Ex Parte Wang et al

Patent Trial and Appeal Board

May 20, 2016

12955299 (P.T.A.B. May. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/955,299 11/29/2010
105727 7590 05/24/2016
Pillsbury Winthrop Shaw Pittman LLP (CA, Inc,)
PO Box 10500
McLean, VA 22102
Xiaopin Wang
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.
072962-0385844 7227
EXAMINER
BROOKS, DAVID T
ART UNIT PAPER NUMBER
2156
NOTIFICATION DATE DELIVERY MODE
05/24/2016 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):
Docket_IP@pillsbury law. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XIAOPIN WANG, HAIY ANG ZHANG, and
SHAORONG LI 1
Appeal2014-006307
Application 12/955,299
Technology Center 2100
Before LINZY T. McCARTNEY, TERRENCE W. McMILLIN, and
MELISSA A. RAAP ALA, Administrative Patent Judges.
McMILLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision2 on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-11, 13-18, 20-25, and 28-35. 3 Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellants, the real party in interest is CA, Inc. App. Br. 2.
2 Our decision refers to the Final Office Action mailed May 23, 2013 ("Final
Act."); Appellant's Appeal Brief filed October 24, 2013 ("App. Br."); the
Examiner's Answer mailed March 3, 2014 ("Ans."); Appellant's Reply Brief
filed May 1, 2014 ("Reply Br."); and the Specification filed November 29,
2010 ("Spec.").
3 Claims 12, 19, 26, and 27 are canceled. App. Br. 20, 22, 23.
Appeal2014-006307
Application 12/955,299
REJECTIONS ON APPEAL
Claims 1--4, 6, 7, 9, 10, 15-18, 20, 21, 23, 24, and29-34 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Shinozaki (US
2009/0132615 Al, published May 21, 2009) ("Shinozaki") and Colaiacomo
et al. (US 2010/0023805 Al, published Jan. 28, 2010) ("Colaiacomo").
Final Act. 13-31.
Claims 5 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shinozaki, Colaiacomo, and Fineberg (US
2007 /0083570Al, published Apr. 12, 2007) ("Fineberg"). Final Act. 31-32.
Claims 8 and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shinozaki, Colaiacomo, and Fleck et al. (US
2005/0210081 Al, published Sept. 22, 2005) ("Fleck"). Final Act. 33-35.
Claims 11 and 25 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shinozaki, Colaiacomo, and Hara et al. (US
2007 /0277012 Al, published Nov. 29, 2007) ("Hara"). Final Act. 35-36.
Claims 14, 28, and 35 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Shinozaki, Colaiacomo, and Popovski et al. (US
2011/0282842 Al, published Nov. 17, 2011) ("Popovski"). Final Act. 37-
40.
THE CLAIMED INVENTION
According to Appellants' Specification, "[t]he invention generally
relates to data backup and recovery, and more particularly to periodic data
backup and replication." Spec. i-f 1. Independent claim 1 is directed to a
method, independent claim 15 is directed to a system, and independent claim
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Application 12/955,299
29 is directed to a computer program product. App. Br. 19, 21, 23. Claim 1
recites:
1. A method for data replication from a production server to a
backup server, comprising:
recording an operation performed on a data item stored in
a volume of a production server, wherein the operation is
recorded as a journal entry in a memory;
determining whether a system malfunction incident has
occurred in the production server;
transferring the journal event from the memory to an
auxiliary storage unit at a first time instant, responsive to a
determination that the system malfunction incident has occurred;
transferring, at a second time instant, an additional journal
event recorded in the memory between the first and second time
instants to the auxiliary storage unit; and
sending the journal event stored in the auxiliary storage
unit for replication to a backup server.
ANALYSIS
Claims 1--4, 15-18, 29, and 30
Appellants argue claims 1--4, 15-18, 29, and 30 as a group. App. Br.
7-11; Reply Br. 2-8. With regard to this group of claims4, Appellants argue
the cited art fails to teach or suggest:
4 Appellants argue independent claims 15 and 29, which recite analogous
limitations, are allowable for the same reasons as claim 1. App. Br. 1 O;
Reply Br. 8. Appellants argue dependent claims 2--4, 16-18, and 30 are
patentable by virtue of their dependency on allowable claims. App. Br. 11;
Reply Br. 8. Thus, the patentability of all the claims in this group may be
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Application 12/955,299
a method for data replication from a production server to a
backup server, comprising, inter alia, determining whether a
system malfunction incident has occurred in the production
server, and transferring the journal event from the memory to an
auxiliary storage unit at a first time instant, responsive to a
determination that the system malfunction incident has occurred
as recited in claim 1.
App. Br. 7; Reply Br. 2.
Claim 1 is rejected based upon a combination of the teachings of
Shinozaki and Colaiacomo. Final Act. 13. Appellants' arguments do not
address the rejection made by the Examiner.
First, Appellants argue Shinozaki fails to teach or suggest determining
whether a system malfunction incident has occurred or taking action
responsive to the determination that a system malfunction has occurred.
App. Br. 7-8; Reply Br. 3. However, the Examiner relied on paragraphs 5
and 20 of Colaiacomo as providing these teachings. Ans. 4 ("Colaiacomo at
least at paragraphs [0005] and [0020] discloses determining that a system
malfunction incident has occurred and requires actions to be taken"); Final
Act. 3 ("Colaiacomo does disclose determining a system malfunction
incident occurred and actions based on such a determination in at least
[0005] and [0020]"). This argument is misdirected and therefore not
persuasive of error. 5
determined based on consideration of Appellants' arguments with regard to
claim 1.
5 In addition, Appellants acknowledge, "[p ]aragraph [0005] of Colaiacomo
generally discusses recovering systems and applications after a disaster or a
severe system problem." App. Br. 11. See, also, App. Br. 12, 14 (same
statement repeated).
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Application 12/955,299
Next, Appellants argue Colaiacomo fails to teach or suggest
transferring the journal event from the memory to an auxiliary storage unit.
App. Br. 8; Reply Br. 5. However, the Examiner relied on paragraphs 41
and 42 of Shinozaki as providing these teachings. Ans. 5 ("Shinozaki at
paragraphs [0041] and [0042] describes transferring/writing journal data
from memory to a master end journal volume, which is an auxiliary storage
unit"); Final Act. 2-3 ("Shinozaki does disclose in [0041]-[0042] that a
recorded journal is transferred from memory to an auxiliary storage unit that
is the 'master end journal volume'"). This argument is misdirected and
therefore not persuasive of error.
By not addressing the rejection as articulated by the Examiner,
Appellants have not shown the rejection was in error. One cannot show
nonobviousness by attacking references individually when the rejection is
based on a combination of references. In re Keller, 642 F.2d 413, 425
(CCP A 1981 ). Each reference cited by the Examiner must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole. See, In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
In addition, Appellants argue that the combination of cited teachings
of Shinozaki and Colaiacomo was improper and does not render the
invention recited in claim 1 obvious because (1) "one of ordinary skill in the
art at the time of [the] invention would [not] have been motivated to
combine the cited portions of Shinozaki and Colaiacomo"; (2) "the alleged
combination appears to be a reconstruction of the claimed invention from the
art by using the claimed invention as a 'blueprint"'; and (3) "the Examiner
has improperly ignored the claim as a whole by focusing on the individual
aspects of the claimed invention." App. Br. 9-10; Reply Br. 5-7. None of
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these arguments is explained or developed by Appellants so as to show how
or why the Examiner erred. Nonetheless, in the Examiner's Answer, the
Examiner responds:
In this case as stated above one having ordinary skill in the art
would recognize the benefit of the prior art combination being a
more efficient storage and transfer of backup data. Specifically
it provides better continuous data protection in which data can be
restored chronologically to any given time while using storage
capacity effectively. See at least Shinozaki [0006]-[0007] and
[0010]-[0011].
Further both Shinozaki and Colaiacomo are in the same
general field of endeavor. Shinozaki related to a data updating
method used conventionally as a technique for data backup or
restoring (i.e. disaster recovery). See Shinozaki [0001].
Colaiacomo relates to disaster or state recovery, which is data
restoring. See Colaiacomo [0002]. Known work in one field of
endeavor may prompt variation of it for use in the same field
based on design incentives if the variations are predictable to one
of ordinary skill in the art. Both references seek to improve data
restoration. More specifically both use event logs or journals in
improving data recovery. Shinozaki specifically discusses its
advantages in efficiency with respect to auxiliary storage of
journal events in [0015]-[0016] wherein fewer resources are
consumed which is well known to be advantageous in the
computer arts. The general advantage of Colaiacomo is that it
allows a quicker recovery after a severe system problem or
disaster by filtering and compacting event logs. See Colaiacomo
[0005]-[0010]. The transfer and backup of data in Shinozaki is
made more efficient by the malfunction response, compacting
and filtering of journal entries of Colaiacomo by consuming less
resources and allowing a quicker recovery of data.
Ans. 8-9. The Examiner's obviousness analysis, findings and conclusion
are supported by the cited combination of references and Appellants do not
identify reversible error. We agree with and adopt the Examiner's analysis,
findings, and conclusions with respect to claim 1 as set forth in the Final
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Office Action and the Examiner's Answer. Therefore, we sustain the
rejection of claim 1 and claims 2--4, 15-18, 29, and 30, which were not
separately argued.
Claims 6, 20, and 31
Dependent claims 6, 20, and 31, recite, "the system malfunction
incident comprises a storage capacity of the memory reaching a threshold."
App. Br. 20, 22, 24. In the Final Office Action, the Examiner cites
paragraph 5 of Colaiacomo as providing the relevant teachings. Final Act.
17, 23, 28-29. In the Examiner's Answer, the Examiner also cites
paragraphs 17 and 20 of Colaiacomo. Ans. 9-10. Appellants argue, "[t]here
is, however, simply nothing in the cited portions of Colaiacomo that
discloses or even, in general, mentions what system event would constitute
as a disaster or a severe system problem (or a system malfunction incident)."
App. Br. 11; Reply Br. 9. Appellants' argument is well-taken. In making
this rejection, the Examiner states:
[t]o the extent that Colaiacomo does not explicitly teach a
memory capacity threshold as a system malfunction, it would
have been obvious to one of ordinary skill in the art at the time
the invention was made that the disaster and severe system
problems described in Colaiacomo would include reaching a
memory capacity threshold.
Final Act. 17, 23, 28. The Examiner cites no support for this statement and
fails to point to any prior art teaching in either the Final Office Action or the
Examiner's Answer of a system malfunction comprising a storage capacity
of a memory reaching a threshold. Therefore, on this record, we reverse the
rejection of claims 6, 20, and 31.
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Claims 7, 21, and 3 2
Dependent claims 7, 21, and 32 recite, "the system malfunction
incident comprises failure of a connection between the production and
backup servers." App. Br. 20, 22, 24. In the Final Office Action, the
Examiner cites paragraph 5 of Colaiacomo. Final Act. 18, 24, 29. In the
Examiner's Answer, the Examiner also cites paragraphs 17 and 20 of
Colaiacomo and paragraphs 3 7 and 3 8 of Shinozaki. Ans. 10-11.
Appellants argue, "there is no disclosure or suggestion in the cited portions
of Colaiacomo (or Shinozaki) regarding a specific event (e.g., failure of
connection between servers, etc.) that may cause a disruption in the normal
operations of the computer system." Reply Br. 11. See, also, App. Br. 12.
This argument is well-taken. In making this rejection, the Examiner states:
[t]o the extent that Colaiacomo does not explicitly teach a
connection failure as a system malfunction, it would have been
obvious to one of ordinary skill in the art at the time the
invention was made that the disaster and severe system
problems described in Colaiacomo would include a connection
failure.
Final Act. 18, 24, 29. The Examiner cites no support for this statement and
fails to point to any prior art teaching in either the Final Office Action or the
Examiner's Answer of a system malfunction incident comprising failure of a
connection between production and backup servers. Therefore, on this
record, we reverse the rejection of claims 7, 21, and 3 2.
Claims 9, 23, and 33
Appellants argue that the cited combination of references (Shinozaki
and Colaiacomo) fails to teach or suggest, "sending a point in time of the
capturing of the snapshot [of the volume of the production server] to the
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Application 12/955,299
backup server," as recited in dependent claims 9, 23, and 33. App. Br. 13;
Reply Br. 12-13. In the Examiner's Answer, the Examiner responds:
Shinozaki at least at [0045] describes sending update data and
journal data in the master end journal volume to a remote en[ d]
journal volume. The update data and journal data includes [a]
recovery/capture time point as described in Shinozaki [0042].
See also Shinozaki [0058] and [0059] and Fig. 5, wherein journal
data includes a "write accepted time" which is analogous to a
time of capturing a snapshot. See also Shinozaki [0003] wherein
a snapshot is affirmatively associated with a "given point in
time" for restoring data to that point in time.
Ans. 11-12. The Examiner's findings and description of the teachings are
supported by the cited passages in Shinozaki. We agree with the Examiner's
rejection based on these findings and are not persuaded by Appellants'
arguments. Therefore, we sustain the rejection of claims 9, 23, and 33.
Claims 10, 24, and 34
Denendent claims 10. 24. and 34 recite. "the svstem malfunction
_._ / / / el
incident comprises failure to capture the snapshot of the volume of the
production server." App. Br. 20, 22, 24. In the Final Office Action, the
Examiner cites paragraph 5 of Colaiacomo. Final Act. 19. In the
Examiner's Answer, the Examiner also cites paragraphs 17 and 20 of
Colaiacomo. Ans. 12-13. Appellants argue, "there is no teaching or
indication in the cited portions of Colaiacomo regarding failure to capture
the snapshot of the volume of the production server, let alone that such
failure is a disaster or a severe system problem (e.g., for recovery
purposes)." Reply Br. 14. This argument is well-taken. In making this
rejection, the Examiner states:
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[t]o the extent that Colaiacomo does not explicitly teach a failed
snapshot as a system malfunction, it would have been obvious to
one of ordinary skill in the art at the time the invention was made
that the disaster and severe system problems described in
Colaiacomo would include a snapshot failure.
Final Act. 19, 25, 30. The Examiner cites no support for this statement and
fails to point to any prior art teaching in either the Final Office Action or the
Examiner's Answer of a system malfunction incident comprising failure to
capture a snapshot of the volume of the production server. Therefore, on
this record, we reverse the rejection of claims 10, 24, and 34.
Claims 5 and 13
Appellants argue dependent claims 5 and 13 are patentable for the
same reasons as independent claim 1, from which claims 5 and 13 depend.
App. Br. 15. We sustain the rejection of claims 5 and 13 for the reasons
discussed above with regard to claim 1.
Claims 8 and 22
Claim 8 depends from claim 7 and claim 22 depends from claim 21.
App. Br. 20, 22. As discussed above, the cited art fails to teach or suggest
the element recited in claims 7 and 21. Therefore, we reverse the rejection
of claims 8 and 22.
Claims 11 and 25
Claim 11 recites, "capturing the snapshot invokes the transferring
step at the second time instant" and claim 25 recites, "the processor is
further configured to transfer the additional journal event at the second time
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instant after capturing a snapshot of the volume of the production server."
App. Br. 20, 22. The Examiner cites paragraphs 7 and 8 of Hara as
providing the relevant teachings. Final Act. 35 ("See Hara [0007] and
[0008] wherein a snapshot is captured and journal data is transferred to a
backup server"). Appellants argue:
While paragraphs [0007] and [0008] of Hara refer to a
snapshot and a journal, those portions of Hara, however, provide
no disclosure or suggestion regarding the recited capturing the
snapshot invokes the recited transferring step. There is no
apparent discussion in the cited portions of Hara regarding
capturing snapshot invoking some other process, let alone
invoking the recited transferring step.
App. Br. 16. The Examiner responds:
Appellant's argument appears to rely on the point that Hara does
not specifically use the word "invokes." But, Appellant
misconstrues the disclosure of Hara. At least in paragraphs
[0007] and [0008] Hara teaches that periodic taking/capturing of
snapshots occurs at a first point in time and at a point in time after
the snanshot creatirn.! and storirn.! the i ournal of cham!es made
_._ '-' '-' .J '-'
and that further there is a need to transfer the backup data Uournal
and snapshots) to a backup media/auxiliary storage which is what
is required by the claims. Specifically the capturing of the
snapshot causes (i.e. invokes) a need for the backup (snapshot
and or journal logs) to be transferred to backup media/auxiliary
storage.
Ans. 14. The Examiner's findings are supported by Hara. Appellants repeat
the argument from the Appeal Brief verbatim in the Reply Brief. Reply Br.
16. Appellants fail to explain how the Examiner erred in the findings and
analysis in the Examiner's Answer. We are not persuaded by Appellants'
argument and sustain the rejections of claims 11 and 25.
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Claims 14, 28, and 35
Dependent claim 14 6 recites, "retrieving data associated with the
journal event stored in the auxiliary storage unit from the captured snapshot;
and sending the retrieved data along with the journal event stored in the
auxiliary storage unit to the backup server." App. Br. 20-21. Dependent
claims 28 and 35 contain analogous limitations. App. Br. 23, 24. In the
Final Office Action, the Examiner cites paragraphs 24 and 50 of Popovski as
providing the relevant teachings. Final Act. 37--40. Appellants argue, "the
cited portions of Popovski provide no disclosure or suggestion regarding, for
example, sending the retrieved data along with the journal event stored in the
auxiliary storage unit to the backup server." App. Br. 17; Reply Br. 18. In
the Examiner's Answer, the Examiner responds:
Popovski [0004] which recognizes the invention related to
controlling data storage and creating backup copies and [0050]
describes where journal events associated with a snapshot are
sent from one storage column to a second (i.e. backup) storage
volume, which in the view of the other portions of Popovski and
the cited references is a backup storage volume at a backup
server.
Ans. 15. Paragraph 50 of Popovski teaches applying write requests to the
storage volume, but fails to teach sending the journal events to the storage
volume. Because the findings of the Examiner are not supported by the
cited art, upon this record, we reverse the rejection of claims 14, 28, and 35.
DECISION
The rejections of claims 1-5, 9, 11, 13, 15-18, 23, 25, 29, 30, and 33
are affirmed.
6 Claim 14 depends from claim 9 which depends from claim 1. App. Br. 20.
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Application 12/955,299
The rejections of claims 6-8, 10, 14, 20-22, 24, 28, 31, 32, 34, and 35
are reversed.
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-IN-PART
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