International Business Machines Corporation

Patent Trials and Appeals Board

Jan 12, 2022

2020006504 (P.T.A.B. Jan. 12, 2022)

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. 15/467,444 03/23/2017 Alexander Litvinsky END920165651US8 7846 133758 7590 01/12/2022 Roberts Calderon Safran & Cole, P.C. Intellectual Property Department P.O. Box 10064 McLean, VA 22102-8064 EXAMINER WEI, ZENGPU ART UNIT PAPER NUMBER 2192 NOTIFICATION DATE DELIVERY MODE 01/12/2022 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): Docketing@rcsc-ip.com lgallaugher@rcsc-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ALEXANDER LITVINSKY _____________ Appeal 2020-006504 Application 15/467,444 Technology Center 2100 ____________ Before ERIC S. FRAHM, JOHNNY A. KUMAR, and CARL L. SILVERMAN, Administrative Patent Judges. KUMAR, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-18. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2018). According to Appellant, the real party in interest is International Business Machines Corporation. See Appeal Br. 2. Appeal 2020-006504 Application 15/467,444 2 STATEMENT OF THE CASE 2 Introduction Appellant’s claimed invention relates generally to “dispersing error encoded data.” (Spec. ¶ 4). Independent Claim 1 1. A method for executing a software update within a dispersed storage network (DSN), wherein the DSN includes a plurality of sets of storage units, wherein the method comprises: determining, by a management unit of the DSN, a type of the software update for the plurality of sets of storage units, wherein the type of software update ranges from critical to non- critical; adding, by the management unit, the software update to a list of pending software updates; determining, by the management unit, a software update plan for one or more software updates of the pending software updates based on timing restrictions, a level of storage reliability, and an aggressiveness level of a most critical type of software update of the one or more software updates, wherein the aggressiveness level includes determining a time period for executing the one or more software updates and determining a first number of storage units of a first set of storage units of the plurality of sets of storage units and a second number of storage units of a second set of storage units of the plurality of sets of storage units to take offline at a given time for the one or more software updates, wherein the first number of storage units is based on a function of “n-k” for the first set of storage units and the second number of storage units is based on a function of “n- 2 We herein refer to the Final Office Action, mailed Dec. 9, 2019 (“Final Act.”); Appeal Brief, filed (Apr. 30, 2020) (“Appeal Br.”); the Examiner’s Answer, mailed July 17, 2020 (“Ans.”); and the Reply Brief, filed Sept. 16, 2020 (“Reply Br.”). Appeal 2020-006504 Application 15/467,444 3 k” for the second set of storage units, and wherein “n” is the total number of storage units of a set of storage units, and wherein “k” is a decode threshold number; taking, by the management unit, the first and second number of storage units offline; updating, by the management unit, the first and second number of storage units that are offline with the one or more software updates in accordance with the software update plan; bringing online, by the management unit, the first and second number of storage units that were offline when the first and second number of storage units have been updated with the one or more software updates; facilitating, by the management unit, data consistency for the first number of storage units that were offline with the other storage units of the first set of storage units that remained online; and facilitating, by the management unit, data consistency for the second number of storage units that were offline with the other storage units of the second set of storage units that remained online. Appeal Br. 22, 23, Claims App., disputed limitation emphasized. Rejections Claims 1, 2, 4-6, 8-10, 12-14, and 16-18 are rejected under 35 U.S.C. § 103 as being unpatentable over Resch (US 2012/0311557 Al, published Dec. 6, 2012 (hereinafter “Resch”)) in view of Matthew et al. (US 2014/0282480 Al, published Sept. 18, 2014 (hereinafter “Matthew”)), Resch (US 2015/0309786 Al, published Oct. 29, 2015 (hereinafter “Resch2015”) and Resch (US 2013/0346716 Al, published Dec. 26, 2013 (hereinafter “Resch2013”)). Claims 3 and 11 are rejected under 35 U.S.C. § 103 as being unpatentable over Resch in view of Matthew, Resch2015, and Resch2013 as Appeal 2020-006504 Application 15/467,444 4 applied to claims 1 and 9 above respectively, in further view of Baptist et al. (US 2012/0226933 Al, published Sept. 6, 2012 (hereinafter “Baptist”). Claims 7 and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Resch in view of Matthew, Resch2015, and Resch2013 as applied to claims 1 and 9 above respectively, in further view of Padmanabhan et al. (US 2015/0049632 Al, published Feb. 19, 2015 (hereinafter “Padmanabhan”)). Issue on Appeal Did the Examiner err in rejecting claims 1-18 as being obvious? Grouping of Claims Based upon Appellant’s arguments, and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of the § 103 rejections of claims 1-18 on the basis of claim 1. ANALYSIS Based on Appellant’s arguments in the Briefs, the principal and dispositive issue of whether the Examiner erred in rejecting claim 1 turns on whether the combination of Resch, Mathew, Resch2015, and Resch2013 teaches the claim limitations determining, by the management unit, a software update plan for one or more software updates of the pending software updates based on timing restrictions, a level of storage reliability, and an aggressiveness level of a most critical type of software update of the one or more software updates. Appeal 2020-006504 Application 15/467,444 5 (hereinafter “the disputed one or more software updates” limitation). Appeal Br. 5-15; Reply Br. 2-5. Independent claim 9 recites similar subject matter.3 We adopt the findings of facts made by the Examiner in the Final Office Action and Examiner’s Answer as our own. We concur with the decision reached by the Examiner in the Examiner’s Answer for the specific reasons discussed below. We highlight the following for emphasis. Appellant contends the combination of Resch, Mathew, Resch2015, and Resch2013 does not teach the disputed one or more software updates limitation. Appeal Br. 5-15; Reply Br. 2-4. In particular, Appellant contends: the plural “updates” in “a list of pending software updates” means that the list includes more than one update. Further, Appellant submits that “determining, by the management unit, a software update plan for one or more software updates of the pending software updates” refers to a software plan for “one or more software updates”, not necessarily all of the pending software updates and, therefore the “one or more” should not be interpreted as meaning that the “pending software updates” can include only one software update. Reply Br. 3 (emphases added). The Examiner has identified the relevant portions of Resch and Mathew and has provided sufficient explanation with corresponding 3 Separate patentability is not argued for claims 2-18. Although claims 3, 7, 9, 11, and 15 are presented under separate headings, Appellant merely references the arguments presented for claims 1 and 9 without presenting any additional arguments to establish separate patentability. Except for our ultimate decision, claims 2-18 are not discussed further herein. Appeal 2020-006504 Application 15/467,444 6 citations to various parts of the reference for disclosing the disputed one or more software updates limitation (Ans. 4, 5). In particular, the Examiner finds Resch teaches in para [0115] that “The status of the software update includes at least one of a time indicator” which reads on timing restrictions; that “an update strategy 164 for updating software of the OS unit (e.g., the computing device 150) such that at least a decode threshold number of OS units 36 of the set of OS units 36 is continually available to service access requests to the digital storage vault” which reads on a level of storage reliability; and that “As a specific example, the determine update strategy module 158 determines the update strategy 164 to include updating now when the software update 166 includes the mandatory critical status” which reads on an aggressiveness level of a most critical type of software update of the one or more software updates, wherein the aggressiveness level includes determining a time period for executing the one or more software updates. . . . . The claim only requires "one or more software updates", not a plurality of updates. Resch at least teaches determining a software update plan for one software update wherein comparing is irrelevant. . . . . Mathew teaches “adding, by the management unit, the software update to a list of pending software updates”, see para [0146] of Mathew as cited in the office action. And as explained in previous paragraphs, Resch teaches "determining, by the management unit, a software update plan for one or more software updates of the pending software updates ...” Thus, Resch in combination with Mathew teaches the claim feature under discussion. Ans. 4, 5 (emphases added). Appeal 2020-006504 Application 15/467,444 7 In other words, the Examiner finds, and we agree, Resch teaches or suggests the disputed one or more software updates limitation with its software update 166. Id. As an initial matter of claim construction, we turn to the Specification for context, and find no explicit definition for the claim term “software updates.” Claim 1 (emphasis added). Appellant’s Specification discloses: [0039] In an example of operation, the management unit 82 first determines the type of software update(s) 86 that is to be implemented. The type of software update includes at least one of a critical security vulnerability fix, a major release, a minor release, a patch release, a beta release, an alpha/development release, and a digitally signed release. Appellant’s Specification discloses “software update(s)” that include both a single update and multiple updates. Given the absence of a limiting definition in the claim or Specification regarding the disputed one or more software updates limitation, on this record, we are not persuaded the Examiner’s reading is overly broad, unreasonable, or inconsistent with the Specification.5 Based on our review of Resch and consistent with the Examiner’s stated position (Ans. 4, 5), we interpret the disputed one or more software updates limitation using the broadest reasonable interpretation consistent with Appellant’s disclosure - to include the software update in Resch. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appellant also contends: 5 We emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Appeal 2020-006504 Application 15/467,444 8 In Resch, a software update strategy is determined on a per software update basis. For example, the update strategy includes updating now when a software update includes the mandatory critical status. However, in the present invention, determining the software update plan involves comparing and evaluating the one or more software updates in the list of pending software updates (e.g., the status of one storage update may trigger the execution of another). Appeal Br. 8. We disagree. Appellant’s “comparing” and “evaluating” arguments are not commensurate with the scope of the claim language. Appellant contends “Matthew does not teach adding, by the management unit, the software update to a list of pending software updates where the list of pending software updates is used to develop a software update plan without client interaction/approval.” Appeal Br. 8, 9. In response, the Examiner finds: Mathew teaches “adding, by the management unit, the software update to a list of pending software updates”, see para [0146] of Mathew as cited in the office action. And as explained in previous paragraphs, Resch teaches “determining, by the management unit, a software update plan for one or more software updates of the pending software updates ...” Thus, Resch in combination with Mathew teaches the claim feature under discussion. Ans. 5 (emphases added). We agree with the Examiner because Appellant’s arguments do not take into account what the collective teachings of the prior art would have suggested to one of ordinary skill in the art and are therefore ineffective to rebut the Examiner’s prima facie case of obviousness. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the Appeal 2020-006504 Application 15/467,444 9 structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” (citations omitted)). Appellant also contends that the Examiner erred in rejecting claim 1 because: the applied art does not disclose “wherein the first number of storage units is based on a function of “n-k” for the first set of storage units and the second number of storage units is based on a function of “n-k” for the second set of storage units, and wherein “n” is the total number of storage units of a set of storage units, and wherein “k” is a decode threshold number”, as recited in claim 1. Reply Br. 5. As to Appellant’s above assertions, we disagree. The Examiner finds, and we agree: because, the method/technique to update two sets of storage units is the same, i.e. updating the second set is just repetitive work (although the n and k may be different), it does not involve inventive idea. The cited art such as Resch 2015 at least teaches a method/technique for updating one set of storage units and the method/technique is applicable to more sets of storage units. Ans. 7. (emphases added). On this record, and based upon a preponderance of the evidence, we are not persuaded of error regarding the Examiner's conclusion of obviousness regarding the rejections of claims 1-18. CONCLUSION Appellant has not shown the Examiner erred with respect to the Appeal 2020-006504 Application 15/467,444 10 obviousness rejections of claims 1-18 over the cited prior art of record, and we sustain the rejections. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4-6, 8-10, 12- 14, 16-18 103 Resch, Matthew, Resch2015, Resch2013 1, 2, 4-6, 8- 10, 12-14, 16-18 3, 11 103 Resch, Matthew, Resch2015, Resch2013, Baptist 3, 11 7, 15 103 Resch, Matthew, Resch2015, Resch2013, Padmanabhan 7, 15 Overall Outcome 1-18 FINALITY AND RESPONSE 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). See 37 C.F.R. § 41.50(f). AFFIRMED