Ex Parte Quan et alDownload PDFPatent Trial and Appeal BoardAug 31, 201814199449 (P.T.A.B. Aug. 31, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 14/199,449 127473 7590 Invoke 30 Wall Street #800 8th Floor FILING DATE 03/06/2014 09/05/2018 New York, NY 10005 FIRST NAMED INVENTOR Gary Quan 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. C00013NP 7112 EXAMINER YU,HENRYW ART UNIT PAPER NUMBER 2181 NOTIFICATION DATE DELIVERY MODE 09/05/2018 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): docketing@InvokeIP.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GARY QUAN, SYLMAR, BASIL THOMAS, RICHARD CADRUVI, KALINDI PANCHAL, and BIDIN DINESABABU Appeal 2018-001307 Application 14/199,449 1 Technology Center 2100 Before DAVID M. KOHUT, JENNIFER L. McKEOWN, and CATHERINE SHIANG, Administrative Patent Judges. Per Curiam. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-3 and 21-35, which are all the claims pending in the application. 2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part, and enter a new ground of rejection with respect to claims 23 and 32 pursuant to our authority under 37 C.F.R. § 41.50(b). 1 Appellants identify Condusiv Technologies Corporation as the real party in interest. Appeal Brief dated August 24, 2016 ("App. Br.") 1. 2 Claims 4--20 have been cancelled. Final Action dated March 24, 2016 ("Final Act.") 2; App. Br. 1, 13. Appeal 2018-001307 Application 14/199,449 STATEMENT OF THE CASE Introduction According to the Specification, the present invention "relates generally to storage management; and more particularly to a system and method for tiered caching and storage allocation." Spec. ,r 2. In some embodiments, the present invention is a system and method for tiered caching. The invention determines one or more attributes related to a file, block of data, and/or file systems and based on the determined one or more attributes, stores, keeps or removes the most effective data in the cache to be used by a processor. Spec. ,r 9. Claim 1 is exemplary: 1. A non-transitory computer readable medium comprising instructions which, when executed by one or more hardware processors, causes performance of operations comprising: determining a first average period of time between accesses to a first data during a particular time window; determining a second average period of time between accesses to a second data during the particular time window; comparing the first average period of time and the second average period of time; and responsive at least to determining that the first average period of time is less than the second average period of time: placing the first data in a first storage medium, that has a faster access speed than a second storage medium, without placing the second data in the first storage medium. 2 Appeal 2018-001307 Application 14/199,449 References and Rejections Claims 1-3 and 21-35 stand rejected under 35 U.S.C. §103 as being unpatentable over the collective teachings of Siewert et al. (US 2010/0199036 Al; published Aug. 5, 2010) ("Siewert") and Bereznyi et al. (US 6,453,404 Bl, issued Sep. 17, 2002) ("Bereznyi"). Final Act. 3-11. ANALYSIS Claim 1-3, 21, 22, and 27-31 On this record, the Examiner did not err in rejecting claim 1. 3 I Appellants contend neither Siewert nor Bereznyi teaches "comparing the first average period of time and the second average period of time," as recited in claim 1. See App. Br. 5-8; Reply Brief dated August 2, 2017 ("Reply Br.") 1--4. In particular, Appellants argue "Siewert does not describe such a comparison." App. Br. 6; see also Reply Br 3. Appellants contend "Bereznyi does not provide what Siewert lacks" (App. Br. 6) because Bereznyi explicitly states "average interval between accesses [ for a particular data item] is compared to the frequency limit data stored in the FreqLimitArray for that [same] particular data item." Bereznyi, col. 12, lines 23-25 (see above). The access interval for any particular data item is only compared to limits defined for that same particular data item ... . . . Applicant notes that a comparison between average periods of time between accesses to different data sets, as 3 To the extent Appellants advance new arguments in the Reply Brief without showing good cause, Appellants have waived such arguments. See 37 C.F.R. § 41.4I(b)(2). 3 Appeal 2018-001307 Application 14/199,449 recited in Claim 1, is NOT equivalent to a comparison of an average interval between access for a particular data item with a frequency limit for that same particular data item, as described in Bereznyi. App. Br. 7-8; see also Reply Br 3. Appellants have not persuaded us of error. In response to Appellants' arguments, the Examiner explains how Siewert and Bereznyi collectively teach the disputed limitation ( discussed in detail below). See Ans. 16-17. Appellants' response to the Examiner's Answer amounts to an attorney argument without supporting evidence. See In re Geisler, 116 F.3d 1465,1470 (Fed.Cir.1997) ("attorney argument [is] not the kind of factual evidence that is required to rebut a prima facie case of obviousness"); Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977) ("Argument of counsel cannot take the place of evidence lacking in the record."). As a result, Appellants fail to show Examiner error. Further, we agree with the Examiner's explanation. Specifically, the Examiner finds, and we agree, Siewert teaches the claimed (i) "first average period of time" and (ii) "second average period of time." See Ans. 16-17; Siewert ,r 9 ("a plurality of first storage devices each having a first average access time ... at least one second storage device having a second average access time"). The Examiner also finds, and we agree, Bereznyi teaches "comparing" an item with another item. See Ans. 17; Bereznyi 12:35-36 ("compares the average interval time with the frequency limit data in the FreqLimitArray"). 4 Because Appellants do not contend the Examiner erred 4 Cumulatively, the Examiner finds, and we agree, Siewert "indicates the presence of a comparison process" (Ans. 17), because Siewert states "at least one second storage device having a second average access time that is shorter than the first average access time" (Siewert ,r 9). 4 Appeal 2018-001307 Application 14/199,449 in the rationale for combining the teachings of Siewert and Bereznyi, we agree with the Examiner that Siewert and Bereznyi collectively teach "comparing the first average period of time and the second average period of time," as recited in claim 1. 5 II Appellants argue: Since Siewert does not describe such a comparison ["comparing the first average period of time and the second average period of time"], it also follows that Siewert cannot describe the following claim recitations that are based on the comparison: responsive at least to determining that the first average period of time is less than the second average period of time: placing the first data in a first storage medium, that has a faster access speed than a second storage medium, without placing the second data in the first storage medium. App. Br. 6; see also Reply Br 3. We disagree. As discussed above, we agree with the Examiner that Siewert and Bereznyi collectively teach "comparing the first average period of time and the second average period of time," as recited in claim 1. Therefore, Appellants' above assertion is unpersuasive of Examiner error. Because Appellants have not persuaded us the Examiner erred, we sustain the Examiner's rejection of independent claim 1. 5 The Examiner also proposes an alternative claim interpretation for "comparing ... and .... " Ans. 16. The alternative claim construction is unnecessary because as discussed above, Siewert and Bereznyi collectively teach the disputed limitation under the claim construction proposed by Appellants. As a result, Appellants' arguments against the Examiner's alternative claim construction (Reply Br. 2-3) does not persuade us of reversible error. 5 Appeal 2018-001307 Application 14/199,449 Independent claim 27 also recites "comparing the first average period of time and the second average period of time." Claim 27. Appellants argue independent claim 27 is "patentable ... for at least the same reasons." App. Br. 8. As discussed above, Appellants' arguments regarding claim 1 are unpersuasive. Therefore, we also affirm the Examiner's rejection of independent claim 2 7. Regarding (i) dependent claims 2, 3, 21, 22 ( depending on claim 1 ), and (ii) dependent claims 28-31 ( depending on claim 27), Appellants argue they are "patentable ... for at least the same reasons." App. Br. 8. As discussed above, Appellants' arguments regarding claim 1 are unpersuasive. Therefore, we also affirm the Examiner's rejection of dependent claims 2, 3, 21, 22, and 28-31. Claim 23-26 and 32-35 We have reviewed the Examiner's rejection of claims 23-26 and 32- 35 in light of Appellants' contentions and the evidence of record. We concur with Appellants' contention that the Examiner erred in finding the cited prior portions teach "comparing the first access frequency and the second access frequency," as recited in independent claim 23. See App. Br. 8-11. Independent claim 3 2 recites the same limitation. Claims 24-26 and 33-35 dependent on claims 23 and 32, respectively. The Examiner finds Siewert does not teach the above limitation. See Final Act. 6. The Examiner cites Bereznyi's column 12, lines 17-25 and lines 34--37 for teaching the claimed (i) "first access frequency" and (ii) "second access frequency." See Final Act. 6. The Examiner further finds Bereznyi et al. discloses "comparing the first access frequency and the second access frequency (the average interval is 6 Appeal 2018-001307 Application 14/199,449 compared with frequency limit (FreqLimitArray), which stores a frequency of use for each item in a cache; Column 12, lines 17-25 and lines 34-37)." Final Act. 6. We have reviewed the Examiner's rejection and it does not sufficiently explain how the references collectively teach "comparing the first access frequency and the second access frequency," as required by claim 23. As a result, we are constrained by the record to reverse the Examiner's rejection of claim 23, and claims 24-26 and 32-35 for similar reasons. NEW GROUND OF REJECTION UNDER37 C.F.R. § 41.SO(b) The portions of Bereznyi cited by the Examiner teach an access frequency and a comparison step between the average interval time with the frequency limit data in the FreqLimitArray. See Bereznyi 12: 10-44. As discussed above, we agree with the Examiner that Siewert teaches multiple storage devices with different access times, and thus teaches or suggests the claimed "first access frequency and second access frequency." See Ans. 17; Siewert ,r 9 Therefore, for similar reasons discussed above with respect to claim 1, we determine it would have been obvious to combine Bereznyi's teachings of the comparison step and the access frequency with Siewert's teaching of analyzing multiple storage devices in order to improve caching systems and processes. The proposed modification would have combined known elements according to known methods to yield predictable results. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). 7 Appeal 2018-001307 Application 14/199,449 We designate our above analysis to be a new ground of rejection of independent claims 23 and 32 under 35 U.S.C. § 103 as being unpatentable over the combination of Siewert and Bereznyi. In light of the new ground of rejection, we leave it to the Examiner to determine whether the dependent claims should be rejected for obviousness based on the prior art. DECISION We affirm the Examiner's decision rejecting claims 1-3, 21, 22, and 27-31 under 35 U.S.C. § 103. We reverse the Examiner's decision rejecting claims 23-26 and 32-35 under 35 U.S.C. § 103. Pursuant to our authority under 37 C.F.R. § 4I.50(b), we newly reject claims 23 and 32 under 35 U.S.C. § 103 as being unpatentable over the combination of Siewert and Bereznyi. TIME PERIOD This decision contains a new ground of rejection pursuant to 37 C.F.R. § 4I.50(b), which provides "[a] new ground of rejection ... shall not be considered final for judicial review." WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, Appellants must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new 8 Appeal 2018-001307 Application 14/199,449 Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under§ 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. 37 C.F.R. § 4I.50(b). Further guidance on responding to a new ground of rejection is also in the Manual of Patent Examining Procedure § 1214.01. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv). See 3 7 C.F.R. § 41.50(±). AFFIRMED-IN-PART 37 C.F.R. § 4I.50(b) 9 Copy with citationCopy as parenthetical citation