Ex Parte Slater et al

Patent Trial and Appeal Board

Jul 28, 2016

13367567 (P.T.A.B. Jul. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/367,567 02/07/2012 Alastair Slater
56436 7590 08/01/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82944092 7014
EXAMINER
ALSIP, MICHAEL
ART UNIT PAPER NUMBER
2136
NOTIFICATION DATE DELIVERY MODE
08/01/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALASTAIR SLATER, SIMON PELLY, and
PETER THOMAS CAMBLE
Appeal 2015-003189
Application 13/367,567
Technology Center 2100
Before MONICA S. ULLAGADDI, JOYCE CRAIG, and SCOTT E. BAIN,
Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-9 and 15-19. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
STATEMENT OF THE CASE
Appellants' invention relates to remote data backup using data
chunking techniques. Claims 1, 2 and 15 are independent. Claims 2 and 15,
which are illustrative of the invention, are reproduced below:
1 Appellants identify Hewlett-Packard Development Company, LP and
Hewlett-Packard Company as the real parties in interest. App. Br. 1.
Appeal 2015-003189
Application 13/367 ,567
2. A method executed by a communications apparatus
having a processor, comprising:
processing, by a chunking and identifier module in the
communication apparatus, data into chunks;
generating, by the chunking and identifier module, a first
chunk identifier representative of an identity of a first of the
chunks of data;
sending, through a first interface in the communication
apparatus, the first chunk identifier to a remote storage device;
sending, through the first interface, the first chunk of data
to the remote storage device upon receipt of a transfer instruction
from the remote storage device; and
sending and receiving, through a second interface in the
communication apparatus, data to and from the remote storage
device independently of the chunking and identifier generation
module.
15. A method of a communication apparatus, comprising:
receiving, by a module of the communication apparatus,
instructions to copy data to a remote storage device;
a chunking and identifier generation module in the
communication apparatus:
processing the data into chunks,
generating a first chunk identifier representative of an
identity of a first of the chunks of data, and
upon processing of the data, issuing a confirmation signal
to a software application indicating that the data has been copied
to the remote storage device even though at least some of the
chunks have not yet been sent to the remote storage device;
2
Appeal 2015-003189
Application 13/367 ,567
sending, by an interface of the communication apparatus,
the first chunk identifier to the remote storage device; and
sending, by the interface, the first chunk of data to the
remote storage device upon receipt of a transfer instruction
from the remote storage device.
App. Br. ii (Claims Appendix) (emphasis and paragraphing added).
THE REJECTIONS ON APPEAL
Claim 15 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Abdo (US 2009/0077252 Al; pub. Mar. 19, 2009) and Mohamed (US
2006/0026165 Al; pub. Feb. 2, 2006).
Claims 1 and 19 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Abdo, Mohamed, and Gurevich (US 2006/0047855 Al;
pub. Mar. 2, 2006).
Claim 2 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
i\.bdo and Dubnicki (US 8,214,517 B2; Jul. 3, 2012).
Claims 3-5 and 7-9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Abdo, Dubnicki, and Bolik (US 7,660,836 B2; Feb. 9,
2010).
Claim 6 and 16 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Abdo, Dubnicki, and Mohamed.
Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Abdo, Mohamed, and Bolik.
3
Appeal 2015-003189
Application 13/367 ,567
ANALYSIS
We have reviewed the Examiner's rejections in light of the arguments
raised in the Briefs, on the record before us. For the reasons set forth below,
we do not sustain the Examiner's rejections.
Independent Claim 15
Appellants argue the Examiner erred in finding the prior art teaches
"issuing a confirmation signal to a software application indicating that the
data has been copied to the remote storage device even though at least some
of the chunks have not yet been sent to the remote storage device," as recited
in claim 15. App. Br. 8 (emphasis added). The Examiner cites Mohamed as
teaching this limitation, particularly, Mohamed's disclosure of a server
sending a "success indicator" if the server "has copied all of the specified
source data from the source file to the destination file." Ans. 18-19
Mohamed Fig. 6, i-f 62. We are persuaded by Appellants' argument that a
success indicator when "all" data has been copied; as taught in Mohamed; is
the opposite of the disputed claim limitation, requiring a confirmation signal
when at least some of the data (chunks) "have not yet" been copied. Thus,
we are persuaded of error.
The Examiner asserts that "the data" in claim 15 need not be copied in
one instruction or at the same time, nor be chunked at the same time. Ans.
18. We agree, and in fact the claim requires that all data is not copied at the
same time, because the "confirmation signal" is issued even though at least
some of the data "has not yet been sent" to the storage device. App. Br. 8.
The Examiner's assertion, accordingly, does not support the rejection.
Further, the Examiner asserts the "source file" in Mohamed need not be "an
4
Appeal 2015-003189
Application 13/367 ,567
entire source file." Id. at 18-19. Thus, we understand the Examiner's
position to be that when Mohamed states "all" the data has been copied,
Mohamed i-f 62, it does not literally mean all the data. Ans. 19. The
Examiner, however, has provided no citation for this contention, id., Reply
Br. 3--4, nor do we find support for it in the record before us.
For the foregoing reasons, we do not sustain the Examiner's rejection
of claim 15 under 35 U.S.C. § 103(a) as unpatentable over Abdo and
Mohamed.
Independent Claim 1
Appellants contend the Examiner erred in rejecting independent
claim 1 for the same reasons as claim 15, discussed above. Claim 1, like
claim 15, requires a confirmation signal that data has been copied to the
remote storage device "even though at least some of the chunks have not yet
been sent to the remote [] storage device." App. Br. i (Claims Appendix).
Appellants argue Gurevich does not cure the deficiencies of Abdo and
Mohamed. The Examiner does not respond separately from the response
regarding claim 15, and does not cite Gurevich for the disputed limitation.
Accordingly, for the same reasons as claim 15, we do not sustain the
Examiner's rejection of claim 1 under 35 U.S.C. § 103(a) as unpatentable
over Abdo, Mohamed, and Gurevich.
Independent Claim 2
Appellants argue the Examiner erred in finding the prior art teaches
"sending ... the first chunk of data to the remote storage device upon
receipt of a transfer instruction from the remote storage device," as recited
in claim 2. App. Br. 15. The Examiner relies on Abdo for this limitation.
Final Act. 8; Ans. 20. Appellants, however, contend that nowhere in Abdo
5
Appeal 2015-003189
Application 13/367 ,567
is it stated or suggested that the remote storage device provides any signal or
instruction that could be construed as a "transfer instruction." Id. at 15-16.
We agree.
In the Final Office Action, the Examiner cites Abdo Figure 4 (Modem
456) and paragraph 25 as disclosing the "transfer instruction from the remote
storage device." Final Act. 8. Figure 4 is reproduced below.
F~O(.!-H.i\~.;
fJ.\T.~,
444
' ' '
456 . . .__) r"v"··:. 452
~t~}i~~f.~t~1·._x-~\)~ne:~r·JE ~)~~
MOC.'<"J'l'~ .. ..__... . .._ __ /
LAN
---- 408
14~
........... ,
4.40
Fig. 4
6
RHJ;:r:;;
.APPL. !CA l K:t-,:
PR:..}(.:>~:t·.MS
~IOS J ,j1'J :
--'--- :
Appeal 2015-003189
Application 13/367 ,567
Figure 4 depicts a diagram of "an exemplary general computer
environment." Abdo i-f 10. Modem 456 is shown connected to a desktop
computer and in communication with remote computing device 448. The
figure, however, does not indicate a transfer signal, nor does the
accompanying discussion in Abdo (i-fi-1 54---66). Abdo simply states, the
"modem 456 ... can be connected to the system bus 408 via the input/output
interfaces 440 or other appropriate mechanisms." Id. at i-f 66. Similarly,
Abdo paragraph 25 does not discuss a transfer signal. Rather, it describes
portioning data into chunks, associating the chunks with a signature, and
storing the signatured data chunks "in an external repository as a data
structure." Abdo i-f 25.
In the Answer, the Examiner finds the limitation may be found in
Abdo paragraph 13. Ans. 21. Specifically, the Examiner cites Abdo's
teaching of "comparing and exchanging information between the server
computing device and remote repository." Id. The Examiner asserts the
"result of the compare operation done by the remote repository" is
"considered equivalent to a transfer instruction." Id. We, however, find no
support in Abdo for this assertion. Abdo states, "[ t ]he data chunks
associated with the signatures, interchangeably referred to as 'signatured
data chunks,' can be compared with a repository or a history buffer." Abdo
i-f 13. There is no teaching or suggestion that the compare operation is "done
by the remote repository," as the Examiner asserts, nor is there any teaching
that this compare operation is "equivalent to a transfer instruction." Reply
Br. 7-8. There is no teaching or suggestion in Abdo that the remote
repository (i.e., the "remote storage device") issues any instruction at all, as
required by the claim. Id.
7
Appeal 2015-003189
Application 13/367 ,567
We, therefore, do not sustain the Examiner's rejection of claim 2
under 35 U.S.C. § 103(a) as unpatentable over Abdo and Dubnicki.
Remaining Claims
The remaining claims 3-9 and 16-19 depend from independent
claims 2 and 15, respectively. Because we have not sustained the rejections
of the independent claims, we also do not sustain the rejections of the
dependent claims.
DECISION
The Examiner's rejections of claims 1-9 and 15-19 are reversed.
REVERSED
8