Ex Parte ReschDownload PDFPatent Trials and Appeals BoardAug 29, 201813464015 - (D) (P.T.A.B. Aug. 29, 2018) Copy Citation 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. 2 Appeal2018-001920 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 3 Appeal2018-001920 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 4 Appeal2018-001920 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. 5 Appeal2018-001920 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 6 Appeal2018-001920 Application 13/464,015 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 7 Appeal2018-001920 Application 13/464,015 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 8 Copy with citationCopy as parenthetical citation