criterion such that a
replica is stored at a storage node with highest availability.” Murphy 138.
Murphy’s use of a replica is consistent with Appellants’ proffered definition
and use of a replica (“to ensure consistency between redundant resources . . .
to improve reliability, fault-tolerance, or accessibility”). App. Br. 9.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of representative
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claim 1 and the rejections of grouped independent claims 11 and 13, which
recite similar limitations and were not argued separately. See App. Br. 4.
Additionally, we sustain the Examiner’s rejections of claims 2—10, 12, and
14, which depend therefrom and were not argued separately. See App. Br. 4,
10. 3
Claims 15—17
Claim 15 depends from claim 1 and recites “wherein replication of the
given databases to the replicas thereof is a different process than backup of
the given databases and the replicas thereof.”
Appellants contend the Examiner erred in finding Lam teaches the
limitation of claim 15 because LAM does not provide “distinguish a backup
and a replica” and, therefore, cannot teach different processes for replication
and backup, respectively. App. Br. 9-10; Reply Br. 2—3.
Rather than explaining potential differences between the replication
process of Murphy and the backup process of Lam, the Examiner identifies
Lam as teaching the limitation recited in claim 15. final Act. 16 (citing Lam
11 17—18, 48-49); Ans. 6 (additionally citing Lam 135). The Examiner
finds Lam teaches the “hours (i.e., process) of the policies are different for
each backup and replication technique.”
We do not agree that Lam, as relied upon by the Examiner, teaches
different replication and backup policies. As discussed supra, what Lam
refers to as a data replication policy is directed to a data backup policy. Lam
3 To the extent Appellants have not advanced separate, substantive
arguments for particular claims, such arguments are considered waived. See
37 C.F.R. §41.37(c)(l)(iv).
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teaches that various parameters of such a policy may be altered (e.g., the
frequency with which data is backed up). See Lam ]f]f 33—35. However,
such changes are variations of the same policy (i.e., a backup policy) and do
not evidence a difference between a backup and replication process as
claimed.
For the reasons discussed supra, and on this record, we are
constrained to reverse the Examiner’s rejection of claim 15 as well as the
rejections of claims 16 and 17, which depend therefrom. Although the
Board is authorized to reject claims under 37 C.F.R. § 41.50(b), no inference
should be drawn when the Board elects not to do so. See MPEP § 1213.02.
DECISION
We affirm the Examiner’s decision to reject claims 1—14.
We reverse the Examiner’s decision to reject claims 15—17.
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
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