Ex Parte Wall et al

Patent Trial and Appeal Board

Oct 28, 2016

12010414 (P.T.A.B. Oct. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/010,414 01124/2008
293 7590 11/01/2016
DOWELL & DOWELL, P.C.
2560 HUNTINGTON A VE, SUITE 203
ALEXANDRIA, VA 22303
FIRST NAMED INVENTOR
John Wall
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.
16256 6167
EXAMINER
DA YE, CHELCIE L
ART UNIT PAPER NUMBER
2161
NOTIFICATION DATE DELIVERY MODE
11/01/2016 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):
DOWELL@DOWELLPC.COM
SDARRENKAMP@DOWELLPC.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN WALL, JOHN PAUL LOESER,
KHOA TRAN, and MARIUS DAN STROE
Appeal2014-004169
Application 12/010,414 1
Technology Center 2100
Before CAROLYN D. THOMAS, JASON V. MORGAN, and
DANIEL J. GALLIGAN, Administrative Patent Judges.
GALLIGAN, Administrative Patent Judge.
DECISION ON REQUEST FOR REHEARING
STATEMENT OF THE CASE
This is a decision on rehearing in Appeal No. 2014-004169. We have
jurisdiction under 35 U.S.C. § 6(b ).
1 The Appeal Brief identifies SYMCOR, Inc. as the real party in interest.
App. Br. 2.
Appeal2014-004169
Application 12/010,414
ANALYSIS
On rehearing, Appellants argue ( 1) that our Decision contains an
undesignated new ground of rejection (Req. Reh'g 2-7) and (2) that our
Decision "misapprehended or overlooked the failure of the combination of
Luniewski, Bourbonnais, and Bhatia to disclose the features of' the
independent claims (Req. Reh'g 7-10).
For the reasons that follow, we disagree with Appellants' contentions
and deny rehearing.
Alleged New Grounds
Appellants contend our Decision "relie[d] on different reasoning and
new fact finding," changed "the thrust of the rejection of claim 1," and
"deprived the Appellant of both notice and an opportunity to respond." Req.
Reh' g 3. Appellants argue our Decision "quot[ ed] from portions of
Bourbonnais not relied upon or even cited by the Examiner" and made new
fact finding that is contrary to the Examiner's reasoning in the rejection.
Req. Reh'g 5---6. We disagree.
First, as we noted in our Decision, the Examiner relied upon the
commit protocol of Bourbonnais in rejecting claim 1. Dec. 4 (quoting
Bourbonnais, col. 8, 11. 4--7). Appellants acknowledge the Examiner relied
on this teaching of Bourbonnais. See Req. Reh'g 4 ("In formulating the
rejection, the Examiner cited Bourbonnais, and in particular, Fig. 13; col. 16,
lines 8-21; and col. 8, lines 4--7 of Bourbonnais as disclosing the
aforementioned feature of claim 1. "). Our Decision then cited the very next
paragraph of Bourbonnais, which describes "a two-phase commit in
accordance with certain implementations of the invention." Dec. 4 (citing
Bourbonnais, col. 8, 11. 8-33). Thus, consistent with the Examiner's
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Appeal2014-004169
Application 12/010,414
findings, we relied upon the teachings of Bourbonnais with respect to the
commit procedure.
Second, we disagree that our Decision made a new fact finding that is
contrary to the Examiner's reasoning. Rather, our Decision explained why
Appellants' arguments were unpersuasive of error. In particular, as we
pointed out in the Decision, Appellants argued that "it is simply impossible
to determine from Bourbonnais' s log whether there are any additional
transactions that need to be completed, and thus impossible to determine
whether all records are up-to-date." Reply Br. 3; see Dec. 5. Thus, the
focus of Appellants' arguments was on the logs in Bourbonnais. Consistent
with this, we interpreted the disputed limitation and explained that "[t]he
teachings of Bourbonnais demonstrate the use of commit log entries to
indicate records that need to be updated, which falls within the scope of the
claimed 'indicator."' Dec. 5.
Our explanation why Appellants' assertion of error was incorrect was
not a new ground of rejection.
Reconsideration of the Rejection
Appellants contend our Decision "overlooked" the language of
claim 1 reciting "as a change in said database is propagated to each copy of
said database in said plurality of federated database systems." Req. Reh' g
7-8. We disagree. In the final rejection, the Examiner relied on paragraph
34 of Luniewski, in combination with Bourbonnais and Bhatia, to teach this
particular subject matter recited in claim 1. Final Act. 4. On appeal,
Appellants did not present substantive arguments persuasive of Examiner
error regarding the aforementioned disputed limitation. Rather, this claim
language was merely included in a block quote of a longer claim limitation,
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Application 12/010,414
but Appellants did not specifically address why the Examiner's reliance on
the cited portion of Luniewski was in error as to this claimed subject matter.
See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the
Board reasonably interpreted Rule 41.37 to require more substantive
arguments in an appeal brief than a mere recitation of the claim elements and
a naked assertion that the corresponding elements were not found in the
prior art."); cf In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir.
1991) ("It is not the function of this court to examine the claims in greater
detail than argued by an Appellant, looking for nonobvious distinctions over
the prior art.").
Appellants further contend:
[T]he commit log of the coordinator, at best, only provides an
indicator indicating whether all records in a given logical
partition have been updated to reflect changes to records in said
database that are stored in said given logical partition in the small
window immediately after the commit and before messages have
been sent to the subordinate nodes indicating they should
commit. Outside that small window, the posited indicator of the
entry in the commit log of the coordinator simply does not
provide the required indication as resort to the commit logs of
the subordinate nodes would be required.
Conspicuously, however, that small window does not
encompass the period where "a change in said database is
propagated to each copy of said database in said plurality of
federated database systems" as required by claim 1.
Req. Reh'g. 9.
On appeal, Appellants did not argue that the claimed "indicator" must
be present for a minimum period of time, and the claim recites no such
requirement. Rather, claim 1 recites "as a change in said database is
propagated to each copy of said database in said plurality of federated
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Application 12/010,414
database systems." The commit procedure of Bourbonnais describes data
indicating the status of data updates at different nodes as updates are
propagated to those nodes. For example, Bourbonnais discloses:
Subordinate nodes B 620 and C 630 record subordinate Prepare
to Commit log entries, prepare to commit, and respond to
coordinator node A 610. Then, coordinator node A 610 commits
changes made by transaction 600, records a coordinator Commit
log entry, and notifies subordinate nodes B 620 and C 630 that it
has committed. Subordinate nodes B 620 and C 630 commit.
Bourbonnais, col. 8, 11. 23-29. Therefore, Bourbonnais discloses the
coordinator node contains indicators for itself and subordinate nodes
indicating whether records in those nodes are updated during propagation of
data.
CONCLUSION
Nothing in Appellants' request has persuaded us that we have
overlooked or misapprehended any matters or that we made a new ground of
rejection so as to warrant the relief requested. Accordingly, we deny the
request.
DECISION
Appellants' Rehearing Request is denied.
REHEARING DENIED
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