Ex Parte Mehta et al

Patent Trial and Appeal Board

Dec 18, 2015

12836467 (P.T.A.B. Dec. 18, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/836,467 07/14/2010
123975 7590 12/22/2015
Nimble Storage, Inc. c/o Ascenda Law Group, PC
333 W San Carlos St.
Suite 200
San Jose, CA 95110
VarunMehta
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.
5126-0003 2268
EXAMINER
MACKALL, LARRY T
ART UNIT PAPER NUMBER
2131
NOTIFICATION DATE DELIVERY MODE
12/22/2015 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):
patents@ascendalaw.com
tarek.fahmi@ascendalaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VARUN MEHTA, ROD BAGG, VIKAS GUPTA, DAN LEARY,
AJAY SINGH, and HECTOR YUEN
Appeal2014-000367
Application 12/836,467
Technology Center 2100
Before MAHSHID D. SAADAT, NORMAN H. BEAMER, and
JESSICA C. KAISER, Administrative Patent Judges.
KAISER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-17, all of the claims pending in the application.
We heard oral argument on December 9, 2015. We will add a transcript of
the oral hearing to the record in due course. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellants, the real party in interest is Nimble Storage, Inc.
(App. Br. 3.)
Appeal2014-000367
Application 12/836,467
EXEMPLARY CLAIM
Claim 1 is exemplary and is reproduced below:
1. A method, comprising:
by a storage management application for a storage device
array having a plurality of storage devices and responsive to
user input via a management console, creating a new volume on
at least one of the storage devices of the storage device array,
said new volume for application data of an application running
on an application server communicatively coupled to the
storage device array; and
automatically configuring, responsive to user selection of
an application protection profile via the management console,
data protection services for the application data, said
application protection profile specifying scheduling and
replication of snapshots for the application data, said scheduling
and replication to be managed by a daemon associated with the
storage management application through communication with a
protection manager agent executing on the application server.
REJECTIONS
The Examiner has rejected claims 1-6, 8-11, and 13-16 under
35 U.S.C. § 102(e) as anticipated by Palagummi (US 2011/0107043 Al;
published May 5, 2011). (Final Act. 2-8.)
The Examiner has rejected claims 7, 12, and 17 under 35 U.S.C.
§ 103(a) as unpatentable over Palagummi and Peters (US 6,065,102; issued
May 16, 2000). (Final Act. 8-9.)
ANALYSIS
Appellants argue Palagummi does not "address the process of creating
a new volume on at least one of the storage devices for application data, as
recited in claim 1." (App. Br. 9.) Specifically, Appellants argue the
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Application 12/836,467
management console (i.e., computer 20) in Palagummi could be used to
create multiple datasets, but it does not inherently do so because other
systems or computers could create the recited new volume. (Id. at 10-11.)
Thus, Appellants argue Palagummi does not inherently disclose "a
management console [that] allows a user to both (i) create a new volume on
at least one of the storage devices of the storage device array and (ii)
automatically configure data protection services for the application data."
(Id. at 11.)
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros., Inc. v. Union Oil Co. of Cal., 814 F.2d 628,
631 (Fed. Cir. 1987). However, this is not an ipsissimis verbis test, i.e.,
identity of terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed.
Cir. 1990).
The Examiner finds, and we agree, that Palagummi' s computer 20
discloses the recited "management console." (See Ans. 12; Palagummi i-f 31,
Fig. 2 (area bordered by dashed line).) The Examiner further finds, and we
agree, that Palagummi's dataset(s) disclose a volume created on hard disk 27
of computer 20. (See Final Act. 2; Ans. 12-13.) We also agree with the
Examiner (Ans. 12) that the broadest reasonable interpretation of "volume"
as recited in claim 1 encompasses "a container for application data."
Because Palagummi discloses user input to computer 20 and that computer
20 may (or conversely, may not) operate in a networked environment, the
Examiner finds, and we agree, Palagummi discloses user inputs are
performed on computer 20. (Id. (citing Palagummi i-fi-135, 36).)
Accordingly, the Examiner finds, and we agree, Palagummi discloses
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Application 12/836,467
creating the recited volume when an administrator sets up and configures a
dataset on computer 20. (Id. at 12-13 (citing Palagummi Fig. 2, i1i121, 35).)
In Reply, Appellants analyze the cited portions of Palagummi
individually and argue none "expressly disclose[ s] a management console
that allows a user to create a new volume on at least one of the storage
devices of the storage device array." (Reply Br. 4--6 (citing Palagummi Fig.
2, i1i1 21, 3 5).) We disagree with Appellants' piecemeal approach. Instead,
as discussed supra, we agree with the Examiner that when the cited portions
of Palagummi are viewed together, they disclose the disputed limitation.
Thus, we are not persuaded the Examiner errs in finding Palagummi
discloses "creating a new volume," as recited in claim 1.
Appellants further argue Palagummi' s Self Leaming Backup And
Recovery Management System (SLBRMS) does not disclose "the daemon,
storage management application and protection manager agent (and their
specific interactions)" in sufficient detail to disclose "said scheduling and
replication to be managed by a daemon associated with the storage
management application through communication with a protection manager
agent executing on the application server." (App. Br. 11.) We agree with
Appellants.
Although we agree with the Examiner (Ans. 13) that the broadest
reasonable interpretation of a "daemon" encompasses "a program or process
that sits idly in the background until it is invoked to perform its task," we
agree with Appellants that the Examiner has not pointed "to any passage of
Palagummi which discloses a 'daemon associated with the storage
management application through communication with a protection manager
agent executing on the application server', as recited in claim 1." (Reply Br.
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Application 12/836,467
6.) The Examiner's finding that Palagummi discloses a computer using a
single processor (Ans. 13 (citing Palagummi Fig. 2, i-f 31)) is insufficient to
show that the recited daemon communicates with the recited protection
manager agent executing on the application server. On this record, we are
constrained to conclude that the Examiner errs in finding Palagummi
discloses "said scheduling and replication to be managed by a daemon
associated with the storage management application through communication
with a protection manager agent executing on the application server," as
recited in claim 1.
CONCLUSIONS
For the reasons discussed above, Appellants have persuaded us the
Examiner erred in rejecting independent claim 1, independent claim 13
which recites substantially similar limitations, and dependent claims 2-7 and
14--17. We observe that the Peters reference as applied by the Examiner in
the § 103 rejection of dependent claims 7 and 17 does not cure the
deficiency discussed supra.
Appellants have not persuaded us the Examiner erred in rejecting
independent claim 8, which does not recite the "daemon" limitation
discussed above, or dependent claims 9-12 not argued separately. (App. Br.
11.)
DECISION
The Examiner's decision to reject claims 8-12 is affirmed.
The Examiner's decision to reject claims 1-7 and 13-17 is reversed.
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Application 12/836,467
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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