10152509 (B.P.A.I. Sep. 14, 2010)

Ex Parte Bonnell et al

Board of Patent Appeals and InterferencesSep 14, 2010

10152509 (B.P.A.I. Sep. 14, 2010)

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. 10/152,509 05/21/2002 David Bonnell 149-0053US 2793 29855 7590 11/09/2010 WONG, CABELLO, LUTSCH, RUTHERFORD & BRUCCULERI, L.L.P. 20333 SH 249 6th Floor HOUSTON, TX 77070 EXAMINER SHAW, PELING ANDY ART UNIT PAPER NUMBER 2444 MAIL DATE DELIVERY MODE 11/09/2010 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte DAVID BONNELL and MARK STERIN ____________ Appeal 2009-006442 Application 10/152,509 Technology Center 2400 ____________ Before JOHN A. JEFFERY, LANCE LEONARD BARRY, and JAMES R. HUGHES, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING1 Appellants, pursuant to 37 C.F.R. § 41.52, have submitted a timely Request for Rehearing dated October 14, 2010 (hereafter the “Request”), requesting rehearing of our original decision in this appeal dated September 15, 2010. The Examiner rejected: (1) claims 1-11, 14-24, and 37-46 under 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2009-006442 Application 10/152,509 2 35 U.S.C. § 112, first paragraph; (2) claims 1, 3-5, 10, 14, 16-18, 23, and 37- 39 under 35 U.S.C. § 102 as anticipated by Raz; (3) claims 2, 6-9, 15, 19-22, 37, and 41-46 under 35 U.S.C. § 103 as being unpatentable over Raz and Wolff; and (4) claims 11, 24, 37, and 40 under 35 U.S.C. § 103 as being unpatentable over Raz, Wolff, and Kauffman. Ans. 3-11. In that decision, we: (1) affirmed the § 112, first paragraph rejection of claim 45; (2) reversed the rejections of: (a) claims 1-11, 14-24, 37-44, and 46 under § 112, first paragraph; (b) claims 1, 3-5, 10, 14, 16-18, 23, and 37-39 under § 102; and (c) claims 2, 6-9, 11, 15, 19-22, 24, 37, and 40-46 under § 103; and (3) entered new grounds of rejection pursuant to 37 C.F.R. § 41.50(b) under 35 U.S.C. § 101 for claim 37 and § 103 for claims 1, 14, 37, and 38. Opinion 1, 13, and 17. We have reconsidered our September 15, 2010 Opinion in light of Appellants’ comments in the Request, and we find no errors therein. We therefore decline to change our prior decision for the following reasons. First, we disagree with Appellants’ characterization (Request 2) that we summarily concluded that Raz teaches automatically migrating processor boards among domains in response to gathered information related to the domain. Rather, the Opinion cites to various passages in Raz (see Opinion 16, lines 2-11) to support and arrive at our conclusion and does not amount to a “leap in logic.” See Request 2. Second, contrary to Appellants’ position (Request 2-3), Raz teaches more than reassigning data storage to different processors in response to gathered information related to the domains. Raz discusses in several locations reassigning or transferring the volumes’ ownership to the host processors. See Raz, Abstract; col. 7, ll. 47-63; col. 9, ll. 42-47. That is, the Appeal 2009-006442 Application 10/152,509 3 host processors 12 “own” and have access to a subset of the volumes 20. See Raz, col. 3, ll. 59-65. When the volume’s ownership is reassigned during the load rebalancing routine, both the volume migrates to a different processor and, with the volume shift, the processor also migrates among the domains. See Raz, col. 6, l. 50 – col. 7, l. 63. To illustrate, Raz’s Host A (e.g., a processing board) initially owns Volumes 1-3, Host B2 (e.g., another processing board) initially owns Volumes 4-5, and Host C (e.g., yet another processing board) initially owns Volumes 6-8. See Raz, col. 7, l. 64 – col. 8, l. 12; Figs. 2-3A. Periodically, a load rebalancing routine recomputes volume ownership using computed normalized I/O request rates (e.g., gathered information related to domains) for each logical volume or domain. Raz, col. 8, ll. 41-63; col. 9, ll. 6-20, 31- 40. Below, Raz visually shows the ownership of Volume 5 has been transferred from Host B to Host A after rebalancing. See Raz, col. 9, ll. 42- 52; col. 11, ll. 64 – col. 12, l. 5; Fig. 3B. 2 Raz states “Host C” owns both “Vols. 4-5” and “Vols. 6-8.” See Raz, col. 8, ll. 10-11. As Figure 3A shows Host B owns Volumes 4-5, we presume that Host B owns Volumes 4-5, and the statement that Host C owns Vols. 4- 5 is a typographical error. Appeal 2009-006442 Application 10/152,509 4 Figures 3A-B show the Ownership Table Contents Before and After Reassignment The above figures demonstrates that not only is the logical volume reassigned to a different processing board (e.g., Volume 5 reassigned from Host B to Host A as shown by arrows to the left in Figures 3A-B), but that Host A (e.g., a processing board) was migrated among the domains (e.g., migrated to Volume 5 as shown by top arrows in Figures 3A-B) in response to gathered information (e.g., normalized I/O request rates). We therefore find that Raz teaches automatically migrating a processing board among the domains in response to the gathered information related to the domains as recited. Third, even if we were to consider Raz to not explicitly teach migrating the processing boards but only to migrate the logical volumes, Raz’s teachings strongly suggests reassigning or migrating the processors Appeal 2009-006442 Application 10/152,509 5 among the domains. As shown above in Figures 3A-B, the shift or migration occurs at both the domain (shown by arrows to the left of Figures 3A-B) and the processor (shown by arrows on the top of Figures 3A-B). Thus, Raz teaches not only migrating the domains among the processor boards, but also migrating the processor boards among the domains. Moreover, one skilled in the art would have recognized that interchanging Raz’s teaching of migrating the domains among the processor boards with migrating the processor boards among the domains predictably yields the same result (see Figures 3A-B above) and does not change the respective load balancing function in Raz. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 415-16 (2007). We therefore disagree with Appellants (Request 3-4) that these operations are not interchangeable. Finally, Appellants contend that a storage device differs from a processing board. Request 2-3. We agree. However, this distinction therefore fails to demonstrate that Raz does not teach or suggest migrating one or more processor boards among the domains as recited. Similar to Raz’s system, Appellants do not disclose migrating the processor to a domain changes the domain’s contents. See Spec. 21:23-29. Additionally, when Raz rebalances the load and assigns the processor to a new volume, work will be redistributed or shifted to the new processor’s (e.g., Host A) such that the processor will have to deal with new data (e.g., data in Volume 5) and will execute new code (e.g., subtask) dealing with the new volume data. See Raz, col. 5, ll. 16-48; col. 8, l. 41-col. 9, l. 52; Figs. 3A-B. Contrary to Appellants’ arguments (Request 3), we are therefore not persuaded that ownership reassignment in Raz to a new processor will not result in the host processors performing new and different functions. Appeal 2009-006442 Application 10/152,509 6 Appellants did not specifically address claims 14, 37, 38, and 45. See Request 1-4. We therefore refer to our previous discussion of these claims regarding the above arguments. See Opinion 16-17. In conclusion, we have considered the arguments raised by Appellants in the Request, but the arguments are not persuasive to find that the original decision was in error. Based on the record before us, we maintain that: (1) claim 45 fails to meet the written description requirement under § 112, first paragraph rejection; (2) claim 37 recites non-statutory subject matter under § 101; and (3) claims 1, 14, 37, and 38 are unpatentable under § 103. The rejections of the remaining claims have been reversed or are left to the Examiner to determine their patentability. See Opinion 17. We have granted the Request to the extent that we have reconsidered our decision of September 15, 2010, but we deny the request with respect to making any changes therein. REHEARING DENIED erc WONG, CABELLO, LUTSCH, RUTHERFORD & BRUCCULERI, L.L.P. 20333 SH 249 6th Floor HOUSTON TX 77070