Ex Parte Peng et al

Patent Trial and Appeal Board

Feb 22, 2017

13018746 (P.T.A.B. Feb. 22, 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.
13/018,746 02/01/2011 Peter Peng 072962-0387475 9081
105727 7590 02/24/2017
Pillsihnrv Winthrnn Shaw Pittman T T P (CK Tno ^
EXAMINER
PO Box 10500
McLean, VA 22102
MINA, FATIMA P
ART UNIT PAPER NUMBER
2157
NOTIFICATION DATE DELIVERY MODE
02/24/2017 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):
Docket_IP@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER PENG, VICTOR LIU, and ZHENGHUA XU
Appeal 2016-000946
Application 13/018,7461
Technology Center 2100
Before ERIC S. FRAHM, TERRENCE W. MCMILLIN, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—21. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 According to Appellants, the real party in interest is CA, Inc. App. Br. 2.
Appeal 2016-000946
Application 13/018,746
INVENTION
Appellants’ application relates to dynamic recovery of server
applications. Abstract. Claim 1 is illustrative of the appealed subject matter
and reads as follows:
1. A method to dynamically recover a continuously
running application, the method comprising:
directing a database replica server to temporarily spool
data changes in a database master server that stores application
data associated with an application running on a web front-end
master server;
obtaining a specified rewind point from among a plurality
of existing rewind points of the application data from the
database master server stored in the database replica server, each
of the rewind points representing a different state of application
data at the database master server;
directing the database replica server to rewind the
application data to the specified rewind point;
obtaining an indication of data to be recovered in the
rewound application data;
directing the database replica server to restore the data
corresponding to the indication to the web front-end master
server; and
directing the database replica server to resume replication
of data changes in the database master server.
REJECTION
Claims 1—21 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Barboi et al. (US 2006/0101097 Al; published May
11, 2006) (“Barboi”), Zakharov et al. (US 2002/0059245 Al; published May
16, 2002) (“Zakharov”), and Madhavarapu et al. (US 2009/0234880 Al;
published Sept. 17, 2009) (“Madhavarapu”).
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Application 13/018,746
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. We disagree with Appellants’
contentions. Except as noted below, we adopt as our own: (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellants’ Appeal Brief. We concur with the
conclusions reached by the Examiner. We highlight the following additional
points.
Claims 1, 5, 6, 9, 11, 15, 16, 19, and 21
In rejecting claim 1, the Examiner found that Barboi teaches or
suggests all of the recited limitations, except “directing a database replica
server to temporarily spool data changes in a database master server that
stores application data associated with an application running on a web
front-end master server,” for which the Examiner relied on Zakharov, and “a
web-front end server,” for which the Examiner relied on Madhavarapu.
Final Act. 5—7 (citing Barboi Fig. 1, || 4, 9, 13, 28, 29, 33, 43—46, 53, 57;
Zakharov Fig. 1, || 34, 55, 332; Madhavarapu 136 ).
Appellants contend the cited portions of Barboi do not disclose the
limitation “a database master server that stores application data associated
with an application running on a web front-end master server,” recited in
claim 1. App. Br. 7. Appellants argue that the cited portions of Barboi
“appear only to disclose an application server and replication of data of the
application server.” Id. Appellants further argue that the cited portions of
Madhavarapu, on which the Examiner relied as teaching an application
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Application 13/018,746
running on a web front-end master server, fail to teach the recited database
master server and the database replica server. Id. at 7—8.2
Appellants’ arguments do not persuade us of Examiner error.
Nonobviousness cannot be established by attacking references individually
when the rejection is predicated upon a combination of prior art disclosures.
In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). The test for
obviousness is not whether the claimed invention is expressly suggested in
any one or all of the references, but whether the claimed subject matter
would have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. In re Keller, 642 F.2d 413, 425
(CCPA 1981). The Examiner found that the combination of Zakharov,
Barboi, and Madhavarapu teaches or suggests the disputed limitation. Final
Act. 3,6. Therefore, Appellants’ arguments based on Barboi and
Madhavarapu alone are not persuasive.
2 For each claim group discussed in the Appeal Brief, Appellants argue in a
conclusory manner that the Examiner “has improperly ignored the claim as a
whole by focusing on the individual aspects of the claimed invention,” and
“has improperly reconstructed the claimed invention from the prior art by
using the claimed invention as a ‘blueprint.’” See, e.g., App. Br. 10.
Appellants also assert in a conclusory manner that the claimed invention is
"more than the predictable use of prior art elements according to their
established functions.'1'’ See, e.g., id. at 10 (citing KSR Int 7 Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007); see also App. Br. 1, 12, 14, 17, 19-21.
Appellants do not provide sufficient, persuasive explanation or objective
evidence for these arguments. It is well settled that mere attorney arguments
and conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(attorney argument is not evidence).
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Application 13/018,746
Appellants further contend the cited portions of Barboi do not teach
the limitation “obtaining a specified rewind point from among a plurality of
existing rewind points of the application from the database master server
stored in the database replica server, each of the rewind points representing a
different state of application data at the database master server,” recited in
claim 1. App. Br. 8. Appellants argue that the rewind points in Barboi
“would not each represent a different state of application data at the database
master server, but rather different states of data at the replica server.” Id.
Appellants’ arguments are unpersuasive. The Examiner found that
Barboi’s application server 110 teaches or suggests the claimed “database
master server” and replication server 150 teaches or suggests the claimed
“database replica server.” Ans. 8. The Examiner further found that Barboi
teaches rewind points can restore data in a previous time {id. at 9 (citing
Barboi 129)), and “the rewinder has the ability to restore the data to
arbitrary points of time in the past” {id. (citing Barboi 144)). Appellants
have not persuasively explained or evinced why the points in the past taught
in Barboi would represent data at the replica server, but not data at the
database server that the replica server replicates. Moreover, Appellants’
arguments are based on Barboi paragraph 28, but Appellants do not
persuasively address Barboi paragraph 29, on which the Examiner relied as
teaching or suggesting the disputed limitation. See Reply Br. 3; Ans. 8—9
(citing Barboi Fig. 1, || 29, 33, 44). We note that paragraph 29 describes an
“alternative embodiment” to what is taught in paragraph 28. See Barboi
1128-29.
Appellants next contend the cited portions of Barboi do not teach the
limitation “obtaining an indication of data to be recovered in the rewound
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application data,” recited in claim 1. App. Br. 8. Appellants argue “there is
no disclosure of, in addition to directing the database replica server to
rewind the application data to the specified rewind point, obtaining an
indication of data to be recovered in the rewound application data.” Id.
Appellants argue that paragraph 59 of Barboi, relied on by the Examiner,
“refers to an alternative to rewinding data.” Id. Appellants further argue
that Barboi fails to teach “any sort of indication (by, e.g., a user) of
particular data to be recovered from within the rewound application data as
claimed.” Id. at 8—9.
Appellants’ arguments are unpersuasive because they do not address
what the teachings in Barboi would have suggested to an artisan of ordinary
skill. See Keller, 642 F.2d at 425. In particular, Appellants do not
persuasively explain or objectively evince why Barboi’s teaching of a
discrete rewinder, such as a snapshot or backup capability, would not have
suggested the disputed limitation to one of ordinary skill. In particular,
Appellants’ argument that Barboi teaches either rewinding or restoring, but
not both, does not persuade us that Barboi’s teachings would not have
suggested using both rewinding and restoring to one of ordinary skill in the
art. Moreover, we are not persuaded that combining the respective familiar
elements of the cited reference in the manner proffered by the Examiner
would have been “uniquely challenging or difficult for one of ordinary skill
in the art” at the time of Appellant’s invention. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418).
Additionally, we agree with the Examiner that Barboi teaches that the
rewinder restores data to its state at a specific time in the past, and that one
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Application 13/018,746
of ordinary skill in the art would have understood that restoring or
recovering data to its state at a specific time in the past requires obtaining an
indication of the data to be restored or recovered. See Ans. 9 (citing Barboi
29, 33). Appellants have not persuasively rebutted the Examiner’s
findings.
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Zakharov, Madhavarapu, and Barboi teaches
or suggests the limitations recited in claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
independent claim 1, as well as the 35 U.S.C. § 103(a) rejection of
independent claims 11 and 21, which Appellants argue are patentable for
similar reasons. App. Br. 10. We also sustain the Examiner’s rejection of
dependent claims 5, 6, 9, 15, 16 and 19, for which Appellants make no
additional substantive arguments. Id.
Claims 2 and 12
Claim 2 depends from claim 1 and recites the additional limitation
“wherein the application runs uninterruptedly while the web front-end
master server restores the data.” App. Br. 22. Appellants contend the
Examiner erred in finding that Barboi teaches or suggests the limitation in
claim 2 because Barboi is silent regarding whether an application runs
uninterruptedly while a web frontend master server restores the claimed
data. Id. at 11.
We disagree. The Examiner found Barboi teaches that, “[wjhile
replication is suspended, the application 115 at the application server
continues to operate.” Ans. 10 (citing Barboi 127). In Barboi, rewinding
and restoring occur while replication is suspended. See Barboi 48—50.
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Thus, we agree with the Examiner that, in the absence of a teaching that
application 115 ceases to operate, an artisan of ordinary skill would have
understood that application 115 would be running while the web front-end
master server restores the data. See Ans. 10.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 2,
as well as the 35 U.S.C. § 103(a) rejection of claim 12, which Appellants
argue is patentable for similar reasons. App. Br. 11.
Claims 3 and 13
Claim 3 depends from claim 1 and recites the additional limitation
“further comprising directing a web front-end replica server to temporarily
spool data changes in a web front-end master server.” App. Br. 22.
Appellants contend there is no disclosure or teaching in the cited
portions of Zakharov of directing a web front-end replica server to
temporarily spool data changes in a web front-end master server, as claim 3
requires. App. Br. 11—12. Appellants argue that Zakharov does not teach
two replica servers temporarily spooling data changes, as claimed. Id. at 12.
Appellants further argue that the cited portions of Madhavarapu do not teach
the recited “web front-end replica server” or directing a web front-end
replica server to temporarily spool data changes in a web front-end master
server. Id.
Appellants’ argument are not persuasive of Examiner error.
Appellants attack Zakharov and Madhavarapu individually, even though the
Examiner relies on the combined teachings of the references. Ans. 10—11
(citing Zakharov 34, 36, 38, 41; Madhavarapu 136); see also Merck &
Co., 800 F.2d at 1097.
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Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 3,
as well as the 35 U.S.C. § 103(a) rejection of claim 13, which Appellants
argue is patentable for similar reasons. App. Br. 12.
Claims 4, 7, 8, 10, 14, 17, 18, and 20
With regard to dependent claim 4, Appellants contend that in the cited
portions of Zakharov “[tjhere is no apparent mention of a web front-end
replica server, no apparent mention of a web front-end master server and no
mention of a directing the web front-end replica server to resume replication
of data changes in the web front-end master server.” App. Br. 14. Thus,
Appellants argue “the cited portions of Zakharov fail to disclose or teach
claim 4.” Id.', see also Reply Br. 7—10. Appellants make similar arguments
regarding the limitations recited in dependent claims 7, 8, and 10. App. Br.
15-20; Reply Br. 10-12.
Appellants’ arguments are unpersuasive because the test for
obviousness is not whether the claimed invention is expressly taught or
suggested in any one or all of the references, but whether the claimed subject
matter would have been obvious to those of ordinary skill in the art in light
of the combined teachings of those references. See Keller, 642 F.2d at 425.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claims 4,
7, 8, and 10, as well as the 35 U.S.C. § 103(a) rejection of claims 14, 17, 18,
and 20, which Appellants argue are patentable for similar reasons. App. Br.
15-21.
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Application 13/018,746
DECISION
We affirm the decision of the Examiner rejecting claims 1—21.
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
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