Ex Parte LAIN

Patent Trial and Appeal BoardMar 14, 2017

12913597 (P.T.A.B. Mar. 14, 2017)

United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/913,597 10/27/2010 Antonio LAIN 82264550 4188 56436 7590 03/16/2017 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 EXAMINER NGUYEN, THU N ART UNIT PAPER NUMBER 2154 NOTIFICATION DATE DELIVERY MODE 03/16/2017 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 chris. mania @ hpe. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANTONIO LAIN Appeal 2016-005042 Application 12/913,597 Technology Center 2100 Before ALLEN R. MacDONALD, DANIEL J. GALLIGAN, and MICHAEL J. ENGLE, Administrative Patent Judges. MacDONALD, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-005042 Application 12/913,597 STATEMENT OF CASE Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1—18. We have jurisdiction under 35 U.S.C. § 6(b). Exemplary Claim Exemplary claim 1 under appeal reads as follows (emphasis added): 1. A computer implemented method comprising: receiving an instruction to access a set of identified data structures on a first node of a plurality of nodes, each identified data structure being associated with a version data structure that includes annotations that describe dependencies amongst at least two members of the set of identified data structures, the at least two members of the set of identified data structures having respective data structure versions, the annotations specifying the data structure versions on which access to a first one of the set of identified data structures is dependent; determining, based upon the dependencies, that a version mismatch exists between the at least two members of the set of identified data structures, the dependencies used to identify a most recent data structure version and a locally cached data structure version of the at least two members; and delaying execution of the instruction until the version mismatch between the at least two members of the set of identified data structures is resolved via an upgrade of a data structure version of one of the at least two members of the set of identified data structures. Rejection on Appeal The Examiner rejected claims 1—18 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Nordin et al. (US 7,624,155 Bl; Nov. 2 Appeal 2016-005042 Application 12/913,597 24, 2009), Ananthanarayanan et al. (US 2011/0055811 Al; Mar. 3, 2011), and Glew et al. (US 5,951,670; Sept. 14, 1999).1 Appellant’s Contention2 Appellant contends that the Examiner erred in rejecting claim 1 under 35 U.S.C. § 103(a) because “the Examiner rejected claim 1, alleging that Nordin discloses ‘delaying execution of the instruction until the version mismatch ... is resolved through an upgrade of a data structure version’” and “Nordin fails to teach or suggest this feature.” App. Br. 8. Specifically, Nordin describes error-checking a file version variable. If the validity of the file version variable is not confirmed, “an error is flagged, operation of the file replication procedure is stopped with respect to the file having the invalid file version variable, and the present file replication invention is prepared to receive a next successive updated file.” Nordin, col. 3, lines 51-56. Thus, rather than delaying the execution of the file, Nordin merely discloses stopping the replication procedure and moves on to executing the process for another file to be replicated without returning to the invalid file. App. Br. 8. Issue on Appeal Did the Examiner err in rejecting claim 1 as being obvious? 1 Separate patentability is not argued as to claims 2—18. Except for our ultimate decision, these claims are not discussed further herein. 2 These contentions are determinative as to the rejections on appeal. Therefore, Appellant’s other contentions are not discussed herein. 3 Appeal 2016-005042 Application 12/913,597 ANALYSIS We have reviewed the Examiner’s rejection in light of Appellant’s arguments that the Examiner has erred. Contrary to Appellant’s argument, the Examiner did not rely on Nordin to disclose “delaying execution.”3 App. Br. 8. Rather, the Examiner relied on Grew. Non-Final Act. 4. The Examiner relied on Nordin to show “[in] execution of the instruction the version mismatch between the at least two members of the set of identified data structures is resolved through an upgrade of a data structure version.” Final Act. 3. To give Appellant’s contention 1 proper consideration, we limit it to the portion addressing the Examiner’s particular finding. With that limitation to Appellant’s above contention, we agree. We find that the portion of Nordin relied upon by the Examiner is directed to file replication and not execution of an instruction as claimed. We conclude, consistent with Appellant’s arguments, there is insufficient articulated reasoning to support the Examiner’s findings. Therefore, we conclude that 3 Throughout the Appeal Brief, Appellant argues that the Examiner “alleges” or “asserts.” E.g., App. Br. 8, 11. However, examiners do not “allege” or “assert.” Unlike an examiner, an applicant’s attorney asserts, contends, or argues, all of which are actions consistent with the attorney’s role as an advocate. An examiner, however, is not an advocate. Rather, an examiner performs a quasi-judicial function and has no vested interest in the outcome of an examination. E.g., Western Elec. Co. v. Piezo Tech., Inc., 860 F.2d 428, 431 (Fed. Cir. 1988). Thus, unlike an applicant’s attorney, an examiner’s function is not to advocate via “assertions” and the like; rather an examiner makes findings of fact and based on those facts comes to a decision on legal issues such as obviousness. An appellant may disagree with and rebut those findings or conclusions. However, that disagreement does not convert an examiner’s findings or conclusions into allegations. 4 Appeal 2016-005042 Application 12/913,597 there is insufficient articulated reasoning to support the Examiner’s final conclusion that claim 1 would have been obvious to one of ordinary skill in the art at the time of Appellant’s invention. CONCLUSIONS (1) Appellant has established that the Examiner erred in rejecting claims 1—18 as being unpatentable under 35 U.S.C. § 103(a). (2) On this record, these claims have not been shown to be unpatentable. DECISION The Examiner’s rejection of claims 1—18 is reversed. REVERSED 5