Gupta, Karan et al.

Patent Trials and Appeals Board

Jan 30, 2020

14969574 - (D) (P.T.A.B. Jan. 30, 2020)

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.
14/969,574 12/15/2015 Karan Gupta ARC920110026US3 1098
84374 7590 01/30/2020
LIEBERMAN & BRANDSDORFER, LLC
802 STILL CREEK LANE
GAITHERSBURG, MD 20878
EXAMINER
TRUONG, DENNIS
ART UNIT PAPER NUMBER
2152
MAIL DATE DELIVERY MODE
01/30/2020 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 KARAN GUPTA, MANOJ P. NAIK,
FRANK B. SCHMUCK, MANSI A. SHAH, and RENU TEWARI1
_____________

Appeal 2019-000446
Application 14/969,574
Technology Center 2100
______________

Before ERIC S. FRAHM, JOHN A. EVANS, and STEPHEN E. BELISLE,
Administrative Patent Judges.

EVANS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Jurisdiction.
Claims 1–20, all claims in the application, stand rejected, are
appealed, and are the subject of our Decision under 35 U.S.C. § 134(a).
Appeal Br. 5. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicants” as defined in
37 C.F.R. § 1.42(a). The Appeal Brief identifies International Business
Machines Corporation as the real party in interest. Appeal Br. 3.
Appeal 2019-000446
Application 14/969,574
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Related Appeals.
Appellant states there are no related appeals or interferences. Appeal.
Br. 4.
Summary of the Invention.
The invention is directed to a method of synchronization of data in a
shared pool of configurable computer resources. See Abstract.
Claims.
Claims 1, 9, and 16 are independent. Claim 1 is illustrative of the
invention and is reproduced below with formatting added for clarity:
1. A method comprising:
creating one or more consistency points in a source
filesystem, including creating a first consistency point at a first
point-in-time and a second consistency point at a second point-
in-time,
wherein each consistency point represents
filesystem data and metadata at a point-in-time to
establish a recovery point, and
wherein the first consistency point and the second
consistency point are any two consistency points;
detecting a directory change at the source filesystem,
including comparing the first consistency point with the second
consistency point and identifying at least one difference
between the first and second consistency points based on the
comparison; and
communicating the detected directory change to a target
filesystem including:
identifying a file level change-associated with a
target filesystem directory based on the detected
directory change and a mapping between the source and
target filesystems; and
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updating the target filesystem directory based on the file
level change.

REJECTIONS2 AT ISSUE3
References.
Name Publication Number Date
Karmarkar US 7,809,691 B1 Oct. 5, 2010
Zheng US 8,200,638 B1 June 12, 2012
Federwisch US 2003/0182313 A1 Sept. 25, 2003
Carmel US 2013/0036214 A1 Feb. 7, 2013

Rejections.
1. Claims 1, 2, 4, 9, 10, 12, 16, 17, and 19 stand rejected on the ground
of nonstatutory double patenting over claims 1, 10, and 12 of U.S.
Patent No. 9,235,594 B2.4 Final Act. 4. Withdrawn. Ans. 3.
2. Claims 1–3, 6, 7, 9–11, 13, 14, and 16–18 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as obvious over Zheng, Federwisch, and
Carmel. Final Act. 7–13.

2 The Application is being examined under the pre-AIA first to invent
provisions. Final Act. 2.
3 Throughout this Decision, we refer to the Appeal Brief (“Appeal Br.”) filed
May 29, 2018, the Reply Brief (“Reply Br.”) filed October 23, 2018, the
Final Office Action (“Final Act.”) mailed December 29, 2017, the
Examiner’s Answer (“Ans.”) mailed August 24, 2018, and the Specification
(“Spec.”) filed December 15, 2015.
4 The Examiner has withdrawn the present double patenting rejection.
Ans. 3.
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3. Claims 4, 5, 12, and 19 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Zheng, Federwisch, Carmel, and Karmarkar.
Final Act. 13–14.
4. Claims 8, 15, and 20 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as obvious over Zheng, Federwisch, Carmel, and Karmarkar. Final
Act. 15.

ANALYSIS
Overview.
We have reviewed Appellant’s arguments in the Briefs, the
Examiner’s rejection, and the Examiner’s response to Appellant’s
arguments. Appellant’s arguments have persuaded us of error in the
Examiner’s obviousness rejection of Claims 1–20.

CLAIMS 1–3, 6, 7, 9–11, 13, 14, and 16–18: OBVIOUSNESS OVER ZHENG,
FEDERWISCH, AND CARMEL.
Appellant argues these claims as a group in view of the limitations of
Claim 1. Appeal Br. 24. Independent claims 9 and 16 are apparatus claims,
and recite limitations commensurate with the limitations disputed as to
method claim 1. Therefore, we decide the appeal of these claims on the
basis of illustrative Claim 1 and refer to the rejected claims collectively
herein as “the claims.” See 37 C.F.R. § 41.37(c)(1)(iv); In re King, 801 F.2d
1324, 1325 (Fed. Cir. 1986).
Consistency points.
Claim 1 recites, inter alia, “identifying at least one difference between
the first and second consistency points.” Appellant discloses: “Each
consistency point represents filesystem data and metadata at a point-in-time
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to establish a recovery point, and the first and second consistency points are
any two consistency points. The first consistency point is compared with the
second consistency point to detect a directory change at the source
filesystem.” Spec., ¶ 5.
The Examiner finds Zheng discloses consistency points, but not in the
claimed context. Final Act. 8. The Examiner find the deficiency of Zheng is
remedied by Carmel’s teaching of:
[a] “comparing between any two topological snapshots” [and
[b]] “[a] user may select two snapshots to compare, e.g. by
making a selection in a first snapshot field (‘latest’ snapshot
602) and in a second snapshot field (data field 604). In some
embodiments the user may move forward or backward in the
date field by clicking on arrows 606.
Final Act. 9–10 (citing Carmel, ¶ 23, [a]; and ¶ 30, [b]). The Examiner finds
the snapshots selected in the first and second snapshot field are any
snapshots, where the forward and backwards arrows further allow the user to
select any snapshots. Id.
Appellant contends the consistency points, as claimed and supported
in the Specification, are directed at filesystem data and metadata. Appeal
Br. 14 (citing n.20) (Claim 1, ll. 4–5; Spec., ¶ 40, ll. 3–7: “wherein each
consistency point represents filesystem data and metadata at a point-in-time
to establish a recovery point”). Appellant argues the snapshot, taught by
Carmel, relates to the physical topology of the computer system, including
high-level attributes, such as the operating system and application software.
Id. Appellant argues Carmel is directed to a physical topology, but fails to
teach filesystem data and metadata. Id.
Regarding the consistency limitation, the Examiner finds each of
Zheng and Carmel provides the required teachings. Ans. 4. The Examiner
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finds: “Zheng discloses, ‘backup image 601 stores the entire data blocks of
snapshot SS.sub.1, the difference (shown in FIGS. 6A and 6B as ‘diff’)
between SS.sub.2 and SS.sub.1, and the difference between SS.sub.3 and
SS.sub.2.[’]” Ans. 4. The Examiner further finds “Zheng teaches
identifying changes between ‘any two consistency points’ where any two
consistency points is interpreted as two different snapshots, regardless of
whether they are successive or adjacent.” Ans. 5. The Examiner also finds
Carmel discloses “comparing between any two topological snapshots.” Id.
Appellant contends the Examiner and Appellant agree that Zheng
does not teach or suggest Appellant’s claim recitation: “wherein the first
consistency point and the second consistency point are any two consistency
points.” Reply Br. 2 (quoting Final Action, dated May 22, 2017).
In Final Actions dated May 22, 2017 and December 29, 2017, the
Examiner finds Zheng does not teach consistency points, as claimed, but in
the Answer, the Examiner now finds Zheng so teaches. Ans. 4. The
Examiner has made “contradictory findings of technological facts based on
shifting perceptions of the prior art” upon which we may not rely. In re
Vaidyanathan, 381 F. App’x 985, 991 (Fed. Cir. 2010) (citing Universal
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951) (“[t]he agency’s
contradictory findings of technological facts based on shifting perceptions of
the prior art impeach the deference normally owed to administrative findings
of fact.”). We, therefore, decline to find Zheng teaches the claimed
consistency points.
Appellant discloses each “consistency point represents filesystem data
and metadata at a point-in-time to establish a recovery point, and the first
and second consistency points are any two consistency points.” Spec., ¶ 5.
In contrast, Carmel teaches a system which “may include a crawler
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application that constantly, periodically or otherwise, searches an
organization network to collect snapshots of the configuration status of its
composite Cls.” Carmel, ¶ 29. Carmel further discloses: “[A] server may be
regarded as a composite Cl, and it may include a root computer system
object which may be related to various other items, such as hardware
components, an operating system, software, and networking elements.”
Carmel, ¶ 13. We find no disclosure in Carmel, nor does the Examiner so
direct our attention, that teaches “represents filesystem data and metadata at
a point-in-time to establish a recovery point,” as Appellant discloses and
claims.
In view of the foregoing, we decline to sustain the rejection of Claims
1–3, 6, 7, 9–11, 13, 14, and 16–18.
CLAIMS 4, 5, 8, 12, 15, 19, and 20: OBVIOUSNESS OVER
ZHENG, FEDERWISCH, CARMEL, AND KARMAKAR.
Appellant contends Karmakar does not complete the teachings of the
claimed consistency points. Appeal Br. 33–35. The Examiner does not
apply Karmakar to this limitation. See Answer.
In view of the foregoing, we decline to sustain the rejection of Claims
4, 5, 8, 12, 15, 19, and 20.

CONCLUSION

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 7,
9–11, 13,
14, 16–18
103(a) Zheng,
Federwisch,
Carmel
1–3, 6, 7,
9–11, 13,
14, 16–18
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4, 5, 12, 19 103(a) Zheng,
Federwisch,
Carmel, Karmakar
4, 5, 12, 19
8, 15, 20 103(a) Zheng,
Federwisch,
Carmel, Karmakar
8, 15, 20
Overall
Outcome
1–20

REVERSED