Ex Parte Manson

Patent Trial and Appeal Board

Aug 10, 2016

12624526 (P.T.A.B. Aug. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/624,526 11124/2009 Carl R. Manson
138693 7590 08/12/2016
MHKKG - Veritas Tech (7033)
P.O. Box 398
Austin, TX 78767-0398
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.
7033-35700 8496
EXAMINER
AL HASHEM!, SANA A
ART UNIT PAPER NUMBER
2156
NOTIFICATION DATE DELIVERY MODE
08/12/2016 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):
patent_docketing@intprop.com
ptomhkkg@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARL R. MANSON
Appeal2014-008308
Application 12/624,526
Technology Center 2100
Before CAROLYN D. THOMAS, SHARON PENICK, and
JOHN R. KENNY, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-20, all the pending claims in the
present application. We have jurisdiction over the appeal under 35 U.S.C.
§ 6(b ).
We REVERSE.
The present invention relates generally to generating a synthetic full
backup. See Abstract.
Appeal2014-008308
Application 12/624,526
Claim l is illustrative:
1. A distributed method for generating a synthetic full
backup, the method comprising:
receiving, at a target computer, a request to perform an
incremental backup of the target computer;
performing, by the target computer, the incremental
backup on the target computer in response to the request;
maintaining, by the target computer, information
identifying the files that are encountered in the incremental backup,
wherein the information is configured to be used to construct a
synthetic full backup, wherein the information is stored on the target
computer;
receiving, at a backup server, a request to perform a
synthetic full backup of the target computer;
requesting, by the backup server, the information from
the target computer;
receiving, at the backup server, the information from the
target computer;
constructing, by the backup server, the synthetic full
backup using the information from the target computer;
constructing, by the backup server, a synthetic full
backup index for the synthetic full backup using records from old
indexes for each file in the synthetic full backup;
transferring the synthetic full backup to a backup image;
storing the synthetic full backup index.
Appellant appeals the following rejection:
Claim 1-20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Korshunov (US 7,949,635 Bl, May 24, 2011) and Sparks
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Appeal2014-008308
Application 12/624,526
(US 5,212,784, iviay 18, 1993).
ANALYSIS
Claims 1-20
Issue: Did the Examiner err in finding that the combined cited art,
particularly Korshunov, teaches or suggests a target computer performing
the incremental backup on that target computer; or the backup server
requesting information identifying files encountered in the incremental
backup from the target computer;, as set forth in claim 1?
Appellant contends that "[ n Jo where does Korshunov teach that any
system other than the backup server may actually perform backup
operations. . .. Korshunov teaches consolidating all tasks onto the Backup
Server" (App. Br. 8). We agree with Appellant.
In response, the Examiner finds that Korshunov's Fig. 7 teaches the
target computer performing the incremental backup of the target computer
(Ans. 3 and 7). Although Korshunov's Fig. 7 uses the term "incremental"
(see Korshunov's Fig. 7), the Examiner fails to explain how this term, or
Fig. 7 in general, relates to a target computer performing an incremental
backup of the target computer in response to a request, as required by claim
1. For example, Korshunov discloses that "Fig. 7 illustrates the relationship
between the backups before and after the consolidation of the backups" and
describes "increments to the base backup," (5:56---62). In other words,
Korshunov's process analyzes the contents of several backups and identifies
common portions between the backups. This common portion is the base
backup, while the differing portions are the increments to the base backup.
However, the Examiner has not shown, nor can we find, how the
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Appeal2014-008308
Application 12/624,526
aforementioned figure teaches the target computer actually performing the
incremental backup of the target computer. At best, Korshunov's Figure 7
looks at "already created backups" and describes the relationships between
the backups before and after the consolidation, i.e., the process of combining
two or more adjacent backups, rather than describing the incremental backup
being performed by the target computer.
On the other hand, we find that Korshunov's Figure 13, not Figure 7,
illustrates the process of creating the backup (3 :28-29). Specifically,
Korshunov discloses that "[ o ]nee the Backup Server receives the right to
create the backup, but just before creating the backup file, the Backup Server
creates a file with the metadata ... the access by the user or a computer that
was the source for the backup might not be permitted" (7:54---63). In other
words, as argued by Appellant, Korshunov indicates that the Backup Server
performs the backups.
With respect to the limitation of "requesting, by the backup server, the
information from the target computer," Appellant further contends that
"Korshunov also does not teach that a backup server may request such
information, [i.e. information identifying the files that are encountered in the
incremental backup,] from a target computer and use it in constructing a
synthetic full backup" (App. Br. 10). We agree with Appellant.
In response, the Examiner finds that "[ t ]he argued limitation is
actually disclosed in multiple locations such as Col. 7, lines 41-51, wherein
the created file at the backup server corresponds to the information requested
by the server from the target computer and Col. 8., lines 20-25" (Ans. 8).
As noted supra, the cited portions of Korshunov disclose that the Backup
Server performs the backups. Further, Korshunov discloses that "[t]he
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Appeal2014-008308
Application 12/624,526
purpose of the Backup Server is to organize a centralized storage and
administration for the reserve and backups copies for data of the various
users and computers" (4:21-23) and "the backup server can concentrate on
the actual operations involving data and backup of the data" ( 4:48--49). In
other words, Korshunov' s Backup Server both performs the backups and has
a centralized storage for the data. The portion of Korshunov proffered by
the Examiner merely discusses the circumstances when the data on the
Backup Server is incomplete and "a possibility of a rollback of the metadata
and backup files to an earlier point in time," i.e., an integrity verification
(see Korshunov, 7:41-51) and states "that prior to backup creation, the
Backup Server needs to verify data integrity both on the Backup Server
itself, as well as in the archive into which the data for this particular
computer or user will be copied" (id. at 8:20-25). However, the Examiner
has not shown where Korshunov discloses the Backup Server requesting
information, i.e., information identifying the files that that are encountered
in the incremental backup. It also seems improbable that the Backup Server
would request such information because Korshunov clearly discloses that the
Backup Server already has this information stored in its own database (see
5:35-36). Furthermore, because the claimed information is information
encountered during/representing a backup, and the data integrity verification
in Korshunov occurs prior to backup, even if during Korshunov's integrity
verification process there is data/information retrieved from a target
computer, we find that such information cannot be the claimed information
as this represents information prior to any backup.
Thus, we disagree with the Examiner's finding that Korshunov's Fig.
7 teaches the target computer performing the incremental backup of the
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Appeal2014-008308
Application 12/624,526
target computer (see Ans. 2 and 7), as recited in independent claims l and 8.
We also disagree with the Examiner's finding that Korshunov's integrity
verification process teaches backup file information requested from the
target computer, as recited in independent claims 1 and 15. The Examiner
also has not shown that Sparks teaches these features. Since we agree with
at least these arguments advanced by Appellant, we need not reach the
merits of Appellant's other arguments. Accordingly, we will not sustain the
Examiner's obviousness rejection of claims 1-20.
DECISION 1
The decision of the Examiner to reject claims 1-20 is reversed.
REVERSED
1 In the event of further prosecution, we leave it to the Examiner to consider
if the computer readable storage medium claims, claims 8-20, should also be
rejected under 35 U.S.C. § 101. Appellant's Specification discloses that the
computer readable medium can be in the form of electronic signals (see
i-f 45). Signals are not patentable eligible subject matter under § 101. In re
Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). See also MPEP § 2106(I)
(8th ed. Rev. 9 Aug. 2012) andExparteMewherter, 107USPQ2d1857
(PT AB 2013) (precedential ).
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