Ex Parte Marshall

Patent Trial and Appeal Board

May 28, 2013

11444030 (P.T.A.B. May. 28, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BRIAN J. MARSHALL
____________________

Appeal 2010-011875
Application 11/444,030
Technology Center 2100
____________________

Before JASON V. MORGAN, MICHAEL J. STRAUSS, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-011875
Application 11/444,030

2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-4, 6, 7, 9-17, 19, 20, 22-30, 32, 33, and 35-39. Claims 5, 8, 18, 21,
31, and 34 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

The claims are directed to a system and method for online
reorganization of a database using flash image copies. Claim 1, reproduced
below, is illustrative of the claimed subject matter:
1. A method for reorganizing a database,
comprising:
receiving at least one update to a first database;
generating a copy of the first database, the copy
representing a flash image copy of the first database;
generating a shadow database that represents a
reorganized version of the first database, wherein generating the
shadow database comprises reorganizing data from the flash
image copy of the first database;
applying the at least one update to the shadow database;
and
replacing the first database with the shadow database.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Davis
Flavin
Friske
US 4,939,689
US 2003/0135478 A1
US 6,535,893 B1
Jul. 3, 1990
Jul. 17, 2003
Mar. 18, 2003
Marshall US 2002/0038331 A1

Mar. 28, 2002
Appeal 2010-011875
Application 11/444,030

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REJECTIONS
1

The Examiner made the following rejections:
Claims 1-4, 6-7, 9-12, 14-17, 19-20, 22-25, 27-30, 32-33, and 35-38
stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Marshall,
Flavin, and Friske. Ans. 3-4.
Claims 13, 26, and 39 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Marshall, Flavin, Friske, and Davis. Ans. 15.

ISSUES ON APPEAL
Based on Appellant’s arguments in the Appeal Brief (App. Br. 22-27)
and Reply Brief (Reply Br. 2-5), the issues presented on appeal are whether
the asserted combination of references teaches or suggests (i) generating a
shadow database including reorganizing data from a flash image copy of a
database as recited by claim 1; and (ii) generating a physical image copy of
the first database based at least in part on the flash image copy as recited in
claim 6.

1
Claims 1-4, 7, 9-12, 14-17, 20, 22-25, 27-30, 33, and 35-38 are collectively
argued on the basis of claim 1 and claims 6, 19, and 32 on the basis of claim
6. Separate patentability is not argued for claims 13, 26, and 39. (Merely
restating with respect to a second claim an argument, previously presented
with respect to a first claim, is not an argument for separate patentability of
the two claims.) In view of the foregoing, we select claims 1 and 6 as
representative of all the claims rejected under 35 U.S.C. § 103(a), and our
analysis will only address those claims.
Appeal 2010-011875
Application 11/444,030

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ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
conclusions as to all rejections. We adopt as our own (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellant’s Appeal Brief. We concur with the
conclusions reached by the Examiner. For emphasis we highlight
Appellant’s arguments seriatim as they are presented in the Appeal Brief,
pages 22-27.
Claim 1
Appellant contends “[t]he cited references do not disclose, teach, or
suggest ‘generating a shadow database that represents a reorganized version
of the first database, wherein generating the shadow database comprises
reorganizing data from the flash image copy of the first database,’ as recited
in Claim 1.” Reply Br. 2. Appellant argues that neither Friske nor Flavin
discloses a copy of a database (id.). According to Appellant, Friske discloses
reading and writing data to the original table space rather than making a
copy of the first database (id.) while Flavin’s flash database “stores at least
three different types of data from at least three different sources, and is
therefore not ‘a copy of the first database, the copy representing a flash
image’” (Reply Br. 3).
The Examiner responds that Marshall discloses generating a shadow
database from an existing database, the shadow database a reorganized copy
of the first database. Ans. 18 (citing Marshall Fig. 3, Abstract, [0014],
[0038] and [0045]). The Examiner finds that Flavin discloses making a flash
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image copy of a first database (Ans. 5) and Friske discloses generating a
shadow database by reorganizing data from what Friske labels as original
database 108A (Ans. 5-6, 18-19).
We agree with the Examiner’s findings and find no error in his
analysis. Flavin’s Flash Database 1630 (Figure 16 and ¶¶ 0085–0087)
teaches or suggests the claimed flash image copy of a database such that,
when combined with the disclosure of Marshall, the combination teaches or
suggests not just generating a copy of the first database to a shadow database
but, according to Flavin, to a flash image copy. Since Marshall discloses
reorganizing a database to generate a shadow database, the combination
teaches or suggests reorganizing the flash image copy to generate the
shadow database. Furthermore, as Fiske discloses reorganizing a database
(e.g., original table space 108A) into a copy (e.g., shadow table space 108B),
the combination of Marshall, Flavin and Friske teaches or suggests the
disputed claim limitation of generating a shadow database that represents a
reorganized version of the first database, wherein generating the shadow
database comprises reorganizing data from the flash image copy of the first
database.
Appellant contends that “Friske does not disclose ‘generating the
shadow database . . . wherein generating the shadow database comprises
reorganizing data from the flash image copy of the first database,’ as recited
in Claim 1.” App. Br. 23 (emphasis in original). We are unpersuaded by this
argument because the Examiner relies on Flavin, not Friske, to describe a
flash image copy of the first database. Ans. 5. As such, Appellant is
responding to the rejection by attacking the Friske reference individually,
even though the rejection is based on the combined teachings of the
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references. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
Appellant’s argument that, because Flavin’s “flash database 1630 . . .
stores at least three different types of data from at least three different
sources . . . [it] is . . . not ‘a copy of the first database, the copy representing
a flash image copy of the first database’” (Reply Br. 3) is also not persuasive
of Examiner error. Flavin is relied upon for generating a flash image copy of
a database, in this case the first database disclosed by Marshall. Since
Marshall discloses a single database, the combination of Marshall and Flavin
teaches or suggests a flash database that is a copy of the claimed first
database. Furthermore, claim 1 does not limit the flash image copy to
include only data from the first database and no more; thus, Appellant’s
argument is not commensurate in scope with the claim. For these reasons
Appellant’s argument is not persuasive of Examiner error.
Therefore, for the reasons supra and in the absence of sufficient
evidence or argument to persuade us of Examiner error, we sustain the
rejection of claim 1 and, for the same reasons, the rejections of independent
claims 14 and 27 under 35 U.S.C. § 103(a) as being unpatentable over
Marshall, Flavin, and Friske together with the rejections of dependent claims
2-4, 7, 9-12, 15-17, 20, 22-25, 28-30, 33, and 35-38, not separately argued.
Furthermore and for the same reasons, we sustain the rejection of claims 13,
26, and 39 under 35 U.S.C. § 103(a) over Marshall, Flavin, Friske, and
Davis, no separate arguments for patentability having been presented in
connection with these claims.
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Claim 6
In addition to repeating the arguments presented in connection with
claim 1 (App. Br. 26), Appellant contends “Flavin fails to disclose that the
‘flash database’ is ‘storing flash images of applications’” (id.). However, as
this argument is not commensurate in scope with claim 6, which does not
recite “images of applications,” the argument is not persuasive of error.
Furthermore, Appellant’s argument that Flavin’s disclosure of storing a
subset of information in the flash database (id.) is also not persuasive of
error because, although a subset need not include all of a parent set, neither
is it required to include less than all. Thus, one skilled in the art would have
recognized that Flavin’s flash database could include the entirety of the
information in the on-line database. Accordingly, for the reasons set forth by
the Examiner (Ans. 7, 24-26), we find that the combination of Marshall,
Flavin, and Friske teaches or suggests the disputed limitation of generating a
physical image copy based at least in part on the flash image copy.
Therefore, for the reasons supra and in the absence of sufficient evidence or
argument to persuade us of Examiner error, we sustain the rejection of claim
6 and, for the same reasons, the rejections of claims 19 and 32 under 35
U.S.C. § 103(a) as being unpatentable over Marshall, Flavin, and Friske.

CONCLUSION
On the record before us and for the reasons discussed supra, we find
that Appellant has failed to provide sufficient evidence or argument to
persuade us that the combination of Marshall, Flavin, and Friske fails to
teach or suggest the disputed claim limitations. Therefore, we sustain the
rejection of claims 1 and 6 and, for the same reasons, the rejections of claims
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2-4, 6-7, 9-12, 15-17, 19-20, 22-25, 28-30, 32-33, and 35-38, not separately
argued. For the same reasons we sustain the rejection of claims 13, 26, and
39 under 35 U.S.C. § 103(a) over Marshall, Flavin, Friske, and Davis, no
separate arguments for patentability having been offered in connection with
those dependent claims.

DECISION
The decision of the Examiner to reject claims 1-4, 6, 7, 9-17, 19, 20,
22-30, 32, 33, and 35-39 is affirmed.
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

ELD