Ex Parte Poggesi et al

Patent Trial and Appeal BoardMar 20, 2018

12607928 (P.T.A.B. Mar. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/607,928 10/28/2009 135467 7590 Zilka-Ko tab-Poughkeepsie 1155 North First Street Suite 105 San Jose, CA 95112 03/21/2018 FIRST NAMED INVENTOR Alberto Poggesi 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. POU 1 POO l/SJ0920090009US 1 5481 EXAMINER BELANI, KISHIN G ART UNIT PAPER NUMBER 2443 MAILDATE DELIVERY MODE 03/21/2018 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALBERTO POGGESI, ANTHONY C. SUMRALL, and THOMAS A. THACKREY Appeal2016-000282 Application 12/607,928 Technology Center 2400 Before ROBERT E. NAPPI, MARC S. HOFF, and JOHN P. PINKERTON, Administrative Patent Judges. PINKERTON, Administrative Patent Judge DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from the final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm-in-part. 1 Appellants identify International Business Machines Corporation as the real party in interest. App. Br. 2. Appeal 2016-000282 Application 12/607,928 STATEMENT OF THE CASE Introduction Appellants generally describe the disclosed and claimed invention as follows: According to one embodiment, a system includes a data storage device having data stored therein and a native computer system having resident thereon a controlling operating system in communication with the data storage device. The system also includes a primary computer system having resident thereon a primary operating system in communication with the native computer system via a first connection, the primary computer system being in communication with the data storage device via a second connection that is not in communication with the native computer system, the primary computer system having a processor executing a primary application. A volume on the data storage device is under logical control of the controlling operating system of the native computer system, and the primary computer system reads or writes data to the volume directly via the second connection. Other systems, methods and computer program products are also described relating to accessing data. Abstract. 2 Claims 1 and 5 are exemplary and reproduced below (with the disputed limitations emphasized in italics): 1. A system comprising: at least one data storage device having data stored therein; at least one native computer system in duplex communication with the at least one data storage device, the at 2 Our Decision refers to the Final Action mailed Oct. 1, 2014 ("Final Act."); Appellants' Appeal Brief filed Apr. 2, 2015 ("App. Br.") and Reply Brief filed Sept. 30, 2015 ("Reply Br."); the Examiner's Answer mailed July 30, 2015 ("Ans."); and the original Specification filed Oct. 28, 2009 ("Spec."). 2 Appeal 2016-000282 Application 12/607,928 least one native computer system having resident thereon a controlling operating system; and at least one primary computer system in duplex communication with the at least one native computer system via at least one first connection, the at least one primary computer system being in duplex communication with the at least one data storage device via at least one second connection that is not in communication with the at least one native computer system, the at least one primary computer system having resident thereon a primary operating system, the at least one primary computer system having a processor executing a primary application, wherein a volume on the at least one data storage device is under logical control of the controlling operating system of the at least one native computer system, wherein the at least one primary computer system is configured to read and write data to the volume directly via the at least one second connection, and wherein when the primary computer system is accessing a dataset in the volume, the at least one native computer system prevents access to the dataset by applications other than the primary application. 5. The system of claim 1, wherein the at least one primary computer system sends a request to the at least one native computer system via the at least one first connection, the request requesting access to a dataset in the volume by the primary application, wherein the at least one native computer system verifies that the primary application has permission to access the dataset and sends permission information to the at least one primary computer system if the primary application has permission to access the dataset, wherein the at least one primary computer system uses the permission information to access the dataset on the at least one data storage device directly using the at least one second connection. 3 Appeal 2016-000282 Application 12/607,928 Rejections on Appeal Claims 1-5, 8-10, 13-16, 18 and 19 stand rejected under 35 U.S.C. Â§ 102(b) as being anticipated by Bober (US 6,718,372 Bl; issued Apr. 6, 2004). Claims 6, 7, 11, 12, 17, and 20 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Bober and Stakutis et al. (US 6,658,417 B 1; issued Dec. 2, 2003) ("Stakutis"). ANALYSIS Rejection of Claims 1-5, 8-10, 13-16, 18 and 19 underÂ§ 102(b) Claims 1, 3, 4, 8, 10, 13, 14, 16, 18, and 19 Appellants argue that Bober does not teach or suggest "when the primary computer system is accessing a dataset in the volume, the at least one native computer system prevents access to the dataset by applications other than the primary application," as recited in claim 1. App. Br. 10. In particular, Appellants argue Bober "mentions file locking in the context of mainframe data access," but "does not teach not teach that the SymmAPI- Access agent 131 handles issues related to workstation 101 access." Id.; see also id. at 12. Appellants also argue that the disclosure in column 5, lines 50-53, of Bober provides no teaching of preventing access to a particular dataset by applications other than the primary application when the primary computer system is accessing the dataset for the primary application and "merely mentions file locking in a passing manner, with no detail whatsoever." Id. at 11; see also id. at 13; Reply Br. 6. Appellants further argue that to teach the disputed limitation of claim 1, "Bober must teach that applications, such as applications 206-3, 206-4, etc., as shown in Bober's Fig. 4 Appeal 2016-000282 Application 12/607,928 6, are prevented from accessing the dataset on the shared storage 211 when a primary application, such as application 206-1, is accessing the dataset on the shared storage 211," but the Examiner has not attempted to make this showing "beyond referring to Bober at col. 5, lines 50-59 and col. 28, lines 41--44." Id. at 13; Reply Br. 5---6. We are not persuaded by Appellants' arguments that the Examiner erred. First, the Examiner correctly finds that Figure 4 of Bober shows, and column 5, lines 40-59 explicitly disclose, "that SymmAPl-Access agent provides metadata [i.e. catalog information for shared storage 111] to application 106 [via SymmAPl-Access routines 130] executing on workstation 101, so that the application 106 can directly access data residing on the shared storage 111." Ans. 26. Thus, we agree with the Examiner's findings "there is no merit to the applicants' argument that the SymmAPl- Access agent 131 of Bober does not handle[] issues related to workstation 101 data access, and that it merely handles mainframe data access functions." Id. Second, we are not persuaded by Appellants' arguments that Bober provides no teaching of preventing access to the dataset by applications other than the primary application when the primary computer system is accessing the dataset for the primary application and "merely mentions file locking in a passing manner, with no detail whatsoever." App. Br. 11-13; Reply Br. 6. In that regard, we agree with the Examiner that Appellants "narrow focus on 'file locking' mentioned in col. 5, lines 50-53, ignores the context in which Bober describes file locking, namely the scenario presented in col. 5, lines 21-59 for sharing data between computer systems." Ans. 25. The Examiner finds a definition of "file locking" is "a mechanism that restricts access to a 5 Appeal 2016-000282 Application 12/607,928 computer file by allowing only one user or process access at any specific time." Ans. 26-27 (citing http://en.wikipedia.org/wiki/File_locking). Appellants have not argued that this definition is incorrect or inapplicable to the disclosure of Bober; nor have Appellants provided an alternative definition of the term "file locking." Appellants do, however, argue that it is improper for the Examiner to reject claim 1 "on the basis that the claimed features are merely fundamental aspects of a technology," when the claim limitation is not expressly or inherently taught by the reference. Reply Br. 7. This argument is not persuasive. Extrinsic evidence "may be used to interpret the allegedly anticipating reference and [to] shed light on what it would have meant to [a PHOSITA]." Ciba-Geiby Corp. v. Alza Corp., No. 95-1046, 68 F.3d 487, 1995 WL 598380, at *2 (Fed. Cir. 1995) (citation omitted); see In re Baxter Travenol Labs., 952 F.2d 388, 390 (Fed. Cir. 1991 ). Consistent with this principle, the Examiner finds "[ t ]he above definition of file locking, as understood by a person of ordinary skill in the art, explicitly allows access to a file on shared storage 111 of Bober to only one application [such as application 106 shown in Fig. 4] at a time, irrespective of whether that application is executing on the mainframe 102 or on workstation 101." Ans. 26; see also Bober, col. 27, 11. 37--42. For the reasons stated by the Examiner, we agree with this finding. Based on this finding, we also are not persuaded by Appellants' arguments that (1) Figure 4 shows only one application on workstation 101 and (2) the Examiner has not shown applications like 206-3 and 206-4 are prevented from accessing the dataset when a primary application, such as application 206-1, is doing so. We are un persuaided because Bober' s teaching of "file locking" discloses that access to a file on shared storage 111 is allowed to only one application 6 Appeal 2016-000282 Application 12/607,928 at a time, regardless of whether the application is executing on the mainframe or workstation. Thus, for these reasons, we agree with the Examiner's findings that Bober teaches "when the primary computer system is accessing a dataset in the volume, the at least one native computer system prevents access to the dataset by applications other than the primary application," as recited in claim 1. Accordingly, we affirm the Examiner's rejection of claim 1 under Â§ 102(b ), as well as the rejection of dependent claims 3 and 4, which are not substantively separately argued. Appellants make the same arguments regarding independent claims 8, 13, and 18 as those discussed above regarding claim 1. See App. Br. 17-20, 22-31. For the same reasons discussed supra in regard to claim 1, we affirm the Examiner's rejections of claims 8, 13, and 18. We also affirm the rejection of dependent claims 10, 14, 16, and 19, which are not substantively separately argued. Claims 2, 9, and 15 Appellants argue Bober fails to teach that "the at least one second connection has a higher data throughput rate than the at least one first connection," as recited in claim 2, and as similarly recited in claims 9 and 15. App. Br. 14--16, 21, 22, 26, 27; Reply Br. 10. The Examiner finds Bober teaches the first connection 135 shown in Figure 4 is used to transfer metadata, requiring low throughput, and the second connection 13 8 is used to transfer a much larger volume of actual data. Ans. 28-29 (citing Bober col. 18, 1. 67---col. 19, 1. 6). The Examiner also finds that based on Bober's disclosure that the second connection may be a high speed SCSI or fiber optic connection (see Bober col. 5, 11. 58-59), a person of ordinary skill in the 7 Appeal 2016-000282 Application 12/607,928 art would know that the high speed second connection 13 8 has a higher throughput rate (in megabytes per second) than the first connection. Id. at 29. We are persuaded by Appellants' arguments that the Examiner erred. App. Br. 14--15; Reply Br. 10. In particular, we agree with Appellants' argument that "absent some teaching of the throughput rate of the other connection, there is no basis for which to provide a comparison, as required by the claim." Thus, we do not sustain the Examiner's rejection of claims 2, 9, and 15. Claim 5 Appellants argue Bober fails to disclose "wherein the at least one native computer system verifies that the primary application has permission to access the dataset and sends permission information to the at least one primary computer system if the primary application has permission to access the dataset," as recited in claim 5. App. Br. 16-17. In particular, Appellants argue "[ n Jo permission information is sent in Bober." Reply Br. 11. The Examiner finds Bober discloses the client at the primary application provides data access parameters to the native computer system, which then authenticates the level of access assigned to the primary application before allowing data transfer from the shared storage. Ans. 30 (citing Bober col. 11, 11. 50-58; col. 28, 11. 41--44). The Examiner also finds "[i]t is therefore obvious that Bober adequately teaches the limitation of claim 5 by reciting that the mainframe 102 authenticates users from the information provided by application 106 before sending metadata information to the SymmAPl-Access routines 13 0 on workstation 101." Id. We are persuaded by Appellants' arguments that the Examiner erred. Although we agree with the Examiner that Bober teaches the mainframe 8 Appeal 2016-000282 Application 12/607,928 authenticates users from the information provided by the application before sending metadata information, we agree with Appellants that "[ t ]he knowledge of data access routine parameter( s) that specify data storage information is unrelated to having the permission to access a dataset and having permission information sent thereto in response to having permission." Reply Br. 11. Thus, we do not sustain the rejection of claim 5 under Â§ 102(b ). Rejection of Claims 6, 7, 11, 12, 17, and 20 underÂ§ 103 (a) Regarding claim 6, Appellants argue "Bober in view of Stakutis fails to teach that 'the at least one primary computer system sends a message to the at least one native computer system via the at least one first connection indicating that the access to the dataset is finished upon completing the access to the dataset,' as required by claim 6." App. Br. 32-34; Reply Br. 11-12. The Examiner relies on Stakutis as teaching that "issuing the 'unlockO' call will unlock and release the file that automatically finishes the access to the dataset by the primary application 106 of Bober." Ans. 31. We note claim 6 depends from claim 5, and claim 7 depends from claim 6; and, as discussed supra, we do not sustain the Examiner's rejection of claim 5 under Â§ 102(b ). Because claim 6 depends from claim 5 and because the Examiner does not rely on Stakutis in a manner to cure the deficiencies of Bober with respect to claim 5, we also do not sustain the rejection of claims 6 and 7 underÂ§ 103(a). Regarding claim 11, Appellants argue "Bober in view of Stakutis fails to teach 'receiving a message from the primary computer system via the first duplex connection, the message indicating that the access to the dataset is 9 Appeal 2016-000282 Application 12/607,928 finished."' App. Br. 34--35. In particular, Appellants argue the portion of Stakutis relied on by the Examiner (column 10, lines 15-36) "fails to disclose or suggest that the message is sent indicating that the access to the dataset is finished, as required by the claim. Instead, Stakutis only teaches that the message indicates to close out of the file, effectively releasing the file from being locked." Id. The Examiner notes that Appellants' arguments for claims 11 and 17 are essentially the same as the arguments for claim 6 and, therefore, the Examiner's "response for claim 6 also applies to the arguments for claims 11 and 17 ." Ans. 32. We are persuaded by Appellants' arguments that the Examiner erred. Specifically, we agree with Appellants' argument that the Examiner fails to provide clarity and insight as to whether the combination of Bober and Stakutis teaches the disputed limitations. Reply Br. 12. Even if we agree with the Examiner that Stakutis teaches the "'unlockO' call will unlock and release the file that automatically finishes the access to the dataset," the Examiner has not sufficiently shown from where the call originates. Thus, the Examiner has failed to show by a preponderance of the evidence that the message or call indicating that the access to the dataset is finished is received "from the primary computer system via the first duplex connection." Accordingly, we do not sustain the Examiner's rejection of claims 11 and 17 underÂ§ 103(a). Furthermore, because claim 12 depends from claim 11, we also do not sustain the Examiner's rejection of claim 12 underÂ§ 103(a). DECISION We affirm the Examiner's rejection of claims 1, 3, 4, 8, 10, 13, 14, 16, 18, and 19 under 35 U.S.C. Â§ 102(b). 10 Appeal 2016-000282 Application 12/607,928 We reverse the Examiner's rejection of claims 2, 5, 9, and 15 under 35 U.S.C. Â§ 102(b). We reverse the Examiner's rejection of claims 6, 7, 11, 12, 17, and 20 under 35 U.S.C. Â§ 103(a). 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-IN-PART 11