Ex Parte Rao et al

Board of Patent Appeals and Interferences

Feb 25, 2009

10115403 (B.P.A.I. Feb. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte RAGHAV RAO, MARC NIJDAM, and
RAVIKUMAR PISUPATI
____________________

Appeal 2008-2469
Application 10/115,403
Technology Center 2400
____________________

Decided:1 February 26, 2009
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Before ALLEN R. MACDONALD, ST. JOHN COURTENAY III, and
DEBRA K. STEPHENS, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2008-2469
Application 10/115,403

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a final rejection of
claims 1-24. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

Introduction
According to Appellants, the invention is a system and method for
maintaining an embedded network server (Abstract). Dynamic services may
be installed dynamically without disrupting the embedded network server
using a dynamic service loader (Abstract).

Exemplary Claim(s)
Claim 19 is an exemplary claim and is reproduced below:
19. A network server system, comprising:

a processor circuit having a processor and a memory; and
an embedded network server stored in the memory and executable by
the processor, the embedded network server comprising:

a network core including a dynamic engine loader;

a dynamic service loader;

logic that initiates the dynamic service loader to install a dynamic
service in the embedded network server in response to a service request to
install the dynamic service in the embedded network server; and
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logic that initiates the dynamic engine loader to install a dynamic
engine in the embedded network server in response to an engine request to
install the dynamic engine in the embedded network server, wherein the
dynamic engine provides an interface between the dynamic service and a
server core of the embedded network server without shutting down the
embedded network server, wherein said dynamic engine installation occurs
while substantially all static content and services remain available, and
further wherein the dynamic engine is configured to determine
whether at least one dynamic service is to be invoked based on the
service request.

Prior Art
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Fletcher US 6,009,274 Dec. 28, 1999
Kanojia US 2004/0181593 A1 Sep. 16, 2004
(filed Mar. 6, 2000)

Rejections
The Examiner rejected:
Claims 1-24 under 35 U.S.C. § 103(a) as being unpatentable over
Kanojia and Fletcher.

ISSUES
35 U.S.C. § 103(a): claims 1-24
Appellants assert their invention is not obvious over Kanojia and
Fletcher (Reply 6). Specifically, Appellants contend Kanojia does not teach
or suggest both a dynamic service loader that installs a dynamic service and
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a dynamic engine loader that installs a dynamic engine without shutting
down the embedded network so substantially all static content and services
remain available (App. Br. 9-14).
The Examiner contends that the system manager that interacts with
the system agent of Konojia functions as a dynamic engine loader and a
dynamic service loader to implement the scheduling and downloading of the
files (App. Br. 10).
Have Appellants met the burden of showing the Examiner erred in
finding Kanojia teaches both a dynamic service loader that installs a
dynamic service and a dynamic engine loader that installs a dynamic engine
in an embedded network server without shutting down the embedded
network so substantially all static content and services remain available?

FINDINGS OF FACT (FF)
Appellants’ Invention
(1) Appellants’ invention is related to installation of services in an
embedded network server includes a dynamic engine that acts as an interface
between a filter manager and respective dynamic services (Abstract and
Spec. 5, ll. 16-17).
(2) In response to a request received from an associated server or
another server, an engine loader may be executed to download and install a
new dynamic engine in the embedded network server (Spec. 6, ll. 19-28).
The dynamic engine is installed without interrupting or at least minimizing
the interruption of the operation of other components in the embedded
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network server including those providing static content (Spec. 6, l. 33 to
Spec. 7, l. 3).
(3) Static content may be a web page or other comparable content
served from an in memory file store or from a secondary storage memory
device in the embedded network server (Spec. 6, ll. 1-4 and Figure 2,
element 189).

Kanojia’s Invention
(4) Kanojia teaches a communication and management system that
dynamically targets network devices for content deployment (Abstract).
(5) The communication and management system includes a server
system includes a management console, a system manager and a bulk data
transfer manager and an embedded client system executing in a network
device includes a web browser, system agent and bulk data transfer agent
(pg. 3, ¶¶ [0055] - [0056]).

Fletcher’s Invention
(6) A method and systems automatically updates software
components in one or more end systems in a network (Abstract).
(7) Agent executable code is launched each time an end system is
started or rebooted (col. 7, ll. 10-12). The end system user is unaware of the
agent’s presence and can do nothing with regards to reconfiguring the end
system that would inadvertently disable the agent (col. 7, ll. 13-16).
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(8) All of the automatic software updating agent components are
dynamically loadable and unloadable; thus, they can be replaced in operation
without having to actually reboot the system (col. 9, ll. 11-16). System
configuration managers and service managers are used to dynamically
update NIC drivers and services while the network is in operation (i.e.,
without having to reboot) (col. 13, ll. 40-43).

PRINCIPLES OF LAW
Claim Construction
"Our analysis begins with construing the claim limitations at issue."
Ex Parte Filatov, No. 2006-1160, 2007 WL 1317144, at *2 (BPAI 2007).
"The Patent and Trademark Office (PTO) must consider all claim
limitations when determining patentability of an invention over the prior
art." In re Lowry, 32 F.3d 1579, 1582 (Fed. Cir. 1994) (citing In re Gulack,
703 F.2d 1381, 1385 (Fed. Cir. 1983)). "Claims must be read in view of the
specification, of which they are a part." Markman v. Westview Instruments,
Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (en banc). "[T]he PTO gives claims
their 'broadest reasonable interpretation.'" In re Bigio, 381 F.3d 1320, 1324
(Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)).
"Moreover, limitations are not to be read into the claims from the
specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993)
(citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)).

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Obviousness
Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection [under § 103] by showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).
In rejecting claims under 35 U.S.C. § 103, the Examiner bears the
initial burden of establishing a prima facie case of obviousness. In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). See also In re Piasecki, 745
F.2d 1468, 1472 (Fed. Cir. 1984). The Examiner can satisfy this burden by
showing some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness. KSR Int’l. v. Teleflex Inc., 127
S. Ct. 1727, 1741 (2007) (citing In re Kahn, 441 F.3d 977, 988 (C.A. Fed.
2006)). Only if this initial burden is met does the burden of coming forward
with evidence or argument shift to the Appellants. Oetiker, 977 F.2d at
1445. See also Piasecki, 745 F.2d at 1472.

ANALYSIS
35 U.S.C. §103(a): claims 1-24
Appellants’ invention includes the functionality of installing dynamic
engines in response to a request (FF 2 and claim 19 and analogous language
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in claims 1, 12, and 22). The dynamic engine loader installs a new dynamic
engine without or with minimally interrupting operation of providing static
content (FF 2).
The system agent of Konojia interacts with a system manager to send
and receive messages and implement scheduling of content deployment as
well as installation and activation of the content (FF 5). The Examiner
indicates the system manager of Kanojia is equivalent to the dynamic engine
loader that installs a dynamic engine that provides an interface between the
dynamic engine and a server core, such that the installation occurs while
substantially all static content and services remain available (Ans. 11-12).
Reviewing the record before us, we agree with Appellants’ contention
that Kanojia does not teach or suggest that the system manager is equivalent
to a dynamic engine loader or installs a dynamic engine while substantially
all static content and services remain available. Specifically, the Examiner
indicated the embedded client system of Kanojia is interpreted as the
embedded network server recited in claim 19 (Ans. 10). In Kanojia, the
system manager is part of the server system and the Examiner provides no
rationale or motivation for an element being moved from one part of the
system to the other.
Additionally, we find Fletcher does not teach or suggest installing a
dynamic engine while substantially all static content and services remain
available. Static content may be a web page or other comparable content
(FF 3). Fletcher does teach that software updating agent components can be
replaced in operation without having to actually reboot the system (FF 7 and
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8); however, we find Fletcher does not teach, suggest or disclose whether
static content and services are available. Therefore, we find the gap between
what Kanojia and Fletcher disclose, teach and suggest and the invention as
recited in claim 19 is uncomfortably wide and such gap cannot be bridged
with theories or speculation.
After considering the totality of the record before us, it is our view
that the weight of the evidence supports Appellants’ contention that the
Examiner has not shown a teaching or suggestion of installing a dynamic
engine while substantially all static content and services remain available.
For us to affirm the Examiner on this record would require speculation on
our part.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we find Appellants
have met the burden of showing the Examiner erred in concluding the
combination of Kanojia and Fletcher teaches installing a dynamic engine
while substantially all static content and services remain available as
claimed (see independent claim 19 and the equivalent limitations recited in
independent claims 1, 12, and 22). Because we have reversed the
Examiner’s rejection of each independent claim on appeal, we also reverse
the Examiner’s rejection of each dependent claim on appeal.

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DECISION
The Examiner’s rejection of claims 1-24 under 35 U.S.C. § 103(a) as
being obvious over Kanojia and Fletcher is reversed.

REVERSED

rwk

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