Ex Parte Kilian et al

Patent Trial and Appeal Board

Sep 26, 2014

10731790 (P.T.A.B. Sep. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL KILIAN, MARK AVERY,
STEPHEN TODD, TOM TEUGELS, FRANCIS MARTENS, and
JAN BRUYNDONCKX
____________________

Appeal 2012-001046
Application 10/731,790
Technology Center 2100
____________________

Before CAROLYN D. THOMAS, HUNG H. BUI, and
DANIEL N. FISHMAN, Administrative Patent Judges.

BUI, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellants have filed a Request for Rehearing under 37 C.F.R.
§ 41.52 for reconsideration of our Decision on Appeal mailed May 14, 2014
(“Decision”). In that Decision, we affirmed the Examiner’s final rejection of
claims 65–78 under 35 U.S.C. § 103(a) as being unpatentable over Stuart
and McGovern. We have considered the arguments presented by Appellants
in the Request for Rehearing, but we are not persuaded that any points were
misapprehended or overlooked by the Board in issuing the Decision. As
such, we decline to change our decision in view of Appellants’ arguments.

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ANALYSIS
37 C.F.R. § 41.52 states in relevant part:
[t]he request for rehearing must state with particularity the
points believed to have been misapprehended or overlooked
by the Board. Arguments not raised in the briefs before the
Board and evidence not previously relied upon in the brief and
any reply brief(s) are not permitted in the request for rehearing
except as permitted by paragraphs (a)(2) [i.e., based upon a
recent relevant decision of either the Board or a Federal Court]
and (a)(3) [i.e., responding to a new ground of rejection made
pursuant to § 41.50(b)] of this section.

37 C.F.R. § 41.52(a)(1) (emphasis added).
The standard for rehearing is whether the Board has misapprehended
or overlooked any points or arguments raised by Appellants. In this case,
Appellants request a rehearing on the basis of our Decision stating “we agree
with Appellants’ interpretation that the content address must be generated
from content that includes, at least, the ‘previously-defined retention
period’” and the Board’s adoption of the Examiner’s findings that
McGovern discloses a content address of a file generated from content that
“includes the previously-defined retention period.” Req. Reh’g 2–4 (citing
Decision 8). Appellants allege the Board misapprehended the Examiner’s
findings since the Examiner’s findings are based on an erroneous
interpretation of the language of the claims.
Specifically, Appellants contend that the Board agreeing with
Appellants’ interpretation that the content address must be generated from
content that includes, at least, the “previously defined retention period”
requires at least two things:
(1) That the previously-defined retention period be a portion
of the content of the unit of content, and
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(2) That the content address of the unit of content be
generated based on the portion of the content unit that includes
previously-defined retention period such that the content address is
based on the previously-defined retention period.

Req. Reh’g 2 (emphasis added).
Appellants further allege that the Board misapprehended and
overlooked two arguments presented in their Briefs, including:
(1) McGovern does not teach that the “previously-defined retention period”
is part of the unit of content, and (2) McGovern does not teach that the
retention period is used to create the content address. Req. Reh’g 3–4.
We remain unpersuaded by Appellants’ arguments. Our Decision
stated:
Claims 65, 70, and 75 recite, in part, “a content address
generated, at least in part, from at least a portion of the content
of the unit of content” and that “portion of the content of the
unit of content includes [A] the previously-defined retention
period and [B] at least some other content in the unit of
content.” Because the content address is generated from a
portion of content and that same portion of content includes a
previously-defined retention period, we agree with Appellants’
interpretation that the content address must be generated from
content that includes, at least, the “‘previously-defined retention
period.’”

Decision 8 (emphasis added).
We conclude the claims require “the content address generated” from
content that “includes the previously-defined retention period” (emphasis
added). Our Decision agreeing with the Appellants’ interpretation does not
extend such that the content address is based on the previously-defined
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retention period (i.e., the retention period is used to create the content
address) as Appellants argue. Req. Reh’g 4. Appellants have not provided
any support from the Appellants’ own Specification where the retention
period is described as being used to create the content address. App. Br. 8–
11; Reply Br. 5–8; Req. Reh’g 4. The only related passages that support the
limitation is: (A) in claim 65 is in the “SUMMARY OF CLAIMED
SUBJECT MATTER” in the Brief. App. Br. 4 (citing Spec. 8:23–30, 6:17 –
7:2, 18:23–25, and Figure 3). However, all these passages disclose a
retention period as being part of a content descriptor file (CDF), and do not
indicate that the retention period is used to create the content address. For
example, Appellants disclose “the metadata [in the CDF 301] further
includes information specifying a retention period related to the associated
blob 303,” and “[i]n one embodiment, the storage system may find the
retention period associated with a CDF in the content of the CDF itself.”
Spec. 8:24–25, 18:23–24, and Figure 3.
Even if Appellants’ Specification provides support for Appellants’
arguments, we are still unpersuaded. Under the broadest reasonable
interpretation standard, claim terms are given their ordinary and customary
meaning as understood by one of ordinary skill in the art at the time of the
invention. Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en
banc). An inventor may rebut that presumption by providing a definition of
the term in the specification with reasonable clarity, deliberateness, and
precision. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). In this
regard, however, we are careful not to read a particular embodiment
appearing in the written description into the claim if the claim language is
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broader than the embodiment. In re Van Geuns, 988 F.2d 1181, 1184 (Fed.
Cir. 1993).
As explained in our Decision, we adopted the Examiner’s findings
that McGovern teaches a content address of a file generated from content
that “includes the previously-defined pretention period.” Decision 8–9
(citing Ans. 14–16). Appellants continue to argue that McGovern does not
disclose the retention date metadata associated with the file is stored as part
of the content of the content of unit as claimed. Appellants argue that:
McGovern ¶ 20 merely states that a retention date is provided
within a data set. There is no indication that this retention date
is stored in the data set to which the retention date refers. In
fact, the same paragraph, McGovern ¶ 20, states that the
retention date is stored in “the file’s ‘last access time’
property/attribute field or another metadata field (typically open
protocol-based).” This field “remains permanently associated
with the file” (emphasis added), but is not the content. Other
portions of McGovern, which the Examiner did not consider
because they did not matter under the Examiner’s erroneous
claim interpretation, make clear that the metadata field is stored
in a data set separate from the data set to which the retention
date refers. See McGovern ¶ 5. The file system, which
structures metadata and data on the storage device, stores the
actual data in structures known as “data blocks” and stores
metadata associated with the data in “inode” data structures.
McGovern ¶ 5 and ¶ 54. Thus, the metadata fields that store the
retention date are stored in a different data structure that is
separate from that of the data itself. Accordingly, McGovern
does not teach the previously-defined retention period being a
portion of the content of the unit of content, as required by the
proper interpretation of the independent claims.

Req. Reh’g 3–4, see also App. Br. 9; Reply Br. 6.
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We disagree. Neither Appellants’ own Specification nor Appellants’
claims define what “unit of content” and “the content” are. Because neither
Appellants’ Specification nor Appellants’ claims provide the definition for
the term “the content” or “unit of content,” the Examiner’s interpretation of
“a file” as a unit of content is within the standard of broadest reasonable
interpretation. Further, McGovern discloses the file contains “data blocks”
and “inode” (which includes the metadata associated retention date).
McGovern ¶¶ 5, 54. And, the “data blocks” and “inode” are the content of
the file that the content address generated from. McGovern ¶¶ 17, 20.
McGovern also discloses that metadata information includes retention
information, and a content address storage system (CAS) can be used with
retention date/information. McGovern ¶¶ 18, 143. Therefore, McGovern
discloses a content address generated is from content includes “the
previously-defined retention period.”
Further, we do not agree with Appellants’ narrow interpretation that
the claims recite the retention period is used to create the content address.
Req. Reh’g 4. Appellants have not provided any support for such limitation
from their own Specification, and even if the Specification provides such a
limitation, we cannot read such a limitation into the claims. In interpreting
claims, care must be exercised, as there is a clear distinction between
interpreting claims in light of the specification and reading limitations into
the claims from the specification. Comark Commc'ns, Inc. v. Harris Corp.,
156 F.3d 1182, 1186 (Fed. Cir. 1998). Although claims are interpreted in
light of the specification, limitations from the specification must not be read
into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
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The plain language of the claims 65, 70, and 75 and interpreting the
claims in light of the Specification, “a content address generated” is from
content that includes, at least, “the previously defined retention period” does
not require “the content address” is to be “based on the previously-defined
retention period” (i.e., the retention period is used is used to create the
content address).1
Appellants have not presented sufficient evidence or argument to
persuade us of error in the Examiner’s findings. Absent such evidence or
argument, we do not find error in the Examiner’s findings and conclusions,
and, therefore, reaffirm the Examiner’s obviousness rejection of claims 65–
78.

CONCLUSION
We have considered the arguments raised by Appellants in the
Request, but find none of these arguments persuasive that our original
Decision was in error. It is our view that Appellants have not identified any
points that the Board has misapprehended or overlooked. We have
reconsidered our Decision but decline to grant the relief requested. This
Decision on Appellants’ “Request for Rehearing” is deemed to incorporate
our earlier Decision by reference. See 37 C.F.R. § 41.52(a).

1 Appellants have an opportunity to amend the claims to incorporate that the
retention period is used to create the content address. Nevertheless,
Appellants have not done so.
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DECISION
We have granted Appellants’ request to the extent that we have
reconsidered our Decision, but we deny the request with respect to making
any changes therein. The Examiner’s decision rejecting claims 65–78 under
35 U.S.C. § 103(a) remains AFFIRMED.

REHEARING DENIED

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