International Business Machines Corporation

Patent Trials and Appeals BoardDec 2, 2020

2019003913 (P.T.A.B. Dec. 2, 2020)

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. 15/245,466 08/24/2016 Brian F. Ober END920160331US1 3839 133758 7590 12/02/2020 Roberts Calderon Safran & Cole, P.C. Intellectual Property Department P.O. Box 10064 McLean, VA 22102-8064 EXAMINER ALSIP, MICHAEL ART UNIT PAPER NUMBER 2136 NOTIFICATION DATE DELIVERY MODE 12/02/2020 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@rcsc-ip.com lgallaugher@rcsc-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BRIAN F. OBER and JASON K. RESCH Appeal 2019-003913 Application 15/245,466 Technology Center 2100 Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and IRVIN E. BRANCH, Administrative Patent Judges. PER CURIAM. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use “Appellant” to reference the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “International Business Machines Corporation.” Appeal Br. 1. Appeal 2019-003913 Application 15/245,466 2 STATEMENT OF THE CASE Appellant’s Invention Appellant’s invention relates to “scheduling the backup of data objects in a dispersed storage network.” Spec. ¶ 3. Claim 1, reproduced below, is illustrative of argued subject matter. 1. A method of scheduling an accelerated backup of data objects in a dispersed storage network, the dispersed storage network including a computing device having a dispersed storage memory client and a memory containing a set of data objects to be backed up, the method comprising: detecting by the dispersed storage memory client of the computing device that an accelerated backup scheduling event has occurred; identifying by the dispersed storage memory client of the computing device a first subset of data objects from among the set of data objects to be backed up; and scheduling by the dispersed storage memory client of the computing device an accelerated backup of the first subset of data objects that is earlier than a previously scheduled backup of the set of data objects to be backed up. Appeal Br., Claims Appendix. Rejections Claims 8 and 16–18 stand rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 2. Claims 1, 2, 4–7, 9, 10–15, 19, and 20 stand rejected under 35 U.S.C. § 102(a)(2) as being anticipated by Xia (US 9,323,636 B2; Apr. 26, 2016). Final Act. 3–5. Claim 3 stands rejected under 35 U.S.C. § 103 as being unpatentable over Xia. Final Act. 5. Appeal 2019-003913 Application 15/245,466 3 OPINION § 112(b) Claims 8 and 16–18 are rejected as indefinite. Final Act. 2. The Appeal Brief does not address the rejection. See, e.g., Appeal Br. 3 (“Overview” section does not mention the § 112(b) rejection.). The Reply Brief states claims 8 and 16–18 were amended to overcome the rejection and are presumed to be allowable. Reply Br. 1. Despite Appellant’s above contentions, the Examiner has not withdrawn the rejection. See, e.g., Ans. 3 (“Every ground of rejection set forth in the Office action . . . is being maintained.”). Further, the Advisory Action states the above-noted claim amendments were not entered. Adv. Act., Form PTOL-303. In view of the above, we are unpersuaded of error in the rejection of claims 8 and 16–18 under § 112(b). We therefore sustain the rejection. § 102(a)(2) Claims 1, 2, 4–7, 9, 10–15, 19, and 20 are rejected as anticipated by Xia. We select claim 1 as representative. 37 C.F.R. 41.37(c)(1)(iv). Appellant describes the argued subject matter as follows: “Appellant’s claim 1 includes both a scheduled backup and an accelerated backup, where the accelerated backup is triggered by detection of an accelerated backup scheduling event and the accelerated backup is scheduled for a subset of data objects.” Appeal Br. 4. Before addressing Appellant’s specific contentions, we first turn to the Examiner’s pertinent findings. The Examiner finds the above subject matter is taught by Xia’s disclosure of routine and accelerated backups of data. Final Act. 4, 6; Ans. 3. In the Final Action, the Examiner explains: Appeal 2019-003913 Application 15/245,466 4 Xia’s invention uses a database service . . . [whereby] each database has multiple replicas on different nodes for failure recovery purposes, thus teaching having backups. Further, Xia teaches having backups due to a health status of a node, thus teaching having health related accelerated backups in addition to the backups used for typical replication purposes[.] Final Act. 6; see also id. at 4 (citing Xia abstract; background; col. 2, ll. 43– 61; col. 3, ll. 1–7; col. 4, ll. 40–6). Final Act. 3. In the Answer, the Examiner further explains: In order for there to be backup nodes that backup data for failover purposes, then backups to the backup nodes must happen[; these] are considered to be the claimed scheduled backups. Further Xia discloses in the cited sections having health status related backups that occur when the health of a node comes into question[; these] are considered the accelerated backups. Ans. 3. Appellant contends Xia’s routine backups are not scheduled and, therefore, cannot teach the claimed “previously scheduled backup of the set of data objects.” Appeal Br. 6 (block-quoted supra). Specifically, Appellant states: The [Examiner] fails to make any argument that Xia teaches or discloses either identifying a subset of data objects from among a set of data objects to be backed up or scheduling the backup of the subset of data objects. Lastly, . . . Xia fails to disclose or teach a “previously scheduled backup” and therefore does not disclose or teach a scheduling a backup of a subset of data objects before a previously scheduled backup for a set of data objects. Id. at 6. We are unpersuaded of Examiner error because Appellant’s argument fails to show that Xia’s routine backups are not “scheduled backups.” More Appeal 2019-003913 Application 15/245,466 5 specifically, Appellant fails to present evidence and/or present reasoning to establish that a broad reasonable interpretation of the claimed “scheduled backup” distinguishes over Xia’s backups that occur as part of the routine procedure for backing up data to replica nodes. The Specification only discloses that a “scheduled” backup is not an immediate backup (see e.g., Spec. ¶ 47). Thus, the claimed “scheduled backup” does not distinguish over a routine backup (even if not assigned to a time). Appellant further contends Xia’s accelerated backups are not described as backing up a subset of data objects already scheduled to be backed up and, therefore, cannot teach the claimed “accelerated backup of the first subset of data objects that is earlier than a previously scheduled backup of the set of data objects.” Reply Br. 3 (block-quoted supra). Specifically, Appellant argues: [Xia’s] monitoring module monitors . . . a node . . . [and] the term “backup” . . . is always paired with “node”, as in “backup node”[. N]ever is [“backup”] . . . used in connection with the data or a data portion. This is in contrast with Appellant’s claim 1, which is dealing with the backup of data objects. The bottom line is that Xia does not disclose or teach a scheduling a backup of a subset of data objects before a previously scheduled backup for a set of data objects. Id. We are unpersuaded of error because Appellant fails to show the claimed “set of data objects to be backed up” and claimed “first subset of data objects . . . to be backed up . . . earlier than a previously scheduled backup of the set of data objects” must be different sets. Appellant contends, but does not show, the broadest reasonable interpretation of the claimed “first subset of data objects from among the set of data objects” Appeal 2019-003913 Application 15/245,466 6 cannot be a “first subset” that is “the set of data objects” (i.e., fails to show they cannot be comprised of the same elements). Such a showing is needed because, though the term “subset” often means a portion of a set, a “subset” can be “a set consisting of elements of a given set that can be the same as the given set or smaller.” See SUBSET, Dictionary.com, https:// www.dictionary.com/browse/subset?s=t (accessed Nov. 2, 2020) (emphasis added). Such a showing is not provided by the Specification, which shows only that a “subset” of data objects is “from among” a set of data objects (see e.g., Spec. ¶ 51). Thus, the claimed “first subset of data objects” does not distinguish over a set of data objects comprising only the subset. Further, even assuming the claimed “first subset” must constitute only part of the claimed “set of data objects,” Appellant does not show the claimed “set of data objects” cannot be dispersed over multiple nodes such that the “first subset” constitutes a node’s stored data objects. In that case, the claimed “first subset” reads on Xia’s accelerated backup of an unhealthy node. See Xia, Abs.; Final Act. 3. For the foregoing reasons, we sustain the rejection of claims 1, 2, 4–7, 9, 10–15, 19, and 20 under § 102(a)(2). § 103 Claim 3 depends from claim 1 and stands rejected as obvious over Xia and Official Notice. Appellant contests the Examiner’s use of Official Notice to support a determination that Xia suggests detecting a node’s low battery power as a “health” event triggering an accelerated backup of the node’s stored data. Appeal Br. 7; Reply Br. 4–5; see also Final Act. 5; Ans. 4. Specifically, Appellant contends: Appeal 2019-003913 Application 15/245,466 7 The [Examiner] is attempting to use Official Notice as the principal evidence upon which the rejection of claim 3 is based. Official Notice cannot be used in this manner. . . . Instead, Official Notice is only appropriate for facts and that serve to fill in the gaps in a rejection. Appeal Br. 7 (internal quotation marks omitted). Appellant further contends the Examiner “is manufacturing out of thin air a notion of battery powered devices from a reference (Xia) that simply discloses no such a thing.” Reply Br. 4. We are unpersuaded of Examiner error because, contrary to Appellant’s contentions, the Examiner is principally relying on the following two teachings of Xia: (1) detect an impending failure of a node and then, in response, accelerate a backup of the node; and (2) nodes can be battery-powered devices that track their remaining power, e.g., laptops. Final Act. 5; Ans. 4. The Examiner takes Official Notice that low battery-power is known to indicate a device’s impending failure. Id. The Official Notice thus pertains to merely a well-known fact that a device’s remaining battery power indicates its impending failure. “Official notice unsupported by documentary evidence should only be taken by the examiner where the facts asserted to be well-known, or to be common knowledge in the art are capable of instant and unquestionable demonstration as being well-known.”Manual of Patent Examining Procedure (MPEP) § 2144.03.A (9th ed. Rev. 10.2019, June 2020). Appellant’s contentions accordingly fail to present a factual basis to determine the Official Notice is improper. See In re Boon, 439 F.2d 724, 728 (CCPA 1971) (An adequate challenge to official notice “creates a reasonable doubt regarding the circumstances justifying the . . . notice.”). Appeal 2019-003913 Application 15/245,466 8 In the Reply Brief, Appellant contends “Xia does not ever disclose or teach use of battery powered devices.” Reply Br. 4 (original emphasis). We are unpersuaded of error because the Final Action presents the Examiner’s finding that Xia teaches “the nodes . . . can be battery powered devices such as laptops” (Final Act. 5 (citing Xia col. 4, ll. 17–23)). For the foregoing reasons, we sustain the rejection of claim 3 under § 103. OVERALL CONCLUSION We affirm the Examiner’s decision to reject claims 1–20. DECISION SUMMARY Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 8, 16–18 112(b) Indefiniteness 8, 16–18 1, 2, 4–7, 9, 10–15, 19, 20 102(a)(2) Xia 1, 2, 4–7, 9, 10–15, 19, 20 3 103 Xia, Official Notice 3 Overall Outcome 1–20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this Appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED