Ex Parte Reuter

Patent Trial and Appeal Board

Dec 20, 2012

11369653 (P.T.A.B. Dec. 20, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JAMES M. REUTER
____________

Appeal 2010-004144
Application 11/369,653
Technology Center 2100
____________

Before DENISE M. POTHIER, JEFFREY S. SMITH, and
STANLEY M. WEINBERG, Administrative Patent Judges.

POTHIER, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-31. We have jurisdiction under 35 U.S.C. § 6(b). We
affirm.

Invention
Appellant’s invention relates to control logic. See Abstract. Claim 1
is reproduced below:
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1. A hierarchically-organized controller within each component
data-storage system of a distributed data-storage system composed of
networked component data-storage systems over which virtual disks,
optionally replicated as virtual-disk images, composed of data
segments in turn composed of data blocks, are distributed at the
granularity of segments, each data segment distributed according to a
configuration, the hierarchically-organized controller comprising:
a top-level coordinator;
a virtual-disk-image-level coordinator;
a segment-configuration-node-level coordinator;
a configuration-group-level coordinator; and
a configuration-level coordinator.

The Rejections
The Examiner relies on the following as evidence of unpatentability:
Karpoff US 6,857,059 B2 Feb. 15, 2005
Land US 2005/0182992 A1 Aug. 18, 2005
Soeda US 2006/0107101 A1 May 18, 2006
(filed Nov. 1, 2005)
Burkey US 2006/0161808 A1 July 20, 2006
(filed Jan. 18, 2005)
Vermeulen US 2007/0156842 A1 July 5, 2007
(filed Mar. 8, 2006, and
claiming priority to
Provisional App. No.
60/754,726, filed Dec. 29,
2005)
Claims 1, 14, 15, and 28 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Soeda and Burkey. Ans. 4-9.1
Claims 2-5, 8, 16-19, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Soeda, Burkey, and Vermeulen. Ans. 9-13.

1 Throughout this opinion, we refer to the Appeal Brief filed August 20,
2009, the Examiner’s Answer mailed October 23, 2009, and the Reply Brief
filed December 18, 2009.
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Claims 6, 7, 20, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Soeda, Burkey, Vermeulen, and Karpoff. Ans. 13-15.
Claims 9-13 and 23-27 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Soeda, Burkey, Vermeulen, and Land. Ans. 15-19.
Claims 29 and 31 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Soeda and Land. Ans. 19-22.
Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Soeda, Land, and Vermeulen. Ans. 22-23.

THE OBVIOUSNESS REJECTION OVER SOEDA AND BURKEY
Regarding illustrative claim 1, Appellant presents many arguments.
App. Br. 12-30; Reply Br. 1-13. Appellant argues Soeda fails to teach a
distributed data-storage system. App. Br. 14, 16, 18-20, 24-25; Reply
Br. 3-4, 8. Appellant also contends that Soeda does not describe a
hierarchically-organized controller. App. Br. 15, 22, 25-26. Appellant
further asserts that Soeda does not teach: (1) a top-level coordinator (App.
Br. 17; Reply Br. 6-7); (2) a segment-configuration-node-level coordinator
(App. Br. 17-18); and (3) a configuration-level coordinator (App. Br. 18).
Appellant also argues that Burkey fails to teach a virtual-disk-image-level
coordinator. App. Br. 21.

ISSUES
Under § 103, has the Examiner erred in rejecting claim 1 by finding
that Soeda and Burkey collectively would have taught or suggested:
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(1) a hierarchically-organized controller within each component
data-storage system of a distributed data-storage system composed of
networked component data-storage systems?
(2) the recited coordinators?

PRINCIPLES OF LAW
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted) (internal
quotation marks omitted). “[T]he words of a claim ‘are generally given their
ordinary and customary meaning.’” Phillips v. AWH Corp., 415 F.3d 1303,
1312 (Fed. Cir. 2005) (en banc) (citations omitted).

ANALYSIS
At the outset, we disagree with Appellant that the Examiner erred in
using dictionaries to define claim terms. See App. Br. 26-27; see also Reply
Br. 7. The courts have stated that claims are given their broadest reasonable
construction in light of the disclosure and based how an ordinarily skilled
artisan would have understood the claims. See Am. Acad., 367 F.3d at 1364.
Moreover, while Phillips indicates that the disclosure is “the single best
guide to the meaning of a disputed term,” Phillips does not limit the
understanding of claim terms to the discussions in the disclosure and states
extrinsic evidence, including dictionaries, may be considered and can be
useful. Phillips, 415 F.3d at 1318 (citations omitted). In fact, Phillips
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guards against importing limitations from the disclosure into the claims. See
id. at 1323.
Appellant provides no express definitions for the disputed claim
phrases, “hierarchically-organized controller” and “distributed data-storage
system composed of a networked component data-storage systems,” in the
disclosure (see generally Spec.), providing us with little guidance as to the
meaning of these claim terms. We now turn to the disputed limitations.

1. Distributed data-storage system composed of networked component
data-storage systems
Appellant states the term, “distributed data-storage system,” is “well
understood.” See App. Br. 14. For example, Appellant states that the
“distributed data-storage system” refers to “a data-storage system that is
composed of two or more distinct and separate networked machines.” Claim
1 recites as much, by reciting “a distributed data-storage system composed
of networked component data-storage systems . . . .” Figure 1 also shows an
example such as system of data storage components (e.g., 102-109) in a
distributed system. See Spec. 4:10-21.
However, because Wikipedia is not considered to be a reliable
source,2 we will not rely on Appellant’s explanation of a “distributed
computing” based on a quotation from Wikipedia to inform or restrict our

2 See, e.g., Ex parte Three-Dimensional Media Group, Ltd., 2010 WL
3017280, at *17 (BPAI 2010) (non-precedential) (“Wikipedia is generally
not considered to be as trustworthy as traditional sources for several reasons,
for example, because (1) it is not peer reviewed; (2) the authors are
unknown; and (3) apparently anyone can contribute to the source
definition.”). See also Bing Shun Li v. Holder, 400 Fed. Appx. 854, 857 (5th
Cir. 2010) (noting Wikipedia’s unreliability and citing Badasa v. Mukasey,
540 F.3d 909, 910-11 (8th Cir. 2008)).
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understanding. App. Br. 24-25. The Examiner, on the other hand, has
provided a definition of a “distributed system” from the Microsoft Computer
Dictionary that includes “[a] noncentralized network consisting of numerous
computers that can communicate with one another and that appear to users
as parts of a single, large, accessible ‘storehouse’ of shared hardware,
software, and data.” Ans. 24-25. We will consider this definition when
determining whether Soeda teaches or suggests a “distributed data-storage
system.”
The Examiner states that Soeda teaches a distributed data-storage
system with one component data-storage system, given that Figure 1 and
paragraph 0069 teach and show a subsystem 1 connected to host computers
(e.g., 2a, 2b) distributed over a network and the data is distributed over
multiple disks. See Ans. 5, 24 (citing ¶ 0069; Fig. 1). The Examiner admits
Soeda has one data storage system within a network, but finds, citing In re
Harza, 274 F.2d 669, 671 (CCPA 1960), that duplicating the data storage
system would have no patentable significance because Appellant fails to
show a new and unexpected result is produced. Ans. 5.
Appellant challenges this position as “absurd” (App. Br. 24) due to
the complexity and difficulty of issues related to implementing a single
data-storage system from multiple component data-storage systems. (id.).
However, Appellant provides no evidence of the complexity involved such
that a new and unexpected result would have been produced (see id.), and
mere arguments unsupported by factual evidence are entitled to little
probative value. Cf. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
Additionally, Soeda states the disk array or data storage system is a
subsystem, suggesting multiple disk array subsystems connect together or
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are networked to the hosts through interfaces and are used to make up the
entire data storage system having multiple disk arrays, each with a disk array
control section. See Abstract; ¶¶ 0001-02; Fig. 1.
We therefore disagree that the Examiner’s rejection fails to teach the
recited “distributed data-storage system composed of networked component
data-storage systems.”

2. Hierarchically-organized controller within each component data-
storage system
Appellant further states that a hierarchial organization used in
computer science “can generally be represented by an acyclic, tree-like
graph, hierarchically organized entities residing in levels within the
organization.” App. Br. 15. However, while Figure 28 shows a tree
structure (see Spec. 35:21–36:12; Fig. 28), the disclosure provides no
definition for the term “hierarchically-organized” to be limited to the above
understanding. See generally Spec. Nor will we import the Figure 28
embodiment into the claim limitations. Appellant further provides no
evidence that the provided explanation is generally understood by artisans
(see App. Br. 15-16). We therefore find this understanding of “[a]
hierarchically-organized controller” unsupported. Moreover, contrary to
Appellant’s assertion (App. Br. 17; see also App. Br. 20-21), claim 1 fails to
recite any logical hierarchy among the coordinators. We now turn to Soeda.
The Examiner finds that Figure 3 in Soeda teaches the controller is
hierarchically-organized. Ans. 4, 25 (citing ¶ 0088; Fig. 3). We agree with
the Examiner and note that identity of terminology between Soeda and the
claimed limitation is not required. See In re Bond, 910 F.2d 831, 832 (Fed.
Cir. 1990). As the Examiner explains (see Ans. 25), Figure 3 shows the host
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interface control sections are connected to the command processing means
31 and no other means. See ¶¶ 0096-100; Fig. 3. Thus, all information is
first fed through means 31, which acts as a conduit to all other means. This
suggests the command processing means acts as a root to all other means in
Figure 3. See ¶¶ 0096-100; Fig. 3. Additionally, Soeda teaches that the
commands are sent to the command processing means by a higher apparatus
(see ¶¶ 0090, 0097), further suggesting Soeda has a hierarchial order to its
interconnections to and through each means.
We find that Soeda teaches or suggests a hierarchically-organized
controller, giving this phrase its broadest reasonable construction. Also,
considering the above statements about the data-storage systems and
distributed data-storage system, we are not persuaded that the collective
teachings discussed by the Examiner fails to teach or suggest a
hierarchically-organized controller within each component data-storage
system of a distributed data-storage system composed of a networked
component data-storage systems as recited.

3. The disputed coordinators
We reiterate that a claim is given its broadest reasonable construction
in light of the disclosure. Concerning the coordinators, Appellant admits
that “these claim phrases are not well known in the art, or in the common
vernacular, or anywhere else other than the current application.” App. Br.
23; see also App. Br. 26; Reply Br. 7. Appellant insists that we must turn to
the disclosure for the only understanding of these terms. See App. Br. 23.
Yet, upon review of the disclosure, Appellant has not defined the
recited coordinators. See Spec. 35:23–36:12; Fig. 28. Nor has Appellant
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adequately explained what these claimed coordinator terms encompass such
that the disclosure teaches, informs, or limits the broadest reasonable
construction that can be given to them. See Spec. 35:23–36:12; Fig. 28. For
example, Appellant describes a top level coordinator logic 2802 that may be
associated with the virtual-disk level 2804. Spec. 35:25-27. Having logic
that may be associated with a specific level does not define the coordinator.
Moreover, there is inadequate discussion of what type of association this is
or how the description of being a “top level” coordinator relates to the
virtual-disk level 2804. Similarly, the other coordinators (i.e., the virtual-
disk-image (VDI) level coordinator 2806, the segment-configuration-node
(SCN)-level coordinator 2810, the configuration-group-level coordinator
2814, and the configuration-level coordinator) are described as “may be
associated with” their different descriptive levels. Spec. 35:27–36:3.3 We
thus do not find the descriptions in front of each recited coordinator (e.g.,
top-level, virtual-disk-image-level, segment-configuration-node-level) limit
the broadest reasonable construction that can be given to each coordinator.
Figures 21, 22, and 25 also include pseudocode having a
“coordinator” (e.g., reference numbers 2110, 2112, 2114, 2116 within
handlers) but Appellant does not map these coordinators to the coordinators
recited in claim 1. See App. Br. 2. We therefore assume that these
coordinators do not relate to those recited in claim 1. Given that Appellant
fails to define or limit the claimed coordinators in the disclosure or

3 We leave it to the Examiner to determine whether this claim and others are
definite as set forth in the Office’s guidelines. See Supplementary
Examination Guidelines for Determining Compliance With 35 U.S.C. 112
and for Treatment of Related Issues in Patent Application, 76 FED. REG.
7162, 7167-68 (Feb. 9, 2011).
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demonstrate that these terms are known in the art, we find that the
Examiner’s broad construction of the recited coordinators and their mapping
to Soeda and Burkey is reasonable. See Ans. 4-5, 25-27 (citing elements 31,
33, and 35 in Soeda (¶¶ 0096-97, 0102, 0104, 0157; Fig. 3) and element 234
in Burkey (¶ 0038; Fig. 3)).
Appellant asserts that the Examiner provides no rational underpinning
to map these claimed coordinators to Soeda and Burkey. App. Br. 22-23.
We disagree and refer to our above discussion of how we construe the
recited coordinator. Additionally, the Examiner presents findings
concerning Burkey having a controller 222 with a processor 234 connected
to memory or a data storage system that functions as a virtual-disk-image
level coordinator (see Ans. 5-6 (citing ¶ 0038; Fig. 3)) – a position we find
reasonable based on the above discussion of the broadest reasonable
construction of a coordinator.
Lastly, we concur with the Examiner that the virtual disk limitation in
claim 1 is an optional limitation of “optionally replicated as virtual-disk
images.” Ans. 27. This is one of the recitations the Examiner found was not
in Soeda. Ans. 5. However, since this limitation is optional, the art need not
teach or suggest such a limitation. Appellant’s arguments (see App. Br. 20-
21), in this regard, are misplaced. Also, the remainder of the limitation
about the disks composed of data segments and how the segments are
distributed are in the preamble and recite the claimed invention’s intended
use. That being said, we find that the Examiner has articulated some
reasoning with a rational basis to support an obviousness conclusion based
on Soeda and Burkey. See Ans. 5-6.
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For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 1 and claims 14, 15, and 28 not separately
argued with particularity.

THE OBVIOUSNESS REJECTION OVER SOEDA, BURKEY, AND VERMEULEN
Regarding illustrative claim 2, Appellant repeats the arguments made
in connection with claims 1 and 14. App. Br. 31. As stated above, we are
not persuaded. Appellant also argues that Vermeulen does not teach a
hierarchial logical data units or logic with a coordinator associated each
type. Id. Appellant additionally contends Vermeulen does not teach or
suggest using a quorum-based consistency method by hierarchically-
structured coordinators is by the hierarchically structured coordinators. Id.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 2 by finding
that Soeda, Burkey, and Vermeulen collectively would have taught or
suggested each coordinator carries out a storage-register-model-based
consistency method associated with level of the coordinator?

ANALYSIS
Based on the evidence of record, we find no error in the Examiner’s
rejection. First, we note that claim 3, not claim 2, recites the “quorum-based
storage-register-model-based consistency method.” Second, we note claims
1-3 are apparatus claims – not method claims. As such, the recitation that
the coordinators carry out such a model is considered a functional recitation
or requires the ability to perform such a function.
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Third, Appellant attacks Vermeulen individually. See App. Br. 31-32.
However, as discussed above and contrary to Appellant’s assertion (id.), the
Examiner relies on Soeda – not Vermeulen – and what is known in the art to
teach and suggest a distributed computing system. Ans. 4, 29. Vermeulen is
also a distributed storage system (see Title) and thus provides further reason
to combine such a quorum-based teaching with the combined Soeda/Burkey
distributed computing system as discussed in connection with claim 1.
Additionally, the Examiner finds that Vermeulen teaches such a
model as is recited in claims 2 and 3 and why one would combine the
teaching with the combined Soeda/Burkey system. See Ans. 9-10 (citing ¶¶
0173, 0191). That is, when combined with the combined Soeda/Burkey
system, Vermeulen teaches and suggests using a quorum-based protocol
model to update a storage system and prevent data inconsistencies
throughout a system’s protocol. See Ans. 10. This at least suggests each
coordinator of the combined system carries out such a model so that all the
data within all coordinators is updated.
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claim 2 and claims 3-5, 8, 16-19, and 22 not separately
argued with particularity.

THE OBVIOUSNESS REJECTION OVER SOEDA,
BURKEY, VERMEULEN, AND KARPOFF
Illustrative claim 6 depends from claim 3 and further recites the
virtual-disk-image-level coordinator is associated with a virtual-disk-image
level of a hierarchial data-storage model that describes a data state of the
distributed data-storage system. Appellant refers to the arguments made in
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connection with claims 1 and 14 (App. Br. 33), and as stated above, we are
not persuaded. Appellant also argues that the cited portions of Karpoff fails
to mention a virtual-disk-image level, a hierarchial data-storage model, a
data state, or distributed data-storage system (App. Br. 33) and that
mappings are not hierarchies (App. Br. 34). Appellant further asserts that
Karpoff has nothing to do with a distributed data-storage system. Id.

ISSUE
Under § 103, has the Examiner erred in rejecting claim 6 by finding
that Soeda, Burkey, Vermeulen, and Karpoff collectively would have taught
or suggested the virtual-disk-image-level coordinator is associated with a
virtual-disk-image level of a hierarchial data-storage model that describes a
data state of the distributed data-storage system?

ANALYSIS
Based on the evidence of record, we find no error in the Examiner’s
rejection. While Appellant argues Karpoff does not disclose a distributed
system (App. Br. 33), attacking Karpoff individually does not show
nonobviousness where the rejection – as here – is based on a combination of
references. Also, as explained above, Soeda teaches or suggests a
hierarchically-organized controller with a data storage environment.
¶¶ 0096-97; Fig. 3. This at least suggests that Soeda’s system, when
combined with the teachings of Burkey, Vermeulen, and Karpoff, will
include a hierarchial data-storage model. Moreover, the Examiner found
that the Soeda/Burkey system teaches a virtual-disk-image level coordinator,
and Vermeulen teaches the virtual-disk-image-level coordinator is associated
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with a virtual-disk-image level of a hierarchial data-storage model. See
Ans. 13. These findings have not been disputed by Appellant.
While all claim limitations must be considered when determining
patentability, merely reciting what data or information represents constitutes
non-functional descriptive material as it does not further limit the claimed
invention either functionally or structurally. We consider the description of
the recited data-storage model (e.g., model describes a data state of the
distributed data-storage system) to be no more than what the model
represents, i.e., nonfunctional descriptive material. Such non-functional
descriptive material does not patentably distinguish over prior art that
otherwise renders the claims unpatentable. See In re Ngai, 367 F.3d 1336,
1339 (Fed. Cir. 2004); see also Ex parte Nehls, 88 USPQ2d 1883, 1887-89
(precedential) (discussing cases pertaining to non-functional descriptive
material).
For the foregoing reasons, Appellant has not persuaded us of error in
the rejection of claim 6 and claims 7, 20, and 21 not separately argued with
particularity.

THE OBVIOUSNESS REJECTION OVER SOEDA,
BURKEY, VERMEULEN, AND LAND
Illustrative claim 9 depends from claim 8. Appellant repeats the
arguments made in connection with claims 1 and 14. App. Br. 35. As stated
above, we are not persuaded. Appellant also argues that Land does not
mention a “segment-configuration-node-level coordinator” or a “virtual disk
segment.” Id. Appellant additionally contends that Land does not mention a
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hierarchically-organized control program composed of coordinators. We
find these arguments unavailing.
The Examiner has rejected claim 9-13 and 23-27 based on the
collective teachings of Soeda, Burkey, Vermeulen, and Land. Ans. 15-16.
That is, the Examiner finds that Soeda, Burkey, and Vermeulen teaches
many of the limitations and only relies on Land to teach the managing
migration limitation. See Ans. 15. Land thus need not teach the recited
hierarchical organized controller or the recited coordinators. Additionally,
the rejection finds that Soeda, Burkey, and Vermeulen teach a virtual disk
segment distributed according to one or two redundancy schemes over a
number of component data-storage systems. See id. These findings have
not been challenged by Appellant. See App. Br. 35. Rather the Examiner
relies on Land for the limited purpose of teaching a coordinator that
manages migration from a first redundancy scheme to a second redundancy
scheme (see Ans. 15) and, when combined with Soeda, Burkey, and
Vermeulen, yields the claimed invention. Once again, these specific
findings by Examiner have not been disputed by Appellant. See App.
Br. 15.
Thus, based on the record, Appellant has not persuaded us of error in
the rejection of claim 9 and claims 10-13 and 23-27 not separately argued
with particularity.

THE REMAINING OBVIOUSNESS REJECTIONS
For each other remaining rejections, Appellant repeats and refers back
to arguments made in connection with Soeda and Vermeulen. App.
Br. 35-36. We are not persuaded by Appellant’s argument for the reasons
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discussed above with regard to claims 1 and 2 and will sustain the rejections
of claims 29-31.

CONCLUSION
The Examiner did not err in rejecting claims 1-31 under § 103.

DECISION
The Examiner’s decision rejecting claims 1-31 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

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