11085757 (B.P.A.I. Jun. 29, 2009)

Ex Parte Culter

Board of Patent Appeals and InterferencesJun 29, 2009

11085757 (B.P.A.I. Jun. 29, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte BRADLEY GORDON CULTER ____________ Appeal 2009-009456 Application 11/085,7571 Technology Center 2100 ____________ Decided: 2 June 29, 2009 ____________ Before HOWARD B. BLANKENSHIP, ST. JOHN COURTENAY III, and CAROLYN D. THOMAS, Administrative Patent Judges. C. THOMAS, Administrative Patent Judge. DECISION ON APPEAL 1 Application filed March 21, 2005. The real party in interest is Hewlett- Packard Development Company, LP. 2 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 CFR § 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 2009-009456 Application 11/085,757 2 I. STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of claims 1-5, 7, and 11-20 mailed July 2, 2008, which are all the claims remaining in the application, as claims 6, 8-10, and 21 are cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. A. INVENTION Appellant invented a system and method that includes a first operating system (O.S.) instance and a second O.S. instance, a hardware component, a shared hardware proxy, and a shared hardware protocol interface configured with the shared hardware proxy to enable sharing of the hardware component between the first O.S. instance and the second O.S. instance. (Spec. 44, Abstract.) B. ILLUSTRATIVE CLAIM The appeal contains claims 1-5, 7, and 11-20. Claims 1, 7, and 13 are independent claims. Claim 1 is illustrative: 1. A soft partitioning method, comprising: instantiating a first operating system (O.S.) instance and a second O.S. instance in a first soft partition and a second soft partition, respectively; and sharing hardware resources between the first O.S. instance and the second O.S. instance, the sharing enabled by a random access memory (RAM)-based, shared hardware protocol interface in conjunction with a shared hardware proxy residing in at least one of the O.S. instances, the shared hardware protocol interface Appeal 2009-009456 Application 11/085,757 3 communicating with the shared hardware proxy using an extended firmware interface (EFI) protocol. C. REFERENCE The sole reference relied upon by the Examiner as evidence in rejecting the claims on appeal is as follows: Cepulis US 2003/0115443 A1 Jun. 19, 2003 D. REJECTION The Examiner entered the following rejection which is before us for review: Claims 1-5, 7, and 11-20 are rejected under 35 U.S.C. § 102(b) as being anticipated by Cepulis. II. PROSECUTION HISTORY Appellant appealed from the Final Rejection and filed an Appeal Brief (App. Br.) on November 26, 2008. The Examiner mailed an Examiner’s Answer (Ans.) on January 21, 2009. Appellant filed a Reply Brief (Reply Br.) on March 11, 2009. III. FINDINGS OF FACT The following findings of fact (FF) are supported by a preponderance of the evidence. Cepulis 1. Cepulis discloses that “[r]esource group 128 may comprise a variety of system and processor resources, such as boot services 132, run- time services 134, ACPI(0) tables 136, SST(0) tables . . .” (4: ¶ [0029]). Appeal 2009-009456 Application 11/085,757 4 2. Cepulis discloses that “the interface 14 embodies an extensible firmware interface (“EFI”) for logical partitioning” (4:¶ [0028]). IV. PRINCIPLES OF LAW In rejecting claims under 35 U.S.C. § 102, “[a] single prior art reference that discloses, either expressly or inherently, each limitation of a claim invalidates that claim by anticipation.” Perricone v. Medicis Pharmaceutical Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005), citing Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976 F.2d 1559, 1565 (Fed. Cir. 1992). “Anticipation of a patent claim requires a finding that the claim at issue ‘reads on’ a prior art reference.” Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir. 1999) (“In other words, if granting patent protection on the disputed claim would allow the patentee to exclude the public from practicing the prior art, then that claim is anticipated, regardless of whether it also covers subject matter not in the prior art.”) (internal citations omitted). V. ANALYSIS Grouping of Claims In the Brief, Appellant essentially argues claims 1-5, 7, and 11-20 as a group (App. Br. 5-8). For claims 4, 5, 7, and 11-20, Appellants repeat the same argument made for claim 1. We will, therefore, treat claims 4, 5, 7, and 11-20 as standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(vii). See also In re Young, 927 F.2d 588, 590 (Fed. Cir. 1991). Appeal 2009-009456 Application 11/085,757 5 The Anticipation Rejection We now consider the Examiner’s rejection of the claims under 35 U.S.C. § 102(b) as being anticipated by Cepulis. Appellant contends that “though Cepulis discloses that the resource groups 128 and 130 ‘correspond to partitions ‘0’ and ‘N,’ which may be any desired number of partitions and operating systems for the computing device 12,’ that is not the same as, or equivalent to, the explicitly claimed features requiring a shared hardware proxy residing in at least one of the O.S. instances.” (App. Br. 5.) Appellant further contends that “Cepuls [sic] does not expressly or impliedly disclose that resource group 128 is an instance of an OS, represents an OS instance, or resides in an instance of an OS.” (Reply Br. 5.) The Examiner found that the collection of routines in modules 128 and 130 represent shared hardware proxies and are apart of an operating system (O.S.) instance (Ans. 5-6). The Examiner further found that “[o]nce an instance of OS is loaded into the corresponding partition, they are no longer separate.” (Ans. 22.) Issue: Has Appellant shown that the Examiner erred in finding that Cepulis discloses “a shared hardware proxy residing in at least one of the O.S. instances?” The Examiner found that Cepulis’ “Fig. 3 explicitly shows a direct connection between the ‘OS Boot Loader’ (168, 170) and its respective Appeal 2009-009456 Application 11/085,757 6 instance (128, 130), indicating that instances 128 and 130 indeed represent OS instances” (Ans. 23). We agree. For example, consistent with Appellant’s Fig. 1, Cepulis discloses in both of Figs. 1 and 2 a direct link between the OS ( i.e., operation system) Boot Loader and the OS. Similarly, Cepulis’ Fig. 3 illustrates an OS Boot Loader directly connected to elements 128/130, suggesting that such elements also represent operating systems instances. Further, Cepulis’ resource groups 128/130 includes, inter alia, elements such as runtime services 134/152 and SMBIOS 142/160 that can reasonably be components of an operating system. Thus, we find that Cepulis’ elements 128/130 reasonably suggest that they represent O.S. instances. Furthermore, Cepulis’ elements 128/130 each include numerous other system and processor resources/software routines (FF 1). The Examiner found that such software routines correspond to the claimed shared hardware proxy (Ans. 23). We agree. Appellant has not shown how such routines are distinguishable from the claimed shared software proxy. Further, Cepulis discloses that the interface 14 embodies an extensible firmware interface and communicates with the resource groups 128/130 (FF 2). Thus, we find that the claimed “shared hardware proxy residing in at least one of the O.S. instances . . .” reads on Cepulis’ above-noted features. As to the other recited elements of claim 1, Appellant provides no argument to dispute that the Examiner has correctly shown where all these claimed elements appear in the prior art. Thus, we deem those arguments waived. See 37 C.F.R. § 41.37(c)(1)(vii) (2008). Thus, Appellant has not persuaded us of error in the Examiner’s finding of anticipation for representative claim 1. Therefore, we affirm the Appeal 2009-009456 Application 11/085,757 7 Examiner’s § 102 rejection of independent claim 1 and of claims 4, 5, 7, and 11-20, which fall therewith. VI. CONCLUSIONS We conclude that Appellants have not shown that the Examiner erred in rejecting claims 1-5, 7, and 11-20. Thus, claims 1-5, 7, and 11-20 are not patentable. VII. DECISION In view of the foregoing discussion, we affirm the Examiner’s rejection of claims 1-5, 7, and 11-20. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2008). AFFIRMED nhl HEWLETT PACKARD COMPANY P O BOX 272400, 3404 E. HARMONY ROAD INTELLECTUAL PROPERTY ADMINISTRATION FORT COLLINS CO 80527-2400