Ex Parte Dettinger et al

Board of Patent Appeals and Interferences

May 17, 2012

09999022 (B.P.A.I. May. 17, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
09/999,022 11/15/2001 Richard Dean Dettinger ROC920010303US1 6453
46797 7590 05/17/2012
IBM CORPORATION, INTELLECTUAL PROPERTY LAW
DEPT 917, BLDG. 006-1
3605 HIGHWAY 52 NORTH
ROCHESTER, MN 55901-7829
EXAMINER
ALAM, SHAHID AL
ART UNIT PAPER NUMBER
2162
MAIL DATE DELIVERY MODE
05/17/2012 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 RICHARD DEAN DETTINGER and BRIAN E. OLSON
____________

Appeal 2009-010317
Application 09/999,022
Technology Center 2100
____________

Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY, and BRIAN J.
McNAMARA, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 4, 6, 7, and 20. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

STATEMENT OF THE CASE
Appellants’ invention replicates data from a source database to
particular clients when certain threshold criteria are satisfied. See generally
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Abstract; Spec. ¶¶ 0008-11. Claim 4 is illustrative with key disputed
limitations emphasized:
4. A method of automatically replicating source data stored in one or
more source database tables in a source database management system, to at
least one of a plurality of clients, wherein the source database management
system is a component of a computer system, comprising:

programmatically generating, by the computer system, a replication
schedule indicative of when replication should occur to the at least one of
the plurality of clients;

determining, by the source database management system, that the
source data should be replicated to the at least one of the plurality of clients;

replicating the source data to the at least one of the plurality of clients
according to the generated replication schedule; and

transmitting the replication schedule from the computer system to the
at least one of the plurality of clients.

THE REJECTION
The Examiner rejected claims 4, 6, 7, and 20 under 35 U.S.C. § 103(a)
as unpatentable over Miller (US 5,920,701; July 6, 1999) and Zayas (US
6,477,583 B1 (filed Nov. 15, 1999)). Ans. 3-7.1

1 Throughout this opinion, we refer to (1) the Appeal Brief filed August 18,
2008; (2) the Examiner’s Answer mailed October 29, 2008; and (3) the
Reply Brief filed December 18, 2008.

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CONTENTIONS
The Examiner finds that Miller discloses every recited feature of
independent claim 4 except for replicating source data to at least one client,
but cites Zayas as teaching this feature in concluding that the claim would
have been obvious. Ans. 3-5, 8-10.
Appellants argue that the cited prior art does not teach or suggest
transmitting a replication schedule from a computer system to at least one
client as claimed. Although Appellants acknowledge that Miller’s network
resource scheduler sends a replication schedule to content servers 12, 14,
Appellants argue that the schedule is not transmitted to the client which is
said to correspond to Miller’s replicated servers 16, 18, and 20. App. Br. 11-
16; Reply Br. 2-3. Appellants also argue that the cited prior art does not
teach or suggest the limitations of claims 6 and 7. App. Br. 16-17; Reply Br.
3.

ISSUES
Under § 103, has the Examiner erred by finding that Miller and Zayas
collectively would have taught or suggested:
(1) transmitting a replication schedule from a computer system to at
least one client to which source data is replicated as recited in claim 1?
(2)(a) executing an access manager to compare threshold criteria
against network behavior of the at least one client to determine whether to
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replicate source data, and, if so, (b) replicating that data to the at least one
client as recited in claim 6?
(3) at least one of the threshold criteria recited in claim 7?

ANALYSIS
Claims 4 and 20
The first issue on appeal turns on one fundamental question: What is a
client? The answer to this question is crucial, for claim 4 requires that at
least one client receive (1) replicated source data, and (2) a replication
schedule as Appellants indicate. App. Br. 15.
The Examiner’s Answer, however, is hardly a model of clarity on
exactly which elements in Miller correspond to the recited clients. In the
rejection, the Examiner merely quotes the language of claim 4 and
parenthetically cites various passages in the cited references for each
limitation without further explanation. See Ans. 4. And as Appellants
indicate (Reply Br. 2), the Response to Arguments section merely quotes
various passages from the references, but does not provide any meaningful
analysis explaining how or why these passages address the alleged
deficiency in the Examiner’s rejection, namely that the references do not
teach or suggest transmitting the replication schedule to at least one client.
See Ans. 8-10. These ambiguities make our task of discerning the
Examiner’s mapping of the recited client all the more difficult.
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Nevertheless, the Examiner cites column 2, lines 20-43 of Miller in
connection with transmitting a replication schedule to the client. Ans. 4. As
noted in that passage, the scheduler 10 (1) obtains requests from content
sources 12, 14 to transmit data to replicated servers 16, 18, 20; (2)
determines distribution schedules for the content sources; and (3) transmits
the schedules (i.e., transmission instructions with scheduled start times) to
the content sources. Miller, col. 2, ll. 11-37; col. 6, ll. 8-34; col. 13, ll. 1-13;
Figs. 1, 3 (steps 100, 102, 114). The Examiner also quotes various passages
from Miller that discuss the content sources’ transmitting data to the
replicated servers according to schedules sent by the scheduler to the content
sources. Ans. 8-9 (quoting Miller).
Based on these passages, we presume—as do Appellants—that the
Examiner intended to map the recited clients to Miller’s replicated servers,
for they receive replicating data from the content sources as Appellants
indicate. App. Br. 14-15. Accord App. Br. 14 (noting that the Examiner
indicated in an interview that Miller’s replicated servers correspond to the
recited clients). That the Examiner did not respond to this statement
confirming the Examiner’s mapping only bolsters this presumption.
Based on this mapping, we agree with Appellants (App. Br. 14-15)
that Miller does not transmit a replication schedule to the identified clients
(i.e., the replicated servers), but rather to the intervening content servers
which, in turn, transmit data to the replicated servers according to that
schedule as noted above. Nor does the Examiner’s reliance on Zayas (Ans.
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4, 9) cure this deficiency. To the extent that Miller’s content servers can
somehow also function as a “client” (e.g., with respect to the scheduler) is a
question that has not been adequately addressed on this record, nor will we
engage in that inquiry here in the first instance on appeal. Rather, the record
indicates that the Examiner intended to map the recited clients to Miller’s
replicated servers which, as noted above, is problematic. We are therefore
constrained by this record to find that the Examiner erred in rejecting
independent claim 4.
We reach the same conclusion regarding independent claim 20.
Unlike claim 4, claim 20 recites transmitting a replication schedule to at
least one remote computer to which source data is replicated—not a client.
But this is a distinction without a difference here, since the Examiner’s
reliance on Miller is still erroneous based on the Examiner’s presumed
mapping of Miller’s replicated servers to the recited remote computers.
Compare Ans. 6 (citing Miller, col. 2, ll. 20-43 in connection with
replication schedule transmission) with Ans. 4 (same regarding claim 4).
We are therefore persuaded that the Examiner erred in rejecting claim 20.

Claim 6
We, however, sustain the Examiner’s rejection of independent claim 6
which recites, in pertinent part, (1) executing an access manager to compare
threshold criteria against network behavior of the at least one client to
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determine whether to replicate source data, and, if so, (2) replicating that
data to the at least one client.
Although the Examiner does not squarely map the recited features to
particular elements in Zayas, the Examiner nonetheless cites various
passages from Zayas in connection with the recited threshold criteria
comparison. Ans. 5 (citing Zayas, col. 4, ll. 49-56 and col. 6, ll. 30-34, 56-
59). And while the Examiner’s response to Appellants’ arguments is hardly
a model of clarity, it nevertheless quotes various passages from Zayas
pertaining to the replication module’s receiving notice of remote volume
changes and, in turn, instructing the replication infrastructure to make those
changes locally. Ans. 10 (quoting Zayas, col. 4, ll. 49-55 and col. 5, ll. 35-
42).
Based on these relied-upon passages, we presume that the Examiner
intended for the recited threshold criteria to include whether a change was
made to a volume in the first instance—a key precursor to replication in
Zayas as noted above. See Zayas, col. 6, ll. 30-67; Fig. 7 (step 705); see also
Zayas, col. 7, ll. 27-52; Fig. 8 (noting that changes are tracked and
transmitted in an order according to their ranking). Nothing in claim 6
precludes this initial threshold comparison that detects volume changes.
Appellants’ arguments regarding Zayas’ comparing different data chunks
and “data-dependent” prioritization factors (App. Br. 16-17) are
unpersuasive and, in any event, not commensurate with the scope of the
claim.
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Nor do we see any reason why such a comparison could not be
provided in Miller’s replication system as the Examiner proposes (Ans. 5, 9-
10) for such an enhancement predictably uses prior art elements according to
their established functions—an obvious improvement. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). Although Appellants contend for
the first time in the Reply Brief that the Examiner’s proposed combination
allegedly renders Miller unsuitable for its intended purpose—an argument
that is technically waived as untimely2—we nonetheless see no reason why a
threshold-based comparison to detect volume changes as in Zayas could not
be used in conjunction with Miller’s schedule-based replication scheme that
is responsive to requests. Such an enhancement would hardly render Miller
unsuitable for its intended purpose as Appellants contend, but rather provide
an additional basis for replication based on certain detected changes—a
predictable result.
We are therefore not persuaded that the Examiner erred in rejecting
claim 6.

Claim 7
We likewise sustain the Examiner’s rejection of claim 7 reciting at
least one of the listed threshold criteria. In the rejection (Ans. 6), the

2 See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative)
(“[T]he reply brief [is not] an opportunity to make arguments that could
have been made in the principal brief on appeal to rebut the Examiner's
rejections, but were not.”).
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Examiner cites to a passage from Zayas pertaining to replicating particular
types of data before others, namely data that (1) is short; (2) less likely to be
modified again; and (3) less likely to be accessed elsewhere. Zayas, col. 6,
ll. 56-65.
We see no reason why the threshold criteria cannot include the above
prioritization criteria. Criterion (1) above at least suggests the recited
request size criterion, for it pertains to the length of the data which is at least
related to the corresponding request. We reach a similar conclusion
regarding criteria (2) and (3) above, for they at least suggest criteria related
to a user (i.e., “user criteria”) at least with respect to the likelihood of user
access and modification. Appellants’ arguments (App. Br. 17) are
unavailing and, in any event, not commensurate with the scope of the claim.
We are therefore not persuaded that the Examiner erred in rejecting
claim 7.

CONCLUSION
Under § 103, the Examiner erred in rejecting claims 4 and 20, but did
not err in rejecting claims 6 and 7.

ORDER
The Examiner’s decision rejecting claims 4, 6, 7, and 20 is affirmed-
in-part.
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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).

AFFIRMED-IN-PART

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