Ex Parte Wade et al

Patent Trial and Appeal Board

Nov 30, 2017

14281858 (P.T.A.B. Nov. 30, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/281,858 05/19/2014 Gregory L. Wade 857.0003cl 5372
76444 7590 12/04/2017
Setter Rnehe T T P
EXAMINER
14694 Orchard Parkway AHMED, ZUBAIR
Building A, Suite 200
Westminster, CO 80023 ART UNIT PAPER NUMBER
2132
NOTIFICATION DATE DELIVERY MODE
12/04/2017 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):
u spto @ setterroche .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GREGORY L. WADE and J. MITCHELL HAILE
Appeal 2017-006560
Application 14/2 81,85 s1
Technology Center 2100
Before MARC S. HOFF, LARRY J. HUME, and JASON M. REPKO,
Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—20, which are all claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is Quantum
Corporation. App. Br. 2.
Appeal 2017-006560
Application 14/281,858
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed embodiments and claimed invention relate to
"systems, methods, and computer-readable media for restoring virtual
machines." Spec. 16.
Exemplary Claim
Claim 1, reproduced below, is representative of the subject matter on
appeal (emphases added to contested limitations):
1. A non-transitory computer readable medium
having instructions stored thereon that, when executed by a
computer system, cause the computer system to perform a
method for restoring virtual machines, the method comprising:
generating a snapshot of a storage volume representing a
virtual machine in a virtual machine environment;
storing the snapshot in the virtual machine environment
which tracks changes to the snapshot that occur since the
snapshot of the storage volume representing the virtual
machine was generated; and
based on the changes, merging only a portion of
differences between the storage volume and the snapshot,
wherein the portion of differences between the storage volume
and the snapshot comprises a plurality of non-transient data
blocks.
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Dec. 6, 2016); Reply Brief ("Reply Br.," filed Mar. 17, 2017); Examiner's
Answer ("Ans.," mailed Jan. 20, 2017); Final Office Action ("Final Act.,"
mailed June 3, 2016); and the original Specification ("Spec.," filed
May 19, 2014). We note Appellants did not file a Reply Brief in response to
the factual findings and legal conclusions in the Examiner's Answer.
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Application 14/281,858
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Cannon US 7,447,854 B1 Nov. 4,2008
Chen et al. ("Chen") US 2010/0107158 A1 Apr. 29, 2010
Stringham et al. ("Stringham") US 7,743,028 B1 June 22, 2010
Rejections on Appeal
R1. Claims 1—3, 5—9, 11—16, and 18—20 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of Chen and
Cannon. Final Act. 5.
R2. Claims 4, 10, and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Chen, Cannon, and Stringham.
Final Act. 10.
CFAIM GROUPING
Based on Appellants' arguments (App. Br. 6—8), we decide the appeal
of obviousness Rejection R1 of claims 1—3, 5—9, 11—16, and 18—20 on the
basis of representative claim 1.
Remaining claims 4, 10, and 17 in Rejection R2, not argued
separately, stand or fall with the respective independent claim from which
they depend.3
3 "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)(l)(iv).
In addition, when Appellants do not separately argue the patentability of
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Application 14/281,858
ISSUE
Appellants argue (App. Br. 6—8; Reply Br. 2—3) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Chen and Cannon is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests "[a] non-transitory computer readable medium having
instructions stored thereon that, when executed by a computer system, cause
the computer system to perform a method for restoring virtual machines"
that includes, inter alia, the steps of "storing the snapshot in the virtual
machine environment which tracks changes to the snapshot that occur since
the snapshot of the storage volume representing the virtual machine was
generated" and, "based on the changes, merging only a portion of differences
between the storage volume and the snapshot, wherein the portion of
differences between the storage volume and the snapshot comprises a
plurality of non-transient data blocks," as recited in claim 1?
ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claim 1 and,
unless otherwise noted, we incorporate by reference herein and adopt as our
dependent claims, the claims stand or fall with the claims from which they
depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986).
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Application 14/281,858
own: (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken, and (2) the reasons and rebuttals set forth in
the Examiner's Answer in response to Appellants' arguments. We highlight
and address specific findings and arguments regarding claim 1 for emphasis
as follows.
"Storing the Snapshot. . . [and] Tracking] Changes"Limitation
Appellants contend both Chen and Cannon fail to teach or suggest
storing a snapshot and "tracking changes to the snapshot that occur since the
snapshot of the storage volume . . . was generated." App. Br. 6; see also
App. Br. 7. With respect to the teachings and suggestions of Chen, relied
upon by the Examiner as disclosing this contested limitation (see Final
Act. 6, citing Chen Fig. 3,117), Appellants allege "Chen . . . discusses that
the primary virtual machine periodically updates the snapshot of the log
file," but argue a "virtual machine that periodically updates the snapshot of
the log file is not equivalent to tracking changes to the snapshot that occur
since the snapshot of the storage volume representing the virtual machine
was generated." App. Br. 6.
In response, the Examiner finds, and we agree, that Chen "'begins
tracking system behavior (including CPU and device activity) as the VM
executes (step 304)'. Thus all CPU and device activities are tracked by the
record and replay functionality since the time the snapshot was taken at step
302." Ans. 4 (quoting Chen 117)(emphasis in Answer). We agree with the
Examiner because, under the broadest reasonable interpretation standard,4
4 During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad, of
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Application 14/281,858
we find the disclosed "tracking" of system behavior after the snapshot has
been taken in Chen teaches or at least suggests the claimed "virtual machine
environment which tracks changes to the snapshot that occur since the
snapshot of the storage volume representing the virtual machine was
generated," as recited in claim 1.
"Merging Only a Portion of Differences " Limitation
Appellants state the Examiner acknowledges that Chen does not teach
or suggest "merging only a portion of differences between the storage
volume and the snapshot," as recited in claim 1. In response to the
Examiner's reliance upon Cannon for this limitation (Final Act. 6—7),
Appellants allege:
Cannon does not discuss merging in any detail (other than
acknowledging that synchronization is performed for some later
reversion), and thus Cannon cannot disclose or fairly suggest
merging, only a portion of differences between the storage
volume and the snapshot, as recited in claim 1. Moreover,
because the Cannon does not disclose merging only a portion, it
follows that the Cannon does not disclose or fairly suggest
wherein the portion of differences . . . comprises a plurality of
non-transient data blocks as suggested by the Final Office
Action. Accordingly, individually[,] or in any motivated
combination, Chen and Cannon, fail to teach at least these
aspects of claim 1.
App. Br. 8.
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using "the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
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In response to Appellants' contention, the Examiner finds:
Cannon discloses, in the synchronization (merge) operation
between a master [virtual machine] VM and a synchronized
VM of changed blocks, col. 13 lines 19—29, "the master VM
will compare a hash for the data corresponding to a block that
has already been sent with a hash for data that is about to be
sent. If the two hashes match, rather than sending the same data
again, a special command can be sent to the synchronized VM
instructing it to take the actual data that was sent with respect to
a previously sent block and place it in the location
corresponding to the subsequent block. This is especially
advantageous in a situation where many virtual disk sectors
contain the same contents, for example, when the virtual
machine zeroes out a large section of the disk."
Ans. 5—6.
We agree with the Examiner's findings because, under a broad but
reasonable interpretation, as quoted above, Cannon's teaching of using a
special command to avoid sending the same data again teaches or suggests
the disputed limitation. Further, we note Appellants have not cited to a
definition of "only a portion of differences ..." in the Specification that
would preclude the Examiner's broader reading.5 Final Act. 6—7; Ans. 5—6.
Accordingly, based upon the findings above, on this record, we are
not persuaded of error in the Examiner's reliance on the cited prior art
5 Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description.").
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combination to teach or suggest the disputed limitation of claim 1, nor do we
find error in the Examiner's resulting legal conclusion of obviousness.
Therefore, we sustain the Examiner's obviousness rejection of independent
claim 1, and grouped claims 2, 3, 5—9, 11—16, and 18—20, which fall
therewith. See Claim Grouping, supra.6
Rejection R2 of Claims 4, 10, and 17
In view of the lack of any substantive or separate arguments directed
to obviousness Rejection R2 of claims 4, 10, and 17 under § 103 (see App.
Br. 8), we sustain the Examiner's rejection of these claims. Arguments not
made are waived.7
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 2—4) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
6 In the event of further prosecution of this application, we invite the
Examiner's attention to the issue of whether the recitation in claim 1 of "only
a portion of' finds written description support under 35 U.S.C. § 112(a) in
the originally-filed Specification. We note Appellants cite to paragraphs 6
and 81 of the Specification as providing support for this particular limitation,
but such support is not readily apparent. See App. Br. 3 ("Summary of
Claimed Subject Matter"). Although the Board is authorized to reject claims
under 37 C.F.R. § 41.50(b), no inference should be drawn when the Board
elects not to do so. See Manual of Patent Examining Procedure (MPEP)
§ 1213.02.
7 Appellants merely argue, "[cjlaims 4, 10, and 17 while separately
allowable over the art of record, depend from otherwise allowable
independent claims 8 and 14. The Appellant refrains from further discussion
of these dependent claims for the sake of brevity." App. Br. 8.
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Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
CONCLUSION
The Examiner did not err with respect to obviousness Rejections R1
and R2 of claims 1—20 under 35 U.S.C. § 103(a) over the cited prior art
combinations of record, and we sustain the rejections.
DECISION
We affirm the Examiner's decision rejecting claims 1—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)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
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