Ex Parte Kruglick

Patent Trial and Appeal Board

Feb 25, 2019

13634013 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
13/634,013
154241 7590
IP Spring - AI
180 N. LaSalle St.
Suite 3700
Chicago, IL 60601
FILING DATE FIRST NAMED INVENTOR
09/11/2012 Ezekiel Kruglick
02/27/2019
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.
MTCW002802 2489
EXAMINER
ANDERSEN, KRISTOPHER E
ART UNIT PAPER NUMBER
2158
NOTIFICATION DATE DELIVERY MODE
02/27/2019 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):
ajay.gambhir@ipspring.com
docket@ipspring.com
paralegalteam@ipspring.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EZEKIEL KRUGLICK 1
Appeal2017-003329
Application 13/634,013
Technology Center 2100
Before ST. JOHN COURTENAY III, JOYCE CRAIG, and ALEX S. YAP,
Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1--4, 6-12, 14, 27, 28, and 32-35. Claims 5, 13, 15-26,
29-31, and 36-75 are cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We reverse.
1 According to Appellant, the real party in interest is Empire Technology
Development LLC. See Appeal Br. 1.
Appeal2017-003329
Application 13/634,013
Invention
Embodiments of Appellant's claimed invention relate to "multiple
variable coverage memory for database indexing." Abstract.
Exemplary Claim
1. A method comprising:
receiving a database by a cloud digital service provider;
subsequent to receiving the database, initially storing a
basic database index by the cloud digital service provider,
wherein the basic database index is initially stored in a first
memory associated with a first performance level, wherein the
basic database index is configured to locate data records in the
database, and wherein the basic database index comprises key
values to locate the data records in the database;
building an optimized database index configured to locate
data records in the database, wherein the optimized database
index comprises key values to locate the data records in the
database;
storing the optimized database index in a second memory
associated with a second performance level, wherein the second
performance level is lower speed than the first performance level,
and wherein the first performance level is higher speed than the
second performance level;
gradually shifting, during the building of the optimized
database index, from use of the basic database index in the first
memory to locate data records in the database, to use of the
optimized database index in the second memory to locate data
records in the database, to hereby transition from index coverage
for the database being dominated by the basic database index in
the first memory to index coverage for the database being
dominated by the optimized database index in the second
memory;
wherein building the optimized database index comprises:
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receiving queries comprising requests for one or more of
the data records in the database and modifying the basic database
index using query data corresponding to received queries to
configure the optimized database index to provide faster
responses to received queries.
(Emphasis added regarding contested limitations).
Rejections
A. Claims 1, 2, 6-10, 12, 14, 27, 28, and 32-35 are rejected under pre-
AIA 35 U.S.C. § I03(a) as being obvious over the combined teachings
and suggestions of Shapiro (US 2005/0198062 Al, published Sept. 8,
2005) in view of Ferris (US 2012/0221845 Al, published Aug. 30,
2012), and Boss et al. (US 7,669,026 B2, issued Feb. 23, 2010)
("Boss").
B. Claims 3 and 4 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being obvious over the combined teachings and suggestions of
Shapiro, Ferris, Boss, and further in view of Schreter (US
2010/0161569 Al, issued June 24, 2010).
C. Claim 11 is rejected under pre-AIA 35 U.S.C. § I03(a) as being
obvious over the combined teachings and suggestions of Shapiro,
Ferris, Boss, and further in view of Klosterhalfen et al. (US
2004/0172408 Al, published Sept. 2, 2004) ("Klosterhalfen").
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. We have reviewed Appellant's arguments in the Briefs, the
Examiner's rejections, and the Examiner's responses to Appellant's
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arguments. In our analysis below, we highlight and address specific findings
and arguments for emphasis.
Rejection A of Independent Claim 1 under 35 US. C. § 103 (a)
Regarding rejection A, Appellant contests the Examiner's findings
regarding the following limitations, as recited in independent claim 1:
gradually shifting, during the building of the optimized
database index, from use of the basic database index in the first
memory to locate data records in the database, to use of the
optimized database index in the second memory to locate data
records in the database, to hereby transition from index coverage
for the database being dominated by the basic database index in
the first memory to index coverage for the database being
dominated by the optimized database index in the second
memory;
Claim 1 ( emphasis added). See Appeal Br. 4.
The Examiner finds the aforementioned limitations are principally
taught by Shapiro, at paragraphs 16 and 73-75, as modified by Boss. Final
Act. 3. Referring to Shapiro (id.), the Examiner explains the basis for the
rejection: "Initially, the data is placed in the memory cache. Periodically,
the data is moved from the memory cache to the disk cache and organized
such that it can be read quickly from the disk cache." Final Act. 4. The
Examiner also finds: "Shapiro as modified teaches the optimized database
index in the second memory, but does not explicitly teach transitioning to
index coverage being dominated by the optimized database index in the
second memory." Final Act. 4 (emphasis added).
To overcome the deficiency found in Shapiro (id.), the Examiner
looks to Boss for teaching or suggesting "transitioning to data coverage
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Application 13/634,013
being dominated by the second memory (see Boss, col. 9, lines 27-29,
'migrates data to the new tier')." Final Act. 5.
Turning to the evidence relied upon by the Examiner, Boss describes
in pertinent part:
If the service class has changed then logic flows to element 322
to determine a new storage. At element 322, a new storage tier
is determined. Then, the system migrates data to the new tier
(element 324). The system then waits for a specified time
interval and the process continues at element 302.
Boss, col. 9, 11. 23-29 (emphasis added).
In response, Appellant contends:
the Official Action alleged that transitioning "to index coverage
for the database being dominated by the optimized index in the
second memory," while lacking in Shapiro, can be found at
Boss col. 9, lines 27-29, and that, "[i]t would have been
obvious to one of ordinary skill in the art at the time the
invention was made to transition data coverage, as taught by
Boss, in the system taught by Shapiro." Official Action page 5.
Boss is directed to "Systems and Methods of Memory
Migration" (title). Boss describes automatically migrating data
among different storage locations. For example, Boss
col. 9, lines 27-29 includes discussion of Boss FIG. 3, stating
that, "Then, the system migrates data to the new tier ( element
324). The system then waits for a specified time interval and
the process continues at element 302." This discussion, and the
remainder of Boss, discusses migrating data without any
discussion of indexes or index coverage.
App. Br. 4 ( emphasis omitted).
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Claim Construction
We give the contested claim limitations the broadest reasonable
interpretation ("BRI") consistent with the Specification. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997).
Here, both the "basic database index" and the "optimized database
index" are similarly "configured to locate data records in the database" and
both indexes comprise "key values to locate the data records in the
database." Claim 1. Regarding the two distinctly claimed indexes recited in
claim 1 ("a basic database index" and "an optimized database index"), our
reviewing court guides that the use of two similar but different terms "in
close proximity in the same claim gives rise to an inference that a different
meaning should be assigned to each." Bancorp Servs., L.L.C. v. Hartford
Life Ins. Co., 359 F.3d 1367, 1373 (Fed. Cir. 1994). In another case, the
Federal Circuit concluded as a matter of claim construction:
[i]f the terms "pusher assembly" and "pusher bar" described a
single element, one would expect the claim to consistently refer
to this element as either a "pusher bar" or a "pusher assembly,"
but not both, especially not within the same clause. Therefore,
in our view, the plain meaning of the claim will not bear a
reading that "pusher assembly" and "pusher bar" are synonyms.
Ethicon Endo-Surgery, Inc. v. United States Surgical Corp., 93 F.3d 1572,
1579 (Fed. Cir. 1996).
This guidance is applicable here. In reviewing the evidence cited by
the Examiner (Final Act. 2-5), we agree with Appellant that Boss is silent
regarding any mention of indexes, much less indexes of two distinct types
(i.e., "a basic database index" and "an optimized database index"). Claim 1.
Under a broad but reasonable interpretation, claim 1 requires a gradual shift
from the use of a first index of a first type ( as initially stored in a first
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memory) to the use of a second index of a second type (as stored in a second
memory), in which the shift occurs in the specific temporal manner
claimed: "gradually shifting, during the building of the optimized database
index, from use of the basic database index in the first memory . . . to use of
the optimized database index in the second memory." Claim 1 ( emphasis
added)
Although Shapiro discloses indexes (e.g., ,r,r 74, 76-77), we note the
evidence the Examiner cites in support of the rejection (Shapiro ,r,r 16, 73-
7 5) describes generic data migration, and not gradually shifting from the use
of an index of a first type to the use of an ( optimized) index of a second
type. At best, we find Shapiro (i-f 77) teaches streaming a single index from
a disk cache to a memory cache when "it is necessary to load the disk into
memory cache 26 to thereby accelerate the process of moving or copying the
index between the fast disk cache 28 and memory cache 26."
On this record, we find Shapiro and Boss, considered alone or
collectively, do not teach or suggest gradually shifting the use of index data
between two distinct types of indexes in the specific temporal manner
claimed. Nor has the Examiner shown that Ferris overcomes the
aforementioned deficiencies of Shapiro and Boss, because the Examiner
merely relies on Ferris (i-f 52) for teaching a cloud digital service provider.
See Final Act. 4.
For these reasons, and based upon a preponderance of the evidence,
Appellant has persuaded us the Examiner erred regarding the contested
limitations recited in claim 1. Therefore, we reverse rejection A of
independent claim 1, and we also reverse Rejection A of independent claims
14 and 27, which similarly recite the contested limitations in commensurate
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form. Because we have reversed the Examiner's Rejection A of each
independent claim on appeal, we also reverse the Examiner's Rejection A of
all dependent claims rejected thereunder.
Rejections B and C
Regarding the remaining dependent claims rejected under§ 103(a)
Rejections Band C, we find the Examiner has not shown how the
additionally cited secondary references (Schreter and/or Klosterhalfen)
overcome the deficiencies of the base combination of Shapiro, Ferris, and
Boss, as discussed above regarding Rejection A of independent claims 1, 14,
and 27. Accordingly, we are constrained on this record to also reverse
Rejections Band C of all remaining dependent claims on appeal.
Conclusion
The Examiner erred in rejecting claims 1--4, 6-12, 14, 27, 28, and
32-35 as being obvious over the cited combinations of references under
pre-AIA 35 U.S.C. § 103(a).
DECISION
We reverse the Examiner's decision rejecting claims 1--4, 6-12, 14,
27, 28, and 32-35 underpre-AIA 35 U.S.C. § 103(a).
REVERSED
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