Ex Parte Sparkes et al

Patent Trial and Appeal Board

Jun 30, 2016

13006790 (P.T.A.B. Jun. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/006,790 01114/2011 Andrew SPARKES
56436 7590 07/05/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82265402 5284
EXAMINER
TRUONG, DENNIS
ART UNIT PAPER NUMBER
2169
NOTIFICATION DATE DELIVERY MODE
07/05/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW SPARKES and MICHAEL J. SPITZER
Appeal2014-009735
Application 13/006,790
Technology Center 2100
Before JASON V. MORGAN, MELISSA A. HAAPALA, and
NABEEL U. KHAN, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejections of claims 1-6, 9-19, and 21-27. Claims 7, 8, and 20 are
canceled. Arndt. (Oct. 2, 2013) 3, 6, 8. 1 We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.
1 The Office Action Summary of the Final Action (Dec. 10, 2013)
incorrectly omits claim 21 from the identification of pending claims.
Appeal2014-009735
Application 13/006,790
Exemplary Claim
11. A clustered storage system comprising:
a data storage sub-system to store datasets for retention for
respective retention periods and to store instructions;
a plurality of computing machines, each with its own
clock, including multiple machines configured as servers;
an expiry-checking machine of said plurality to check for
dataset retention-period expiry using its own local clock as a
current time reference, the expiry-checking machine including a
clock monitor to detect modification of the local clock by
executing the instructions to:
(a) obtain from at least two of the other computing
machines current times of their clocks, and derive a
comparison value from the current times; and
(b) compare the comparison value with a local current
time obtained from the local clock, and generate an alert if
the local current time and the comparison value differ by
more than a predetermined amount.
App. Br., Claims App'x.
Rejections
Claims 11, 13, 15, 18, 19, 21-24, and 27 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over McGovern (US 2005/0097260
Al; pub. May 5, 2005), Ikezawa (US 2005/0216534 Al; pub. Sept. 29,
2005), and Dumet (US 2009/0201936 Al; pub. Aug. 13, 2009). Final Act.
(Dec. 10, 2013) 11-20.
Claims 1, 3, 5, 6, 9, 10, 17, 25, and 26 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over McGovern, Ikezawa, Dumet, and Bauer
(US 200710140239 A 1; pub. June 21, 2007). Final Act. 4-11, 23.
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Application 13/006,790
Claims 2, 4, 12, and 14 stand rejected under 35 U.S.C. 103(a) as being
unpatentable over McGovern, Ikezawa, Dumet, Nakamura (US 2006/
0179360 Al; pub. Aug. 10, 2006), and Bauer2. Final Act. 20-22.
Claim 16 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over McGovern, Ikezawa, Dumet, and Mincher (US 5,408,506;
iss. April 18, 1995). Final Act. 22-23.
ISSUES
Appellants' arguments in the Appeal Brief present the following
issues:
1. Whether the Examiner errs in concluding the combination of
McGovern and Dumet teaches or suggests obtaining from at
least two of the other computing machines current times of
their clocks, deriving a comparison value from the current
times, and comparing the comparison value with a local
current time obtained from the local clock, as recited by
independent claim 11?
2. Whether the Examiner errs in concluding Bauer teaches or
suggests deriving a comparison value from the current times
by randomly selecting one of the current times, as recited by
independent claims 1 and 25?
2 As Appellants note (App. Br. 13; Reply Br. 8), the Examiner omits Bauer
from the statement of the rejection for dependent claims 2 and 4 (Final Act.
20). However, we agree with the Examiner that this omission is merely a
typo (Ans. 6), which we hold harmless.
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Application 13/006,790
ANALYSIS
Claims 11-16, 18, 19, 21-24, and 27 (First Issue)
Each of claims 11-16, 18, 19, 21-24, and 27 stands rejected as
obvious over McGovern, Tkezawa, and Dumet (and further references for
some claims). Claim 11 is independent. Claims 12-16, 18, 19, 21-24, and
2 7 depend from claim 11.
Appellants argue "[i]ndependent claim 11 is non-obvious over
McGovern, Ikezawa, and Dumet ... for reasons similar to those stated
above with respect to claim 1 [.]" App. Br. 12. The argument reflects that
independent claim 1 is also rejected as obvious over McGovern, Ikezawa,
and Dumet. However, unlike claim 11, claim 1 is rejected over Bauer as
well (addressed infra).
Appellants contest the Examiner's application of McGovern, Dumet,
and Bauer to claim 1. Appellants thus contest the Examiner's application of
McGovern and Dmnet to claim 11. For the reasons provided below with
reference to claim 11, the arguments against McGovern and Dumet are
unpersuasive for all independent claims (i.e., claims 1, 11, and 25).
As reflected by the first issue statement, supra, Appellants argue
McGovern and Dumet do not teach or suggest claim 11 's following
limitations: obtaining from at least two of the other computing machines
current times of their clocks, deriving a comparison value from the current
times, and comparing the comparison value with a local current time
obtained from the local clock.
Appellants argue the Examiner's Answer and Final Action
inconsistently apply McGovern against the above limitations. Reply Br. 2.
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Application 13/006,790
We find IvicGovern' s application is clear when viewed alongside Dumet' s
application.
McGovern's invention associates a file with an unmodifiable retention
date; precluding any changes to the file (e.g., deletion) before the date is
reached. McGovern, abst. McGovern's cited compliance clock 279 reports
a date/time value 1410 for determining whether the retention date has been
reached. Id. at ,-i 132; see also Final Act. 11-13 (applying McGovern's
compliance clock 279). The compliance clock 279 generates the reported
date/time value 1410 from a "consistent pulse" (CP) 1404. McGovern
,-i 133. Because the reported date/time value 1410 is inaccurate if generated
from the CP 1404 alone, the compliance clock 279 also "drifts" the reported
date/time value 1410 to a trusted date/time value 1416. Id. at ,-i 134. The
drift is bounded (i.e., capped) to prevent circumventing of the retention date
by setting forward of the otherwise trusted time check value 1416.
McGovern ,-i 134. And as a further precaution, an alert is issued if the
reported date/time value 1410 and trusted date/time value 1416 are
unacceptably out of synch. Id. at ,-i 135.
Dumet' s invention synchronizes networked devices. Dumet, abst.
Dumet' s cited time synchronizing device 1 synchronizes a clock CLO "with
respect to at least one more accurate clock." Id. at ,-i 66; see also Final Act.
14-15 (applying Dumet's synchronizing device 1). "In [the] case of small
discrepancies between specific clock times, ... the synchronizing device
averages the obtained times so as to determine an accurate time to be used."
Id. at ,-i 41.
The Examiner initially found McGovern's compliance clock 279
teaches each of claim 11 's above limitations. Ans. 3. But, because
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Application 13/006,790
Appellants disputed that the compliance clock 279 obtains current times
from at least two other computing machines, the Examiner reopened
prosecution and presented Dumet as teaching this limitation. Id. (explaining
the above prosecution history). The Examiner now finds for McGovern and
Dumet:
Although McGovern teaches comparing the local time with other
remote sources, McGovern fails to specifically teach: obtaining
from at least two of the other computing machines current times
of their clocks.
However, Dumet teaches obtaining from at least two of the other
computing machines current times of their clocks[.]. . . [B]y
disclosing averaging the obtained times from at least two
different apparatus, Dumet teaches obtaining at least two of the
other computing current times, and the average between the
times is the comparison value from the received times. And
further the accurate time to be used to determine if the respective
local times of the synchronization device and other devices on
the network are correct which involves comparing the local times
with the average/correct time[.]
Final Act. 14-15 (emphases omitted; Dumet quotes and citations omitted).
Given the above findings and cited prior art teachings, we conclude
the Examiner clearly and reasonably reads claim 11 'sat-issue limitations on
McGovern and Dumet as follows: reads obtaining from at least two of the
other computing machines current times of their clocks on Dumet's
obtaining date/time values ("current times") from multiple remote clocks to
generate a trusted date/time value; reads deriving a comparison value from
the current times on McGovern's trusted date/time value 1416 ("comparison
value"), as averaged from multiple date/time values in view of Dumet; reads
comparing the comparison value with a local current time obtained from the
local clock on McGovern's comparing of the trusted date/time value 1416
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Application 13/006,790
• , ,., , "1 "1 , /, • "1 1 Al 1 f'\. /l'.l'."1 "1 , , • .... .,,_ 1. T "1 , agamst me reponea aate/tnne vame 141U ~--10ca1 current tnne--J.~ in snort,
claim 11 's current times, comparison value, and local current time are
respectively read on Dumet's averaged date/time values, McGovern's
trusted date/time value 1416 (as derived in view of Dumet), and
McGovern's reported date/time value 1410.4
The Examiner has provided articulated reasoning with a rational
underpinning as to why one skilled in the art would have found it obvious to
combine McGovern's and Dumet's cited teachings to arrive at the claimed
subject matter. The combination of cited teachings would have predictably
used the corresponding prior art elements according to their established
functions. See KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
The Examiner's findings are reasonable because the skilled artisan would
"be able to fit the teachings of multiple patents together like pieces of a
puzzle" since the skilled artisan is "a person of ordinary creativity, not an
automaton." Id. at at 420-21. Appellants do not present evidence that the
resulting combination was "uniquely challenging or difficult for one of
ordinary skill in the art" or "represented an unobvious step over the prior
art." Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR, 550 U.S. at 418-19).
3 We also conclude, in view of the same presented findings and cited prior
art teachings, the Examiner clearly and reasonably reads claim 11 's
generating an alert if the local current time differs from the comparison
value by more than a predetermined amount on McGovern's generating of
an alert if the reported date/time value 1410 unacceptably differs from the
trusted date/time value 1416.
4 Appellants understood the applied combination at least insofar as "the
Examiner is equating [McGovern's] 'system clock 1416' with 'the
comparison value' of claim l." App. Br. 8.
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Appellants further argue: "Dumet contemplates that the average of
the clock times is to be used in place of the local time. There is no
comparison in Dumet of this average of clock times[.]" App. Br. 8. The
argument attacks Dumet individually, whereas the Examiner applies the
above McGovern-Dumet combination to the argued claim limitation
(deriving a comparison value from the current times). As discussed,
McGovern is cited as teaching a comparison of a trusted date/time value
("comparison value") and local date/time value. Dumet is cited as
suggesting derivation of a trusted date/time value from multiple date/time
values ("current times"). Failing to address the McGovern-Dumet
combination, Appellants' argument is unpersuasive. See In re Keller, 642
F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references.").
Appellants further argue: "[T]he Examiner is equating the
[McGovern's] 'system clock 1416' with 'the comparison value' of claim 1.
Note, however, that the system clock 1416 of McGovern is from a single
source[.]" App. Br. 8. For the above-stated reasons, this argument also fails
to address McGovern-Dumet combination and is therefore unpersuasive.
Accordingly, we sustain the Examiner's obviousness rejections of
claims 11, 12, 14, 18, 19, 21-24, and 27. Appellants make similar
arguments with respect to claims 13, 15, and 16.5 App. Br. 10-14. For the
5 We note that Appellants' arguments with respect to claims 13 and 15
incorporate arguments made with respect to claim 3 and 5 that are
incommensurate with the scope of claims 13 and 15. See App. Br. 10-11.
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Application 13/006,790
same reasons discussed above, we also sustain the Examiner's obviousness
rejection of these claims.
Claims 1-6, 9, 10, 17, 25, and 26 (Second Issue)
Each of claims 1-6, 9, 10, 17, 25, and 26 stands rejected as obvious
over McGovern, Ikezawa, Dumet, and Bauer (and further references for
some claims). Claims 1 and 25 are independent. Claims 2-6, 9, 10, 17, and
26 depend from claim 1. 6
As reflected by the second issue statement, supra, Appellants argue
Bauer does not suggest claim l's and claim 25 's following limitation:
deriving a comparison value from the current times by randomly selecting
one of the current times.
Bauer's invention reconfigures nodes of a mesh network when access
to centralized Internet Protocol (IP) services is lost. Bauer, abst. Bauer's
cited reconfiguration elects a Reported Node Time Server (RNTS);
particularly because the noted loss of access to IP services causes a
corresponding loss of the Internet's Network Time Protocol (NTP) service.
Id. at Abst.; ,-i,-i 28-33, 37. Any one of multiple criteria, including a random
process, can be used to make this election. Id. ,-i,-i 40, 49.
The Examiner finds Bauer's random selection of a RNTS node
teaches random selection of a date/time value, stating:
By disclosing that the RNTS node is randomly selected as the
master clock for updating their local clocks, the fact that RNTS
is being randomly selected as the master clock among other
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Application 13/006,790
nodes teaches randomly selecting one of the current times from
at least two or more other nodes and their corresponding times.
Ans. 4; see also Final Act. 7.
Appellants argue Bauer's random selection of a RNTS node does not
teach random selection of a date/time value for the claimed invention's
"comparison value" purposes, stating:
[Bauer's] election of one of the nodes as being the RNTS can be
based on a random selection of the nodes. Id., iJ [0049].
However, randomly electing one of the nodes as the RNTS, as
described in Bauer, is completely different from the subject
matter of claim 1. According to claim 1, a comparison value
(for comparing with a local current time) is derived from the
current times by randomly selecting one of the current times. In
contrast, Bauer relates to selecting one node as a master node to
serve as the RNTS; electing a node as an RNTS does not involve
deriving a comparison value from the current times (by selecting
one of the current times), where this comparison value is
compared with a local current time obtained from the local clock.
Reply Br. 5; see also App. Br. 9-10.
Appellants' arguments are unpersuasive because Bauer teaches or
suggests the random selection of a master time server (i.e., a source of time)
from among a plurality of nodes or sources of time. See Bauer iii! 30, 40,
and 49. Moreover, as discussed above, Appellants' arguments do not
persuasively show error in the Examiner's reliance on the combination of
Dumet and McGovern to teach or suggest the use of a time value from two
or more remote sources as a comparison value. Therefore, Appellants'
arguments regarding Bauer alone are unpersuasive of error.
Accordingly, we sustain the Examiner's obviousness rejection of
claim 1, and claims 2, 4, 6, 9, 10, 25, and 26, which Appellants do not argue
separately with persuasive specificity. Appellants make similar arguments
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Application 13/006,790
with respect to claims 3, 5, and 17. App. Br. 10-11 and 14-15. For the
same reasons discussed above, we also sustain the Examiner's obviousness
rejection of these claims.
DECISION
We affirm the Examiner's decisions rejecting claims 1-6, 9-19, and
21-27.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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