Ex Parte Singh et alDownload PDFPatent Trial and Appeal BoardJan 29, 201611183697 (P.T.A.B. Jan. 29, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111183,697 07/18/2005 31625 7590 02/02/2016 BAKER BOTTS L.L.P. PA TENT DEPARTMENT 98 SAN JACINTO BL VD., SUITE 1500 AUSTIN, TX 78701-4039 FIRST NAMED INVENTOR Sumankumar A. Singh 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. 016295.1853 2362 EXAMINER WAI, ERIC CHARLES ART UNIT PAPER NUMBER 2195 NOTIFICATION DATE DELIVERY MODE 02/02/2016 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): DLAustinRecordsManagement@BakerBotts.com tracy.perez@bakerbotts.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SUMANKUMAR A. SINGH and PEYMAN NAJAFIRAD Appeal2014-002903 Application 11/183,697 Technology Center 2100 Before ROBERT E. NAPPI, JOHN P. PINKERTON, and NORMAN H. BEAMER, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection of claims 1, 4, 5, 8, 11, 12, 15-17, and 20. Claims 2, 3, 6, 7, 9, 10, 13, and 14, 18, and 19 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION This invention is directed to managing virtual machines. See Abstract of Appellants' Specification. Claim 1 is representative of the invention and reproduced below. Appeal2014-002903 Application 11/183,697 1. A method for managing the operation of virtual machines in a computer network, comprising: establishing an active virtual machine on a first node; establishing a standby virtual machine on a second node; creating a differential file in the first node, wherein the differential file represents the differences between the image of the active virtual machine at a first point in time and the image of the active virtual machine at a second point in time, wherein the image of the active virtual machine at the second point in time is a current image of the active virtual machine; applying the differential file to the standby virtual machine on the second node, wherein applying the differential file to the standby virtual machine synchronizes the standby virtual machine with the current image of the active virtual machine; wherein the creation of a differential file is performed at periodic time intervals, the periodic time intervals being at least once every few seconds; and wherein the application of the differential file is performed at periodic time intervals, the periodic time intervals being at least once every few seconds. REJECTIONS AT ISSUE 1 The Examiner has rejected claims 1, 4, 8, 11, 15-17, and 20 under 35 U.S.C. § 103(a) as unpatentable over Applicant's Admitted Prior Art 1 Throughout this Decision, we refer to the Appeal Brief dated July 30, 2013 (App. Br.), the Reply Brief dated January 2, 2014 (Reply Br.), the Examiner's Answer mailed November 6, 2013 (Ans.), and the Final Action mailed March 6, 2013 (Final Action). 2 Appeal2014-002903 Application 11/183,697 (AAPA)2, Sobel (US 7,437,764 Bl, Oct. 14, 2008, filed Nov. 14, 2003), St. Pierre (US 6,269,381 Bl, July 31, 2001, filed June 30, 1998), Levy (US 2006/0200639 Al, Sept. 7, 2006, filed Mar. 7, 2005), and Yang (US 2006/0036904 Al, Feb. 16, 2006, filed Oct. 22, 2004). Ans. 2. The Examiner has rejected claims 5 and 12 under 35 U.S.C. § 103(a) as unpatentable over AAP A, Sobel, St. Pierre, Levy, Yang, and van Rietschote (US 7,213,246 Bl, May 1, 2007, filed Mar. 28, 2002). Id. ISSUES Appellants present several arguments, on pages 4 through 6 of the Appeal Brief and pages 2 through 4 of the Reply Brief, directed to the Examiner's rejection of claims 1, 4, 5, 8, 11, 12, 15-17, and 20. The issue presented by these arguments is as follows: Did the Examiner err in finding Yang teaches creation and application of a differential file is performed at periodic time intervals, the periodic time intervals being at least once every few seconds, as required by independent claims 1, 8, 15? Separate patentability is not argued for dependent claims 4, 5, 11, 12, 16, 17, and 20. App. Br. 6. Except for our ultimate decision, these claims are not discussed further herein. ANALYSIS We have reviewed Appellants' arguments in the Appeal Brief and the Reply Brief, the Examiner's rejections, and the Examiner's response to 2 The Examiner cites page 2, lines 3---6, of the Background of the Invention in Appellants' Specification as the relevant acknowledged prior art. Final Action 2. 3 Appeal2014-002903 Application 11/183,697 Appellants' arguments. Appellants' arguments have not persuaded us of error in the Examiner's rejections of claims 1, 4, 5, 8, 11, 12, 15-17, and 20. The Examiner finds Yang teaches backing up information by periodically creating and sending changed data blocks to remote storage systems. The Examiner finds Yang's changed data blocks teach the claimed differential file (claim 1 ), delta files (claim 8), and image (claim 15). Final Action 5; Ans. 5---6. The Examiner further finds Yang's selectable back up intervals teach a periodic interval being at least once very few seconds. Id. Appellants argue Yang teaches away from periodic time intervals being at least every few seconds because Yang teaches that the generation and comparison process takes a significant amount of time and further teaches that, if the backup interval is too small, overhead increases drastically, slowing down application performance significantly. App. Br. 5---6. We do not find Appellants' arguments persuasive. A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant. In re Gurley, 27 F.3d 551, 53 (Fed. Cir. 1994). "The prior art's mere disclosure of more than one alternative does not constitute a teaching away from ... alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed." In re Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004). In the case before us, the Examiner finds Yang teaches "choosing an interval that is too large can increase the chance of losing business data, but choosing an interval that is too small can result in delta collection overheads 4 Appeal2014-002903 Application 11/183,697 causing application performance to drastically slow down." Ans. 5. Thus, rather than criticizing, discrediting, or otherwise discouraging periodic time intervals being at least every few seconds, Yang provides alternate factors to be considered when selecting a periodic time interval. See Ans. 5---6. Accordingly, we do not find persuasive Appellants' argument that Yang teaches away from the generation and application of differential files at least every few seconds. Additionally, Appellants disagree with the Examiner's conclusion that any interval greater than two seconds would read on a "few seconds," as recited in claims 1, 8, and 15. Reply Br. 3; Ans. 6. Appellants contend "that one of ordinary skill in the art would not understand 'a few seconds' to encompass a minute much less an hour .... " Reply Br. 3. The term "few" is a term of degree. When a term of degree is used in a claim, the specification must provide some standard for measuring the requisite degree. Datamize, LLC v. Plumtree Software, Inc., 417 F.3d 1342, 1351 (Fed. Cir. 2005) (citation omitted). Appellants' Specification provides no limits upon the phrase "few seconds." Thus, we are not persuaded of error in the Examiner's interpretation of a few seconds, as claimed, to be any interval greater than two seconds. DECISION We sustain the Examiner's rejections of claims 1, 4, 5, 8, 11, 12, 15- 17, and 20 under 35 U.S.C. § 103(a). 5 Appeal2014-002903 Application 11/183,697 No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R § 1.136(a)(l)(iv). AFFIRMED rwk 6 Copy with citationCopy as parenthetical citation