Axxana (Israel) Ltd.

Patent Trials and Appeals Board

Dec 3, 2020

2019000890 (P.T.A.B. Dec. 3, 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.
15/261,952 09/11/2016 Alex Winokur 1034-1007.4 9316
82253 7590 12/03/2020
KLIGLER & ASSOCIATES PATENT ATTORNEYS LTD.
P.O. Box 57651
Tel Aviv, 61576
ISRAEL
EXAMINER
GEBRIL, MOHAMED M
ART UNIT PAPER NUMBER
2135
NOTIFICATION DATE DELIVERY MODE
12/03/2020 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):
alon@dkpat.co.il
daniel@dkpat.co.il
info@dkpat.co.il
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ALEX WINOKUR
____________________

Appeal 2019-000890
Application 15/261,952
Technology Center 2100
____________________

Before THU A. DANG, ELENI MANTIS MERCADER, and
BETH SHAW, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–8, 10–18, and 20 (Appeal Br. 1), which
constitute all claims pending in this application.1 Claims 9 and 19 were
previously cancelled. We have jurisdiction 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. According to Appellant, the real party in interest is Axxana
(Israel) Ltd. Appeal Br. 1.
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A. INVENTION
According to Appellant, the claimed invention relates to “data
protection systems,” and particularly to “protecting mirrored data against
disaster events using disaster-proof storage devices.” Spec. 1:8–10.

B. ILLUSTRATIVE CLAIM
Claim 1 is illustrative of the claimed subject matter and is reproduced
below:
An apparatus for data protection, comprising:
a data storage device; and
an appliance, which is configured to:
(i) communicate via a storage area network (SAN) with a first
group of primary storage volumes, to which data storage transactions
are applied via the SAN by local servers, and communicate via a wide
area network (WAN) with a second group of backup storage volumes,
to which ordered series of the data storage transactions are replicated;
(ii) periodically write, via the SAN, a sequence of indexed
transactions to a protection application field, which is dedicated in one
of the primary storage volumes for assessment of a data gap (DG)
between the primary storage volumes and the backup storage
volumes, whereby the indexed transactions are replicated within the
ordered series of the data storage transactions to a corresponding one
of the backup storage volumes;
(iii) store respective records of the transactions in the ordered
series in the data storage device while maintaining order of the series;
and
(iv) periodically read, via the WAN, the indexed
transactions from the corresponding one of the backup storage
volumes and, upon reading a given indexed transaction from
among the indexed transactions that were replicated to the one
of the backup storage volumes, erase from the data storage
device all of the records of the transactions that preceded the
given indexed transaction in the ordered series.

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C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:

Name Reference Date
Winokur WO 2006/111958 A2 Oct. 26, 2006
Erofeev US 2007/0226438 A1 Sep. 27, 2007
Lubbers US 2003/0187861 A1 Oct. 2, 2003
Takahashi US 2008/0177964 A1 Jul. 24, 2008
Fellin US 2004/0078637 A1 Apr. 22, 2004
Wong US 2007/0061379 A1 Mar. 15, 2007

Claims 1, 2, 6, 7, 10–12, 16, 17, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Winokur, Erofeev, and Lubbers.
Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Winokur, Erofeev, Lubbers, and Takahashi.
Claims 4, 5, 14, and 15 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Winokur, Erofeev, Lubbers, and Fellin.
Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Winokur, Erofeev, Lubbers, and Wong.
II. ISSUES
The dispositive issues before us are whether the Examiner has erred in
determining that the combination of Winokur, Erofeev and Lubbers teaches
or suggests 1) “periodically write, via the SAN, a sequence of indexed
transactions to a protection application field, which is dedicated in one of the
primary storage volumes for assessment of a data gap (DG) between the
primary storage volumes and the backup storage volumes,” whereby the
indexed transactions are replicated to a corresponding one of the backup
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storage volumes; and 2) “periodically read . . . the indexed transactions from
the corresponding one of the backup storage volumes,” wherein upon
reading a given indexed transaction from among the indexed transactions
that were replicated to the one of the backup storage volumes, “erase from
the data storage device all of the records of the transactions that preceded the
given indexed transaction in the ordered series.” Claim 1.
III. ANALYSIS
A. Claims 1, 2, 6, 7, 10–12, 16, 17, and 20
Appellant contends that the claimed invention “addresses the problem
of managing the size of the data gap, using a sequence of indexed
transactions that are written by an appliance to a protection application field
in one of a group of primary storage volumes.” App. Br. 6. According to
Appellant, these “indexed transactions” are referred to in the specification as
“artificial write transactions” because “they are written by the appliance for
the purpose of data gap assessment” and “not actual data storage,” and then
“replicated as part of this ordered series to the backup storage volumes,”
wherein the appliance “stores records of the transactions in the ordered
series to a data storage device.” Id. at 6–7. Further, according to Appellant,
the appliance then periodically reads the indexed transactions from the back
up storage volume, and upon finding this periodic reading that a given
indexed transaction has been successfully replicated to the backup storage
volume, “the appliance is able to conclude that all of the previous
transactions in the ordered series have also been replicated,” and the
appliance “is thus able, with full confidence, to erase the records of all of
these previous transactions from the data storage device.” Id. at 7
(emphasis in original).
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According to Appellant, although the Examiner relies on the primary
reference to Winokur for the replication of data “for storage in a backup
storage volume,” Winokur is silent as to “maintaining the order of a series of
storage transactions,” “writing indexed transactions from an appliance to a
primary storage volume for replication within an ordered series of data
storage transactions,” or “data gap assessment.” Appeal Br. 7–8. Appellant
contends that, even if Winokur were to be combined with the secondary
references to Erofeev and Lubbers, the combination still fails to disclose or
suggest “[p]eriodically writing a sequence of indexed transactions to a
protection application field in one of the primary storage volumes (for
replication within an ordered series of data transactions)” and “[p]eriodically
reading the indexed transactions from a corresponding backup storage
volume, and erasing the records of all preceding data transactions in the
series,” as claimed. Id. at 9 (emphasis omitted).
We have considered all of Appellant’s arguments and evidence
presented. We agree with Appellant that the preponderance of the evidence
on this record does not support the Examiner’s legal conclusion that claim 1,
claim 11 reciting similar limitations, and claims 2, 6, 7, 10, 12, 16, 17, and
20 depending respectively therefrom, would have been obvious over
Winokur, Erofeev, and Lubbers.
Winokur discloses a method for data protection which includes
sending data for storage in a primary storage and then a secondary storage
device, wherein while awaiting an indication of successful storage of the
data in the secondary storage device, a record associated with the data is
temporarily stored in a disaster-proof storage unit. Winokur Abstract.
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Figure 1A of Winokur shows a system for data protection, and is reproduced
below:

Figure 1A of Winokur shows system 20 for storing data produced
and/or used by data resources 24. Winokur, 9:17. As shown in Figure 1A,
system 20 mirrors (i.e., replicates) the data and stores it in primary storage
device 28 and then secondary storage device 32, wherein the two storage
devices hold replicas of the organization data, in mirrored configuration.
Id. at 9:23–26. In order to ensure guaranteed storage in secondary storage
device 32, the data is temporarily cached in secure storage devices 48. Id. at
17:30–31.
Winokur’s data protection method begins with mirroring application
36 accepting a write command from one of data sources 24 and sending the
data to primary storage device 28. Id. at 17:32–18:1. After primary storage
device 28 successfully stores the data, it sends an acknowledgement back to
mirroring application 36, and mirroring application 36 accepts the
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acknowledgement. Id. at 18:1–4. Protection processor 44 accepts the write
command and stores it in one or more of secure storage devices 48, produces
a respective record, and stores the record in the one or more of secure
storage devices 48. Id. at 18:5–12. Protection processor 44 then checks
whether an acknowledgement from secondary storage device 32 was
received, maintains the respective record cached in secure storage devices
48, and when an acknowledgement is received from secondary storage
device 32, deletes the respective record from secure storage devices 48.
Id. at 18:24–29.
As Appellant points out, this section in Winokur fails to teach or
suggest a step to “periodically write, via the SAN, a sequence of indexed
transactions to a protection application field, which is dedicated in one of the
primary storage volumes” for assessment of a data gap between the primary
storage volumes and the backup storage volumes, as recited in claim 1, and
similarly recited in claim 11. See Appeal Br. 9. In particular, although
Winokur discloses storing data produced and/or used by data resources
(Winokur, 9:17–26),we do not find any teaching or suggestion in the
referenced sections of Winokur of periodically writing “via the SAN” of
“indexed transactions,” where these “indexed transactions” are “artificial
write transactions” that “are written by the appliance for the purpose of data
gap assessment” and “not actual data storage,” as described in the
Specification. Id. at 6–7 (emphasis added); compare claim 1 with Winokur,
9:17:26, Fig. 1A.
Furthermore, the section in Winokur relied by the Examiner also fails
to teach or suggest a step to “periodically read . . . the indexed transactions
from the corresponding one of the backup storage volumes,” wherein upon
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reading a given indexed transaction from among the indexed transactions
that were replicated to the one of the backup storage volumes, “erase from
the data storage device all of the records of the transactions that preceded the
given indexed transaction in the ordered series,” as recited in claim 1, and
similarly recited in claim 11. See Appeal Br. 9. In particular, although
Winokur discloses deleting the respective temporarily-stored record from
secure storage devices when receiving an acknowledgement from secondary
storage device (Winokur, 18:24–29),we do not find any teaching or
suggestion in the referenced sections of Winokur of “periodically reading
. . . the indexed transactions from the corresponding one of the backup
storage volumes,” i.e., Winokur’s “secondary storage device 32,” and, “upon
reading a given indexed transaction from among the indexed transactions
that were replicated to the one of the backup storage volumes, erase from
the data storage device all of the records of the transactions that preceded
the given indexed transaction in the ordered series.” Id. at 6–7 (emphasis
added). Instead, Winokur discloses that when an acknowledgement is
received from secondary storage device (rather than upon periodically
reading the secondary storage device), deleting the respective record (rather
than all records of preceding transactions) from secure storage devices.
Compare claim 1 with Winokur, 18:24–29.
Accordingly, we are unpersuaded by the Examiner’s finding that the
claimed “data storage device” encompasses Winokur’s apparatus including
“secure storage unit 48, secondary storage device 32 and primary storage
device 28,” or that the claimed “protection appliance” encompasses
Winokur’s “protection processor 44.” Final Act. 3–5. The Examiner has not
established on this record that the additionally cited secondary references to
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Erofeev and Lubbers overcome the deficiencies of Winokur. See id. at 5–7.
Consequently, we are constrained by the record before us to find that the
Examiner erred in finding Appellant’s claim 1, and independent claim 11
including limitations of commensurate scope, would have been obvious over
the combination of Winokur, Erofeev and Lubbers. Dependent claims 2, 6,
7, 10, 12, 16, 17, and 20 depend respectively from claims 1 and 11, and thus,
stand therewith. Accordingly, we do not sustain the Examiner’s obviousness
rejection of claims 1, 2, 6, 7, 10–12, 16, 17, and 20 over Winokur, Erofeev
and Lubbers.
B. Claims 3 and 13
The Examiner does not suggest, and has not established on this
record, that the additionally cited Takahashi reference overcomes the
aforementioned deficiencies of Winokur, Erofeev and Lubbers. See Final
Act. 12–13. Consequently, we are constrained by the record before us to
find that the Examiner erred in concluding that the combination of Winokur,
Erofeev, Lubbers and Takahashi renders obvious Appellant’s dependent
claims 3 and 13 depending respectively from independent claims 1 and 11.
C. Claims 4, 5, 14, and 15
The Examiner does not suggest, and has not established on this
record, that the additionally cited Fellin reference overcomes the
aforementioned deficiencies of Winokur, Erofeev and Lubbers. See Final
Act. 13–16. Consequently, we are constrained by the record before us to
find that the Examiner erred in concluding that the combination of Winokur,
Erofeev, Lubbers and Fellin renders obvious Appellant’s dependent claims
4, 5, 14, and 15 depending respectively from independent claims 1 and 11.
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D. Claims 8 and 18
The Examiner does not suggest, and has not established on this
record, that the additionally cited Wong reference overcomes the
aforementioned deficiencies of Winokur, Erofeev and Lubbers. See Final
Act. 16–17. Consequently, we are constrained by the record before us to
find that the Examiner erred in concluding that the combination of Winokur,
Erofeev, Lubbers and Wong renders obvious Appellant’s dependent claims 8
and 18 depending respectively from independent claims 1 and 11.

IV. CONCLUSION AND DECISION
The Examiner’s rejections of claims 1–8, 10–18, and 20 under 35
U.S.C. § 103(a) are reversed.

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 10–
15, 17
103(a) Winokur, Erofeev,
Lubbers
1, 2, 6, 7,
10–12, 16,
17, 20
3, 13 103(a) Winokur, Erofeev,
Lubbers, Takahashi
3, 13
4, 5, 14,
15
103(a) Winokur, Erofeev,
Lubbers, Fellin
4, 5, 14,
15
8, 18 103(a) Winokur, Erofeev,
Lubbers, Wong
8, 18
Overall
Outcome
1–8, 10–
18, 20

REVERSED