Ex Parte Karonde et al

Patent Trial and Appeal BoardApr 18, 2016

12941180 (P.T.A.B. Apr. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/941,180 11/08/2010 131406 7590 04/20/2016 Gilliam IP PLLC (CA) 7200 N. Mopac Suite 440 Austin, TX 78731 FIRST NAMED INVENTOR Pratap Karonde 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. 2586.054US 1 9177 EXAMINER CARDWELL, ERIC ART UNIT PAPER NUMBER 2131 NOTIFICATION DATE DELIVERY MODE 04/20/2016 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): uspto@gilliamip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PRAT AP KARONDE and PRASHANT PARIKH Appeal2014-06679 Application 12/941, 180 Technology Center 2100 Before HUNG H. BUI, JOHN F. HORVATH, and KEVIN C. TROCK, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. Â§ 134(a) of the Examiner's Final Office Action rejecting claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM.2 1 The real party in interest is Computer Associates Think, Inc. App. Br. 2. 2 Our Decision refers to Appellants' Appeal Brief filed November 25, 2013 ("App. Br."); Reply Brief filed May 21, 2014 ("Reply Br."); Examiner's Answer mailed March 21, 2014 ("Ans."); Final Office Action mailed June 24, 2013 ("Final Act."); and original Specification filed November 8, 2010 ("Spec."). Appeal2014-06679 Application 12/941, 180 STATEMENT OF THE CASE Appellants' Invention Appellants' invention relates to a block level backup of a hard disk in which, in addition to a full machine restore, only few sets of files, folders, and applications are selected for backup (not the entire disk) and then restored. Spec. i-f 1; Abstract. Claims 1, 13, and 19 are independent. Claim 1 is illustrative of Appellants' invention, as reproduced below: 1. A computer implemented method comprising: creating a child disk for a machine identifYing a configuration of a backed up disk drive from a storage container that includes a block level backup copy of the disk drive; and populating the child disk with selected data from blocks of data corresponding to selected files desired to be used on the machine. App. Br. 16 (Claims App'x.) (disputed limitations in italics). Examiner's Rejections (1) Claims 13-17 stand rejected under 35 U.S.C. Â§ 101 because the claimed invention is directed to non-statutory subject matter. Final Act. 2-3. (2) Claims 1-20 stand rejected under 35 U.S.C. Â§ 102(e) as being anticipated by Le (U.S. Patent 8,209,680). Final Act. 3-10. ANALYSIS At the outset, we note Appellants do not address the rejection of claims 13-17 under 35 U.S.C. Â§ 101 as directed to non-statutory subject matter. Final Act. 2-3; Ans. 2. As such, the final rejection of these claims is summarily affirmed. Turning now to the rejection of claims 1-20 under 35 2 Appeal2014-06679 Application 12/941, 180 U.S.C. Â§ 102(e) as being anticipated by Le, we will address these claims in tum. With respect to independent claims 1, 13 and 19, the Examiner finds Le teaches Appellants' claimed "computer implemented method" including the disputed limitation: "identifying a configuration of a backed up disk drive from a storage container that includes a block level backup copy of the disk drive." Final Act. 4--5 (citing Le 2:29-30, 7:44--48, 19:3-9, 19:56-59, 20:51-52, 22:4--8, 57:38-39). According to the Examiner, Appellants' claimed "block level backup copy of the disk drive" can be interpreted to encompass Le's "sector-based image files." Id. at 4. Appellants acknowledge Le teaches creating sector-based images or creating a file-based image by streaming file data to create a backup image. App. Br. 8 (citing Le 23:16-28:12). However, Appellants argue Le does not disclose Appellants' claimed "identifying a configuration of a backed up disk drive from a storage container that includes a block level backup copy of the disk drive" because Le's "sector-based image files" are not the same as Appellants' claimed "block level backups." Id. at 8-11. According to Appellants, "the block level backup is distinct from a sector based or file level backup, at least because of the difficulties realized in block level backups that are not realized when performing a file or sector based backup as in Le." Reply Br. 3. We do not find Appellants' arguments persuasive. Rather, we find the Examiner has provided a comprehensive response to Appellants' arguments supported by a preponderance of evidence. Ans. 2---6. As such, we adopt the Examiner's findings and explanations provided therein. Id. For additional emphasis, we note that claim terms are given their broadest reasonable 3 Appeal2014-06679 Application 12/941, 180 interpretation consistent with the specification. Jn re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). "Absent an express definition in their specification, the fact that appellants can point to definitions or usages that conform to their interpretation does not make the PTO' s definition unreasonable when the PTO can point to other sources that support its interpretation." In re Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). Contrary to Appellants' arguments, the term "block level" is not expressly defined in Appellants' Specification and, in the absence of such a definition, the Examiner can broadly interpret such a term according to its plain meaning to encompass "file level" or "sector-based image files" as disclosed by Le. Ans. 4 (citing Le 20:51-52). Moreover, as correctly recognized by the Examiner, "blocks are merely groupings of sectors" and individual block "can be any size length of sectors, even one sector can be a block." Id. The Examiner's interpretation is consistent with Appellants' Specification, particularly, when Appellants' Specification describes such a "block level backup" as a "single block level backup" for a single "file/folder restore" or a set of files on the disk and that a "user is not restricted to always performing a full machine restore just to recover a few files or one of many applications from the source machine." See Spec. i-fi-121, 25, 30. For the reasons set forth above, we sustain the Examiner's anticipation rejection of independent claims 1, 13, and 19 and their dependent claims 2, 7-12, 14, 18, and 20, which Appellants do not argue separately. Dependent claims 3 and 15 further recite that "portions of the disk drive that do not have data do not have a corresponding block [in the block level backup]." Appellants argue the sector based image created as 4 Appeal2014-06679 Application 12/941, 180 disclosed by Le would not have a corresponding empty sector. App. Br. 12. We disagree and adopt the Examiner's findings and responses on page 6 of Examiner's Answer. Dependent claims 4 and 16 further recite that "the block level backup comprises an incremental block level backup that includes blocks of the data that have changed since an immediately previous last backup." Appellants argue the "redo logs" of Le do not appear to include blocks of data that have been changed. App. Br. 12. We disagree and adopt the Examiner's findings and responses on pages 6-7 of Examiner's Answer. In addition, we note the "redo logs" disclosed by Le refer to "modifications to the file" and specify "which sector locations in the original disk were written and contain[ s] the modified contents for those locations." See Le 11 :56-67. Such modified contents can be seen as Appellants' claimed "immediately previous last backup." Dependent claims 5 and 17 further recite that "the incremental block level backup comprises a pair of merged incremental backups." Appellants argue Le fails to describe merging two deltas and the application of "a delta" to another "delta" to create a new image of Le do not appear to include blocks of data that have been changed. App. Br. 13. Again, we disagree and adopt the Examiner's findings and responses on pages 7-8 of Examiner's Answer. Dependent claim 6 further recites that "the incremental block level backup comprises a plurality of merged incremental backups corresponding to a selected period." Appellants argue Le fails to describe merging two deltas and, likewise, merging a plurality of deltas corresponding to a selected 5 Appeal2014-06679 Application 12/941, 180 period. App. Br. 14. We disagree and adopt the Examiner's findings and responses on pages 8-9 of Examiner's Answer. CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1-20 under 35 U.S.C. Â§ 102( e) as anticipated by Le. DECISION As such, we AFFIRM the Examiner's final rejection of claims 1-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6