MICROSOFT CORPORATIONDownload PDFPatent Trials and Appeals BoardJul 15, 202014177810 - (D) (P.T.A.B. Jul. 15, 2020) Copy Citation 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. 14/177,810 02/11/2014 DAVID ALLEN GOEBEL 341206-US-NP/202749 5405 45809 7590 07/15/2020 SHOOK, HARDY & BACON L.L.P. (MICROSOFT TECHNOLOGY LICENSING, LLC) INTELLECTUAL PROPERTY DEPARTMENT 2555 GRAND BOULEVARD KANSAS CITY, MO 64108-2613 EXAMINER MCQUITERY, DIEDRA M ART UNIT PAPER NUMBER 2166 NOTIFICATION DATE DELIVERY MODE 07/15/2020 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): IPDocket@shb.com docket.shb@clarivate.com usdocket@microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID ALLEN GOEBEL and IOAN OLTEAN _____________ Appeal 2019-006547 Application 14/177,810 Technology Center 2100 ____________ Before ST. JOHN COURTENAY III, JOHNNY A. KUMAR, and BETH Z. SHAW, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of claims 1–20. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2018). According to Appellant, the real party in interest is MICROSOFT TECHNOLOGY LICENSING, LLC. See Appeal Br. 3. Appeal 2019-006547 Application 14/177,810 2 STATEMENT OF THE CASE 2 Introduction Appellant’s claimed invention relates generally to “[v]arious methods and systems for in-place unformatting of disks.” Abstract. Illustrative Independent Claim 1 1. A distributed system comprising: a preparation component configured for: creating a backup file on a disk; a preformatting component configured for: using the backup file to occupy a predetermined location that defines a backup zone on the disk, wherein the backup file is stored in the backup zone, [L1] wherein the backup zone includes a first portion of the backup file in a first portion of the backup zone as a space- holder for backing up primal data, and [L2] wherein the backup zone includes a second portion of the backup file in a second portion of the backup zone as a space- holder for backing up file table data; copying primal data from a primal zone to the first portion of the backup zone; overwriting the first portion of the backup file in the first portion of the backup zone, wherein overwriting the first 2 We herein refer to the Final Office Action, mailed Oct. 10, 2018 (“Final Act.”); Appeal Brief, filed Mar. 8, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed July 2, 2019 (“Ans.”); and the Reply Brief, filed Sept. 3, 2019 (“Reply Br.”). Appeal 2019-006547 Application 14/177,810 3 portion of the backup file backs up metadata files in the first portion of the backup zone, wherein the primal data comprises metadata; copying file table data to the second portion of the backup zone; and overwriting the second portion of the backup file in the second portion of the backup zone, wherein overwriting the second portion of the backup file backs up a file system structure in the in the second portion of the backup zone, wherein the file table data comprises the file system structure; and a formatting component configured for: formatting the disk having the primal data and the file table data in the backup zone; an unformatting component configured for: copying the primal data from the backup zone to the primal zone; copying the file table data to at least a file table zone; and unformatting the disk to a preformat configuration. Appeal Br. 22–23, “CLAIMS APPENDIX” (bracketed lettering added and disputed limitations “L1” and “L2” emphasized). Evidence The prior art relied upon by the Examiner as evidence is: Name Reference Date Dimitri et al. US 2003/0158997 A1 Aug. 21, 2003 Appeal 2019-006547 Application 14/177,810 4 Kameda et al. US 2007/0064547 A1 Mar. 22, 2007 Pudipeddi et al. US 2007/0143563 A1 June 21, 2007 Kapoor et al. US 2007/0220032 A1 Sept. 20, 2007 Ragner US 7,814,554 B1 Oct. 12, 2010 Afonso et al. US 8,375,003 B1 Feb.12, 2013 Rejections Rej. Claims Rejected 35 U.S.C. § Reference(s)/Basis A 1, 7–11, 15–20 103 Kameda et al. (“Kameda”), Afonso et al. (“Alfonso”), Kapoor et al. (“Kapoor”) B 2, 3, 5 103 Kameda, Afonso, Kapoor, Dimitri C 4 103 Kameda, Afonso, Kapoor, Dimitri et al. (“Dimitri”), Ragner D 6, 12–14 103 Kameda, Afonso, Kapoor, Pudipeddi et al. (“Pudipeddi”) Analysis Issues under § 103 Issues: Under 35 U.S.C. § 103, we focus our analysis on the following argued limitations regarding Rejection A of independent claims 1, 9, and 18. Did the Examiner err by finding that Kameda, Afonso, and Kapoor collectively teach or suggest limitations “L1” and “L2:” [L1] wherein the backup zone includes a first portion of the backup file in a first portion of the backup zone as a space- holder for backing up primal data, and Appeal 2019-006547 Application 14/177,810 5 [L2] wherein the backup zone includes a second portion of the backup file in a second portion of the backup zone as a space- holder for backing up file table data [,] within the meaning of independent claim 1?3 The Examiner reads the disputed dispositive L1 limitation of claim 1 on Kameda, at paragraphs 49, 53, 55, 63, 66, and Figures 2F and 4B. See Final Act. 5–6. The Examiner also reads the disputed L2 limitation of claim 1 on Kameda, at paragraphs 53, 55, 63, 66, and Figures 2F and 4B. See Final Act. 6. The Examiner finds “Kameda fails to explicitly disclose:” • creating a backup file on a disk; • a preformatting component configured for: using the backup file to occupy a predetermined location that defines a backup zone on the disk, wherein the backup file is stored in the backup zone; • [a] backup zone as a space-holder; • overwriting the first portion of the backup file in the first portion of the backup zone, wherein overwriting the first portion of the backup file backs up metadata files in the first portion of the backup zone, wherein the primal data comprises metadata; [and] • overwriting the second portion of the backup file in the second portion of the backup zone, wherein overwriting the second portion of the backup file backs up a file system structure in the in the second portion of the backup zone, wherein the file table data comprises the file system structure. 3 We give the contested claim limitations the broadest reasonable interpretation (BRI) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2019-006547 Application 14/177,810 6 Final Act. 7–8 (underlining omitted). However, the Examiner finds the cited portion of Afonso (at column 11, lines 42–58) teaches, creating a backup file on a disk at column, using the backup file to occupy a predetermined location that defines a backup zone on the disk, wherein the backup file is stored in the backup zone, and using the backup zone as a space-holder. See Final Act. 8 (citing Afonso, col. 11, ll. 42–58). The Examiner additionally finds that the same paragraph 52 of Kapoor teaches or suggests the two recited “overwriting” limitations recited in claim 1. Appellant disagrees with the Examiner’s underlying factual findings and ultimate legal conclusion of obviousness. On pages 12 and 13 of the Appeal Brief, Appellant focuses the argument on limitation L1 of claim 1: [L1] wherein the backup zone includes a first portion of the backup file in a first portion of the backup zone as a space- holder for backing up primal data. . . . Appeal Br. 12. Appellant traverses the teachings of Kameda, and contends: By way of background, Kameda is directed to extracting effective file management data, and saving the effective management data to “an area outside the terminal area.” See Kameda at ¶ [0049]. Specifically, prior to formatting the optical disk, the effective management data is extracted, from portions of the disk and stored in the area outside the terminal area of the disk, which is a single designated area for storing the single type of data (i.e., the effective management data). In this regard, Kameda only discusses saving all effective file management data into a single area. Appeal Br. 13. Appeal 2019-006547 Application 14/177,810 7 Appellant traverses the teachings of Afonso, and contends: Afonso allows for saving a compressed backup file of the virtual machine disk file(s) without writing the backup file to a disk of the backup proxy. Id. at C11:L54-56. “For instance, each of the data blocks associated with a write operation can be compressed and saved to an alternative destination on disk identified by the intercept module.” Id at C11:L56-59. However, merely creating and saving a compressed backup file in an alternative destination, as in Afonso, is not the same as a backup zone that includes a first portion of the backup file in a first portion of the backup zone as a space-holder for backing up primal data, and the backup zone further including a second portion of the backup file in a second portion of the backup zone as a space-holder for backing up file table data. Appeal Br. 15 (emphasis added and omitted). As an initial matter of claim construction, we focus our analysis on the claim terms “primal data” and “file table data.” Claim 1. Turning to the Specification, at paragraph 24 for context, we find a description of primal data as being contained within “[a] primal zone [that] generally refers to areas of the volume that the file system will allocate first as files are written to a freshly formatted volume . . . Accordingly data in the primal zone is referred to herein as primal data.” In contrast, the Specification, at paragraph 24, describes a file table as follows: “A file table generally refers to a file system (e.g., NTFS) structure that defines the files on a volume. A file table may include information about where data is located, and the associated metadata.” 4 Based upon our review of the record, we find a preponderance of the evidence supports Appellant’s arguments with respect to disputed limitation 4 “NTFS” refers to Microsoft’s “New Technology File System.” See Spec. ¶ 18. Appeal 2019-006547 Application 14/177,810 8 L1 as not being taught by Kameda or Afonso. We find Kameda’s Figure 4B depicts that only the file management data (corresponding to the claimed “file table”) is backed up. Based upon our review, we find the user data area in Kameda (corresponding to Appellant’s claimed “primal data”), as depicted in Figures 4A and 4B, is not backed up. We further agree with Appellant’s arguments that Afonso does not remedy the deficiency in Kameda regarding disputed limitation L1 of claim 1. See Appeal Br. 15. We additionally find a preponderance of the evidence supports Appellant’s closing argument in the Reply Brief: At most, Kameda uses a single area to back up only effective file management data. See Kameda at ¶ [0049]. FIGS. 4A and 4B (aspects emphasized below using dashed boxes) clearly depict that only a single area is used during the backup process (e.g., to save the file management data). Specifically, prior to formatting the optical disk, effective management data is extracted (e.g., from the file management data area), and stored in the area outside the terminal area of the disk (e.g., emphasized file management data (including space area)), which is a single designated area for storing the single type of data (i.e., the effective management data). FIGS. 4A and 4B also depict a user data area. However, this user data area merely stores user data. Nothing in Kameda discusses a separate area used . . . for backing up this user data (which the Examiner correlates with primal data). Further, nothing in Kameda discusses even backing up this user data. The present application, on the other hand, has a backup zone that includes a first portion for backing up primal data and a second portion for backing up file table data. Reply Br. 2–3 (emphasis omitted). Appeal 2019-006547 Application 14/177,810 9 As noted above, the Examiner only relies upon the tertiary Kapoor reference, at paragraph 52, to teach or suggest the two recited “overwriting” limitations recited in claim 1. See Final Act. 9. Therefore, for essentially the same reasons argued by Appellant in the Briefs, as discussed above, we find disputed limitation L1 of claim 1 is not taught or suggested by the Examiner’s proffered combination of Kameda, Afonso, and Kapoor. Accordingly, we are constrained on this record to reverse the Examiner’s obviousness Rejection A of independent claim 1. Remaining independent claims 9 and 18, also rejected under Rejection A, recite the disputed limitation L1 of claim 1 using similar language of commensurate scope. Therefore, for the same reasons, we also reverse the Examiner’s Rejection A of independent claims 9 and 18. Because we have reversed the Examiner’s Rejection A of each independent claim on appeal, we also reverse the Examiner’s Rejection A of each associated dependent claim. Rejection B of Claims 2, 3, 5, Rejection C of Claim 4, Rejection D of Claims 6, 12–14 In light of our reversal of Rejection A of independent claims 1, 9, and 18, supra, we also reverse obviousness rejection B of claims 2, 3, and 5, obviousness Rejection C of claim 4, and obviousness Rejection D of claims 6 and 12–14. On this record, the Examiner has not shown how the additionally- cited secondary references overcome the aforementioned deficiencies with respect to the base combination of Kameda, Afonso, and Kapoor, as Appeal 2019-006547 Application 14/177,810 10 discussed above regarding independent claims 1, 9, and 18, as rejected under Rejection A. Accordingly, we are constrained on this record to reverse the Examiner’s obviousness rejections A, B, C, and D of all claims 1–20 on appeal. CONCLUSION The Examiner erred in rejecting claims 1–20, as being obvious under 35 U.S.C. § 103, over the cited combinations of references. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 7–11, 15–20 103 Kameda, Afonso, Kapoor 1, 7–11, 15–20 2, 3, 5 103 Kameda, Afonso, Kapoor, Dimitri 2, 3, 5 4 103 Kameda, Afonso, Kapoor, Dimitri, Ragner 4 6, 12–14 103 Kameda, Afonso, Kapoor, Pudipeddi 6, 12–14 Overall Outcome 1–20 REVERSED Copy with citationCopy as parenthetical citation