Ex Parte Christenson et al

Patent Trial and Appeal BoardOct 18, 2012

11279667 (P.T.A.B. Oct. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DAVID ALAN CHRISTENSON and THOMAS EDWIN MURPHY, JR. ____________ Appeal 2010-004912 Application 11/279,667 Technology Center 2400 ____________ Before JEFFREY S. SMITH, BRUCE R. WINSOR, and STANLEY M. WEINBERG, Administrative Patent Judges. WINSOR, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1-20, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ invention “relates generally to digital data processing, and more particularly to the use of an Internet communications stack, such as a Appeal 2010-004912 Application 11/279,667 2 TCP/IP stack, within a computer system.” (Spec. 1:4-6). Claim 1, which is illustrative of the invention, reads as follows: 1. A computer system, comprising: at least one processor; a memory; an operating system embodied as a plurality of instructions executable on said at least one processor, said operating system supporting the concurrent execution of a plurality of process instances; a plurality of applications executable on said at least one processor; a first network adapter for communicating with a network, said first network adapter transmitting data packets for communication across the Internet; a first Internet communications stack instance and a second Internet communications stack instance, each said Internet communications stack instance being associated with a respective at least one of said plurality of applications; wherein said first Internet communications stack instance contains an Internet Protocol (IP) routing interface which uses an IP routing protocol to route each data packet outbound from the first Internet communications stack instance to a respective network adapter device driver of a plurality of network adapter device drivers according to a respective Internet Protocol (IP) address associated with the respective data packet, at least some data packets outbound from said first Internet communications stack instance being routed to a device driver of said first network adapter, the respective IP address matching an IP address associated with said first network adapter, and at least some data packets outbound from said first Internet communications stack instance being routed to a virtual network adapter device driver providing an inter-stack interface supporting inter-stack communication of data packets between said first and second Internet communications stacks, the Appeal 2010-004912 Application 11/279,667 3 respective IP address matching an IP address associated with the second Internet communications stack. Claims 1-9, 12-16, 19, and 201 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Stevens (US 6,324,583 B1; Nov. 27, 2001) and Ratcliff (US 6,681,258 B1; Jan. 20, 2004). (Ans. 4-20). Claims 10, 11, 17, and 18 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Stevens, Ratcliff, and Alden (US 6,101,543; Aug. 8, 2000). (Ans. 20-25). Rather than repeat the arguments here, we refer to the Brief and the Answer for the respective positions of Appellants and the Examiner. Only those arguments actually made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Brief have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). ISSUES Appellants’ arguments are directed to the patentability of claim 1; Appellants do not separately argue the patentability of claims 2-20 with particularity. (See generally Br. 6-19). Therefore, we discuss Appellants’ contentions with reference to claim 1. The issues raised by Appellants’ contentions (summarized at Br. 6) are as follows: 1 A rejection of claim 19 under 35 U.S.C. § 112, second paragraph, in the Final Rejection appealed from is not before us as it has been effectively withdrawn by an Advisory Action mailed September 2, 2009. (See Br. 6, n.1; see generally Ans. 3-25). Appeal 2010-004912 Application 11/279,667 4 Does the combination of Stevens and Ratcliff teach or suggest “that an Internet Protocol routing interface of an Internet communications stack selectively routes packets to different network adapter drivers using an IP address, one of the drivers being a virtual driver for providing inter-stack communications” (id. (Appellants’ paraphrasing)) to a second Internet communications stack, as allegedly recited by claim 1? Does Ratcliff teach away from combination with Stevens “because Ratcliff discloses a different technique for inter-stack communication [than does Stevens]” (id.)? Does “the motivation for Stevens precludes the hypothetical combination with Ratcliff” (id.)? ANALYSIS Claim 1 We have considered Appellants’ contentions and arguments (Br. 6-19) in light of the Examiner’s findings regarding claim 1 (Ans. 4-6) and explanations responsive to Appellants’ Brief (Ans. 25-30). We agree with the Examiner’s findings and explanations (Ans. 4-6, 25-30) and adopt them as our own. The following additional findings and conclusions are for emphasis. Appellants contend as follows: [N]either reference discloses a key feature of [A]ppellant[s’] independent claims, particularly that an Internet Protocol (IP) routing interface within the stack selectively routes outbound packets to multiple device drivers, one of which is a virtual driver for inter-stack communication, by using the IP address of the packet. The [Examiner’s] hypothetical combination of the references does not meet this claim limitation, and to meet it Appeal 2010-004912 Application 11/279,667 5 would have required some further non-obvious modification of the hypothetical combination. (Br. 10 (footnote omitted)). We are not persuaded by Appellants’ argument. As described by the Examiner (Ans. 4-5), Stevens teaches packet communication between an APPN stack A and a TCP/IP stack B using a virtual I/O device 204. (Stevens Fig. 2). One of ordinary skill in the art would have understood that a virtual I/O device implicitly requires or includes a device driver. Stevens further teaches that each stack sends and receives packets over a respective link through a corresponding adapter 205, 210. (Id.). Again, one of ordinary skill in the art would have understood that each adapter implicitly requires or includes a device driver, and that outbound packets to be routed by either stack would be routed selectively to either the driver for the virtual I/O device or the corresponding adapter. Ratcliff teaches a plurality of TCP/IP stacks 112, 114, 116 (Ratcliff Fig. 3) in which packets are routed selectively by an OSA adapter 120 between the TCP/IP stacks or to a LAN service driver 122, 124 based on the IP address of the packets (Ratcliff col. 5, ll. 19-22, 32-35; col. 6, ll. 51-53; col. 7, ll. 3-6). The combination articulated by the Examiner (see Ans. 6) combines Ratcliff’s use of plural TCP/IP stacks and of IP addressing to communicate packets between stacks with Stevens’s use of a virtual device driver to communicate packets between stacks, a combination of familiar elements yielding predictable results, KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007), that could have been implemented by a person of ordinary skill in the art, id. at 417. Appellants contend that Ratcliff teaches away from the combination articulated by the Examiner because “Ratcliff plainly discloses an inter-stack Appeal 2010-004912 Application 11/279,667 6 communications mechanism for communicating between two TCP/IP stacks, but it is substantially different from the inter-stack communications mechanism disclosed and claimed by [A]ppellant[s].” (Br. 16). However, the mere fact that the teaching of Ratcliff differs from Appellants’ claimed invention does not demonstrate that Ratcliff teaches away from the combination. See In re Beattie, 974 F.2d 1309, 1312-13 (Fed. Cir. 1992). “[A] disclosure . . . does not constitute a teaching away . . . [if] such disclosure does not criticize, discredit, or otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Appellants have not identified any passage in Ratcliff that persuasively “criticize[s], discredit[s], or otherwise discourage[s] the solution claimed” (id.). Appellants further contend as follows: Stevens[’s] mechanism is not intended to facilitate communications between stacks of the same protocol, i.e. two TCP/IP stacks, and therefore the proposed combination with Ratcliff, in which a pair of TCP/IP stacks are [sic] employed, is contrary to the rationale for the existence of Steven[s]’s mechanism. Such a fact is compelling evidence of the non- obviousness of the hypothetical combination. (Br. 17). However, Appellants do not persuasively explain any specific impediment to combining Stevens’s use of a virtual I/O device with Ratcliff’s multiple TCP/IP stacks and routing packets using IP addressing. See In re Bush, 296 F.2d 491, 496 (CCPA 1961) (noting that in combining references the identification of a primary or secondary reference is of no significance). Nor do they persuasively contend that Stevens and Ratcliff are non-analogous art, that Stevens teaches away from the combination, or that either reference would be rendered unsuitable or inoperable for its intended purpose of routing packets for inter-stack communication. Appeal 2010-004912 Application 11/279,667 7 Appellants have failed to persuade us that the Examiner erred in rejecting claim 1 as unpatentable over Stevens and Ratcliff. Accordingly, we will sustain the rejection of claim 1. Claims 2-9, 12-16, 19, and 20 The patentability of claims 2-9, 12-16, 19, and 20 was not separately argued with particularity. (See generally Br. 6-18). Accordingly, for the reasons stated supra regarding claim 1, we will sustain the rejection of claims 2-9, 12-16, 19, and 20. Claims 10, 11, 17, and 18 The patentability of claims 10, 11, 17, and 18 was not separately argued with particularity. (See Br. 18). Accordingly, for the reasons stated supra regarding claim 1, we will sustain the rejection of claims 10, 11, 17, and 18. ORDER The decision of the Examiner to reject claims 1-20 is affirmed.2 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). 2 In the event of further prosecution of claims 13-19, or claims in similar form, we leave to the Examiner to ascertain whether such claims are directed to statutory subject matter under 35 U.S.C. § 101. See In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007); David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 OFF. GAZ. PAT. OFFICE 212 (Feb. 23, 2010). Appeal 2010-004912 Application 11/279,667 8 AFFIRMED babc