Ex Parte Christenson et al

Patent Trial and Appeal Board

Oct 18, 2012

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

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID ALAN CHRISTENSON and
THOMAS EDWIN MURPHY, JR.
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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
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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
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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).
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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
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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
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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.
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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).
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AFFIRMED

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