Ex Parte Hansen et al

Patent Trial and Appeal Board

Feb 19, 2014

10737374 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte ROGER HANSEN, PANKAJ MEHRA, and
SAM FINEBERG
____________________

Appeal 2011-008728
Application 10/737,374
Technology Center 2100
____________________

Before JASON V. MORGAN, MICHAEL J. STRAUSS, and
DANIEL N. FISHMAN, Administrative Patent Judges.

STRAUSS, Administrative Patent Judge.

DECISION ON APPEAL

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Application 10/737,374

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STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1-9 and 38-41. Claims 10-37 are canceled. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to a persistent memory device for backup
process checkpoint states. Spec. 1. Claim 1, reproduced below, is
representative of the claimed subject matter:
1. A system for storing checkpoint data comprising:
a network interface to an external network; and
a persistent memory unit coupled to the network
interface, wherein:
the persistent memory unit is configured to receive the
checkpoint data into a region of the persistent
memory unit via a remote direct memory write
command from a primary process through the
network interface, and to provide access to the
checkpoint data in the region via a remote direct
memory read command from a backup process
through the network interface, wherein the remote
direct memory write command is preceded by a
create request for the region and the read command
is preceded by an open request for the region; and
the backup process provides recovery capability in the
event of a failure of the primary process.

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REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
DeKoning
Traversat
Viswanatham
Kano
US 6,691,245 B1
US 6,941,410 B1
US 7,165,186 B1
US 7,222,194 B2
Feb. 10, 2004
Sep. 6, 2005
Jan. 16, 2007
May 22, 2007

REJECTIONS1
The Examiner made the following rejections:
Claims 1-8 and 39-41 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Viswanatham, Traversat, and Kano. Ans. 3-10.
Claims 9 and 38 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Viswanatham, Traversat, Kano, and DeKoning. Ans. 10-
11.
APPELLANTS’ CONTENTIONS
1. In connection with the rejection of claim 1:
i. Checkpoint commands do not flow through Viswanatham’s
network 170, the sole configuration specifically described as a
network. App. Br. 12.
ii. The Examiner’s reliance on inherency for the existence of a
network interface is improper as a basis for finding Viswanatham
teaches receiving and writing checkpoint data through a network
interface. App. Br. 13-14.

1 Appellants argue the rejection of claims 1 and 2. Separate patentability is
not argued for claims 3-9 and 38-41. Therefore, based on Appellants’
arguments, we decide the appeal of claims 1, 3-9, and 38-41 based on claim
1 alone and the appeal of claim 2 separately.
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iii. “Kano is directed to file level operations, not DMA” (direct
memory access) such that “[t]he file opening procedures taught by
Kano fail to teach, suggest, or even imply a procedure for DMA as
claimed.” App. Br. 17.
2. In connection with the rejection of claim 2, Traversat fails to teach
performing address translation by a network interface.

ISSUES ON APPEAL
Based on Appellants’ arguments in the Appeal Brief (App. Br. 10-20)
and Reply Brief (Reply Br. 1-4), the issues presented on appeal are:
(i) Whether the Examiner erred in finding Viswanatham teaches or
suggests a persistent memory unit configured to receive and provide
access to data through a network interface as recited by claim 1.
(ii) Whether the Examiner erred in finding Kano’s file-level operations,
including (i) assignment of a new data block for storing data and (ii)
an open command used in requesting data, teach or suggest the
disputed create and open requests which precede respective remote
direct memory write and read commands recited by claim 1.
(iii) Whether the Examiner erred in finding the combination of
Viswanatham and Traversat teaches or suggests a network interface
that performs virtual-to-physical address translation as recited by
claim 2.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
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conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Ans. 3-6, 10-11)
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Appeal Brief (Ans. 12-15) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.

Claim 1
Appellants contend that, while Viswanatham’s clients 160 are
connected to distributed system 100 through network 170 and load balancer
110, there is no description that commands used to write checkpoint data to
backup store 150 also flow though network 170. App. Br. 11. Appellants
argue, to the contrary, “[g]iven the location of the backup store 150 in
relation to the network 170 and load balancer 110, it seems clear that
commands used to write checkpoint data to the backup store 150 do not flow
through the network 170 and/or load balancer 110 of [Viswanatham].” Id.
The Examiner responds, finding Viswanatham teaches a distributed system
of servers connected by a network with the option of backup store 150 being
located on nodes 120A-B. Ans. 12-13. The Examiner further finds “since
the backup store is located on a separate computer and external to nodes
120A-B, this separate [computer] would [require] a network interface to
[connect] itself to the computer network and nodes 120A-B.” Ans. 13.
We agree with the Examiner. Claim 1 does not require commands to
flow though network 170 or any other network. Instead claim 1 requires the
commands go through a network interface. While Viswanatham does not
describe or label the connections between backup memory 150 and Nodes
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120A-B as a “network,” the use of a network is described throughout the
reference such that one of ordinary skill in the art would have understood
that a network could be used to make the connections. The teaching in the
prior reference need not be ipsissimis verbis. Structural Rubber Products
Co. v. Park Rubber Co., 749 F. 2d 707, 716 (Fed. Cir. 1984).2 For example,
Viswanatham describes nodes 120A-B may be a computer subsystem 800 as
depicted in Fig. 8 including Network Interface 840. Viswanatham col. 8, ll.
49-59. Because Viswanatham’s I/O Interface 830 is connected to Network
Interfaces 840 and to no other elements for interfacing with external devices,
Viswanatham at a minimum suggests connections to Nodes 120A-B are
through Network Interface 840. Furthermore Viswanatham describes
“servers may be connected by . . . a network.” Viswanatham col. 1, ll. 22-
23. Therefore, in Viswanatham’s configuration wherein backup store 150 is
located on one or more nodes 120A-B (Viswanatham col. 3, ll. 53-56),
Viswanatham suggests that a first node would be connected to Backup Store
150 located in a second node via respective network interfaces 840.
We also disagree that connections between nodes 120A-B necessarily
“would be through the load balancer 110 and network 170.” See App. Br.
13. While such an arrangement is one possible configuration for the reasons
supra, Viswanatham’s Fig. 1, depicting lines connecting respective Servers
130A-D to Backup Store 150, further suggest a network connection. In the
absence of any specific definition of network or network interface appearing

2 See also In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990) (anticipation
“is not an ‘ipsissimis verbis’ test”) (citing Akzo N.V. v. United States Int’l
Trade Comm’n, 808 F.2d 1471, 1479 & n.11 (Fed. Cir. 1986)). “An
anticipatory reference . . . need not duplicate word for word what is in the
claims.” Standard Havens Prods., Inc.v. Gencor Indus., 953 F.2d 1360,
1369 (Fed. Cir. 1991).
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in Appellants’ Specification, it is appropriate to consult a dictionary
definition of the word for guidance in determining the ordinary and
customary meaning of the claim term as viewed by a person of ordinary skill
in the art. Comaper Corp. v. Antec, Inc., 596 F.3d 1343, 1348 (Fed. Cir.
2010). The Microsoft Computer Dictionary defines a “network” as “[a]
group of computers and associated devices that are connected by
communications facilities”3 and a “network interface card” as “[a]n
expansion card or other device used to provide network access to a computer
or other device, such as a printer. Network interface cards mediate between
the computer and the physical media, such as cabling, over which
transmissions travel.”4 Therefore, given its common and ordinary definition,
one of ordinary skill in the art would have understood the lines connecting
Servers 130A-D and Backup Store 150 in Viswanatham’s Fig. 1 to constitute
a network. Furthermore, because a network interface card provides
computer access to another device, e.g., between Servers 130A-D and
Backup Store 150, and because Viswanatham describes such access (e.g.,
Viswanatham col. 2, ll. 56-62, col. 4, ll. 5-16), Viswanatham further teaches
or, at minimum, suggests a network interface.
We are also not persuaded of Examiner error by Appellants’ argument
that “inherency fails in this situation.” App. Br. 13. The Examiner has
provided bases in fact, supported by technical reason, persuasive of a finding
that a network interface by definition, and thereby necessity, mediates

3 Microsoft Computer Dictionary 362 (5th ed. 2002). See also IBM
Dictionary of Computing 454 (10th ed. 1993) (network: (2) A configuration
of data processing devices and software connected for information
interchange).
4 Microsoft Computer Dictionary 362.
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Viswanatham’s connections between Servers 130A-D and Backup Store 150.
Ans. 13. Appellants fail to meet their burden to show that the prior art does
not possess the disputed network interface.5
Neither are we persuaded of Examiner error because Kano’s file-level
opening procedures are not associated with initializing DMA. App. Br. 17.
We disagree that the disputed commands and requests are limited to
initializing DMA and decline to import any such limitations from the
Specification into the claims.6 We instead agree with the Examiner that the
claims neither require initializing DMA nor exclude file-level operations.
Ans. 14. Accordingly, we agree with the Examiner that the combination of
Viswanatham, Traversat, and Kano teaches or suggests the disputed claim
limitations. Therefore, on the record before us and for the reasons supra, we
sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a) over
Viswanatham, Traversat, and Kano together with the rejection of dependent
claims 3-8 and 39-41 not separately argued. For the same reasons, we
further sustain the rejection of dependent claims 9 and 38 under 35 U.S.C.
§ 103(a) over Viswanatham, Traversat, Kano, and DeKoning, these claims
also not separately argued.

5 See In re Best, 562 F.2d 1252, 1254-55 (CCPA 1977) (quoting In re
Swinehart, 439 F.2d 210, 212-13 (CCPA 1971)); see also In re Spada, 911
F.2d 705, 708 (Fed. Cir. 1990) (“[W]hen the PTO shows sound basis for
believing that the products of the applicant and the prior art are the same, the
applicant has the burden of showing that they are not.” (citations omitted)).
6 “[T]he PTO gives claims their ‘broadest reasonable interpretation.’” In re
Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d
1367, 1372 (Fed. Cir. 2000)). “Moreover, limitations are not to be read into
the claims from the specification.” In re Van Geuns, 988 F.2d 1181, 1184,
(Fed. Cir. 1993) (citing In re Zletz, 893 F.2d 319, 321(Fed. Cir. 1989)).
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Claim 2
Appellants contend “Traverstat [sic] fails to inherently teach the
translation performed by way of network interface.” App. Br. 19 (emphasis
omitted). Appellants argue that, in the absence of a specific description of
performing a translation by a network interface, “the translation of
Traverstat [sic] could be performed by an array of other devices.” Id. The
Examiner responds finding “the network interface controller may
implements [sic] DMA data transfer technique where an intelligent
peripheral assumes control of the system bus to access memory directly
where this removes load from the CPU but requires a separate processor on
the card.” Ans. 15. The Examiner reasons that, because the combination of
Viswanatham and Traversat teaches or suggests a network interface
implementing DMA capabilities, it would have been obvious that the
network interface would perform the required translations described by
Traversat in providing DMA capabilities. Thus, rather than find that the
network interface inherently includes translation, the Examiner provides a
reasoned explanation why one of ordinary skill would have incorporated
Traversat’s translation into Viswanatham’s network controller so as to
implement DMA.
While Appellants argue that the translation might be performed
elsewhere, such as by (i) the main processor or (ii) a memory controller
(App. Br. 19), (i) the former configuration would be antithetical to DMA
which avoids main processor intervention in providing access to memory7

7 See Microsoft Computer Dictionary 162 (direct memory access n. Memory
access that does not involve the microprocessor and is frequently used for
data transfer directly between memory and an “intelligent” peripheral
device, such as a disk drive. Acronym: DMA).
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while, (ii) broadly construed, a memory controller of the latter configuration
could be considered to be part of the network interface because it supports
the provision of network access to a computer. Furthermore, Appellants
have failed to show that there are more than a limited number of devices that
might perform translation. We note that a finite number of solutions within
the skill and understanding of ordinarily skilled artisans can be indicative of
obviousness:
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007).
Therefore, in the absence of sufficient evidence or argument and for
the reasons supra, we are unpersuaded of Examiner error. Accordingly, we
sustain the rejection of dependent claim 2 under 35 U.S.C. § 103(a) over
Viswanatham, Traversat, and Kano.

CONCLUSIONS
We find
(i) The Examiner did not err in finding Viswanatham teaches or suggests
a persistent memory unit configured to receive and provide access to
data through a network interface as recited by claim 1.
(ii) The Examiner did not err in finding Kano’s file-level operations,
including (i) assignment of a new data block for storing data and (ii)
an open command used in requesting data, teach or suggest the
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disputed create and open requests which precede respective remote
direct memory write and read commands recited by claim 1.
(iii) The Examiner did not err in finding the combination of Viswanatham
and Traversat teaches or suggests a network interface that performs
virtual-to-physical address translation as recited by claim 2.
(iv) The Examiner did not err in rejecting claims 1-8 and 39-41 under
35 U.S.C. § 103(a) over Viswanatham, Traversat, and Kano
(v) The Examiner did not err in rejecting claims 9 and 38 under 35 U.S.C.
§ 103(a) over Viswanatham, Traversat, Kano, and DeKoning.

DECISION
The Examiner’s decision to reject claims 1-9 and 38-41 is affirmed.
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

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