Ex Parte Wipfel et al

Board of Patent Appeals and Interferences

Apr 12, 2011

11186554 (B.P.A.I. Apr. 12, 2011)

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.
11/186,554 07/21/2005 Robert Wipfel 26530.102 6136
47699 7590 04/13/2011
HAYNES AND BOONE, LLP
IP Section
2323 Victory Avenue
Suite 700
Dallas, TX 75219
EXAMINER
MESFIN, YEMANE
ART UNIT PAPER NUMBER
2444
MAIL DATE DELIVERY MODE
04/13/2011 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte ROBERT WIPFEL and RANJAN K. GUPTA
____________________

Appeal 2009-0092171
Application 11/186,554
Technology Center 2400
____________________

Before JOSEPH L. DIXON, JEAN R. HOMERE, and JAMES R. HUGHES,
Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

1 The real party in interest is NOVELL, Inc. (Br. 1.)
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I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-20. (Br. 2.) We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ Invention
Appellants invented a method for re-allocating network resources
among a plurality of surviving nodes in a computer cluster upon detecting a
node failure therein. (Spec. ¶¶ [0045-0048, 0083].)

Illustrative Claim
Independent claim 1 further illustrates the invention. It reads as
follows, respectively:
1. A computer program product for detecting and resolving
a partition condition in a cluster of computers in a networked
environment, the computer program product stored on a
computer-readable medium and comprising:

computer-executable instructions for creating a scratch
pad area accessible by the cluster of computers;

computer-executable instructions for dividing the scratch
pad into a plurality of slots, each slot associated with one of a
plurality of nodes within the cluster of computers, wherein each
slot includes at least a heartbeat field indicating that cluster
software is loaded on the node and a node state field indicating
a current state of the node, wherein the current state identifies
the node as being dead, alive, or preparing to shut down;

computer-executable instructions for recording in the
plurality of slots, a generation number and a list of known
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nodes by each one of the plurality of nodes, wherein an
identifier is written in the list for each node that is known to a
writing node and wherein the generation number and the list of
known nodes is recorded when a change of membership occurs
in the cluster of computers;

computer-executable instructions for comparing each slot
of the plurality of slots to ensure the generation number and the
list of known nodes matches in each slot of the plurality of
slots; and

computer-executable instructions for resolving the
partition condition by creating a list of surviving nodes and re-
allocating appropriate resources to each of the surviving nodes.

Prior Art Relied Upon
MacKenzie 6,363,495 B1 Mar. 26, 2002
Wipfel 6,965,936 B1 Nov. 15, 2005

Rejections on Appeal
1. Claims 1-20 stand rejected on the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1-9 of
US Patent No. 6,965,936.
2. Claims 1-20 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by MacKenzie.

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Appellants’ Contentions
Appellants contend that MacKenzie does not describe (1) each slot
having a heartbeat field indicating that cluster software is loaded on a node
and a state field indicating a current state of the node, and (2) re-allocating
appropriate resources to each surviving node, as recited in independent claim
1. (Br. 5; Reply Br. 2.) According to Appellants, the heartbeat field and
node state field disclosed in MacKenzie do not perform the functions recited
in the claim. Further, Appellants contend that MacKenzie’s disclosure is
silent with regard to re-allocating the resources to surviving nodes. (Id.)

Examiner’s Findings
In response, the Examiner finds that MacKenzie discloses a plurality
of node identification blocks (NIB), each having a heartbeat field and a
status field, which indicate the state of a node. Further, the Examiner finds
that MacKenzie teaches upon detecting that a node is no longer operating,
updating the cluster membership to delete the unavailable node therefrom,
and re-allocating the network resources among the surviving cluster nodes.
(Ans. 5-7, 11-13). Therefore, the pivotal issue before us is as follows:

II. ISSUE
Have Appellants shown that the Examiner erred in finding that
MacKenzie describes (1) each of a plurality of slots having a heartbeat field
indicating that cluster software is loaded on a corresponding node and a state
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field indicating a current state of the node, and (2) re-allocating appropriate
resources to each surviving node, as recited in independent claim 1?

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
MacKenzie
1. MacKenzie discloses a method and system for resolving
network partition in a clustered computer system. (Abst.) In particular,
MacKenzie describes a plurality of numbered nodes, each representing a
computer that is present within the cluster, each being assigned to a network
partition of a direct access storage device (DASD), and the nodes
periodically sending heartbeat messages indicating that they are still active
in the network. (Col. 8, ll. 28-43.)
2. MacKenzie further discloses that each node includes a cluster
generation number indicating the version of the membership the data
contains, the nodes in a cluster as indicated by the cluster state map (CSM)
and the cluster membership, and heartbeat information to indicate whether a
node is either alive or dead. Upon a node leaving a cluster, the resolution of
a cluster partition will cause the cluster state map (CSM) and the node
information block (NIB) to be modified, and will further allocate unused
data field pointers in the future. (Col. 9, ll. 15-21, col. 9, l. 49- col. 10, l. 5;
col. 10, ll. 24-37, Figs. 13-14.)

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IV. ANALYSIS
Double Patenting Rejection
Appellants have failed to address the merit of the Examiner’s double
patenting rejection. We deem such failure to be tantamount to a waiver of
any arguments that Appellants could have raised in this appeal to traverse
this rejection. See 37 C.F.R. § 41.37(c)(1)(vii); In re Watts, 354 F.3d 1362,
1367 (Fed. Cir. 2004). We therefore affirm pro forma the Examiner’s
rejection of claims 1-20 as being unpatentable over US Patent No.
6,965,936.

35 U.S.C. § 102 Rejection
Independent claim 1 requires, inter alia, re-allocating appropriate
resources to each surviving node.
As set forth in the Findings of Fact section, MacKenzie discloses
updating the cluster state map and node information block upon detecting
that a node is no longer a part of the cluster (FF2). We agree with
Appellants that MacKenzie’s updating of the cluster membership list or state
map does not result in re-allocating resources to each surviving node. At
best, the cited disclosure amounts to deleting a node detected as being non-
functioning from the cluster map. However, such disclosure does not
somehow lend itself to re-assigning to surviving nodes resources previously
allocated to the deleted node. Further, while citing several textual portions
of MacKenzie, the Examiner has failed to explain, and we have been unable
to verify how MacKenzie’s disclosure describes the cited disputed
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limitation. Therefore, we find the cited portions of MacKenzie simply fall
short of describing re-allocating resources to each surviving node. Since
Appellants have shown at least one error in the Examiner’s rejection of
claim 1, we find that Appellants have shown that the Examiner erred in
finding that MacKenzie anticipates claim 1.
Since claims 2-16 and 20 recite the limitations of claim 1 discussed
above, we conclude for aforementioned reasons that Appellants have also
shown error in the Examiner’s rejection of those claims.

Claims 17-19
Appellants argue that MacKenzie does not disclose updating the node
state of nodes that are not on the list of surviving nodes. (Br. 6.) We do not
agree. As discussed above, we find MacKenzie’s disclosure of updating the
cluster state map of the nodes, and the associated node information block to
reflect that a node is no longer part of the cluster teaches this limitation. It
follows that Appellants have not shown error in the Examiner’s rejection of
claims 17-19.

V. CONCLUSIONS OF LAW
1. Appellants have not established that the Examiner erred in
rejecting claim 1-20 as being unpatentable under nonstatutory obviousness-
type double patenting over US Patent No. 6,965,936.
2. Appellants have not established that the Examiner erred in
rejecting claims 17-19 as being anticipated by MacKenzie.
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3. Appellants have established that the Examiner erred in rejecting
claims 1-16, and 20 as being anticipated by MacKenzie.

VI. DECISION
1. We affirm the Examiner’s rejection that claims 1-20 as being
unpatentable over US Patent No. 6,965,936.
2. We affirm the Examiner’s rejection that claims 17- 19 as being
anticipated by MacKenzie.
3. We reverse the Examiner’s rejection that claims 1-16 and 20 as
being anticipated by MacKenzie.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner’s decision. See
37 C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

msc