Ex Parte El-Kersh et al

Patent Trial and Appeal Board

Apr 6, 2016

13406786 (P.T.A.B. Apr. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/406,786 02/28/2012
46320 7590 04/08/2016
CRGOLAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
FIRST NAMED INVENTOR
Ehab El-Kersh
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.
FR920090008US2
(7161-664D
CONFIRMATION NO.
9457
EXAMINER
GIRMA, ANTENEH B
ART UNIT PAPER NUMBER
OPIM
NOTIFICATION DATE DELIVERY MODE
04/08/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EHAB EL-KERSH and MOHAMED REFAAT OBIDE
Appeal2014-006016
Application 13/406,786
Technology Center OPIM
Before LARRY J. HUME, JOHN P. PINKERTON, and
NATHAN A. ENGELS, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-8 and 17-24. Claims 9-16 are canceled. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
1 Appellants identify the real party in interest as International Business
Machines Corp. App. Br. 2.
Appeal2014-006016
Application 13/406,786
STATEMENT OF THE CASE
Introduction
Appellants' disclosed and claimed invention is generally directed to
an enhanced two phase commit process to perform a transaction started by
an application program and involving access to one or more resources
managed by respective resource managers. Abstract. 2
Claim 1 is illustrative and reproduced below (with the disputed
limitations emphasized in italics):
1. A method of performing a two phase commit process for
a transaction started by an application program and involving
access to one or more resources managed by respective resource
managers, wherein it comprises the steps of:
enlisting the resource managers participating in the
transaction, each executing in a node comprising a central
processing unit (CPU), main memory and fixed storage, said
enlisting step including associating a significance-based priority
rank with each identified resource manager based on priority
rules predefined by the application program to control data
inconsistency for a period of time when a failure occurs during
a commit phase until recovery happens;
sending a prepare signal to said enlisted resource
managers to begin the process of committing the transaction; and
if a ready signal is received from all resource managers in
response to the prepare signal, committing the resource managers
in the order defined from the priority ranks associated with the
resource managers.
2 Our Decision refers to the Final Action mailed Sept. 5, 2013 ("Final Act.");
Appellants' Appeal Brief filed Dec. 30, 2013 ("App. Br."); the Examiner's
Answer mailed Feb. 13, 2014 ("Ans."); Appellants' Reply Brief filed
Apr. 14, 2014 ("Reply Br."); and, the original Specification filed
Feb. 28, 2012 ("Spec.").
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Application 13/406,786
Rejections on Appeal
Claims 1-8 and 17-24 stand provisionally rejected on the
ground of nonstatutory obviousness-type double patenting as being
unpatentable over claims 9-16 of copending Application No.
12/891,778.3
Claims 1-3, 7, 8, 17-19, 23, and 24 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over the combination of
Parkinson (US 2009/0222823 Al, published Sept. 3, 2009) and Yee
(US 2008/0172674 Al, published July 17, 2008).
Claims 4 and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Parkinson, Yee, Frey (US
2004/0019898 Al, published Jan. 29, 2004), and Hetzel (US
2008/0037571 Al, published Feb. 14, 2008).
Claims 5, 6, 21, and 22 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the combination of Parkinson, Yee, Frey,
Hetzel, and Hoffmann (US 2009/0313311 Al, published Dec. 17,
2009).
3 Application No. 12/891,778 was abandoned on Dec. 4, 2013. Accordingly,
we do not sustain the Examiner's provisional rejection based on the
referenced application.
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Appeal2014-006016
Application 13/406,786
ANALYSIS
The dispositive issue raised by Appellants' briefs is whether
Parkinson teaches or suggests "associating a significance-based priority rank
with each identified resource manager based on priority rules predefined by
the application program to control data inconsistency for a period of time
when a failure occurs during a commit phase until recovery happens," as
recited in claim 1 and similarly recited in claim 17.
In the Final Office Action, the Examiner finds Parkinson teaches
managing transaction consistency using a two-phase commit protocol
performed by resource managers and Yee teaches assigning priorities and
executing based on the priority order. Final Act. 5-7 (citing Parkinson
Fig. 2A, i-fi-12, 3, 17, 27, 56; Yee i-fi-1 56, 57). In the Answer, the Examiner
cites paragraph 2 of Parkinson as teaching the two-way commit protocol in
which a transaction ends in either a commit, which is the successful
execution of each step in the transaction, or a rollback which guarantees that
none of the steps are executed due to an error in one of those steps. Ans. 3.
The Examiner finds paragraph 3 of Parkinson explains that the transactions
are either fully completed or fully restored to the state prior to the
transaction to avoid inconsistent data. Id. The Examiner then states:
"Examiner interprets the two-phase commit protocol as 'rules predefined by
the application program to control data inconsistency for a period of time
when a failure occurs during a commit phase until recovery happens."' Id.
Appellants argue that neither Parkinson nor Yee nor any combination
thereof teaches the disputed limitations of claim 1. App. Br. 5-7; Reply
Br. 2--4.
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Application 13/406,786
We are persuaded by Appellants' arguments the Examiner has erred.
Although we agree with the Examiner's finding that Yee teaches associating
a significance-based priority rank with a task based on priority rules (Final
Act. 6, Ans. 4), the Examiner has failed to provide any reasoning or
explanation of how Parkinson or Yee teaches or suggests associating such
significance-based priority rank with each identified resource manager
"based on priority rules predefined by the application program to control
data inconsistency for a period of time when a failure occurs during a
commit phase until recovery happens," as recited in claim 1. The
Examiner's finding that the two-phase commit protocol of Parkinson teaches
or suggests "rules predefined by the application program to control data
inconsistency," is not persuasive because we find it to be conclusory, and
provides no reasoned analysis of how Parkinson's two-phase commit
protocol teaches or suggests associating a significance-based priority rank
with each resource manager based on priority rules predefined by the
application program. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967)
("The Patent Office has the initial duty of supplying the factual basis for its
rejection. It may not, because it may doubt that the invention is patentable,
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.")
Thus, based on this record, we are persuaded the Examiner erred in
finding the combination of Parkinson and Yee teaches or suggests the
disputed limitations of claim 1, and in concluding claim 1 is obvious based
on the combination of these references. Accordingly, on this record, we
cannot sustain the Examiner's rejection of claim 1 and claims 2-8, which
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Application 13/406,786
depend therefrom. For the same reasons, we do not sustain the rejection of
claim 17 and dependent claims 18-24.
DECISION
We reverse the Examiner's decision rejecting claims 1-8 and 17-24.
We reverse the Examiner's provisional obvious-type double patenting
rejection of claims 1-8 and 17-24.
REVERSED
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