Ex Parte Gold

Patent Trial and Appeal Board

Apr 28, 2016

12942006 (P.T.A.B. Apr. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/942,006 11/08/2010 Stephen Gold
56436 7590 05/02/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82265114 1883
EXAMINER
WEINRICH, BRIAN E
ART UNIT PAPER NUMBER
2169
NOTIFICATION DATE DELIVERY MODE
05/02/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN GOLD
Appeal2014-003206
Application 12/942,006
Technology Center 2100
Before ROBERT E. NAPPI, CARLA M. KRIVAK, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
STEPHENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 seeks our review under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 1-20. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as Hewlett-Packard Development
Company, L.P. (App. Br. 2.)
Appeal2014-003206
Application 12/942,006
Claimed Subject Matter
The invention generally relates to backup policies for storing backup
data on virtualized storage nodes in different storage tiers. (Title; Abstract.)
Claims 1 and 9, reproduced below, are illustrative:
1. A method of using different storage tiers based on a
backup policy, comprising:
receiving a backup job from a client at a storage device,
the backup job having data to be stored on a plurality of
virtualized storage nodes of the storage device;
identifying at least one property of the backup job, the at
least one property determined at a backup interface as the backup
job is being received at the storage device from the client before
being stored on any of the plurality of virtualized storage nodes
of the storage device;
accessing the backup policy for the backup job by a
storage manager operatively associated with each of the plurality
of virtualized storage nodes of the storage device; and
selecting by the storage manager between storing
incoming data for the backup job on the plurality of virtualized
storage nodes in a first tier or a second tier based on the backup
policy.
9. A backup system comprising:
an interface between a plurality of virtualized storage
nodes and a client computing device, the interface configured to
identify at least one property of a backup job from the client
computing device, for backing up data on a virtualized storage
node of the storage device in one of at least two states; and
a storage manager operatively associated with the
interface, the storage manager configured to manage storing of
incoming data for the backup job on the plurality of virtualized
storage nodes of the storage device in either a first tier or a second
tier based on a backup policy.
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Rejections2
Claims 9-12 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Chakravarty et al. (US 2007 /0208788 Al; published Sept. 6, 2007)
("Chakravarty"). (Final Act. 5-8.)
Claims 1--4, 6, 7, 13, and 17-20 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Chakravarty and Takata et al. (US
2011/0078112 Al; published Mar. 31, 2011) ("Takata"). (Final Act. 8-19.)
Claims 5, 8, and 14--16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Chakravarty, Takata, and Parab (US 2012/0084261 Al;
published Apr. 5, 2012). (Final Act. 19-25.)
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
arguments the Examiner erred (App. Br. 5-11; Reply Br. 2-9). We are not
persuaded by Appellant's arguments. We adopt as our own the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken and as set forth by the Examiner in the Answer (Ans. 2-9). We
highlight and address specific arguments and findings for emphasis as
follows.
Claims 9-12
Appellant argues Chakravarty fails to teach an interface between a
plurality of virtualized storage nodes and a client computing device, the
2 The objections to claim 1, the Specification, and the drawings (Final Act.
2-5) are not before us on appeal, and Appellant states the objections "do not
have any bearing on the issues to be decided on Appeal" (App. Br. 5).
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Application 12/942,006
interface configured to identifj; at least one property of a backup job from
the client computing device, for backing up data on a virtualized storage
node of the storage device in one of at least two states, as recited in claim 9.
(App. Br. 5---6; Reply Br. 3--4.) According to Appellant, Chakravarty at most
describes data migration between storage devices, which is different from
backup. (App. Br. 6; Reply Br. 3.)
We are not persuaded by Appellant's arguments, which do not take
into account Chakravarty' s entire disclosure. We agree with the Examiner's
findings that Chakravarty's system is for data backup. (Ans. 2-3 (citing
Chakravarty i-fi-12, 4, 42); Final Act. 5---6 (citing Chakravarty Fig. 1, i-fi-121-
22, 30-31).) In particular, Chakravarty's background explains
disadvantages of conventional data backup systems, including "a significant
amount of unnecessary, redundant data on the backup media." (Chakravarty
i12.) Chakravarty teaches two tiers of storage, a redundancy reducer, and a
migration engine to avoid data redundancy. (See i14.) Given this context,
one of ordinary skill in the art would understand Chakravarty's migration to
be from one tier to another within a backup system. Thus, we are not
persuaded by Appellant's argument that Chakravarty relates only to
migration, and not backup. (See also Chakravarty i-f 24 ("For example,
assuming a backup of data occurs on a given system on a weekly basis, ...
the initial set of data is stored, and only the new, unique data is stored
thereafter." (emphasis added)).)
We further note Appellant's argument in the Reply Brief that
Chakravarty's Application Programming Interface (API) "is not an interface
from the client computing device." (Reply Br. 4.) Appellant has not
persuasively explained why the API must be "from the client device" rather
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Application 12/942,006
than configured to identifj; at least one property of a backup job from the
client computing device, as recited in claim 9. In addition, Appellant has not
shown good cause for not presenting this argument in the Appeal Brief, and
we consider the argument waived. 37 C.F.R. § 41.41(b)(2) ("Any argument
raised in the reply brief which was not raised in the appeal brief, or is not
responsive to an argument raised in the examiner's answer, ... will not be
considered by the Board for purposes of the present appeal, unless good
cause is shown.").
Accordingly, Appellant's arguments directed to the Examiner's
rejection of claim 9 have not persuaded us of error in the Examiner's
rejection, and we sustain the rejection of claim 9 under 35 U.S.C. § 102(b)
as anticipated by Chakravarty. For the same reasons, we sustain the
rejection of dependent claims 10-12, which are not argued separately with
particularity. (App. Br. 6.)
Claims 1-3, 5---8, 17, 18, and 20
Appellant argues Chakravarty and Takata fail to teach or suggest
identifying at least one property of the backup job, the at least one property
determined at a backup interface as the backup job is being received at the
storage device from the client before being stored on any of the plurality of
virtualized storage nodes of the storage device, as recited in claim 1. (App.
Br. 6-9; Reply Br. 4--5.) Regarding Chakravarty, Appellant argues the
reference "discloses migration between storage tiers and thus cannot teach
before being stored on any of the storage nodes." (App. Br. 8.) We are
not persuaded by Appellant's argument. As discussed supra with respect to
claim 9, we are not persuaded Chakravarty relates only to migration, and not
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backup. Moreover, we agree with the Examiner that Chakravarty receives
backup data from a client via an interface before storing the data on a
storage device. (Ans. 3; Final Act. 8-9 (citing Chakravarty Fig. 1, i-fi-124,
33).)
In the Reply Brief, Appellant contends the Examiner ignores certain
structural limitations of claim 1, shown in boldface font (Reply Br. 5),
without persuasive explanation of error in the rejection.
Accordingly, Appellant's arguments directed to the Examiner's
rejection of claim 1 have not persuaded us of error in the Examiner's
rejection, and we sustain the rejection of claim 1 under 35 U.S.C. § 103(a) as
unpatentable over Chakravarty and Takata. Appellant argues the Examiner
erred in rejecting independent claim 17 for the same reasons as independent
claims 1 and 9. (App. Br. 10.) Thus, for the same reasons as claims 1 and 9,
we sustain the rejection of independent claim 1 7 and dependent claims 2, 3,
6, 7, 18, and 20, which are not argued separately with particularity. (App.
Br. 9, 11.)
Appellant presents no additional arguments in support of claims 5 and
8, which depend from claim 1. (See App. Br. 11.) Thus, for the same
reasons as claim 1, we sustain the rejection of claims 5 and 8 under 35
U.S.C. § 103(a) as unpatentable over Chakravarty, Takata, and Parab.
Claim 4
Appellant argues Chakravarty does not teach or suggest storing at
least one backup job in a first state and at least one backup job in a second
state without conversion between the first state and the second state, as
recited in claim 4. (App. Br. 9; Reply Br. 5---6.) According to Appellant,
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Chakravarty's mention of raw data in paragraph 24 is unrelated to storing
backup jobs in separate states. (Reply Br. 5-6.)
We agree with the Examiner, however, that Chakravarty's initial set
of data, stored without redundancy reduction (raw data), meets the claimed
backup job stored in a first state. A later data backup, after redundancy
reduction, meets the claimed backup job stored in a second state. (Ans. 5-6
(citing Chakravarty i-fi-16, 24).) The Examiner's implicit interpretation of
"state" is consistent with Appellant's Specification, which provides "further
operations may include storing the backup job in a first state (e.g., as non-
deduplicated data) in the first tier based on the backup policy; and in a
second state (e.g., as deduplicated data) in the second tier based on the
backup policy" (Spec. i1 43).
Accordingly, Appellant's arguments have not persuaded us of error in
the Examiner's rejection of claim 4. Thus, we sustain the Examiner's
rejection of claim 4 under 35 U.S.C. § 103(a) as unpatentable over
Chakravarty and Takata.
Claims 13-16
Appellant argues Takata does not teach or suggest the at least one
property of the backup job is encoded in metadata associated with the
backup job, the metadata defining at least two of a name of the backup job;
a type of the backup job; and a capability of a source of the backup job, as
recited in claim 13. (App. Br. 10.) According to Appellant, Takata does not
teach metadata associated with a backup job as claimed. (App. Br. 10.) The
Examiner, however, relies on Chakravarty for the claimed metadata, and we
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agree with the Examiner that Chakravarty teaches metadata associated with
data blocks of a backup job. (Final Act. 13 (citing Chakravarty i-fi-127, 35).)
Appellant's arguments in the Appeal Brief do not address the
Examiner's findings regarding Chakravarty's metadata or the combined
teachings of the references. Appellant contends, in the Reply Brief,
Chakravarty does not teach metadata, Takata does not teach metadata
associated with a backup job, and the "mere mention of 'identifier
information' in Takata fails to provide any support that one having ordinary
skill in the art would be apprised to combine the 'operations' described in
Chakravarty into the metadata of Takata." (Reply Br. 6-7.) Appellant did
not present these arguments in the Appeal Brief, and has not shown good
cause for presenting them for the first time in the Reply Brief. We consider
these arguments waived. 37 C.F.R. § 41.41(b)(2).
Accordingly, Appellant's arguments have not persuaded us of error in
the Examiner's rejection of claim 13. In light of the findings and reasoning
of the Examiner, with which we agree, we sustain the Examiner's rejection
of claim 13 under 35 U.S.C. § 103(a) as unpatentable over Chakravarty and
Takata.
Appellant presents no additional arguments in support of claims 14--
16, which depend from claim 13. (See App. Br. 11.) Thus, for the same
reasons as claim 13, we sustain the rejection of claims 14--16 under 35
U.S.C. § 103(a) as unpatentable over Chakravarty, Takata, and Parab.
Claim 19
Claim 19 depends from claim 18 and recites the plurality of
conditions include nested conditions in the backup policy. Appellant states
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neither Chakravarty nor Takata teaches a plurality of conditions that include
nested conditions in a backup policy. (App. Br. 11.)
The Examiner finds Takata teaches nested conditions in a backup
policy, the conditions including: a determination that a file is normal, i.e.
constantly accessed, for storing the file on a Tier 1 file server; and a
determination that a Tier 1 normal file has not been accessed for a long time,
for moving the file to a Tier 2 file server. (Ans. 8-9 (citing Takata i-f 39); see
also Final Act. 17-18.) Thus, "a file on the Tier 2 file server ... has
satisfied a condition of being a file that has not been accessed for a long time
nested within another condition that the file is normal." (Ans. 8-9.)
According to Appellant, Takata's storing normal files on a Tier 1 file server
does not teach a condition because Takata is "not making any determination
that these files are normal." (Reply Br. 8.) We do not find this argument
persuasive. We agree with the Examiner that one of ordinary skill in the art
would understand Takata's teaching that "the Tier 1 file server 102 stores
files that are constantly accessed from the client 100 as normal files" (Takata
i-f 39) suggests determining the files are normal files.
Accordingly, Appellant's arguments have not persuaded us of error in
the Examiner's finding Takata teaches nested conditions. Thus, we sustain
the Examiner's rejection of claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Chakravarty and Takata.
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DECISION
We affirm the Examiner's decision rejecting claims 1-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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