Ex Parte Tofano

Patent Trial and Appeal BoardNov 1, 2018

13373990 (P.T.A.B. Nov. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/373,990 12/07/2011 29393 7590 11/05/2018 Eschweiler & Potashnik, LLC Rosetta Center 629 Euclid Ave., Suite 1000 Cleveland, OH 44114 FIRST NAMED INVENTOR Jeffrey Tofano 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. QUAP112US 1753 EXAMINER VO,CECILEH ART UNIT PAPER NUMBER 2153 NOTIFICATION DATE DELIVERY MODE 11/05/2018 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): docketing@eschweilerlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFREY TOP ANO Appeal2017-001348 Application 13/373,990 Technology Center 2100 Before JENNIFER S. BISK, AMBER L. HAGY, and MICHAEL M. BARRY, Administrative Patent Judges. BISK, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant,2 listed above, seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's rejection of claims 1, 4--10, 12, and 15-21. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We affirm. STATEMENT OF THE CASE Appellant's invention relates to de-duplication of data using adaptive experience based chucking, hashing, and/or sampling. Spec. ,r 13. 1 Throughout this Decision we have considered the Specification filed December 7, 2011 ("Spec."), the Final Rejection mailed July 30, 2015 ("Final Act."), the Appeal Brief filed April 8, 2016 ("App. Br."), the Examiner's Answer mailed September 20. 2016 ("Ans."), and the Reply Brief filed October 31, 2016 ("Reply Br."). 2 Appellant identifies the real party in interest as Quantum Corporation. App. Br. 2. Appeal2017-001348 Application 13/373,990 Claim 1, reproduced below with indentation added, is illustrative of the claimed subject matter: 1. A method, comprising: accessing de-duplication experience data, where the de-duplication experience data comprises de-duplication performance time data and de-duplication data reduction data gathered from observing how de- duplication proceeds locally, or from observing how de-duplication proceeds in a distributed system, where the de-duplication experience data includes communication capacity data, communication power data, or local processing power data; and, selectively automatically and dynamically reconfiguring computerized de-duplication as a function of the de-duplication experience data on a per actor basis and a per entity basis, where reconfiguring computerized de-duplication on a per entity basis includes reconfiguring computerized de- duplication of a subset of members of the entity over time, or reconfiguring computerized de-duplication of a subset of members of the entity substantially instantaneously, where reconfiguring computerized de-duplication includes changing a boundary placing approach used by a de-duplicator, changing a chunking approach used by a de-duplicator, changing a hashing approach used by a de-duplicator, changing a sampling approach used by a de-duplicator, changing a desired mean chunk length used by a de-duplicator, or changing a uniqueness determination approach used by a de-duplicator. THE REJECTIONS Claims 1, 4--10, 12, and 15-21 stand rejected under 35 U.S.C. Â§ I03(a) as being obvious over Li (US 2012/0166401 Al; June 28, 2012), Parab (US 2012/0084261 Al; Apr. 5, 2012), Datuashvili (US 2010/0161554 2 Appeal2017-001348 Application 13/373,990 Al; June 24, 2010), and Oltean (US 8,380,681 B2; Feb. 19, 2013). Final Act. 2-16. ANALYSIS We have considered all of Appellant's arguments and any evidence presented. We highlight and address specific findings and arguments for emphasis in our analysis below. Appellant directs several arguments to a rejection not asserted in the Final Action. In particular, Appellant argues error in the rejection of claims 1, 4--10, 12, and 15-21 under 35 U.S.C. Â§ 103 as obvious over Li, Parab, and Oltean. App. Br. 14--20. This rejection, however, was not asserted in the Final Action. See Final Act. 2-18. To the extent any of these arguments are applicable to the rejection at issue----over Li, Parab, Datuashvili, and Oltean-we treat them as applying to this rejection and address them below. Claims 1, 4, 5, 8-10, 12, and 15-21 Appellant argues claims 1, 4, 5, 8-10, 12, and 15-21 together as a group. See App. Br. 14--24. Therefore, consistent with the provisions of 37 C.F.R. Â§ 4I.37(c)(l)(iv), we limit our discussion to independent claim 1. Claims 4, 5, 8-10, 12, and 15-21 stand or fall with claim 1. "selectively automatically and dynamically reconfiguring computerized de- duplication as a function of the de-duplication experience data on a per actor basis and a per entity basis" Appellant argues that Oltean does not disclose "dynamically reconfiguring computerized de-duplication as a function of de-duplication experience data on a per actor basis and per entity basis." App. Br. 14--18. The Examiner, however, relies on Datuashvili for teaching this portion of the limitation. See Final Act. 4--6; Ans. 4--5. Although Appellant did not 3 Appeal2017-001348 Application 13/373,990 address Datuashvili' s disclosure when discussing this limitation in the Appeal Brief, in Reply, Appellant argues that Datuashvili also does not disclose this limitation. Reply Br. 5-6. Appellant does not explain what "good cause" might exist to consider the new argument. On this record, therefore, Appellant's new argument is improper. See 37 C.F.R. Â§ 41.4I(b)(2). Even considering this new argument, however, we do not find it persuasive. The Examiner explains that Datuashvili discloses "distributed de-duplication for replicated content addressable storage clusters" because each disclosed instruction/application "is interpreted as a per actor basis" and each portion/subset of the index "is interpreted as a per entity basis" and the disclosure of "automatically copying an object from a device with a replica having an ongoing delete request to a device with a replica having been previously de-duplicated" is interpreted as "reconfiguring computerized de-duplication of the de-duplication experience data." Final Act. 6 (citing Datuashvili ,r,r 7, 8, 43) (emphasis omitted); Ans. 4--5. Appellant does not persuade us of error in the Examiner's finding that a person of ordinary skill would have understood that, in describing multiple instructions for de-duplicating particular subsets of an index (Datuashvili ,r,r 7, 8), Datuashvili discloses "selectively automatically and dynamically reconfiguring computerized de-duplication as a function of the de- duplication experience data on a per actor basis and a per entity basis." "where reconfiguring computerized de-duplication includes changing a boundary placing approach ... " Appellant argues that Datuashvili does not disclose "where reconfiguring computerized de-duplication includes changing a boundary 4 Appeal2017-001348 Application 13/373,990 placing approach, changing a chunking approach, changing a hashing approach, changing a sampling approach, changing a desired mean chunk, length, or changing a uniqueness determination approach." Reply Br. 5-6. The Examiner, however, relies on Oltean for this portion of the limitation. See Final Act. 6-8 (citing Oltean, 6:4--14, 8:54--61, 10:18-28). Appellant, therefore, does not persuade us of error in the Examiner's finding that a person of ordinary skill would have understood that Oltean discloses this portion of the limitation. "de-duplication experience data" Appellant argues that Parab does not teach "de-duplication experience data including communication capacity data, communication power data, or local processing power data." App. Br. 21-24. According to Appellant, although Parab describes selecting a percentage of data for caching based on criteria such as "elapsed time and/or the type of data" (Parab ,r 62), this "is not the same thing as data reduction data" or "performance time data." Reply Br. 2-3. Appellant also argues that "Parab's label, which 'represents an instance of the corresponding segment data,"' does not teach any type of de-duplication experience data because "backup metadata may be stored separately from the data backup, and may be stored in a manner such that an association between the backup metadata and the data backup is apparent." Id. at 3. Appellant does not persuade us of error in the Examiner's finding that a person of ordinary skill would have understood that, in describing caching criteria such as elapsed time and type of data, Parab discloses "de- duplication performance time data and de-duplication data reduction data." Ans. 3--4 (citing Parab ,r,r 53, 60-62). Moreover, because the claims do not 5 Appeal2017-001348 Application 13/373,990 require experience data to be stored in any particular manner, we are not persuaded that the Examiner erred in finding that Parab' s label represents an instance of the corresponding segment data as communication power data. Id. at 4 (citing Parab ,r,r 40, 64---68). We also agree with the Examiner that because the claim uses the word "or" when indicating the components of de- duplication experience data, the Examiner need only show that one or the other of the components is disclosed. See Ans. 4. For these reasons, we sustain the Examiner's rejection of 1, 4, 5, 8- 10, 12, and 15-21. Claims 6 and 7 Claim 6 depends from claim 1 and further recites "de-duplication reconstitution information identifies one or more of, the computerized de- duplication employed to de-duplicate the item, and the de-duplication experience data employed to reconfigure the computerized de-duplication." The Examiner relies on Oltean as disclosing this limitation. Final Act. 9-10 (citing Oltean, 8:54---61, 12:8-23). Claim 7 depends from claim 6 and further recites "adding de-duplication reconstitution information to a de- duplication data structure." The Examiner relies on Datuashvili as disclosing this limitation. Final Act. 10-11 (citing Datuashvili ,r 37). Specifically, the Examiner points to the Datuashvili's global index as the claimed de-duplication data structure. Ans. 5---6. Appellant argues that "Datuashvili does not teach adding de- duplication reconstitution data that identifies de-duplication experience data to a de-duplication structure." App. Br. 25-26. This argument, however, is not persuasive because, as described, the Examiner's rejection is based on a combination of Oltean and Datuashvili for these limitations. See Final Act. 6 Appeal2017-001348 Application 13/373,990 9--11; Ans. 5---6. Appellant does not further address claims 6 and 7 in the Reply Brief. We, therefore, sustain the Examiner's rejection of claims 6 and 7. DECISION We affirm the Examiner's decision to reject claims 1, 4--10, 12, and 15-21. 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). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 7