Ex Parte Grover et al

Patent Trial and Appeal BoardSep 25, 2012

10821832 (P.T.A.B. Sep. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RAJIV K. GROVER and BANU AMALKANTI ____________ Appeal 2010-004979 Application 10/821,832 Technology Center 2100 ____________ Before THOMAS S. HAHN, DENISE M. POTHIER, and BARBARA A. BENOIT, Administrative Patent Judges. BENOIT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-004979 Application 10/821,832 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Invention Appellants’ invention relates to a technique for implementing device loading in storage networks. See generally Abstract; Spec. ¶¶ 0005-06. Claim 1 is reproduced below with key disputed limitations emphasized: 1. A computer program product including computer-readable storage with a computer program, the computer program executing a computer process on a computer system, the computer process: identifying a plurality of storage devices to be configured in a storage network; identifying a number of host port Logical Unit Numbers (LUNs) which are configured on each of the storage devices; identifying a number of host port connections to the storage devices; and for each host port connection, determining actual loading of input/output (IO) jobs for each of the storage devices based at least in part on a queue depth for each of the host port LUNs. The Examiner relies on the following as evidence of unpatentability: Nahum US 2004/0078599 A1 Apr. 22, 2004 (filed Feb. 27, 2002) Cherian US 7,225,242 B2 May 29, 2007 (filed Jan. 26, 2001) JON TATE ET AL., IBM SAN SURVIVAL GUIDE 160-62 (2003), available at http://www.redbooks.ibm.com/redbooks/pdfs/sg246143.pdf. Appeal 2010-004979 Application 10/821,832 3 The Rejections 1. The Examiner rejected claims 1, 2, 4, 6, 7, 9, 11-14, 16-21, 23, 24, and 26 under 35 U.S.C. § 103(a) as unpatentable over Cherian in view of Tate. Ans. 3-9.1 2. The Examiner rejected claims 3, 5, 8, 10, 15, 22, and 25 under 35 U.S.C. § 103(a) as unpatentable over Cherian in view of Tate and Nahum. Ans. 9-10. OBVIOUSNESS REJECTION OVER CHERIAN IN VIEW OF TATE CLAIMS 1, 2, 6, 7, 20, 21, 23, 24, AND 26 Regarding independent claim 1, the Examiner finds that Cherian discloses every recited feature except for the queue depth for each of the host port LUNs. Ans. 3-4. The Examiner also discusses Cherian’s teaching that a server execution throttle is the maximum number of IO commands that a server can have outstanding and is typically controlled by a configuration setting in the host bus adapter (HBA) device driver. Ans. 4. The Examiner then cites Tate as teaching a LUN-queue-depth parameter for the HBA that is used to limit the number of outstanding commands per LUN. Ans. 4. The Examiner, in concluding that the claim would have been obvious, finds that Tate’s LUN queue depth is the same as the server execution throttle taught by Cherian. Ans. 5. Appellants argue that Cherian does not teach actual loading of IO jobs for storage devices because execution throttle levels and potential command 1 Throughout this opinion, we refer to the Appeal Brief filed July 29, 2009; the Examiner’s Answer mailed November 12, 2009; and the Reply Brief filed January 9, 2010. Appeal 2010-004979 Application 10/821,832 4 throughput of the servers is not the same as the actual loading of the storage devices. App. Br. 6-7; Reply Br. 3-4. Issue Under § 103, has the Examiner erred in rejecting claim 1 by finding that Cherian and Tate collectively would have taught or suggested determining actual loading of IO jobs for each of the storage devices based at least in part on a queue depth for each of the host port LUNs? Analysis Based on the record before us, we find no error in the Examiner’s rejection of claim 1, which requires actual loading of IO jobs for storage devices based at least in part on a queue depth for the host port LUNs. Appellants have not persuaded us of error in the Examiner’s finding that Cherian teaches determining actual loading of IO jobs for each of the storage devices based at least in part on execution throttle level of each host. Ans. 4 (citing Cherian, col. 5, ll. 13-39). Although Appellants correctly note that the Specification does not expressly define “actual” (Reply Br. 3), nor by extension “actual loading” or “maximum actual loading,” we are not persuaded by Appellants’ assertion, based on a commonly understood meaning of actual, that Cherian’s “server execution throttle” and “the maximum number of I/O commands” merely exist potentially and, as such, cannot be interpreted as the claimed actual loading. Reply Br. 3-4 (citing Merriam-Webster’s Online Dictionary definition of actual as “existing in act and not merely potentially”). Appellants’ Specification discusses device loading and IO job management in a storage network using a variety of terms, including “actual loading,” “device loading,” and, even, “maximum actual IO loading.” See generally Appeal 2010-004979 Application 10/821,832 5 Spec. ¶¶ 0026-32. Appellants also assert that the Specification is “inconsistent” in its usage of the term “actual loading” in paragraph 0028 where Appellants assert that “actual loading” in the equation means “device loading.” Reply Br. 4. Appellants point to paragraph 0029 as disclosing the correct distinction between “device loading” and “actual loading.” Id. (quoting Spec. ¶ 0029). Appellants’ Specification in paragraph 0029 states: “[T]his storage network may be designed . . . so long as the maximum actual IO loading is less than the acceptable device loading” (emphasis added). Thus, Appellants point to the maximum actual IO loading as actual loading. Id. Accordingly, we are not persuaded that the broadest reasonable construction of “determining actual loading” cannot include determining an actual loading for IO jobs for storage devices where the actual loading is a maximum actual IO loading, which is consistent with the Specification. Cherian teaches such an actual loading (e.g., summed execution throttle value) of the jobs based on at least in part on a queue depth for each host port LUNs. See Ans. 4 (citing Cherian, col. 5, ll. 13-39). Further, the Specification’s discussion about determining a maximum actual IO loading undercuts Appellants’ assertion that actual loading cannot mean execution throttle levels and potential command throughput because actual means “existing in act and not merely potentially.” Reply Br. 3. Maximum actual IO loading would seem to suffer similar alleged deficiencies of being “merely existing potentially” as server execution throttle and potential command throughput do, according to Appellants. See Reply Br. 4. Yet Appellants point to paragraph 0029 discussing maximum actual IO loading as properly distinguishing device loading and actual loading. Id. Appeal 2010-004979 Application 10/821,832 6 For the foregoing reasons, Appellants have not persuaded us of error in the rejection of independent claim 1. Although dependent claim 2 was separately argued, the arguments are similar to those made in connection with claim 1. App. Br. 7-8; Reply Br. 4. We are not persuaded of error in the rejection of claim 2 for the above reasons. Independent claim 6 recites, in pertinent part, for each host port connection, determining actual loading for each of the storage devices based at least in part on a queue depth for each of the host port connections. Claims 6 and 7 were not separately argued with particularity. See App. Br. 7; see generally Reply Br. 3-10. Therefore, for the same reasons described above with respect to claims 1 and 2, we are not persuaded that the Examiner erred in rejecting claim 6 or its dependent claim 7. Independent claim 20 recites, in pertinent part, for each of a plurality of host port connections to the at least one storage device, determining actual loading of the at least one storage device based at least in part on a queue depth for each of the host port connections so that the number of IO jobs being issued by a host do not exceed the queue depth of a service queue. Claims 20, 21, 23, 24, and 26 were not separately argued with particularity. See App. Br. 11-12; see generally Reply Br. 3-10. Therefore, for the reasons described above with respect to claim 1, we are not persuaded that the Examiner erred in rejecting claim 20 or its dependent claims 21, 23, 24, and 26. CLAIMS 4 AND 9 Regarding claims 4 and 9, which depend from independent claims 1 and 6 respectively, the Examiner finds that Cherian discloses using a loading factor to determine if the actual loading for each of the storage devices Appeal 2010-004979 Application 10/821,832 7 exceeds a maximum loading. Ans. 5 (citing Cherian, col. 5, ll. 21-44), 13- 14; Reply Br. 8-9. Appellants merely repeat the additional limitation recited by claim 4, quote a portion of the reference cited by the Examiner, and conclude that “[s]umming the execution throttles for various servers in Cherian is not the same as using a loading factor to determine if the actual loading for each of the storage devices exceeds a maximum loading.” Appeal Br. 9 (emphases in original); see also Reply Br. 6. The explanation Appellants provide is merely that the portion of Cherian’s disclosure cited by the Examiner is better mapped to the Specification’s determining maximum queue depth. Reply Br. 6. We are not persuaded. We agree with the Examiner’s explanation that Cherian discloses the loading factor in Equation 1 or 2 in the cited portion of column 5, not merely in the summations of the execution throttles as alleged by Appellants. Ans. 13. As recognized by the Examiner (id.), Cherian discloses summing “the execution throttle levels or command throughput of each network server” and a “verification test is performed to determine whether the summed execution throttle value exceeds the command queue depth or command throughput of the associated storage controller.” Cherian, col. 5, ll. 13-21. Also, giving the recited “loading factor” its broadest reasonable construction, we note that Appellants’ Specification supports an embodiment where the loading factor is one. See Spec. ¶ 0028 (discussing that Actual loading = (1*2*8*10) = 160, where the first value of 1, while not explained, seems to represent the loading factor). As such, Appellants’ disclosure undercuts the arguments (App. Br. 8-9; Reply Br. 5-6) objecting to the Examiner’s finding that Cherian teaches the claimed loading factor. Appeal 2010-004979 Application 10/821,832 8 Additionally, on this record, Appellants have not met their burden to rebut the Examiner’s prima facie case of obviousness because Appellants merely present assertions without providing factual evidence. See App. Br. 9. Mere arguments unsupported by factual evidence are entitled to little probative value. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Therefore, we are not persuaded that the Examiner’s rejection of claims 4 and 9 is erroneous. CLAIMS 11-14, 16, AND 17 Independent claim 11 recites, in pertinent part, automatically determining actual loading for the storage device based on at least in part on a queue depth for each host port LUN. For the rejection of independent claim 11 and its dependent claims 12-14, 16, and 17, Appellants refer to the previous arguments of claim 1. App. Br. 9-10; Reply Br. 7-8. Appellants also contend that the Examiner erred in not according appropriate patentable weight to the preamble – namely, a method for providing an IO flow control mechanism in a storage network comprising various steps. App. Br. 9-10; Reply Br. 7-8. In particular, Appellants argue that the Examiner did not evaluate whether the purpose or intended use recited in the preamble results in a structural difference between the claimed invention and the prior art. App. Br. 10 (citing MPEP § 2111.02 (Effect of Preamble)); Reply Br. 7. The Examiner, however, indicated that the body of the claim supports the preamble and so the result would be no different had the preamble been given additional patentable weight. Ans. 14. Moreover, Appellants have not provided factual evidence of any structural differences between the purpose or intended use recited in claim 11 and the applied references to show Appeal 2010-004979 Application 10/821,832 9 Examiner error. Mere arguments unsupported by factual evidence are entitled to little probative value. Cf. Geisler, 116 F.3d at 1470. Therefore for these reasons, and for the reasons described above with respect to claim 1, we are not persuaded of error in the Examiner’s rejection of independent claim 11 or its dependent claims 12-14, 16, and 17. CLAIMS 18 AND 19 Regarding claim 18, which depends from independent claim 11, the Examiner finds that Cherian and Tate collectively do not teach that the maximum loading for the storage device is based on a loading factor for test environments. Ans. 8. The Examiner concludes that it would have been obvious, based on Cherian’s disclosure of the maximum loading in the system for the production environment, to test the loading of the storage devices prior to production to ensure that the system would perform with minimum error. Id. Appellants challenge the Examiner’s conclusion as impermissible hindsight. App. Br. 11. The Examiner’s explanation that it would have been obvious to test the storage devices does not provide a rational underpinning for “maximum loading for the storage device is based on a loading factor for test environments,” as required by claim 18 (emphasis added). While KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) indicates that a precise teaching directed to the claim language is not necessary in an obviousness rejection, the Supreme Court also held that an Examiner must articulate some reasoning with some rational underpinning to support a legal conclusion of obviousness. Absent impermissible hindsight, we find the Examiner has not demonstrated that Cherian and Tate collectively teach or Appeal 2010-004979 Application 10/821,832 10 suggest the maximum loading for the storage device is based on a loading factor for test environments. For the foregoing reasons, Appellants have persuaded us of error in the rejection of claim 18 and dependent claim 19 for similar reasons. OBVIOUSNESS REJECTION OVER CHERIAN IN VIEW OF TATE AND NAHUM CLAIM 3 Claim 3 recites, inter alia, determining actual loading for each of the storage devices based at least in part on a number of LUN security groups in the storage network. In concluding that claim 3 is obvious, the Examiner relies on Nahum’s disclosure of a system in which LUN security groups are used. Ans. 9-10 (citing Nahum, ¶ 0018). Appellants correctly point out that the cited portion of Nahum’s disclosure merely describe a security procedure for authenticating each host, which is distinct from the claim language. App. Br. 13; Reply Br. 10. The plain meaning of the claim requires determining actual loading based on the number of LUN security groups – that is, the claim requires taking action based on the number of LUN security groups. We are therefore persuaded by Appellants’ argument that the mere disclosure of a security procedure for authenticating each host does not teach or suggest determining actual loading for storage devices based at least in part on a number of LUN security groups in the storage network. Based on the record before us, we are persuaded of error in the Examiner’s rejection of claim 3, which requires “determining actual loading for each of the storage devices based at least in part on a number of LUN security groups in the storage network” (emphasis added). Appeal 2010-004979 Application 10/821,832 11 CLAIM 5 Claim 5 recites the computer process further simplifies host groups and LUN security groups into virtual connections for analysis. Appellants contend that the Examiner fails to demonstrate how Nahum’s authentication process for hosts disclosed in paragraph 18 and discussed above teaches simplifying host groups and LUN security groups into virtual connections for analysis. Ans. 10, 20-21. We agree. The Examiner fails to articulate how Nahum’s security procedure for authenticating hosts teaches or suggests simplifying groups into virtual connections for analysis. For the foregoing reasons, Appellants have persuaded us of error in the rejection of claim 5. CLAIMS 8, 10, 15, 22, AND 25 For the rejection of the remaining claims 8, 10, 15, 22, and 25, Appellants refer to the previous arguments of independent claims 6, 11, and 20 from which each remaining claim depends directly. See App. Br. 14-15. We are not persuaded by Appellants’ arguments for the reasons discussed above and need not address whether Nahum cures any purported deficiency. For the foregoing reasons, Appellants have not persuaded us of error in the rejections of claims 8, 10, 15, 22, and 25. CONCLUSION Under § 103, the Examiner did not err in rejecting claims 1, 2, 4, 6-17, and 20-26 but did err in rejecting claims 3, 5, 18, and 19. DECISION The Examiner’s decision rejecting claims 1-26 is affirmed-in-part. Appeal 2010-004979 Application 10/821,832 12 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). AFFIRMED-IN-PART babc