11123634 (B.P.A.I. Sep. 10, 2012)

Ex Parte Zohar et al

Board of Patent Appeals and InterferencesSep 10, 2012

11123634 (B.P.A.I. Sep. 10, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte OFIR ZOHAR, YARON REVAH, HAIM HELMAN, DROR COHEN, and SHEMER SCHWARTZ ____________________ Appeal 2010-0035151 Application 11/123,634 Technology Center 2100 ____________________ Before JOSEPH L. DIXON, JEAN R. HOMERE, and CARL W. WHITEHEAD, JR., Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is XIV Ltd. (App. Br. 2.) Appeal 2010-003515 Application 11/123,634 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-11, 23, 24, and 27-34. Claims 12-22, 25, and 26 have been canceled. (App. Br. 4.) We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellants’ Invention Appellants invented a method for automatically healing a mass storage device performing at an unacceptable level of activity. In particular, upon detecting the undesired level of activity in the mass storage device, data stored therein is copied to another mass storage while responding to IO data requests. After reformatting the affected mass storage device, the data is copied back thereto while responding to the requests. (Spec. 14, l. 28- Spec. 17, l. 16, Fig. 2.) Illustrative Claim Independent claim 1 further illustrates the invention as follows: 1. A method for operating a data storage system adapted to respond to input/output (IO) data requests from one or more hosts, the system including a first and one or more second mass storage devices, each of the devices having respective data stored therein, the method comprising: defining an unacceptable level of activity in terms of at least one of the follow parameters: an average latency during a given period of time, a latency of one or more individual transactions, and Appeal 2010-003515 Application 11/123,634 3 a length of each mass storage device task queue; and performing the following steps automatically, without intervention by a human operator: detecting the unacceptable level of activity on the first mass storage device, in response to detecting the unacceptable level of activity, copying all the data stored in the first mass storage device to the one or more second mass storage devices, while responding to the IO data requests, after copying all the data, entirely reformatting the first mass storage device, and after entirely reformatting the first mass storage device, copying all the data stored in the one or more second mass storage devices back to the first mass storage device, while responding to the IO data requests. Prior Art Relied Upon The Examiner relies on the following prior art as evidence of unpatentability: Rubinson US 4,434,487 Feb. 28, 1984 Nelson US 5,666,512 Sep. 09, 1997 Zulch US 5,966,730 Oct. 12, 1999 Ruff US 6,088,778 Jul. 11, 2000 Hubis US 6,182,198 Bl Jan. 30, 2001 Talagala US 2002/0162057 Al Oct. 31, 2002 Bachmat US 6,711,649 Bl Mar. 23, 2004 Largman US 2004/0210796 Al Oct. 21, 2004 Appeal 2010-003515 Application 11/123,634 4 PC Guide, Self-Monitoring Analysis and Reporting Technology (SMART), http://www.pcguide.com/ref/hdd/perf/qual/featuresSMART- c.html (2001) (hereinafter “SMART”). PC Guide, Low-Level Format, Zero-Fill and Diagnostic Utilities, http://www.pcguide.com/ref/hdd/geom/formatUtilities-c.html (2001) (hereinafter “Zero-Fill”). Rejections on Appeal The Examiner rejects the claims on appeal as follows: Claims 1, 3-6, 27, and 33 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of Zulch. Claim 31 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of SMART. Claims 2 and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of Talagala. Claims 9-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of Nelson. Appeal 2010-003515 Application 11/123,634 5 Claims 23, 24, and 34 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis, Rubinson and Ruff. Claim 28 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of Zero-Fill. Claims 29, 30, and 32 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Largman in view of Hubis and Rubinson and further in view of Bachmat. ANALYSIS We consider Appellants’ arguments seriatim as they are presented in the principal Brief, pages 10-19. Dispositive Issue: Have Appellants shown that the Examiner erred in finding that the combination of Largman, Hubis, and Rubinson teaches or suggests repairing an affected storage device without intervention by a human operator (i.e. automatically), as recited claim 1? Appellants argue that Largman’s disclosure requires a user to actuate a switch to perform the repair process. Therefore, Appellants submit that Largman’s system is user dependent and thereby vitiates the claim requirement that such repair be done without user intervention. (App. Br. 10-12.) In response, the Examiner finds that Largman discloses an embodiment wherein a computing environment may be stabilized without user intervention. In particular, the system monitors undesired storage Appeal 2010-003515 Application 11/123,634 6 devices for changes and automatically performs a recovery process upon discovering such changes. (Ans. 21-22.) On the record before us, we agree with the Examiner’s findings and ultimate conclusion of obviousness. We note at the outset that Appellants have not addressed the specific findings made by the Examiner in the Answer. As set forth above, while the Examiner relies upon an embodiment of Largman that teaches performing the recovery process without user intervention recited in the claim, Appellants merely argue a different embodiment of Largman that discloses a user-dependent process. Clearly, such argument does not squarely address or show error in the Examiner’s findings. We find that Appellants have been given full and fair notice of the teachings of the Largman reference, as further clarified by the Examiner in the “Response to Argument” section of the Answer. (Id.) Consequently, we find unavailing Appellants’ argument that Hubis and Rubinson do not cure the deficiencies of the Largman reference. (App Br. 12.) Appellants are responsible for all that is disclosed by the collective teachings of the cited references. See In re Zenitz, 333 F.2d 924, 926 (CCPA 1964). “They are part of the literature of the art, relevant for all they contain.” In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)). We have previously held that “[i]f an appellant fails to present arguments on a particular issue … the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection.” Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (citations Appeal 2010-003515 Application 11/123,634 7 omitted). Consequently, because Appellants’ arguments are ineffective in demonstrating error in the Examiner’s prima facie case to establish the patentability of the claims on appeal, we find Appellants have failed to rebut the Examiner’s rejection of the claim 1 with any persuasive analysis. See Ex parte Belinne, No. 2009-004693, 2009 WL 2477843 at *3-4 (BPAI Aug. 10, 2009) (informative.) For at least the aforementioned reasons, we find Appellants have not sustained the requisite burden on appeal of providing arguments or evidence persuasive of error in the Examiner’s rejection of representative claim 1 and claims 3-6, 27 and 33 grouped therewith. Regarding claims 2, 7-11, 23, 24, and 28-32, and 34, Appellants reiterate the language of the respective claims and rely upon the same arguments presented for representative claim 1above. (App. Br. 12-19.) See Belinne, 2009 WL, at *3-4. Therefore, claims 2, 7-11, 23, 24, and 28-32, and 34 fall for the reasons set forth in our discussion of claim 1 above. See 37 C.F.R. § 41.37(c)(1)(vii). DECISION We affirm the Examiner’s rejections of claims 1-11, 23, 24, and 27- 34 as set forth above. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED peb