Ex Parte Cline et al

Board of Patent Appeals and Interferences

Dec 23, 2003

08778459 (B.P.A.I. Dec. 23, 2003)

1We note that while the statement of rejection at page 3 of
the answer refers to claims “28-63,” it appears that the existing
claims are “28-66.” Moreover, since the examiner indicates some
claims to be directed to allowable subject matter, the explicit
statement of rejection appears to be in error.
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The opinion in support of the decision being entered
today was not written for publication and is not
binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte OWEN R. CLINE, CRAIG J. HUBBELL and
VINODKUMAR M. JESSANI

Appeal No. 2002-1282
Application No. 08/778,459

ON BRIEF

Before THOMAS, KRASS and BARRETT, Administrative Patent Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 28-33, 35, 38-46, 48, 49, 51-59 and 61-66.1 Claims 34,
36, 37, 47, 50 and 60 have been indicated by the examiner as
Appeal No. 2002-1282
Application No. 08/778,459
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being directed to allowable subject matter and are no longer
before us on appeal.
The invention is directed to automated failure recovery in a
computer system. A monitor monitors a registered component of
the computer system and performs failure recovery services when
the registered component’s failure is detected by a closing of a
connection between the registered component and the system
monitor.
Representative independent claim 28 is reproduced as
follows:
28. An apparatus for failure recovery, comprising a system
monitor, executed by a computer, for registering at least one
component executed by a computer for failure recovery services
performed by the system monitor, wherein the system monitor
monitors the registered component via a connection between the
registered component and the system monitor, and the system
monitor performs the failure recovery services when the
registered component’s termination is detected by a closing of
the connection.
The examiner relies on the following reference:
Fulton III et al. (Fulton) 5,715,386 Feb. 3, 1998
(filed May 1, 1996)
Claims 28-33, 35, 38-46, 48, 49, 51-59 and 61-66 stand
rejected under 35 U.S.C. § 103 as unpatentable over Fulton.
Appeal No. 2002-1282
Application No. 08/778,459
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Reference is made to the briefs and answer for the
respective positions of appellants and the examiner.
OPINION
In rejecting claims under 35 U.S.C. § 103, it is incumbent
upon the examiner to establish a factual basis to support the
legal conclusion of obviousness. See In re Fine, 837 F.2d 1071,
1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so doing, the
examiner is expected to make the factual determinations set forth
in Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467
(1966), and to provide a reason why one having ordinary skill in
the pertinent art would have been led to modify the prior art or
to combine prior art references to arrive at the claimed
invention. Such reason much stem from some teachings,
suggestions or implications in the prior art as a whole or
knowledge generally available to one having ordinary skill in the
art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1051,
5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S. 825
(1988); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc. ,
776 F.2d 281, 293, 227 USPO 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hosp. Sys., Inc. v. Montefiore
Appeal No. 2002-1282
Application No. 08/778,459
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Hosp., 732 F.2d 1572, 1577, 221 USPO 929, 933 (Fed. Cir. 1984).
These showings by the examiner are an essential part of complying
with the burden of presenting a prima facie case of obviousness.
Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). If that burden is met, the burden then shifts
to the applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis of
the evidence as a whole and the relative persuasiveness of the
arguments. See Id.; In re Hedges, 783 F.2d 1038, 1040, 228 USPO
685, 687 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472,
223 USPO 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d
1048, 1051, 189 USPO 143, 146-147 (CCPA 1976). Only those
arguments actually made by appellant have been considered in this
decision. Arguments which appellant could have made but chose
not to make in the brief have not been considered and are deemed
to be waived [see 37 CFR 1.192 (a)].
In the instant case, regarding independent claim 28, the
examiner cites the abstract and column 2, lines 11-53, of Fulton
for the teaching of a utility for failure recovery in a computer
wherein the steps of registering a process with a recovery
service, detecting the status of the registered process, and
restarting the registered process when the detected status
Appeal No. 2002-1282
Application No. 08/778,459
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indicates the registered process has terminated, are performed.
The examiner indicates that Fulton does not explicitly disclose
that the failure recovery is performed when the registered
component’s termination is detected by closing of a connection
but the examiner finds that it would have been obvious
to realize that Fulton teaches the failure recovery
when the registered component termination is detected
since Fulton teaches (col. 2, lines 10-56) that watchd
monitors the application and when detects [sic] that
the process is dead or hung, watchd restarts the
application on a new process, and furthermore the
detection would include closing of connection since he
teaches watchd daemon that detects a dead or hung
application, thus would detect a closing of the connection
related to a dead or hung application (answer-page 4).
For their part, appellants argue that the examiner has
failed to take into account a specific claim limitation, viz.,
the monitoring of a registered component by means of a connection
between the registered component and the system monitor, and
performing the failure recovery services when the registered
component’s termination is detected by a closing of the
connection. In contrast, urge appellants, Fulton’s procedure is
to monitor a process either actively by polling or passively by
receiving a signal from the process (principal brief-page 3).
We agree with appellants.
Appeal No. 2002-1282
Application No. 08/778,459
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From our understanding of Fulton, an application is
registered with watchd and watchd monitors the application
(column 2, lines 31-33 of Fulton). Thus, we do have, in Fulton,
a registered component (the application) and a monitor (watchd)
for monitoring the registered component. Moreover, there is a
failure recovery taught by Fulton as watchd restarts the
application on a new process when it is detected that the
monitored application is “dead or hung” (column 2, lines 33-35).
As the examiner recognized, however, Fulton fails to disclose
that the failure recovery is performed when the registered
component’s termination is detected by a closing of the
connection between the registered component and the system
monitor.
There is not even an indication in Fulton that there is a
“connection” between watchd and the application but even if we
agree that there is some type of “connection” between them, in
the sense that watchd is monitoring the application, there is
certainly no disclosure or suggestion by Fulton of performing the
failure recovery services (in Fulton’s case, a restarting of the
application on a new process) when the application’s termination
is detected “by a closing of the connection,” as required by the
instant claims.
Appeal No. 2002-1282
Application No. 08/778,459
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The examiner counters that Fulton’s detection “would include
closing of connection since he teaches watchd daemon that detects
a dead or hung application, thus would detect a closing of the
connection related to a dead or hung application” (answer-page
6).
We disagree. First, Fulton is not clear that there is any
“connection” between the application and the watchd monitor, and
the examiner has not identified any specific connection in
Fulton, but, to the extent there is some tenuous “connection,” as
that term is broadly interpreted, there is no evidence that
detecting a dead or hung application is tantamount to detecting a
“closing” of that “connection” between the application and the
watchd monitor. There is absolutely no hint in Fulton that
performing a failure recovery service is based, in any way, on
detection of a closed connection between a registered component
and a system monitor.
Moreover, the examiner has not indicated what is being
considered as the “connection” in Fulton, nor has the examiner
indicated what is considered to be a “closing” of that
connection.
As such, we find no prima facie case of obviousness
established by the examiner.
Appeal No. 2002-1282
Application No. 08/778,459
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Accordingly, the examiner’s decision rejecting claims 28-33,
35, 38-46, 48, 49, 51-59 and 61-66 under 35 U.S.C. § 103 is
reversed.
REVERSED
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
)
ERROL A. KRASS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
)
LEE E. BARRETT )
Administrative Patent Judge )
EK/RWK
Appeal No. 2002-1282
Application No. 08/778,459
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JAMES M STOVER
NCR CORPORATION
1700 SOUTH PATTERSON BLVD, WHQ4
DAYTON, OH 45479