Ex Parte Resch

Patent Trial and Appeal Board

Aug 29, 2018

13464015 (P.T.A.B. Aug. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/464,015 05/04/2012 Jason K. Resch
89322 7590 08/31/2018
Garlick & Markison (IBM)
106 E. 6th Street, Suite 900
Austin, TX 78701
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.
CS00652/END920l65736US3 6021
EXAMINER
MITCHELL, JASON D
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
08/31/2018 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):
MMURDOCK@TEXASPATENTS.COM
bpierotti@texaspatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON K. RESCH
Appeal2018-001920
Application 13/464,015
Technology Center 2100
Before BRADLEY W. BAUMEISTER, HUNG H. BUI, and
JOSEPH P. LENTIVECH, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner's decision to reject claims 20-31, the only claims pending in the
application on appeal. Claims 1-19 have been canceled. See App. Br. 10
(Claims App'x). We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellant, the real party in interest is International Business
Machines. App. Br. 2.
Appeal2018-001920
Application 13/464,015
STATEMENT OF THE CASE
Appellant's Invention
Appellant describes the present invention as follows:
A method begins by a management unit of a distributed
storage network (DSN) sending a software update notice to a
plurality of dispersed storage (DS) units, wherein the plurality of
DS units supports a plurality of digital storage vaults, and
wherein a set of DS units of the plurality of DS units supports a
digital storage vault of the plurality of digital storage vaults. The
method continues with a DS processing module determining an
update strategy for updating software of the plurality ofDS units
such that at least a decode threshold number of DS units of the
set of DS units is continually available to service access requests
to the digital storage vault and updating the software of at least
some of the plurality of DS units in accordance with the update
strategy.
Abstract.
Independent claim 20, reproduced below, is illustrative of the claimed
invention:
20. A method of updating software in a dispersed storage
network (DSN), where the DSN includes a plurality of DS units
having respective software including one or more of operating
system software, bootstrap firmware, application software, and
software configuration information, the method comprising:
identifying a set of DS units of the plurality of DS units
that store encoded data slices associated with a storage vault,
wherein a decode threshold number of DS units is needed to
reconstruct original data encoded in the encoded data slices;
determining that a number of available DS units in the set
of DS units is greater than the decode threshold number of DS
units; and
updating the respective software of the set of DS units
while maintaining availability of the decode threshold number of
DS units of the set of DS units.
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Application 13/464,015
Rejections
Claims 20, 21, 23-27, and 29-31 stand rejected under 35 U.S.C.
§ I03(a) as being unpatentable over the combination of Leggette et al.
(US 2010/0269008 Al; published Oct. 21, 2010) ("Leggette") and Calder et
al. (US 2011/0099266 Al; published Apr. 28, 2011) ("Calder"). Final
Act. 3-6; see also Ans. 3-7.
Claims 22 and 28 stand rejected under 35 U.S.C. § I03(a) as being
unpatentable over the combination of Leggette, Calder, and Pathak et al.
(US 2009/0150878; published June 11, 2009) ("Pathak"). Final Act. 7; see
also Ans. 7-8.
ANALYSIS
Updating the respective software sets of the DS units ...
Appellant contends the combination of Leggette and Calder fails to
teach or suggest "updating the respective software of the set of DS units
while maintaining availability of the decode threshold number of DS units of
the set of DS units," as recited in claim 20. App. Br. 5-6; Reply Br. 1--4.
According to Appellant, "Calder maintains the availability to a domain
storing data by ensuring the domain is replicated first ... [ o ]therwise the
data is not available." App. Br. 6 ( citing Calder ,r,r 66, 67, and 80).
Appellant argues "there is no teaching in Calder that anything less than a full
domain itself would be needed to recover the data therein." App. Br. 6;
Reply Br. 2. Appellant further argues:
Calder does not teach storing encoded data slices
associated with a storage vault in a set of DS units wherein a
decode threshold number of DS units is needed to reconstruct
original data encoded therein. As such, Calder does not identify
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Application 13/464,015
a set of DS units that store such slices, determine a number of
available DS units storing such slices beyond a decode threshold
number of DS units, nor update the software of such DS units
while maintaining the availability of the decode threshold
number of DS units. As explained in paragraph [0054] of
[Appellant's Specification], by encoding data in this manner,
only a subset of all such slices are needed to reconstruct the
original data that has been encoded. Accordingly, as explained
in paragraphs [0112] to [0124], such an encoding allows for
software on DS units to be updated, while still maintaining
availability of the original data stored therein, by ensuring the
number of available DS units storing such slices is greater than
the decode threshold number of DS units needed to reconstruct
the original data. In contrast, Calder requires the full domain to
recover the data, and fails entirely to disclose updating the
respective software of the set of DS units while maintaining
availability of the decode threshold number ofDS units of the set
ofDS units.
App. Br. 6; Reply Br. 2-3.
Additionally, Appellant argues Calder's teaching of "identifying that
an appropriate number of replicates that are stored in domains other than the
upgrade domain" fails to teach "maintaining availability of a threshold
number of storage units of the set of storage units whose respective software
is updated," as required by claim 20. Reply Br. 3. Appellant argues
"Claim 20 reads that the threshold number of storage units are included in
the set of storage units whose respective software is updated," "claim 20
discloses maintaining availability of the decode threshold number of DS
units of the set of DS units, but Calder merely discloses determining that a
number of instances are available, without any mention of maintaining
availability," and "Calder's available quantity of instances are stored outside
of the domain being upgraded .... " Reply Br. 3--4.
Appellant's arguments are unpersuasive. The Examiner finds the
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Application 13/464,015
"claimed encoding scheme is disclosed in Leggette including storing
encoded data slices in a set of DS units ... wherein only a subset of all slices
are needed to reconstruct the original data." Ans. 9 ( citing Leggette ,r,r 54,
57). The Examiner finds Calder teaches "maintaining availability of data in
a distributed computing environment by ensuring at least a threshold number
of storage units remain available during an update." Id. ( citing Calder ,r 17).
Based on these findings, the Examiner reasons "it would have been obvious
to those of ordinary skill in the art to ensure that at least a threshold
(Leggette par. [0054] 'k is the threshold') of 'DS units' (Leggette
par. [0057] 'DS unit 36') are available so that the stored data remains
available during an update (Calder par. [0046] 'When a storage service is
upgraded, durability and availability of data are desired', Leggette
par. [0051] 'DS units 36 needs updating')." Id. As such, the Examiner
relies on the combination of Leggette and Calder for teaching or suggesting
the disputed limitation. Appellant's arguments fail to persuasively address
the combined teachings of the references and, therefore, are unpersuasive of
error.
Improper Combination
Appellant contends the combination of Leggette and Calder is
improper. App. Br. 6-8; Reply Br. 4--5. Appellant argues the Examiner's
reasoning for the combination "does not show how it would be obvious to
combine Calder with Leggett[ e] with regard to updating the respective
software of the set of DS units while maintaining availability of the decode
threshold number ofDS units of the set ofDS units." App. Br. 7.
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Application 13/464,015
Appellant's argument are unpersuasive. The Examiner finds:
Leggett[ e] discloses a need to update the DS units
(par. [0051] "one or more of the DS units 36 needs updating")
storing slices of data in those DS units (par. [0057] "each slice is
to be stored in a different DS unit 36") and that the data cannot
be reconstructed with less than a threshold number of slices
(par. [0054] "k number of slices is need to reconstruct the
original data"). Calder teaches that those of ordinary skill in the
art were aware that maintaining availability of a threshold
number of storage units (Calder par. [0017] "an available
quantity of instances ... above a predefined threshold") would
have provided "durability and availability" during an upgrade
(Calder par. [0046]). Accordingly, [i]t would have been obvious
to those of ordinary skill in the art that maintaining Leggette' s
threshold number (par. [0054] "k is the threshold") of DS units
(par. [0057] " DS unit 36") would have beneficially provided
additional "durability and availability" to Leggett[ e] 's system.
Ans. 10.
The Examiner's proposed combination of the cited teachings of
Leggette and Calder is no more than a simple arrangement of old elements
with each performing the same function it had been known to perform,
yielding no more than one would expect from such an arrangement. KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398,416 (2007). The ordinarily-skilled
artisan, being "a person of ordinary creativity, not an automaton," would be
able to fit the teachings of Leggette and Calder together like pieces of a
puzzle to predictably result in maintaining availability of the decode
threshold number ofDS units during the updating of DS units. Id. at 420-
21. Because Appellant has not demonstrated that the Examiner's proffered
combination would have been "uniquely challenging or difficult for one of
ordinary skill in the art," we agree with the Examiner that the proposed
modification would have been within the purview of the ordinarily skilled
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artisan. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Appellant further argues "modifying the data storage approach of
Calder in which data is merely replicated with the encoding scheme of
Leggett[ e ], which operates in a fundamentally different way, would require a
substantial reconstruction of Calder and change its principle of operation"
and
"it would be unnecessary and wasteful to replicate the encoded
slices of Leggett[e], in the manner of Calder, as Leggett[e]'s
slices already include redundancy information, they are already
distributed over a number of storage units, and the information
encoded therein could be derived from a subset of the slices even
if not all of the storage units were available."
App. Br. 7; see also Reply Br. 4. Appellant further argues that "the slices of
Leggett[ e] would need to be replicated and transferred to storage outside of
the storage units for upgrade in order to apply the teachings of Calder."
Reply Br. 5.
Appellant's arguments are unpersuasive. "[I]t is not necessary that
the inventions of the references be physically combinable to render obvious
the invention under review." In re Sneed, 710 F.2d 1544, 1550 (Fed. Cir.
1983) (citing Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013
(Fed. Cir. 1983); In re Andersen, 391 F.2d 953, 958 (CCPA 1968)); see also
In re Nievelt, 482 F.2d 965,968 (CCPA 1973) ("Combining the teachings of
references does not involve an ability to combine their specific structures.").
"The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . . Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art." In re
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Keller, 642 F.2d 413,425 (CCPA 1981) (citations omitted).
Here, the Examiner does not propose that the features of Leggette be
physically incorporated into the structure of Calder. Nor does the Examiner
propose physically incorporating the features of Calder into the structure of
Leggette. Instead, the Examiner concludes that the combined teachings of
the references would have suggested the claimed invention to one of
ordinary skill in the art. Appellant's arguments do not persuasively address
"the relevant combined teachings of the ... references" and, therefore, are
unpersuasive of error. See Andersen, 391 F .2d at 958 ( dismissing the
argument that a combination would result in an inoperative structure).
For the foregoing reasons, we are not persuaded the Examiner erred in
rejecting claim 20. Appellant does not argue claims 21-31 separately with
particularity but, instead, relies on the arguments presented with respect to
claim 20. See App. Br. 8; Reply Br. 5. Accordingly, we are not persuaded
the Examiner erred in rejecting claims 21-31 for the reasons discussed supra
with respect to claim 1.
DECISION
We affirm the Examiner's rejections of claims 20-31 under 35 U.S.C.
§ 103(a).
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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