Ex Parte Denissen

Board of Patent Appeals and Interferences

Sep 28, 2010

10892273 (B.P.A.I. Sep. 28, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FRANK LODEWIJK DENISSEN
____________________

Appeal 2010-007093
Application 10/892,2731
Technology Center 2100
____________________

Before HOWARD B. BLANKENSHIP, JAY P. LUCAS, and
THU A. DANG, Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL2

1 Application filed July 16, 2004.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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Application 10/892,273

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STATEMENT OF THE CASE
Appellant appeals from a final rejection of claims 1 to 4 under
authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b). An Oral
Hearing was held on September 22, 2010.

We affirm the rejection.

Appellant’s invention relates to a method for replacing software in a
network element, such as a router, while maintaining service to an operator
terminal. In the words of Appellant:
The present invention relates to a Software replacement
method, for replacing a first software package that comprises a
command handling interface which is present at a computer
system, by a second software package over a connection
between an operator terminal and this command handling
interface. At first the second software package is installed
besides the first software package at the computer system.
Subsequently, the second software package is activated. Then a
contacting part of the second software package, after activation
of this second software package, contacts the command
handling interface. The command handling interface at
contacting of the command handling Interface by the contacting
part of the second software package, switches from the first
software package towards the second software package and
keeps open the connection between the operator terminal and
the command handling interface.

(Spec. 10, Abstract).

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Claim 1 illustrates the claims on appeal:
1. A software replacement method, for replacing a
first software package comprising a command handling
interface, present at a computer system, with a second software
package via a connection between an operator terminal and said
command handling interface, said method comprising the steps
of:

installing said second software package to replace said
first software package at said computer system;

activating said second software package;

contacting said command handling interface by a
contacting part of said second software package after activation
of said second software package;

when said command handling interface is contacted by
said contacting part of said second software package, said
command handling interface switching from said first software
package towards said second software package; and

keeping said connection between said operator terminal
and said command handling interface open after said contacting
part contacts said command handling interface.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Adamovits US 6,698,017 B1 Feb. 24, 2004

REJECTION
The Examiner rejects the claims as follows:
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R1: Claims 1 to 4 stand rejected under 35 U.S.C. § 102(e) for being
anticipated by Adamovits.

We will review the rejections in the order argued, and as grouped in
the Briefs. We have only considered those arguments that Appellant
actually raised in the Briefs. Arguments that Appellant could have made but
chose not to make in the Briefs have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUE
The issue is whether Appellant has shown that the Examiner erred in
rejecting the claims under 35 U.S.C. § 102(e). The issue specifically turns
on whether Adamovits teaches keeping open a connection between an
operator terminal and an interface in the router (network element) during the
switchover to new software in router.

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Appellant invented a method of replacing software in a network element,
such as a router. (Spec. 1, ll. 4 to 6, 13). Contrary to the prior method,
the Appellant’s invention allows an operator to keep track of the software
replacement process by maintaining open a connection from the router to
the operator during the software switching. (Spec. 2, bottom).
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2. The Adamovits reference teaches replacing old software in an active
processing element (computer device) with new software, while
minimizing the impact on services provided by the processing element.
(Col. 4, ll. 4 to 11). These services are disclosed to include connection to
an operator terminal. (Col. 5, ll. 45 to 51).

PRINCIPLES OF LAW
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. § 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 Pharm.
Corp., 432 F.3d 1368, 1375 (Fed. Cir. 2005) (citation omitted).
“A reference does not fail as an anticipation merely because it does
not contain a description of the subject matter of the appealed claim in
ipsissimis verbis.” In re May, 574 F.2d 1082, 1090 (CCPA 1978) (citing In
re Schaumann, 572 F.2d 312, 317 (CCPA 1978).

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ANALYSIS
Arguments with respect to the rejection
of claims 1 to 4
under 35 U.S.C. § 102(e)

The Examiner has rejected claims 1 to 4 for being anticipated by
Adamovits. The Appellant “submits that Adamovits does not disclose or
suggest at least, ‘keeping said connection between said operator terminal and
said command handling interface open after contacting said command
handling interface by said contacting part,’ as recited in claim 1.” (App.
Brief 9, bottom).
Appellant’s Figure 1 demonstrates the elements of the Appellant’s
invention.
Figure 1 is reproduced below:

Figure 1
The Command Handling Interface (CHI) is the element in the router
(CS) linked to the Operator Terminal (OP). The Contacting Part (CP) in
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Software Package 2 (SP2) contacts the CHI on activation of the new
Software Package, SP2. (Spec. 6, ll. 6 to 13). The limitation requires that
the link between the operator terminal and the router be maintained during
the switch and activation of SP2.
We have considered Appellant’s argument in view of the Adamovits
disclosure. Adamovits teaches original software 50 replaced by replacement
software 70 which “is installed and configured to take control of the active
processing element 10”. (Col. 6. ll. 1 to 2). Replacement software 70 is
designed to direct the active processing element 10 to provide at least the
same services as original software 50. (Col. 6, ll. 2 to 9). These services
include connection to an operator terminal. (Col. 5, ll. 45 to 50).
The switch-over from software 50 to software 70 is carefully
orchestrated in Adamovits to service interrupts without interruption. (Col. 8,
ll. 1 to 15). Further, Adamovits teaches transferring state information 60 of
old software system 50 to the new software 70 to allow it to take immediate
control on activation. (Col. 13, ll. 38 to 44). On activation, Adamovits
teaches that the services of processing element 10 are maintained except for
the brief period of the actual switchover, and immediately thereafter taken
over by totally prepared new software package 70. (Col. 14, l. 31 ff).
However, missed service requests during the brief switchover are stored and
later serviced using a virtual machine, thus keeping the connection open.
(Ans. 5, middle; col. 13, ll. 32 to 60; col. 14, l. 40).
In view of all these teachings in Adamovits concerning maintaining
services, we find that one of ordinary skill in the art would consider
Adamovits describing the “open connection” of the claims.
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Appellant’s argument concerning the irrelevancy of path 34 are
conceded, but are not found to be controlling of anticipation. (App. Brief
11, middle).

CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting claims 1 to 4
over Adamovits.

DECISION
We affirm the Examiner’s rejection of claims 1 to 4 for being
anticipated by Adamovits.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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