Ex Parte Walker et al

Patent Trial and Appeal BoardApr 12, 2013

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

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte PHILLIP M. WALKER and TIMOTHY G. BARRY ____________ Appeal 2010-008241 Application 11/262,132 Technology Center 2600 ____________ 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. Appeal 2010-008241 Application 11/262,132 2 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 Appeal 2010-008241 Application 11/262,132 3 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 Appeal 2010-008241 Application 11/262,132 4 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’ Appeal 2010-008241 Application 11/262,132 5 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). Appeal 2010-008241 Application 11/262,132 6 AFFIRMED msc