Microsoft Technology Licensing, LLC

Patent Trials and Appeals BoardDec 24, 2021

2020004232 (P.T.A.B. Dec. 24, 2021)

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. 15/825,082 11/28/2017 Shobana M. BALAKRISHNAN 338526-US-CNT[3] 7264 39254 7590 12/24/2021 Barta, Jones & Foley, P.C. (Patent Group - Microsoft Corporation) 3308 Preston Road #350-161 Plano, TX 75093 EXAMINER SHIN, CHRISTOPHER B ART UNIT PAPER NUMBER 2181 NOTIFICATION DATE DELIVERY MODE 12/24/2021 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): docket@bjfip.com usdocket@microsoft.com uspto@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SHOBANA M. BALAKRISHNAN, DAVID T. HARPER, STEPHEN HEIL, ERIC C. PETERSON, ADAM B. GLASS, DAVID ALEX BUTLER, AUSTIN NICHOLAS DONNELLY, ANTONY IAN TAYLOR ROWSTRON, and SERGEY LEGTCHENKO ___________ Appeal 2020-004232 Application 15/825,082 Technology Center 2100 ____________ Before ERIC B. CHEN, JAMES B. ARPIN, and PHILLIP A. BENNETT, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–19 and 21. Claim 20 is cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a) (2012). Appellant identifies the real party in interest as Microsoft Technology Licensing, LLC. (Appeal Br. 1.) Appeal 2020-004232 Application 15/825,082 2 CLAIMED SUBJECT MATTER The claims are directed to a control mechanism for determining which hard disk drives are active at any time, such that constraints set by cooling and power supply systems and an interconnect fabric are not violated. (Abstract.) Claim 1, reproduced below, is illustrative, with disputed limitations in italics: 1. An electronic storage system comprising: a plurality of computer storage media, each of the plurality of computer storage media having an active state and a non active state; a control mechanism arranged to: dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media; and select one or more of the plurality of computer storage media to be in the active state based at least on the bandwidth constraint. REFERENCES Name Reference Date Tamilarasan et al. US 8,595,535 B1 Mar. 26, 2013 Balakrishnan et al. (Balakrishnan ’954) US 8,868,954 B1 Oct. 21, 2014 Balakrishnan et al. (Balakrishnan ’068) US 9,471,068 B2 Oct. 18, 2016 Balakrishnan et al. (Balakrishnan ’774) US 9,841,774 B2 Dec. 12, 2017 Ouchi et al. US 2011/0307721 A1 Dec. 15, 2011 Appeal 2020-004232 Application 15/825,082 3 REJECTIONS A. Claims 1–19 and 21 stand rejected under the judicially-created doctrine of nonstatutory double patenting as being unpatentable over claims 1–20 of commonly owned Balakrishnan ’774. B. Claims 1–19 and 21 stand rejected under the judicially-created doctrine of nonstatutory double patenting as being unpatentable over claims 1–20 of commonly owned Balakrishnan ’068. C. Claims 1–19 and 21 stand rejected under the judicially-created doctrine of nonstatutory double patenting as being unpatentable over claims 1–20 of commonly owned Balakrishnan ’954.2 D. Claims 1–19 and 21 stand rejected under 35 U.S.C. § 112(a) as failing to comply with the written description requirement. E. Claims 1–19 and 21 stand rejected under 35 U.S.C. § 112(b) as indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.3 F. Claims 1–19 and 21 stand rejected under 35 U.S.C. § 102(a)(2) as anticipated by or, in the alternative, under 35 U.S.C. § 103 as obvious over Tamilarasan. 2 Appellant does not present any arguments with respect to the rejections of claims 1–19 and 21 under the judicially created doctrine of nonstatutory double patenting. Thus, any such arguments are forfeited, and we summarily affirm this rejection. 3 Appellant does not present any arguments with respect to the rejection of claims 1–19 and 21 under 35 U.S.C. § 112(b). Thus, any such arguments are forfeited, and we summarily affirm this rejection. Appeal 2020-004232 Application 15/825,082 4 OPINION § 112(a)—Written Description We are persuaded by Appellant’s arguments (Appeal Br. 9) that the limitation “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media,” as recited in independent claim 1, complies with the written description requirement under 35 U.S.C. § 112(a). The Examiner finds that “the specification does not support ‘dynamically control . . . . storage media are in an active state based. . . at least on. . .a maximum data transfer rate for providing sufficient bandwidth of only a subset of the plurality of computer storage media.’” (Final Act. 5.) In particular, the Examiner finds that “the claimed limitation/function of selectively controlling the storage based on the maximum data transfer rate is not found to be supportive from the specification.” (Id.; see also Ans. 13– 16.) We do not agree with the Examiner’s findings. Appellant’s Specification discloses the following: The interconnect fabric may provide a bandwidth constraint, . . . however, in some cases the bandwidth constraint need not be considered explicitly when determining which HDDs can be active, for example where if the power and cooling constraints are satisfied the bandwidth constraint is always also satisfied. (Spec. ¶ 21.) In the example shown in FIG. 3, each HDD 304 may have a 1 Gb/s link to a SATA controller 314, giving a total capacity at this level in the interconnect fabric of 1152 Gb/s. At the next level up, each SATA controller 314 may have a 4 Gb/s Appeal 2020-004232 Application 15/825,082 5 link to a tray switch 312, giving a total capacity at this level in the interconnect fabric of 576 Gb/s (half that of the previous level). . . . Both of these examples clearly demonstrate that if all 96 HDDs which are permitted by the cooling and power constraints to be active, are active, there is insufficient bandwidth within the interconnect fabric 300 to read and/or write to them all. Consequently in this example, a bandwidth constraint (as a consequence of an underprovisioned interconnect fabric) may also be considered when determining which HDDs are to be active at any one time. (Id. ¶ 22.) Thus, because Appellant’s Specification discloses: (i) “interconnect fabric may provide a bandwidth constraint” to HDDs (id. ¶ 21); (ii) “a bandwidth constraint (as a consequence of an underprovisioned interconnect fabric) may also be considered when determining which HDDs are to be active at any one time” (id. ¶ 22); and (iii) specific examples of 1152 Gb/s or 576 Gb/s of bandwidth (id.), the Specification provides adequate support for the limitation “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media.” Accordingly, we are persuaded by Appellant’s arguments, as follows: That is, paragraph [0038] provides that each level has a total capacity data bandwidth restraint and that the data bandwidth restraint is used to determine which HDDs (e.g., storage media) is in active state. Further, paragraph [0038] provides that bandwidth is a data bandwidth restraint as the examples in which there is insufficient bandwidth in paragraph [0038] provide insufficient data bandwidth. This is also confirmed by the fact that a data bandwidth restraint would not result in a failure, but rather a congestion and latency, as also provided in paragraph [0038]. Thus, Appellant submits that the features “dynamically control which of the plurality of computer storage Appeal 2020-004232 Application 15/825,082 6 media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media,” is supported by the written description. (Appeal Br. 9.)4 Thus, we do not agree with the Examiner that the Specification fails to provide written description support for the limitation “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media.” Accordingly, we do not sustain the rejection of independent claim 1 under 35 U.S.C. § 112(a). Claims 2–18 depend from claim 1. Therefore, we do not sustain the rejection of claims 2–18 under 35 U.S.C. § 112(a) for the same reasons discussed with respect to independent claim 1. Each of independent claims 19 and 21 recites limitations similar to those discussed with respect to independent claim 1. Therefore, we do not sustain the rejection of claims 19 and 21 under 35 U.S.C. § 112(a) for the same reasons discussed with respect to independent claim 1. § 102 or 103 Rejection We are persuaded by Appellant’s arguments (Appeal Br. 10; see also Reply Br. 5) that Tamilarasan does not disclose and its teachings would not have rendered obvious independent claim 1, which includes the limitation 4 Appellant cited to paragraph 38 of US 2018/0081379 A1, published March 22, 2018, which is equivalent to paragraph 22 of originally-filed Specification. Appeal 2020-004232 Application 15/825,082 7 “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media.” The Examiner finds that the performance characteristics for physical storage devices of Tamilarasan (e.g., RPM of spinning media) correspond to the limitation: “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media.” (Final Act. 9.) In particular, the Examiner finds that “the . . . Tamilarasan reference teachings are directly related to the ‘attributes/performance characteristics’ in direct relation to storage data speed that match within predetermined limits/thresholds; which is functionally equivalent to the claimed ‘bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth constraint.’” (Ans. 17 (emphasis omitted).) Moreover, the Examiner finds that “the ‘performance characteristics’ of the Tamilarasan reference includes the RPM characteristics which inherently defines maximum data transfer rate for accessing data (i.e., transferring data for reading/writing between tiers).” (Id. at 18 (emphasis omitted).) We do not agree with the Examiner’s findings. Independent claim 1 recites, “a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth” (emphasis added). In the context of computing, one technical definition of “bandwidth” is “[t]he data transfer capacity, or speed of transmission, of a digital communications system as measured in bits per second (bps).” Appeal 2020-004232 Application 15/825,082 8 MICROSOFT® COMPUTER DICTIONARY 191 (5th ed. 2002). Such definition is consistent with Appellant’s Specification, which discloses the following: Violation of a soft constraint does not cause failure (or very likely failure) of the storage device 100 but instead will degrade performance (e.g. exceeding a bandwidth constraint would slow access to the device) and/or may cause longer term damage (e.g. exceeding a vibration constraint is unlikely to cause failure of the storage device in the short term but might, over a longer period of time, cause damage that may ultimately lead to failure of the storage device 100). (Spec. ¶ 12 (emphasis added).) For example if there are two operations which each use 18 GB/s of bandwidth and the total available bandwidth is only 32 Gb/s, the two operations may be served concurrently at 16 Gb/s, rather than serving just a single operation at the full bandwidth of 18 Gb/s. (Id. ¶ 40 (emphasis added).) In particular, the technical definition of “bandwidth,” is consistent with Appellant’s Specification, because the Specification discloses that “exceeding a bandwidth constraint would slow access” and refers to bandwidth in terms of Gigabytes per second. Thus, under the broadest reasonable interpretation consistent with the Specification, we interpret “bandwidth” as data transfer capacity, or speed of transmission, of a digital communications system, as measured in bits per second (bps). Tamilarasan relates to data storage systems, in particular, “techniques used in connection with management of data storage systems.” (Col. 1, ll. 8–11.) Tamilarasan explains that “[i]f it is determined that . . . energy information for the data storage system are within a predetermined amount of one or more associated thresholds, one or more actions are taken prior to reaching the one or more associated thresholds.” (Abstract). Figure 1 of Appeal 2020-004232 Application 15/825,082 9 Tamilarasan illustrates data storage system 12 connected to host systems 14a–14n via communication medium 18 (col. 4, ll. 17–20) and management system 16 connected to data storage system 12 communication medium 20 (col. 4, ll. 21–23). Figure 1 of Tamilarasan further illustrates that data storage systems 12 includes data storage devices 13a–13n. (Col. 5, ll. 35– 40.) Tamilarasan explains that “data storage system [12] may provide for different defined storage tiers” (col. 17, ll. 11–12) and that “power consumption (a single value or range) of a physical device may be an attribute of a storage tier definition” (col. 17, ll. 60–62). Tamilarasan further explains the following: Performance characteristics may relate to different performance aspects of the physical storage devices of a particular type or technology. For example, there may be multiple types of magnetic disk or spinning media type of FC drives based on the RPM characteristics of the FC drives (e.g., 10K RPM FC drives and 15K RPM FC drives) and FC drives having different RPM characteristics may be included in different storage tiers. (Col. 17, ll. 26–32.) When migrating to a device in another storage tier, an embodiment may select a target tier having a portion of attributes which are the same as, or similar within predetermined limits/thresholds, with respect to those attributes of the source tier. (Col. 17, ll. 51–55.) Although the Examiner cites to the performance characteristics of Tamilarasan for the physical storage devices (e.g., RMP of magnetic disk or spinning media) as an attribute for migrating to another storage tier, the Examiner provides insufficient evidence to support a finding that Tamilarasan discloses or teaches the limitation “bandwidth.” As discussed previously, we interpret “bandwidth” as data transfer capacity, or speed of Appeal 2020-004232 Application 15/825,082 10 transmission. Accordingly, the performance characteristics for the physical storage devices of Tamilarasan do not correspond to the limitation “bandwidth,” as recited in independent claim 1. Moreover, the Examiner does not establish that the RPM for the physical storage devices of Tamilarasan necessarily “defines maximum data transfer rate for accessing data.” See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (“To establish inherency, the extrinsic evidence ‘must make clear that the missing descriptive matter is necessarily present in the thing described in the reference, and that it would be so recognized by persons of ordinary skill.’ ‘Inherency, however, may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.’”) (internal citations omitted). On this record, the Examiner does not demonstrate that Tamilarasan discloses or teaches the limitation “dynamically control which of the plurality of computer storage media are in an active state based at least on a bandwidth constraint that defines a maximum data transfer rate for providing sufficient bandwidth for only a subset of the plurality of computer storage media.” Accordingly, we are persuaded of Appellant’s arguments, as follows: Tamilarason [sic] describes using power and temperature constraints to determine which computer storage media are in an active state. Tamilarason [sic] is silent with respect to using data transfer bandwidth constraints as provided in Claim 1. (Appeal Br. 10 (citation omitted).) [N]othing in Tamilarason [sic] describes or suggests using a maximum data transfer rate and a bandwidth of each storage device to determine which storage devices are active. At best, Tamilarasan describes using power consumption and temperature at the enclosure level or data storage system level to Appeal 2020-004232 Application 15/825,082 11 determine when to place a device in an active state or non-active state. (Reply Br. 5 (citation omitted).) Thus, we do not sustain the rejection of independent claim 1 under either 35 U.S.C. § 102(a)(2) or 35 U.S.C. § 103. Claims 2–18 depend from claim 1. We do not sustain the rejection of claims 2–18 under either 35 U.S.C. § 102(a)(2) or 35 U.S.C. § 103 for the same reasons discussed with respect to claim 1. Each of independent claims 19 and 21 recites limitations similar to those discussed with respect to independent claim 1. Therefore, we do not sustain the rejection of claims 19 and 21 under either 35 U.S.C. § 102(a)(2) or 35 U.S.C. § 103 for the same reasons discussed with respect to independent claim 1. CONCLUSION The Examiner’s decision rejecting claims 1–19 and 21 under the judicially created doctrine of nonstatutory double patenting is affirmed. The Examiner’s decision rejecting claims 1–19 and 21 under 35 U.S.C. § 112(a) is reversed. The Examiner’s decision rejecting claims 1–19 and 21 under 35 U.S.C. § 112(b) is affirmed. The Examiner’s decision rejecting claims 1–19 and 21 under 35 U.S.C. § 102(a)(2), or in the alternative, under § 103 is reversed. Appeal 2020-004232 Application 15/825,082 12 DECISION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–19, 21 Nonstatutory Double Patenting Balakrishnan ’774 1–19, 21 1–19, 21 Nonstatutory Double Patenting Balakrishnan ’068 1–19, 21 1–19, 21 Nonstatutory Double Patenting Balakrishnan ’954 1–19, 21 1–19, 21 112(a) Written Description 1–19, 21 1–19, 21 112(b) Indefiniteness 1–19, 21 1–19, 21 102(a)(2) or 103 Tamilarasan 1–19, 21 Overall Outcome 1–19, 21 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)(1)(iv). See 37 C.F.R. § 1.136(a)(1)(iv) (2013). AFFIRMED