Ex Parte Gold

Patent Trial and Appeal BoardAug 25, 2016

12906108 (P.T.A.B. Aug. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/906,108 10/17/2010 Stephen Gold 56436 7590 08/29/2016 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. 82264781 9492 EXAMINER BIBBEE, JARED M ART UNIT PAPER NUMBER 2161 NOTIFICATION DATE DELIVERY MODE 08/29/2016 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 Exparte STEPHEN GOLD Appeal2015-002565 Application 12/906, 108 Technology Center 2100 Before ROBERT E. NAPPI, MIRIAM L. QUINN, and STEVEN M. AMUNDSON, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. Â§ 134(a) of the Final Rejection of claims 1, 2, 4, 6 through 13, 15 through 18 and 20 through 23. We reverse. INVENTION The invention is directed to a method for providing storage tiers for different backup types where the selection of the tier is based upon the type of backup job. See Abstract. Claim 1 is representative of the invention and reproduced below: Appeal2015-002565 Application 12/906, 108 1. A method of providing storage tiers for different backup types, compnsmg: receiving a backup job from a client for data on a virtualized storage node; identifying a type of the backup job; storing data in at least one other virtualized storage node in a first tier of the at least one other virtualized storage node or a second tier of the at least one other virtualized storage node, selection between the first tier and the second tier based on the type of the backup job, wherein the first tier is for non-deduplicated data and the second tier is for deduplicated data; and migrating a prior backup in the first tier to another storage node in the second tier after a new full backup is successfully stored in the first tier and correlated with the prior backup. REJECTION AT ISSUE The Examiner has rejected claims 1, 2, 4, 6 through 13, 15 through 18 and 20 through 23 under 35 U.S.C. Â§ 103(a) as unpatentable over Bryant et al. (US 2011/0246735 Al; Oct. 6, 2011), Anglin et al. (US 7,567,199 Bl; July 28, 2009), Nguyen et al. (2006/0010174 Al; Jan. 12, 2006) and Botes et al. (US 8,055,622 Bl; Nov 8, 2011). Answer 3-8. 1 ANALYSIS Appellant argues the Examiner's rejection of independent claims 1, 10, and 17 is in error as the combination of the references does not teach "migrating a prior backup in the first tier to another storage node in the second tier after a new full backup is successfully stored in the first tier and 1 Throughout this Opinion we refer to the Appeal Brief (filed July 22, 2014) ("Appeal Br."), Reply Brief, (filed Dec. 30, 2014) ("Reply Br."), and the Examiner's Answer (mailed Nov. 4, 2014) ("Ans."). 2 Appeal2015-002565 Application 12/906, 108 correlated with the prior backup," as recited in claim l and similarly recited in independent claims 10 and 17. App. Br. 5-7 Reply Br. 2--4. Specifically, Appellant argues that Botes, which the Examiner relies upon to teach this limitation, teaches migrating new data from the first tier to the second tier and not a prior backup in the first tier as claimed. App. Br. 6-7, and Reply Br. 3. The Examiner equates Botes tiers A, B, and C with the claimed first tier and the immutable data container as the claimed secondary tier. Ans. 9. Further, the Examiner cites to col. 8, 11. 28 through 35 as teaching that a prior backup is migrated from the first tier to the immutable data container (second tier). Ans. 9-10. We concur with the Examiner that Botes teaches that data is migrated to the immutable container and the data migrated may be just the changes to a file (which is similar to deduplicated data). However, we do not find that the cited paragraphs of Botes teach that the migrated data is a prior backup as claimed, rather it is the current file as argued by Appellant. Thus, Appellant's arguments have persuaded us of error in the Examiner's rejection of independent claims 1, 10 and 17. Accordingly, we do not sustain the Examiner's rejection of claims 1, 2, 4, 6 through 13, 15 through 18 and 20 through 23. DECISION The decision of the Examiner to reject claims 1, 2, 4, 6 through 13, 15 through 18 and 20 through 23 is reversed. REVERSED 3