11952591 (P.T.A.B. Nov. 13, 2014)

Ex Parte Mcclanahan et al

Patent Trial and Appeal BoardNov 13, 2014

11952591 (P.T.A.B. Nov. 13, 2014)

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. 11/952,591 12/07/2007 Edward D. MCCLANAHAN 2120-03500 1529 85421 7590 11/14/2014 Conley Rose, P.C. P.O. Box 3267 Houston, TX 77253-3267 EXAMINER HUANG, MIRANDA M ART UNIT PAPER NUMBER 2157 MAIL DATE DELIVERY MODE 11/14/2014 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 PATENT TRIAL AND APPEAL BOARD ____________ Ex parte EDWARD D. MCCLANAHAN, RANJI BALASUBRAMANIAN, BORISLAV MARINOV, and DILIP NAIK ____________ Appeal 2012-007828 Application 11/952,591 Technology Center 2100 ____________ Before MAHSHID D. SAADAT, ELENI MANTIS MERCADER, and NORMAN H. BEAMER, Administrative Patent Judges. BEAMER, Administrative Patent Judge. DECISION ON APPEAL Appellants1 appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1–25, which are all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. 1 Appellants identify Brocade Communication Systems, Inc. as the real party in interest. (App. Br. 3.) Appeal 2012-007828 Application 11/952,591 2 STATEMENT OF THE CASE Appellants’ invention relates to file migration operations in a distributed file system, using stub files, which are metadata files containing, for example, information identifying the location of a relocated data file. (Abst.; Spec. ¶ 32.) Claim 1, which is illustrative, reads as follows: 1. A method comprising: a) creating a first stub file on a target file server, the first stub file created in a target directory, the first stub file pointing to source data in a source directory on a source file server; b) creating a t-stub file at a root location of the source directory, the t-stub file pointing to the target directory, the source directory allowing access to source data only when accessed due to the first stub file; c) disabling performance of operations on source data while allowing completion of operations in progress; [sic]. Claims 1–25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Lallier (US 2005/0216532 A1, published Sept. 29, 2005), in view of Yakir et al. (US 2004/0049513 A1, published Mar. 11, 2004), hereinafter Yakir. (Ans. 5–14.) We refer to the Brief (“App. Br.” filed Sept. 12, 2011) and the Answer (“Ans.” mailed Feb. 13, 2012) for the respective positions of Appellants and the Examiner. Only those arguments actually and timely made by Appellants have been considered in this decision. Arguments that Appellants did not timely make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2011). Appeal 2012-007828 Application 11/952,591 3 ISSUES Issue 1: Whether Lallier and Yakir teach or suggest “the source directory allowing access to source data only when accessed due to the first stub file,” as recited by independent claims 1 and 14. Issue 2: Whether Lallier and Yakir teach or suggest “the file open for access,” as recited by claims 4 and 17. Issue 3: Whether Lallier and Yakir teach or suggest “intercepting updates to the source data from the client,” as recited by claims 9 and 22. ANALYSIS Issue 1 Appellants argue that the Examiner erred in finding Lallier and Yakir teach or suggest that the source directory allows access to source data only when accessed due to the first stub file as required by claims 1 and 14. (App. Br. 9–10.) Appellants’ arguments are unpersuasive. We agree with the Examiner’s finding that this aspect of the limitation is taught or suggested in Lallier and Yakir. (Ans. 14–16.) Appellants argue that Yakir does not state that the stub file is the only entity that allows access. Appellants argue that the source data file in Yakir “can be accessed normally as well, i.e., through the directory containing the file.” (App. Br. 9.) We are not persuaded. As the Examiner states, “Appellant has not provided any evidence in the reference for this statement.” (Ans. 16). Indeed, given that the stub file disclosed in Yakir is used to locate data migrated to “offline storage,” it follows that offline files cannot normally be accessed directly, but only via the stub file. (Yakir ¶¶ 4– 5.) In addition, Lallier separately discloses that “Host 110 begins submitting Appeal 2012-007828 Application 11/952,591 4 data processing commands to the target storage system, and ceases communicating with source storage system 115.” (Lallier ¶ 33.) This too indicates normal access only via the stub file. To the extent that Appellants are arguing that the cited art fails to explicitly state that access can never occur other than via the stub file, we note that the original Application did not disclose or claim any such absolute requirement. We construe the claim requirement, that data can “only” be accessed via the stub file, as referring to the condition of normal client/user access. Accordingly, we sustain the 35 U.S.C. § 103(a) rejections of claims 1 and 14, as well as dependent claims 2–3, 5–8, 15–16, and 18–21, which were not argued separately with sufficient particularity. (See App. Br. 10). Issue 2 Dependent claims 4 and 17 recite the additional limitation that, under the broadest reasonable interpretation in light of the claim as a whole, requires that the file comprised of source data is “open for access” during the creation of the first stub file. The Examiner found that Paragraphs 48 and 50 of Lallier disclose this limitation. (Ans. 16). Appellants argue that this finding is erroneous. (App. Br. 10.) We agree with Appellants. The cited portion of Lallier refers to the ability of the described system to access files after the stub file has been created, which does not meet the claim language as reasonably construed. Therefore, we do not sustain the Examiner’s rejection of claims 4 and 17. Appeal 2012-007828 Application 11/952,591 5 Issue 3 Dependent claims 9 and 22 require that “disabling performance of operations” includes “intercepting updates to the source data from the client.” The Examiner concluded that Paragraph 58 of Yakir discloses this limitation. (Ans. 11–12, 16–17.) Appellants argue that this conclusion is erroneous. (App. Br. 10–11.) We agree with Appellants. The Examiner relied on the disclosure in Yakir describing that “certain operations should be temporarily disallowed” during file migration, and concluded that this met the claim language under its broadest reasonable interpretation. (Ans. 17; Yakir ¶ 58.) We do not agree with the Examiner’s claim construction. There is no basis for equating disallowance of operations with intercepting updates to the source data. Therefore, we do not sustain the Examiner’s rejection of claims 9 and 22; nor do we sustain the rejections of claims 10– 13 and 23–25, which depend from those claims. DECISION The decision of the Examiner to reject claims 1–3, 5–8, 14–16, and 18–21 is affirmed. The rejection of claims 4, 9–13, 17, and 22–25 is reversed. 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART cdc