Ex Parte Cluff et al

Patent Trial and Appeal Board

Apr 27, 2016

13612096 (P.T.A.B. Apr. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/612,096 09/12/2012
27299 7590 04/27/2016
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
FIRST NAMED INVENTOR
Scott A. Cluff
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.
SEARCHP.035C lx3 7395
EXAMINER
CHU, GABRIELL
ART UNIT PAPER NUMBER
2114
MAILDATE DELIVERY MODE
04/27/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte SCOTT A. CLUFF and RAYMOND W. THORN
Appeal2014-007214 1
Application 13/612,096
Technology Center 2100
Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and
SHARON PENICK, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 9-26 and 28, which consist all of the
claims pending in this appeal. 2 Claims 1-8 and 2 7 have been canceled. Br.
1. We have jurisdiction under 35 U.S.C. § 6(b).
1 Appellants identify the real party in interest as Micron Technology, Inc.
Br. 1. This Appeal relates to Appeal no. 2014-007208 (13/294,077 being
decided herewith.
2 Appellants also seek our review of the Examiner's objections to the claims
and Specification. Br. 5---6. This Board lacks jurisdiction over this subject
matter. Objections are reviewed by way of petition to the Director of the
USPTO under 37 C.F.R. § 1.181. See MPEP 706.01 ("the Board will not
Appeal2014-007214
Application 13/612,096
We affirm.
Appellants 'Invention
Appellants' invention is directed to a method and system for allowing
a network node (14, 16, 18), which has experienced a fault to recover
therefrom by accessing backup data (e.g. user data, software configuration
file) stored at a remote backup storage device (20). Spec. i-fi-12, 15, Fig. 1.
In particular, upon determining that the node has experienced a failure
during a boot session, an operating system (134) of the node sets to an active
state a fail flag (204) in the main hard disk drive (24) thereon, and instructs
the user to reboot the node. Id. i-fi-127-28, Figs. 1-3. In a subsequent boot
session, upon receiving a user indication to initiate a recovery process, a
BIOS routine in the operating system (134) accesses a backup storage device
(22) at the node to cause a backup routine (26) to access corresponding node
data in the remote backup storage system (20) to thereby download an image
of the drive (30, 32, 34) in the affected node (14, 16, 18). Id. i-fi-128-29.
Illustrative Claim
Independent claim 16 is illustrative, and reads as follows:
Claim 16. A non-transitory computer-readable medium
comprising a plurality of instructions which are configured to, when
executed by a processor:
receive, from a system recovery manager, a user-initiated
request to establish a network connection with a back-up apparatus,
the back-up apparatus comprising at least a identical copy of the
software configuration of the system, where the user-initiated request
was prompted at least in part to a post-boot operational fault
experienced by a system;
hear or decide issues pertaining to objections and formal matters which are
not properly before the Board").
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Application 13/612,096
cause establishment of the network connection; and
effect recovery of the system in response an indicator
indicative of a need for the recovery of the system stored during a
same post-boot session of the experienced post-boot operational fault
via the established network connection, the effected recovery
comprising at least a partial data transfer of the identical copy of the
software configuration over the established network connection;
wherein the effected recover occurs at least partly during an
operational period when the post-boot operational fault was
experienced.
Dellacona
Maffezzoni
Tallam
Prior Art Relied Upon
US 6,799,224 Bl
US 6,901,493 B 1
US 6,948,099 B 1
Rejections on Appeal
Sept. 28, 2004
May 31, 2005
Sept. 20, 2005
Appellants request review of the following Examiner's rejections:
Claims 9-26 and 28 stand rejected under nonstatutOPJ obviousness-
type double patenting as being unpatentable over claims 1-18 ofUS Patent
No. 7,089,449 taken in combination with Dellacona, Tallam, Maffezzoni,
and official notice. 3
Claims 16-20 stand rejected under 35 U.S.C. § 112(a) or 35 U.S.C.
§ 112 first paragraph as failing to comply with the written description
requirement.
Claims 16-20, 23, and 25 stand rejected under 35 U.S.C. § 112(b) or
35 U.S.C. § 112 second paragraph as being indefinite for failing to
3 Because Appellants have not presented any rebuttal arguments against this
rejection, we summarily affirm the double patenting rejection.
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Application 13/612,096
particularly and distinctly claim the subject matter, which Appellants regard
as their invention.
Claims 9-26 and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Tallam, Dellacona, and Maffezzoni.
ANALYSIS
We consider Appellants' arguments seriatim, as they are presented in
the Appeal Brief, pages 3-11. 4
Written Description Rejection
Appellants argue the Examiner erred in finding that the recitation "at
least a partial transfer," as recited in claim 16 is not supported by
Appellants' original written description. Br. 3--4. In particular, Appellants
argue because the Specification discloses storing a respective image file for
each node of the network system, a person of ordinary skill in the art would
recognize when:
[A] node experiences a fault, only the image data of a
respective node, out of the plurality of stored node images data
of the system is transferred to perform a recovery of a
respective node", and would thereby reasonably conclude that
Appellants had possession of the recitation of "at least a partial
data transfer.
Id. at 4 (citing Spec. i-fi-f 14--15). This argument is persuasive.
4 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed Feb. 4, 2014), and the Answer (mailed Apr.
10, 2014) for their respective details. We have considered in this Decision
only those arguments Appellants actually raised in the Brief. Any other
arguments Appellants could have made but chose not to make in the Brief
are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
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Application 13/612,096
We do not agree with the Examiner that Appellants' original written
description does not support that at least a partial data transfer. Ans. 13-14.
Appellants' Specification indicates that, upon detecting a fault at a node,
image data (including user data and software application) for the affected
node is retrieved from the remote storage, and is communicated to the node.
Spec. i-f 15. However, the disputed limitation "at least a partial data transfer
of the identical copy of the software configuration," as recited in claim 16,
encompasses the transfer of some of the image data to the affected node.
Because the transfer of the image data in its entirety (as provided in the
Specification) encompasses the transfer of some of the image data (as recited
in the claim), we agree with Appellants that the disputed limitation is
supported by the Specification. Accordingly, Appellants have shown error
in the Examiner's written description rejection of claims 16-20.
Indefiniteness Rejections
First, Appellants argue although the Examiner correctly concludes
that the recitation "the software configuration" lacks antecedent basis, such a
conclusion alone does not per se render claims 16-20 indefinite. Br. 5. This
argument is persuasive. As correctly noted by Appellants, "[ w ]hen the
meaning of the claim would reasonably be understood by persons of
ordinary skill when read in light of the specification, the claim is not subject
to invalidity upon departure from the protocol of 'antecedent basis."'
Energizer Holdings, Inc. v. International Trade Commission, 435 F.3d 1366,
1370 (Fed. Cir. 2006). Br. 5. Because the ordinarily-skilled artisan would
reasonably be apprised that the "configuration software" refers to a software
for configuring a particular node, we agree with Appellants the cited lack of
antecedent basis itself does not render the claims 16-20 indefinite. Id. Spec.
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il I 5. Likewise, we agree with Appellants that the lack of antecedent basis in
claim 25 does not render the claim indefinite. Br. 6.
Second, Appellants argue the grammatical errors noted by the
Examiner in claims 16-20 and 25 do not per se render the claims indefinite.
Br. 5---6. In particular, as evidenced by the Examiner's clear understanding
of the meaning of these claims, because the ordinarily skilled artisan, having
read the Specification would have been apprised of the scope of claims, they
are not indefinite. Id. We agree with Appellants. As persuasively argued
by Appellants, despite the grammatical errors correctly noted by the
Examiner, the ordinarily skilled artisan would have ascertained the scope of
the claims consistent with the Examiner's reasonably clear interpretation
thereof. Id.
It follows Appellants have shown error in the Examiner's
indefiniteness rejections of claims 16-20, 23, and 25. Therefore, we will not
sustain these rejections.
Obviousness Rejection
Appellants argue the combination of Tallam, Dellacona, and
Maffezzoni does not teach or suggest an indicator indicative of a need for a
recovery of a system being stored during a same session of an experienced
operational fault, as recited in claim 16. Br. 8-9. In particular, Appellants
argue Tallam teaches during a boot process detecting a previous corruption
of an operating system, as well as storing a recovery bit thereof during the
same boot process. Id. (citing Tallam 4: 18-23). According to Appellants,
Tallam's disclosure of indicating the fault occurrence and setting an
associated recovery bit during a same boot process does not teach or suggest
the occurrence of the fault itself and the storing of recovery indication
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happen during the same boot session, as required by the claim. Id. This
argument is not persuasive.
At the outset, we note although the claim requires that the occurrence
of a fault, and an indication of a need for recovery happen during a same
post boot session, Appellants' Specification is silent as to when the fault
actually occurred, let alone that such a fault occurred during the post boot
session. Likewise, Appellants' Specification does not detail that the
indication of a need for recovery take place during the same boot session as
the occurrence of the fault itself. Instead, the Specification merely indicates,
upon determining that a node has experienced a fault, the operating system
sets a fail flag (in the main hard disk drive) to an active state. Then, upon
receiving a user request to recover, the backup routine accesses the remote
backup storage to retrieve image data therefrom. Spec. i-fi-127, 29.
Consequently, the Examiner reasonably inferred from the Specification that
upon discovering the occurrence of a fault in a node, the indication of a need
for recovery is issued by the user (i.e., within a same boot session). Br. 2.
Additionally, we agree with the Examiner's finding that Tallam's disclosure
of performing a checksum analysis of the operating system during a boot
session to determine whether it is corrupted, and during the same boot
session, setting a recovery bit in memory if the stored operating system is
corrupted teaches that the discovery of the operating system corruption and
an indication of a need to recover happen during the same boot session.
Ans. 17-18 (citing Tallam 4: 18-26). Although the cited portion of Tallam
does not particularly specify when the corruption of the operating system
occurred, as in Appellants' Specification, one of ordinary skill in the art
would have readily ascertained from Tallam's disclosure that the occurrence
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Application 13/612,096
of such fault can be approximated to the discovery time thereof~ as proffered
by the Examiner. Id. at 18.
Second, Appellants argue Dellacona' s disclosure of marking of a
failed portion as unavailable would not comport with Tallam's disclosure of
storing a recovery bit in memory to indicate the occurrence of a failure at a
node such that it can trigger a recovery in a subsequent boot session because
there would be nothing to correct. Br. 9 (citing Tallam 4:7-10, Dellacona
2: 1-9.) This argument is not persuasive.
As noted by the Examiner, Dellacona is only relied upon to teach that
post boot session detection is known in the art. Ans. 19. Accordingly,
because Tallam teaches the fault occurrence and the recording of an
indication thereof happen during a same boot session, we agree with the
Examiner that Tallam teaches or suggests the disputed limitations.
Third, Appellants argue that Maffezzoni does cure the noted
deficiencies of Tallam. Br. 9. This argument is not persuasive because we
find no such deficiencies in Tallam for Maffezzoni to remedy.
It follows Appellants have not shown error in the Examiner's rejection
of claim 16 over the combination of Tallam and Dellacona.
Regarding the rejection of claims 9-15, 17-26, and 28, because
Appellants have either not presented separate patentability arguments or
have reiterated substantially the same arguments as those previously
discussed for patentability of claim 16 above, claims 9-15, 17-26, and 28
fall therewith. See 37 C.F.R. § 41.37(c)(l)(iv) (2013). 5
5 Appellants' argument regarding the Examiner's alleged omnibus type
rejection improperly grouping claims 9 and 16 is not persuasive. Br. 9-10.
As correctly noted by the Examiner, because the claims recite similar
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We reverse the Examiner's written description and indefiniteness
rejections of claims 9--26 and 28. However, we affirm the Examiner's
obviousness rejection of claims 9-26 and 28. Because we have affirmed at
least one ground of rejection with respect to each claim on appeal, the
Examiner's decision is affirmed. See 37 C.F.R. § 41.50(a)(l).
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
limitations, they are properly grouped together under a common rejection.
Ans. 19.
9