Ex Parte Walker et al

Patent Trial and Appeal Board

Apr 12, 2013

11262132 (P.T.A.B. Apr. 12, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte PHILLIP M. WALKER and TIMOTHY G. BARRY
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Appeal 2010-008241
Application 11/262,132
Technology Center 2600
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Before ALLEN R. MacDONALD, ROBERT E. NAPPI, and
LYNNE E. PETTIGREW, Administrative Patent Judges.

PETTIGREW, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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STATEMENT OF THE CASE
Introduction
According to Appellants, their invention relates to a method for rapid
startup of a computer system. Spec. 3, ll. 2-3.
Claims 1, 7, 13, and 19 are independent. Claim 1 is illustrative of the
invention:
1. A method for rapid startup of a computer system,
said method comprising:
accessing a hibernated image from an image library
comprising a plurality of hibernated images, said hibernated
image comprising information captured by an operating system
when a running computer system is placed into a hibernated
state wherein a hibernated computer system is operable to
awaken from a hibernated state faster than booting a powered
down computer system;
copying said hibernated image onto a boot disk of said
computer system; and
awakening said computer system from said hibernated
state.
Rejections on Appeal
The Examiner has rejected claims 1, 2, and 6 under 35 U.S.C.
§ 102(b) as being anticipated by Zimmerman (US 2003/0200290 A1, Oct.
23, 2003). Ans. 4-5.
The Examiner has rejected claims 3 and 4 under 35 U.S.C. § 103(a) as
being unpatentable over Zimmerman. Ans. 5-6.
The Examiner has rejected claims 5 and 7-20 under 35 U.S.C.
§ 103(a) as being unpatentable over Zimmerman and Boulton (Clint
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Boulton, Topspin Serves Up ‘Remote Boot’ Switch, Mar. 8, 2004). Ans. 6-
10.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We are not persuaded by
Appellants’ arguments. We adopt as our own the findings and reasoning set
forth in the Examiner’s Answer. We highlight and address the following
findings and arguments for emphasis.
Rejection under 35 U.S.C. § 102(b)
In their Appeal Brief, Appellants argue that Zimmerman does not
disclose “accessing a hibernated image from an image library comprising a
plurality of hibernated images,” as recited in claim 1. App. Br. 11-13
(emphasis added). Instead, Appellants argue, “Zimmerman discloses that a
single hibernated image is generated and stored at server 4 at any given
time.” App. Br. 12 (emphasis added). Appellants further contend that
“while different hibernated images may be generated at server 4,
Zimmerman is silent to storing multiple images at server 4.” Id. (citing
Zimmerman, ¶ [0052]).
Appellants have not persuaded us that the Examiner erred in finding
Zimmerman teaches the recited limitation. As correctly found by the
Examiner, Zimmerman teaches that “network server hard drive 8 stores . . .
one or more hibernation files 20,” i.e., the recited “image library comprising
a plurality of hibernated images.” Ans. 11; Zimmerman, ¶ [0020].
Zimmerman also teaches accessing a hibernated image from the image
library. Ans. 11; Zimmerman, ¶ [0065] (loading the hibernation image
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through a series of read requests to the server). Appellants have not shown
that the portions of Zimmerman cited by the Examiner do not meet the
recited limitation.
In the Reply Brief, Appellants argue that Zimmerman does not
disclose “copying said hibernated image onto a boot disk of said computer
system” and “awakening said computer system from said hibernated state,”
as recited in claim 1. Reply Br. 2-3. These arguments could have been
presented in the Appeal Brief but were not. Because Appellants have not
explained what “good cause” there might be for us to address these
arguments, we are not required to consider them. See Ex parte Borden, 93
USPQ2d 1473, 1473-74 (BPAI 2010) (informative). Furthermore,
Appellants’ arguments do not show the Examiner erred in finding that
Zimmerman teaches these two limitations in paragraphs [0054] and [0053],
respectively. Ans. 5; Zimmerman, ¶ [0054] (“The hibernation file 20 is then
transferred to the server’s boot drive 8.”); Zimmerman, ¶ [0053] (“[T]he
second half [of the hibernation transaction protocol] is the actual resume
from the hibernation image.”).
For the foregoing reasons, we sustain the Examiner’s rejection of
claim 1 under 35 U.S.C. § 102(b) as being anticipated by Zimmerman. We
also sustain the Examiner’s § 102(b) rejection of claims 2 and 6, not
separately argued. See App. Br. 13.
Rejections under 35 U.S.C. § 103(a)
Appellants contend that the Examiner erred in rejecting claims 3 and 4
under 35 U.S.C. § 103(a) as unpatentable over Zimmerman for the same
reasons argued with respect to the § 102(b) rejection of claim 1. App. Br.
13-15. As discussed, those arguments are unpersuasive. Appellants’
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additional argument that Zimmerman teaches away from “accessing a
hibernated image from an image library comprising a plurality of hibernated
images” is equally unpersuasive because it is based on the incorrect premise
that Zimmerman discloses that multiple hibernated images are not
maintained at a server. See App. Br. 15. Therefore, we sustain the
Examiner’s rejection of claims 3 and 4 under 35 U.S.C. § 103(a) as
unpatentable over Zimmerman.
Appellants present the same arguments with respect to the Examiner’s
rejection of claims 5 and 7-20 under 35 U.S.C. § 103(a) over Zimmerman
and Boulton. App. Br. 16-17. Appellants further argue that Boulton does
not teach “accessing a hibernated image from an image library comprising a
plurality of hibernated images,” as recited in claim 1, from which claim 5
depends, and similarly recited in independent claims 7, 13, and 19. App. Br.
17. Because we conclude the Examiner did not err in finding that
Zimmerman teaches the recited limitation, we sustain the Examiner’s
rejection of claims 5 and 7-20 under 35 U.S.C. § 103(a).
CONCLUSION
On the record before us, we conclude the Examiner did not err in
rejecting claims 1, 2, and 6 under 35 U.S.C. § 102(b) and claims 3-5 and 7-
20 under 35 U.S.C. § 103(a).
DECISION
The Examiner’s rejection of claims 1-20 is affirmed.
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).
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AFFIRMED

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