UNITED STA IBS p A IBNT AND TRADEMARK OFFICE
`
`UNITED STA TES 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.
`
`95/001,926
`
`03/02/2012
`
`7161506.
`
`20132.0005.RX506
`
`5983
`
`08/16/2013
`7590
`26111
`SIBRNE, KESSLER, GOLDSIBIN & FOX P.L.L.C.
`1100 NEW YORK AVENUE, N.W.
`WASHINGTON, DC 20005
`
`EXAMINER
`
`LEUNG, CHRISTINA Y
`
`ART UNIT
`
`PAPER NUMBER
`
`3992
`
`MAILDATE
`
`DELIVERY MODE
`
`08/16/2013
`
`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)
`
`NetApp; Rackspace Exhibit 1010 Page 1
`
`

`

`Transmittal of Communication to
`Third Party Requester
`Inter Partes Reexamination
`
`Control No.
`
`95/001,926
`Examiner
`
`Patent Under Reexamination
`
`7161506
`Art Unit
`
`3992
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address. --
`
`Christina Y. Leuna
`
`r-1 - - (THIRD PARTY REQUESTER'S CORRESPONDENCE ADDRESS) ----.I
`
`NOVAK DRUCE +QUIGG LLP 2No REEXAM GROUP
`1000 LOUISIANA STREET
`FIFTY-THIRD FLOOR
`HOUSTON, TX 77002
`
`Enclosed is a copy of the latest communication from the United States Patent and Trademark Office
`in the above-identified reexamination prceeding. 37 CFR 1.903.
`
`Prior to the filing of a Notice of Appeal, each time the patent owner responds to this communication,
`the third party requester of the inter partes reexamination may once file written comments within a
`period of 30 days from the date of service of the patent owner's response. This 30-day time period is
`statutory (35 U.S.C. 314(b)(2)), and, as such, it cannot be extended. See also 37 CFR 1.947.
`
`If an ex parte reexamination has been merged with the inter partes reexamination, no responsive
`submission by any ex parte third party requester is permitted.
`
`All correspondence relating to this inter partes reexamination proceeding should be directed to the
`Central Reexamination Unit at the mail, FAX, or hand-carry addresses given at the end of the
`communication enclosed with this transmittal.
`
`U.S. Patent and Trademark Office
`PTOL-2070 (Rev. 07-04)
`
`PaperNo.20130603
`
`NetApp; Rackspace Exhibit 1010 Page 2
`
`

`

`Right of Appeal Notice
`(37 CFR 1.953)
`
`Control No.
`
`95/001,926
`Examiner
`
`Patent Under Reexamination
`
`7161506
`Art Unit
`
`3992
`Christina Y. Leung
`-- The MAILING DA TE of this communication appears on the cover sheet with the correspondence address. --
`
`Responsive to the communication(s) filed by:
`Patent Owner on 05 April, 2013
`Third Party(ies) on __
`
`Patent owner and/or third party requester(s) may file a notice of appeal with respect to any adverse decision
`with payment of the fee set forth in 37 CFR 41.20(b)(1) within one-month or thirty-days (whichever is
`longer). See MPEP 2671. In addition, a party may file a notice of cross appeal and pay the 37 CFR
`41.20(b)(1) fee within fourteen days of service of an opposing party's timely filed notice of appeal. See
`MPEP 2672.
`
`All correspondence relating to this inter partes reexamination proceeding should be directed to the Central
`Reexamination Unit at the mail, FAX, or hand-carry addresses given at the end of this Office action.
`
`If no party timely files a notice of appeal, prosecution on the merits of this reexamination proceeding will be
`concluded, and the Director of the USPTO will proceed to issue and publish a certificate under 37 CFR 1.997 in
`accordance with this Office action.
`
`The proposed amendment filed 05 April, 2013
`
`[8J will be entered
`
`D will not be entered*
`
`*Reasons for non-entry are given in the body of this notice.
`
`1 a. [8J Claims 91,97 and 99-105 are subject to reexamination.
`1 b. [8J Claims See Continuation Sheet are not subject to reexamination.
`[8J Claims See Continuation Sheet have been cancelled.
`2.
`3. D Claims __ are confirmed. [Unamended patent claims].
`[8J Claims 91,97 and 99-105 are patentable. [Amended or new claims].
`4.
`5. D Claims __ are rejected.
`6. D Claims __ are objected to.
`7. D The drawings filed on __ D are acceptable. D are not acceptable.
`8. D The drawing correction request filed on __ is D approved. D disapproved.
`9. D Acknowledgment is made of the claim for priority under 35 U.S.C. 119 (a)-(d) or (f). The certified copy
`has:
`D been received.
`10.D Other __
`
`D been filed in Application/Control No. __ .
`
`D not been received.
`
`Attachments
`1. D Notice of References Cited by Examiner, PT0-892
`2. D Information Disclosure Citation, PTO/SB/08
`3. D - -
`
`U.S. Patent and Trademark Office
`PTOL-2066 (08-06)
`
`Right of Appeal Notice (37 CFR 1.953)
`
`Part of Paper No. 20130603
`
`NetApp; Rackspace Exhibit 1010 Page 3
`
`

`

`Continuation Sheet (PTOL-2066)
`
`Control No. 95/001,926
`
`Continuation of 1 b. Claims not subject to reexamination are: 10, 12-15, 18, 19,24-26,28-38,40,44-68,74-78,80,83
`and 92-95.
`Continuation of 2. Claims have been canceled are: 1-5,8,9, 11, 17,20-23,27,39,43,69-73,79,81,82,84-90,96 and 98.
`
`2
`
`NetApp; Rackspace Exhibit 1010 Page 4
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 2
`
`DETAILED ACTION
`
`Reexamination
`
`1.
`
`Claims 91, 97, 99-105 of Fallon (US 7,161,506 B2) are being reexamined. Claims 1-5,
`
`8, 9, 11, 17, 20-23, 27, 39, 43, 69-73, 79, 81, 82, 84-90, 96, and 98 were canceled at the
`
`conclusion of previous reexamination 95/000,479. Claims 10, 12-15, 18, 19, 24-26, 28-38, 40,
`
`44-68, 74-78, 80, 83, and 92-95 are not subject to reexamination.
`
`2.
`
`Patent Owner's response, including amendments to claims 91, 97, 99-105, filed 05 April
`
`2013 to the Action Closing Prosecution mailed 05 March 2013, is acknowledged and entered.
`
`Third-Party Requester did not timely file a response.
`
`References and Documents Cited in this Action
`
`Fallon (US 7,161,506 B2)
`
`Sebastian (US 6,253,264 Bl)
`
`Kawashima (US 5,805,932 A)
`
`Franaszek (US 5,870,036 A)
`
`PO Response (response to the ACP filed by Patent Owner on 05 April 2013)
`
`Patentable Claims
`
`3.
`
`Claims 91, 97, 99-105 are patentable. In view of PO Response, the rejections of the
`
`claims are withdrawn and no longer adopted. The prior art of record, including Sebastian,
`
`Franaszek, and Kawashima, does not specifically disclose or fairly teach a method including all
`
`of the limitations and steps recited in claims 91, 97, 99-105, particularly including analyzing data
`
`within the data block to identify one or more data types of the data with the data block, wherein
`
`the analyzing of the data within the data block to identify one or more data types excludes
`
`NetApp; Rackspace Exhibit 1010 Page 5
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 3
`
`analyzing based only on a descriptor that is indicative of the data type of the data within the data
`
`block.
`
`4.
`
`PO's amendment has also overcome the previous 35 U.S.C. 112 rejections of claims 100-
`
`105, and Examiner finds support for amended claims 91, 97, 99-105 in Fallon. These sections of
`
`Fallon specification describe analyzing data within the data block to identify one or more data
`
`types of the data with the data block, wherein the analyzing of the data within the data block to
`
`identify one or more data types excludes analyzing based only on a descriptor that is indicative
`
`of the data type of the data within the data block:
`
`"In another aspect, the step of analyzing the data block comprises analyzing the data
`block to recognize one of a data type, data structure, data block format, file substructure, and/or
`file types. A further step comprises maintaining an association between encoder types and data
`types, data structures, data block formats, file substructure, and/or file types." (column 4, lines
`39-45)
`
`"A content dependent data recognition module 1300 analyzes the incoming data stream to
`recognize data types, data structures, data block formats, file substructures, file types, and/or any
`other parameters that may be indicative of either the data type/content of a given data block or
`the appropriate data compression algorithm or algorithms (in serial or in parallel) to be applied.
`Optionally, a data file recognition list(s) or algorithm(s) 1310 module may be employed to hold
`and/or determine associations between recognized data parameters and appropriate algorithms.
`Each data block that is recognized by the content data compression module 1300 is routed to a
`content dependent encoder module 1320, if not the data is routed to the content independent
`encoder module 30." (column 16, lines 29-42)
`
`"More specifically, a content dependent data recognition and or estimation module 1700
`is utilized to analyze the incoming data stream for recognition of data types, data structures, data
`block formats, file substructures, file types, or any other parameters that may be indicative of
`the appropriate data compression algorithm or algorithms (in serial or in parallel) to be applied.
`Optionally, a data file recognition list(s) or algorithm(s) 1710 module may be employed to hold
`associations between recognized data parameters and appropriate algorithms. If the content data
`compression module recognizes a portion of the data, that portion is routed to the content
`dependent encoder module 1320, if not the data is routed to the content independent encoder
`module 30. It is to be appreciated that process of recognition (modules 1700 and 1710) is not
`limited to a deterministic recognition, but may further comprise a probabilistic estimation of
`which encoders to select for compression from the set of encoders of the content dependent
`module 1320 or the content independent module 30. For example, a method may be employed to
`
`NetApp; Rackspace Exhibit 1010 Page 6
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 4
`
`compute statistics of a data block whereby a determination that the locality of repetition of
`characters in a data stream is determined is high can suggest a text document, which may be
`beneficially compressed with a lossless dictionary type algorithm. Further the statistics of
`repeated characters and relative frequencies may suggest a specific type of dictionary algorithm.
`Long strings will require a wide dictionary file while a wide diversity of strings may suggest a
`deep dictionary. Statistics may also be utilized in algorithms such as Huffman where various
`character statistics will dictate the choice of different Huffman compression tables. This
`technique is not limited to lossless algorithms but may be widely employed with lossy
`algorithms. Header information in frames for video files can imply a specific data resolution. The
`estimator then may select the appropriate lossy compression algorithm and compression
`parameters (amount of resolution desired). As shown in previous embodiments of the present
`invention, desirability of various algorithms and now associated resolutions with lossy type
`algorithms may also be applied in the estimation selection process." (column 23, lines 28-67)
`
`5.
`
`Sebastian does not specifically disclose or fairly teach analyzing data with the data block
`
`to identify one or more data types of data within the data block, wherein the analyzing of the data
`
`within the data block to identify one or more data types excludes analyzing based only on a
`
`descriptor that is indicative of the data type of data within the data block. Specifically, with
`
`respect to determining a data type of a data block, Sebastian discloses
`
`"The selection criteria 12x, determined by the file format specification, includes
`information needed to recognize files served by the filter lOx such as byte values at the
`beginning of the file or file title suffices [sic]." (column 4, lines 47-50).
`
`Although Sebastian discloses determining a data type of a data block, Sebastian
`
`specifically discloses that the data types are recognized by included information such as "byte
`
`values at the beginning of the file or file title suffi[ xes] ." In other words, Sebastian discloses
`
`determining a data type based on examining a data type descriptor associated with the data block.
`
`6.
`
`Franaszek does not specifically disclose or fairly teach analyzing data with the data
`
`block to identify one or more data types of data within the data block, wherein the analyzing of
`
`the data within the data block to identify one or more data types excludes analyzing based only
`
`NetApp; Rackspace Exhibit 1010 Page 7
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 5
`
`on a descriptor that is indicative of the data type of data within the data block. Specifically, with
`
`respect to determining a data type of a data block, Franaszek discloses
`
`"In this embodiment, the uncompressed data blocks 210 that can optionally contain type
`information 205. The type information can be, for examples, image data encoded in a given
`format, source code for a given programming language, etc." (column 4, lines 30-34).
`
`"In step 414, it is determined if a data type is available (i.e., the block includes a 'data
`type' entry in the type field 205)" (column 6, lines 1-2).
`
`Although Franaszek discloses determining a data type of a data block, Franaszek
`
`specifically discloses that the data blocks "contain type information" or that the block "includes a
`
`'data type' entry." In other words, Franaszek discloses determining a data type based on
`
`examining a data type descriptor associated with the data block.
`
`7.
`
`Kawashima does not specifically disclose or fairly teach analyzing data with the data
`
`block to identify one or more data types of data within the data block, wherein the analyzing of
`
`the data within the data block to identify one or more data types excludes analyzing based only
`
`on a descriptor that is indicative of the data type of data within the data block. Specifically, with
`
`respect to determining a data type of a data block, Kawashima discloses
`
`"For transmitting data, it is customary to add a header containing information which
`represents the type of the data, the data length, etc. to the beginning of the data" (column 28,
`lines 52-55)
`
`"The type of data contained in the header of pre-compression data transferred from the
`data source 2 is referred to ... " (column 36, lines 23-25)
`
`Although Kawashima discloses determining a data type of a data block, Kawashima
`
`discloses determining a data type based on examining a data type descriptor associated with the
`
`data block.
`
`NetApp; Rackspace Exhibit 1010 Page 8
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 6
`
`Conclusion
`
`8.
`
`This is a RIGHT OF APPEAL NOTICE (RAN); see MPEP § 2673.02 and§ 2674. The
`
`decision in this Office action as to the patentability or unpatentability of any original patent
`
`claim, any proposed amended claim and any new claim in this proceeding is a FINAL
`
`DECISION.
`
`No amendment can be made in response to the Right of Appeal Notice in an inter partes
`
`reexamination. 37 CPR l.953(c). Further, no affidavit or other evidence can be submitted in an
`
`inter partes reexamination proceeding after the right of appeal notice, except as provided in 37
`
`CPR 1.981 or as permitted by 37 CPR 41.77(b)(l). 37 CPR l.116(f).
`
`Each party has a thirty-day or one-month time period, whichever is longer, to file a
`
`notice of appeal. The patent owner may appeal to the Board of Patent Appeals and Interferences
`
`with respect to any decision adverse to the patentability of any original or proposed amended or
`
`new claim of the patent by filing a notice of appeal and paying the fee set forth in 37 CPR
`
`41.20(b)(l). The third party requester may appeal to the Board of Patent Appeals and
`
`Interferences with respect to any decision favorable to the patentability of any original or
`
`proposed amended or new claim of the patent by filing a notice of appeal and paying the fee set
`
`forth in 37 CPR 41.20(b)(l).
`
`In addition, a patent owner who has not filed a notice of appeal may file a notice of cross
`
`appeal within fourteen days of service of a third party requester's timely filed notice of appeal
`
`and pay the fee set forth in 37 CPR 41.20(b)(l). A third party requester who has not filed a
`
`notice of appeal may file a notice of cross appeal within fourteen days of service of a patent
`
`owner's timely filed notice of appeal and pay the fee set forth in 3 7 CFR 4 l.20(b )(1 ).
`
`NetApp; Rackspace Exhibit 1010 Page 9
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 7
`
`Any appeal in this proceeding must identify the claim(s) appealed, and must be signed by
`
`the patent owner (for a patent owner appeal) or the third party requester (for a third party
`
`requester appeal), or their duly authorized attorney or agent.
`
`Any party that does not file a timely notice of appeal or a timely notice of cross appeal
`
`will lose the right to appeal from any decision adverse to that party, but will not lose the right to
`
`file a respondent brief and fee where it is appropriate for that party to do so. If no party files a
`
`timely appeal, the reexamination prosecution will be terminated, and the Director will proceed to
`
`issue and publish a certificate under 37 CPR 1.997 in accordance with this Office action.
`
`9.
`
`All correspondence relating to this inter partes reexamination proceeding should be
`
`directed:
`
`By mail to:
`
`By fax to:
`
`By hand to:
`
`Mail Stop Inter Partes Reexam
`Attn: Central Reexamination Unit
`Commissioner of Patents
`United States Patent & Trademark Office
`P.O. Box 1450
`Alexandria, VA 22313-1450
`
`(571) 273-9900
`Central Reexamination Unit
`
`Customer Service Window
`Randolph Building
`401 Dulany St.
`Alexandria, VA 22314
`
`Any inquiry concerning this communication or earlier communications from the
`
`examiner, or as to the status of this proceeding, should be directed to the Central Reexamination
`
`Unit at telephone number (571) 272-7705.
`
`/Christina Y. Leung/
`
`Primary Examiner, Art Unit 3992
`
`NetApp; Rackspace Exhibit 1010 Page 10
`
`

`

`Application/Control Number: 95/001,926
`Art Unit: 3992
`
`Page 8
`
`Conferees:
`
`/D.M.H./, PE AU3992
`
`/Sudhanshu C Pathak/
`
`Supervisory Patent Examiner, Art Unit 3992
`
`NetApp; Rackspace Exhibit 1010 Page 11
`
`