Ex Parte Rao et al

Board of Patent Appeals and Interferences

Sep 17, 2008

10627385 (B.P.A.I. Sep. 17, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SANTOSH S. RAO, GOPAL SHARMA,
and POONAM P. DHAVALE
____________

Appeal 2008-0258
Application 10/627,385
Technology Center 2100
____________

Decided: September 17, 2008
____________

Before JAMES D. THOMAS, LANCE LEONARD BARRY, and
STEPHEN C. SIU, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

A Patent Examiner rejected claims 1-31. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).

Appeal 2008-0258
Application 10/627,385

2
A. INVENTION
The invention at issue on appeal "determine[s] which node or nodes of
a cluster should be ejected from the cluster as a result of a cluster partition or
other error event." (Spec. 5.)

B. ILLUSTRATIVE CLAIM
Claim 1, which further illustrates the invention, follows.
1. A method comprising:
providing a coordinator virtual device corresponding to at
least a portion of a physical data storage device;
detecting when a computer system cluster, including a
plurality of nodes, is partitioned;
attempting to gain control of the coordinator virtual
device; and
removing at least one of the plurality of nodes from the
computer system cluster when the attempting is unsuccessful.

C. REJECTION
Claims 1-31 stand rejected under 35 U.S.C. § 102(e) as anticipated by
U.S. Patent No. 6,532,494 ("Frank").

II. CLAIM GROUPING
When multiple claims subject to the same ground of rejection
are argued as a group by appellant, the Board may select a
single claim from the group of claims that are argued together
Appeal 2008-0258
Application 10/627,385

to decide the appeal with respect to the group of claims as to the
ground of rejection on the basis of the selected claim alone.
Notwithstanding any other provision of this paragraph, the
failure of appellant to separately argue claims which appellant
has grouped together shall constitute a waiver of any argument
that the Board must consider the patentability of any grouped
claim separately.
37 C.F.R. § 41.37(c)(1)(vii) (2006).1

Here, claims 1-31 are subject to the same ground of rejection. The
Appellants argue claims 1-14 and 28-31 as a group (Replacement Br. 4-8,
10) and claims 15-27 as another group (id. 8-10). We select claims 1 and 15
as the sole claims on which to decide the appeal of the respective groups.
"With this representation in mind, rather than reiterate the positions of the
parties in toto, we focus on the issues therebetween." Ex Parte Zettel,
No. 2007-1361, 2007 WL 3114962, at *2 (BPAI 2007).

III. COORDINATOR VIRTUAL DEVICE
The Examiner makes the following findings.
Referring to appellant specification and brief, appellant defined
coordinator virtual device can be formed from one or more
portions of physical storage devices such as one or more disk
drives (specification, page 12, paragraph [0040]) and (brief
page 2 lines 9-14). Frank teaches a shareable storage 22 as a
single storage device and may include multiple storage devices
(col. 3 lines 34-45, Fig. 1). The shareable storage taught by
Frank is equated by the Examiner hereinafter as "coordinator
virtual device".

1 We cite to the version of the Code of Federal Regulations in effect at the
time of the Appeal Brief. The current version includes the same rules.

3
Appeal 2008-0258
Application 10/627,385

(Ans. 9.) The Appellants argue that "Frank fails to teach or suggest that the
shareable storage is a coordinator virtual device." (Replacement Br. 6.)
Therefore, the issue is whether the Appellants have shown error in the
Examiner's finding that Frank teaches a coordinator virtual device.

A. AUTHORITIES
"[A]nticipation is a question of fact." In re Hyatt, 211 F.3d 1367,
1371-72 (Fed. Cir. 2000) (citing Bischoff v. Wethered, 76 U.S. (9 Wall.)
812, 814-15 (1869); In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997)).
Furthermore, "[a]rgument in the brief does not take the place of evidence in
the record." In re Schulze, 346 F.2d 600, 602 (CCPA 1965) (citing In re
Cole, 326 F.2d 769, 773 (CCPA 1964)).

B. ANALYSIS
Here, we observe that the Examiner's finding that Frank's shared
storage device constitutes a coordinator virtual device is supported by the
record. In contrast, the Appellants fail to explain why the shareable storage
cannot be a coordinator virtual device. (Replacement Br. 6.) Therefore,
they have shown no error in that finding.

IV. GAINING CONTROL
The Appellants argue that the "mere access to a shareable storage
device is not the same as control of the shareable storage device."
(Replacement Br. 6.) Therefore, the issue is whether Frank teaches gaining
control of the coordinator virtual device.

4
Appeal 2008-0258
Application 10/627,385

A. FINDINGS OF FACT
Frank includes the following disclosure.
[D]ata residing on the shareable storage device 22 of FIG. 1
may also be shared by the multiple distributed applications [of
nodes 12, 14, 16, and 18]. The DLM [i.e., distributed lock
manager] 34 of node_1 12 locks out distributed applications of
the other nodes 14, 16, 18 from data being accessed by the
distributed application of node_1 12 within the shareable
storage device 22. Accordingly, only a single application may
be using a shared resource at a single time.
(Col. 4, ll. 60-67).
B. ANALYSIS
Because the DLM of the node accessing the shareable storage device
locks out the other nodes in the cluster from using the shareable device, we
find that a node's accessing of the storage device constitutes gaining control
thereof.

V. VIRTUAL DEVICE CONFIGURATION SERVER
Citing "col. 1 lines 30-54" (Answer 12) of Frank, the Examiner finds
that "each node in a network cluster is per se a server servicing one or more
clients." (Id.) "The appellants . . . conclude that it is the Examiner's position
that the node is both the claimed virtual coordinator device and the virtual
device configuration server" (Replacement Br. 9) and argue that "[s]uch an
argument is inconsistent with the claimed separate limitations . . . . (id.)."
Therefore, the issue is whether the Appellants have shown error in the
Examiner's finding that Frank teaches a virtual device configuration server.

5
Appeal 2008-0258
Application 10/627,385

A. FINDINGS OF FACT
Frank teaches that "[a] user can connect into the network cluster
through any of the nodes in the network cluster." (Col. 1, ll. 46-47.)

B. ANALYSIS
Because the nodes provide access to the shared storage device
coordinator virtual device, and users can connect to the network cluster via
the nodes, we agree with the Examiner's finding that Frank's nodes constitute
virtual device configuration servers. Because the Appellants' conclusion that
"it is the Examiner's position that the node is both the claimed virtual
coordinator device and the virtual device configuration server"
(Replacement Br. 9) is incorrect, the argument based thereon shows no error
in the Examiner's finding.

VI. ORDER
For the aforementioned reasons, we affirm the rejection of claims 1
and 15 and of claims 2-14, and 16-31, which fall therewith.

"Any arguments or authorities not included in the brief or a reply brief
filed pursuant to [37 C.F.R.] § 41.41 will be refused consideration by the
Board, unless good cause is shown." 37 C.F.R. § 41.37(c)(1)(vii).
Accordingly, our affirmance is based only on the arguments made in the
Replacement Appeal Brief. Any arguments or authorities omitted therefrom
are neither before us nor at issue but are considered waived. Cf. In re Watts,
354 F.3d 1362, 1367 (Fed. Cir. 2004) ("[I]t is important that the applicant
6
Appeal 2008-0258
Application 10/627,385

challenging a decision not be permitted to raise arguments on appeal that
were not presented to the Board.")

No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

rwk

CAMPBELL STEPHENSON LLP
11401 CENTURY OAKS TERRACE
BLDG. H, SUITE 250
AUSTIN TX 78758
7