Ex Parte Volvovski et al

Patent Trials and Appeals Board

Jun 21, 2019

14172218 - (D) (P.T.A.B. Jun. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/172,218 02/04/2014
89322 7590 06/25/2019
Garlick & Markison (PST)
100 Congress A venue, Suite 2000
Austin, TX 78701
FIRST NAMED INVENTOR
Ilya Volvovski
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.
CS0l333/END920l65692US2 3509
EXAMINER
SIMONETTI, NICHOLAS J
ART UNIT PAPER NUMBER
2137
NOTIFICATION DATE DELIVERY MODE
06/25/2019 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 IL YA VOL VOVSKI, S. CHRISTOPHER GLADWIN,
GARY W. GRUBE, TIMOTHY W. MARKISON, JASON K. RESCH,
THOMAS FRANKLIN SHIRLEY JR., GREG DHUSE,
MANISH MOTW ANI, ANDREW BAPTIST, WESLEY LEGGETTE,
and KUMAR ABHIJEET
Appeal2018-007710
Application 14/172,218
Technology Center 2100
Before JOSEPH L. DIXON, JAMES W. DEJMEK, and
STEPHEN E. BELISLE, Administrative Patent Judges.
BELISLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from a Final Rejection of
all pending claims, namely, claims 1-7, 10-16, 19, and 20. App. Br. 6.
We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 1.
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Application 14/172,218
STATEMENT OF THE CASE
The Claimed Invention
Appellants' invention generally relates to "dispersed storage of data
and distributed task processing of data." Spec. 1:15-16.
Claim 1, reproduced below, is illustrative of the claimed subject
matter on appeal:
1. A method for execution by one or more processing
modules of one or more computing devices of a dispersed storage
network (DSN), the method comprising:
receiving and queuing a plurality of data access requests
regarding a plurality of data objects, wherein a first data object
of the plurality of data objects is distributedly stored in a first set
of storage devices of a plurality of storage devices of the DSN,
wherein a second data object of the plurality of data objects is
distributedly stored in a second set of storage devices of the
plurality of storage devices of the DSN, wherein the plurality of
storage devices is arranged into a plurality of logical storage
pools, wherein the first set of storage devices stores the first data
object of the plurality of data objects, wherein the second set of
storage devices stores the second data object of the plurality of
data objects, wherein the first set of storage devices is affiliated
with a first logical storage pool of the plurality of logical storage
pools, and wherein the second set of storage devices is affiliated
with a second logical storage pool of the plurality of logical
storage pools;
organizing the queued data access requests into a first group of
data access requests pertaining to the first logical storage pool of
the plurality of logical storage pools and a second group of data
access requests pertaining to the second logical storage pool of
the plurality of logical storage pools; and
prioritizing the first group of data access requests over the second
group of data access requests.
App. Br. 21 (Claims Appendix).
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References
The Examiner relied on the following references as evidence of
unpatentability of the claims on appeal:
Ma
Moore
Ueda
Povaliaev
US 2005/0257013 Al
US 2009/0265519 Al
US 2010/0313052 Al
US 2012/0173778 Al
Rejections
Nov. 17, 2005
Oct. 22, 2009
Dec. 9, 2010
July 5, 2012
The Examiner made the following rejections of the claims on appeal:
Claims 1-7 and 10-16 stand rejected under 35 U.S.C. § 103 as
obvious Moore, Ma, and Povaliaev. Final Act. 3-18.
Claims 19-20 stand rejected under 35 U.S.C. § 103 as obvious over
Moore, Ma, Povaliaev, and Ueda. Final Act. 18-20.
ANALYSIS 2
Claims 1-7 and 10---16
Spread over twelve pages without any clear delineations, Appellants
submit what we have categorized as seven arguments as to the
nonobviousness of claims 1-7 and 10-16 over Moore, Ma, and Povaliaev.
We identify and address each of these arguments below, but find them
unpersuasive. We select independent method claim 1 as the representative
claim and address Appellants' arguments thereto. See 37 C.F.R.
§ 4I.37(c)(l)(iv) (2017).
2 Throughout this Decision, we have considered Appellants' Appeal Brief
filed January 15, 2018 ("App. Br."); Appellants' Reply Brief filed July 20,
2018 ("Reply Br."); the Examiner's Answer mailed May 22, 2018 ("Ans.");
the Final Office Action mailed May 19, 2017 ("Final Act."); and Appellants'
Specification filed February 4, 2014 ("Spec.").
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Argument 1: Appellants argue Moore does not teach "a first logical
storage pool" as recited in method claim 1, but instead "the single storage
pool [in Moore] is a physical pool that is based on 'physical block locations
in a storage pool."' App. Br. 7; see App. Br. 8 ("The 'storage pool' in
Moore is a not a logical storage pool, but is a physical 'storage pool' that
stored the 'the physical blocks."'); see also App. Br. 6-8; Reply Br. 3-6.
Moore generally is directed to "a method for retrieving a logical
block." Moore ,r 7. Moore discloses that this method includes:
[R]eceiving a request to read the logical block, obtaining
metadata associated with the logical block, wherein the metadata
comprises a replication type used to store the logical block, and
physical block locations in a storage pool for each physical block
associated with the logical block, wherein each physical block
location specifies one of a plurality storage devices in the storage
pool ....
Moore ,r 7 ( emphases added). The Examiner relies on this disclosure in
Moore to teach "wherein the first set of storage devices is affiliated with a
first logical storage pool." See Final Act. 4; Ans. 2-3. We refine the
Examiner's reasoning here, and find that Moore's teaching of mapping
("associat[ing]") a stored logical block to physical blocks in a storage pool at
least would fairly suggest to the skilled artisan a "logical storage pool," and
more specifically, the method claim limitation at issue here. See In re
Keller, 642 F.2d 413,425 (CCPA 1981); In re Burckel, 592 F.2d 1175, 1179
(CCP A 1979) ("[A] reference must be considered not only for what it
expressly teaches, but also for what it fairly suggests."). Thus, we find
Appellants' arguments unpersuasive of Examiner error.
Argument 2: Appellants argue Ma does not teach "first and second
sets of storage devices affiliated with first and second logical storage pools."
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App. Br. 10. Appellants argue Ma instead teaches "merely that one or more
data storage drives may implement one or more data pools, and that the data
pools may span one or more data storage devices." App. Br. 10; see Reply
Br. 8-9.
Ma generally is directed to "systems and methods of implementing
one or more data access prioritization scheme that allow one or more data
processing or computing devices to effectively access one or more data files
from a data storage device." Ma ,r 15. Ma discloses:
The data storage device may comprise one or more data storage
drives. The one or more data storage drives may comprise one
or more hard disk drives. The data storage device may
implement one or more data pools containing one or more data
files. The data pools may span the one or more data storage
drives,for example. A data pool may comprise one or more share
directories ( designated by their share names).
Ma ,r 31 ( emphasis added). The Examiner relies on this disclosure in Ma, in
combination with Moore, to teach the plurality of logical storage pools and
their affiliations with sets of storage devices as recited in method claim 1.
Final Act. 4. The Examiner further explains:
[S]ince Ma discloses a plurality of data pools being comprised of
one or more data storage drives then it would have been obvious
to [the skilled artisan] that at least a 1st and 2nd storage pool could
be constructed from a respective 1st and 2nd set of storage drives,
wherein the sets of storage drives comprise one or more storage
drives.
Ans. 4. Appellants argue that "[s]uch teachings [in Ma] do not, however,
necessarily disclose first and second sets of storage devices affiliated with
first and second storage pools, respectively," and "the fact that one or more
data storage drives described in Ma could theoretically implement multiple
pools in the manner claimed is not sufficient," citing as alleged support
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Bettcher Indus. v. Bunzl USA, Inc., 661 F.3d 629, 639 (Fed. Cir. 2011).
App. Br. 10.
Like the Examiner, we find Appellants' reliance on Bettcher
misplaced. The "inherency" issue in Bettcher pertained to an anticipation
rejection, not a rejection of obviousness as in this case. See Bettcher, 661
F.3d at 639; see also PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186,
119 5 (Fed. Cir. 2014) ("the concept of inherency must be limited when
applied to obviousness, and is present only when the limitation at issue is the
"natural result" of the combination of prior art elements"); In re Schricker,
56 USPQ2d 1723, 1725 (BPAI 2000) ("Inherency and obviousness are
somewhat like oil and water-they do not mix well."). Here, the Examiner
does not rely on inherency, but rather Ma's teachings and suggestions to
skilled artisans. See Ans. 4 ("The Examiner has not stated that Ma
inherently discloses the [limitation at issue], as argued by the Appellant ... ,
but rather that it would have been obvious to [the skilled artisan], in view of
Ma's disclosure, to create a plurality of storage pools" as recited in claim 1. ).
We agree with the Examiner that Ma at least would fairly suggest to
the skilled artisan a plurality of storage pools, particularly given Ma's
teaching of data storage devices implementing one or more data/storage
pools that span multiple data storage drives, and that in combination with
Moore, would fairly suggest to the skilled artisan first and second sets of
storage devices affiliated with first and second storage pools, respectively, as
recited in method claim 1. We also find that Appellants argue against Ma
individually here, rather than address the combined teachings of Moore and
Ma as to the subject limitation in method claim 1. See Keller, 642 F.2d at
426 ("one cannot show non-obviousness by attacking references individually
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where, as here, the rejections are based on combinations of references"); In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Thus, we find
Appellants' arguments unpersuasive of Examiner error. 3
Argument 3: Appellants argue Ma does not teach "prioritizing the
first group of data access requests over the second group of data access
requests," as recited in claim 1. App. Br. 11; see Reply Br. 9-10.
Ma discloses:
FIG. 7 illustrates a diagram of a graphical user interface (GUI)
that allows a user to prioritize access to data stored in NAS by
way of data pool and share name, in accordance with an
embodiment of the invention. As shown in FIG. 7, a user inputs
a data pool name into a data pool field in which a share is to be
established. . . . [A] radio button may be used to selectively
enable data pool/share based priority. In this representative
embodiment, a priority level input field allows a user to input a
value designating the priority level associated with a particular
data pool/share combination. The priority level may comprise
any range of values and may range from O (Lo) to 3 (High), as
shown in the representative embodiment of FIG. 7.
Ma ,r 49 ( emphases added). The Examiner relies on this disclosure in Ma, in
combination with Moore, to teach data access priority, because "Ma
discloses prioritizing access to data stored in a storage system by way of
assigning priority levels to particular data pools." See Final Act. 4--5. The
Examiner further explains:
3 We note that logical storage pools mapping logical volumes with
physical storage devices was known to the skilled artisan before Appellants'
effective filing date. See, e.g., U.S. Patent No. 8,332,615, Fukui et al.,
Dec. 11, 2012 at 13:35-37 ("[O]ne logical storage pool 362 is shown, but
the storage apparatus 30 may comprise multiple logical storage pools 362."),
Figs. 7-9.
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[I]t would have been obvious to [the skilled artisan] to consider
data access requests directed to a particular storage pool as being
grouped, as the handling of these data access requests will be the
same as it pertains to the routing of the data access requests to
their particular storage pool. The prioritization of data pools as
it relates to data access in Ma is analogous to prioritizing a first
group of data access requests over a second group of data access
requests, wherein the grouping of data access requests is strictly
based on which storage pool the data access requests are directed
to, since both disclosed methods will result in the same outcome.
Ans. 5-6; see Ans. 7-8; see Advisory Action at 2 (mailed Aug. 25, 2018)
("Ma does disclose that the access to data, i.e. data access requests, stored in
a data pool can be prioritized on a per-pool basis .... ").
Appellants argue that Ma does not teach data access priority "in
accordance with all of the other subject matter as claimed by the
Appellant[s]." App. Br. 11; see Reply Br. 9-10. But again, Appellants are
attacking Ma individually, and not addressing the combined teachings of the
references as articulated by the Examiner to show obviousness of method
claim 1. See Keller, 642 F.2d at 426. Appellants do not dispute that Ma
"allows a user to prioritize access to data stored in NAS by way of data pool
and share name" (Reply Br. 10 ( emphasis omitted)), and do not rebut
persuasively, if at all, the Examiner's above-quoted rationale as to the
teachings of Ma concerning data access priority. Thus, we find Appellants'
arguments unpersuasive of Examiner error.
Argument 4: Appellants argue claim 1 requires "different respective
sets of storage devices of a plurality of storage devices of the DSN," namely
first and second sets of storage devices affiliated with first and second
logical storage pools, respectively. App. Br. 12. Appellants assert Moore
and Ma fail to teach or disclose various recited limitations involving such
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features, but provide insufficient argument or evidence to support that
position. See App. Br. 11-12; Reply Br. 10-12, 14--16. The Examiner relies
on Ma (in combination with Moore) to fairly suggest first and second sets of
storage devices affiliated with first and second logical storage pools.
See supra, Argument 2. We find no persuasive argument by Appellants that
such a feature is not at least fairly suggested to the skilled artisan by Ma in
combination with Moore (as outlined by the Examiner at Final Act. 4).
Furthermore, Appellants have not identified how the labels "first" and
"second" further limit the claimed "method for execution by one or more
processing modules of one or more computing devices" and how they
distinguish over Ma in combination with Moore. Thus, we are unpersuaded
that the Examiner erred in applying Ma as set forth in the Final Action.
See Final Act. 4.
Argument 5: Appellants argue "neither Moore nor Ma teach the
second step of 'organizing the queued data access requests into a first group
of data access requests pertaining to the first logical storage pool ... and a
second group of data access requests pertaining to the second logical storage
pool .... "' App. Br. 12-13 (emphases omitted). This argument is
misplaced, as the Examiner relies on Povaliaev for suggesting this feature
(in combination with Moore and Ma). See Final Act. 5-6. Thus, we find
Appellants' arguments unpersuasive of Examiner error.
Argument 6: Appellants argue Povaliaev does not teach "'organizing
the queued data access requests into a first group of data access requests
pertaining to the first logical storage pool ... and a second group of data
access requests pertaining to the second logical storage pool .... "' App.
Br. 12-13 (emphases omitted). Appellants' underlying rationale for this
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argument is that Povaliaev allegedly does not teach "first and second logical
storage pools having first and second sets of storage devices affiliated
therewith" (for which the Examiner relies upon Ma to teach), and therefore,
cannot teach this "organizing" limitation. App. Br. 14; Reply Br. 13. But,
Appellants improperly attack the asserted references in the underlying
obviousness rejection individually, and not for their combined teachings.
See Keller, 642 F.2d at 426. This does not show Examiner error.
As noted above, the Examiner found that Ma (in combination with
Moore) at least fairly suggests first and second sets of storage devices
affiliated with first and second logical storage pools remains pending (see
supra, Argument 2). In addition, the Examiner explains that "Povaliaev has
been cited for purposes of showing that it would have been obvious to [the
skilled artisan] to queue data access requests and organize the queued
requests into groups based on the storage pool to which they are directed."
Ans. 9. Povaliaev generally is directed to dynamic compression of an I/0
(input/output) data block, and discloses:
The queues of I/0 requests 36 store the I/0 requests waiting to
be implemented on the block devices 26a-26d. There may be a
set of separate queues of I/Os for each LUN. For example, a set
of queues ofl/0 requests 36a is associated with logical unit 22a,
a set of queues of I/0 requests 36b is associated with logical
unit 22b . . . . In an example when a LUN 22 is represented by
several block devices, there is a single queue of I/Os for all these
block devices representing the LUN.
Povaliaev ,r 36. The Examiner finds "the LUN [logical unit] is effectively
equivalent to the storage pool for purposes of queuing data access requests
directed towards a logical storage construct" (Final Act. 5), and further
explains that "Povaliaev can be considered to be analogous to the
storage/data pools described by Moore, Ma and the Appellant, at least with
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regard to the handling of data access requests directed thereto, since the
'LUN' in Povaliaev is stated as being 'represented by several block
devices"' (Ans. 9). The Examiner finds it would have been obvious to the
skilled artisan that "a queue could be used for requests directed at a grouping
of 'several block devices', such as the 'LUN' disclosed in Povaliaev and the
storage/data pools disclosed by Moore, Ma and the Appellant." Ans. 9.
We find Appellants do not rebut persuasively, if at all, the Examiner's
above-rationale as to the teachings of Povaliaev (in combination with Moore
and Ma) concerning queuing data access requests and organizing the queued
requests into groups based on the storage pool to which they are directed.
Thus, we find Appellants' arguments unpersuasive of Examiner error.
Argument 7: Appellants similarly argue Povaliaev's disclosure of
"a single queue of I/Os" (see Povaliaev ,r 3 6) does not teach organizing I/Os
into "different respective groups of data access requests ( e.g., first and
second) pertaining to different respective logical storage pools of the
plurality of logical storage pools (e.g., first and second)." App. Br. 14--15.
The Examiner finds that this teaching derives from the skilled artisan's
understanding that "queuing of a plurality of data access request[ s]
associated with a given set of storage devices, i.e. LUN or storage/data pool,
is analogous to the grouping of data access requests, as the queuing of
requests for a first or second set of storage devices serves to effectively
organize the requests into a first or second group." Ans. 10. In reply,
Appellants merely assert that Povaliaev fails to teach or disclose quoted
claim limitations involving such queuing features, but Appellants fail to
explain why such features are not at least fairly suggested by Povaliaev (in
combination with Moore and Ma), and more importantly, fail to address, the
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Examiner's rationale as to Povaliaev's teachings. See Reply Br. 13-14.
Thus, we find Appellants' arguments unpersuasive of Examiner error.
For the reasons discussed supra, we sustain the Examiner's
obviousness rejection under 35 U.S.C. § 103 of representative independent
method claim 1.
For similar reasons, we sustain the Examiner's rejection under
35 U.S.C. § 103 of independent claim 10, which recites similar limitations
and was not argued separately. See App. Br. 15; 37 C.F.R. § 4I.37(c)(l)(iv).
We also sustain the Examiner's rejection under 35 U.S.C. § 103 of
dependent claims 2, 4, 5, 7, 11, 13, 14, and 16, which depend directly or
indirectly therefrom, and were not argued separately. See App. Br. 15.
As to dependent claims 3 and 12, Appellants only state: "Given [that]
none of Moore, Ma and Povaliaev teach first and second logical storage
pools arranged as claimed, none of these references can teach 'determining a
power based access status for the first logical storage pool of the plurality of
logical storage pools and the second logical storage pool of the plurality of
logical storage pools"' (App. Br. 15). As discussed above, we disagree with
Appellants' underlying premise here, which leaves Appellants with no
separate argument for patentability of claims 3 and 12. Accordingly, we
sustain the Examiner's rejection under 35 U.S.C. § 103 of claims 3 and 12,
which depend directly or indirectly from one of independent claims 1
and 10.
As to dependent claims 6 and 15, Appellants argue that "[t]here is
simply no express teaching [in Moore] of 'determining a write threshold
number of storage devices as the first subset of storage devices of the first
set of storage devices', nor any basis to conclude that Moore necessarily
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functions in the manner claimed." App. Br. 16 (emphasis in original). But
these arguments are misplaced: first, although Appellants argue Moore
provides no "express" teaching of the subject limitation in claims 6 and 15,
Appellants submit no arguments concerning whether Moore fairly suggests
the features of these limitations; and second, the Examiner does not argue
that Moore "necessarily" (i.e., inherently) discloses these limitations, but
instead finds that Moore teaches or at least fairly suggests such features.
Moreover, the Examiner finds:
[S]ince Moore discloses determining a number of physical block
locations, each being associated with a storage devices, which
need to be written in order to store the data associated with the
write request, then it can said that Moore discloses determining
a write threshold number of storage devices. The Examiner
notes that the Appellant[ s '] current claim language does not
recite any further limitations regarding the 'write threshold
number' which would preclude the obviousness teaching as
disclosed in the Moore reference.
Ans. 11-12 (citing Moore ,r,r 7, 21, 46). In response to the Examiner's
further explanation here, Appellants say nothing, other than to repeat
verbatim their misplaced Appeal Brief statements that Moore contains no
"express" teaching of the subject limitations and Moore does not
"necessarily" function as claimed, as discussed above. See Reply Br. 16-17.
Accordingly, we find Appellants' arguments unpersuasive of Examiner
error, and sustain the Examiner's rejection under 35 U.S.C. § 103 of
claims 6 and 15, which depend directly or indirectly from one of
independent claims 1 and 10.
Claims 19 and 20
Appellants do not separately argue patentability of claims 19 and 20,
but instead rely only on their arguments for patentability of independent
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claims 1 and 10 from which claims 19 and 20 depend indirectly. See App.
Br. 18-19 ("Dependent claims 19 and 20 depend, indirectly from, [sic]
claims 1 and 10 respectively and are, therefore, patentable for at least the
same reasons presented with respect to independent claims 1 and 10.");
Reply Br. 18-19. Accordingly, for the same reasons set forth above for
independent claims 1 and 10, we sustain the Examiner's rejection under
35 U.S.C. § 103 of claims 19 and 20. See App. Br. 18-19; App. Br. 15;
37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's obviousness rejections of claims 1-7, 10-
16, 19, and 20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 4I.50(f).
AFFIRMED
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