Ex Parte Kettler et al

Patent Trial and Appeal Board

Jan 25, 2018

12172544 (P.T.A.B. Jan. 25, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/172,544 07/14/2008 Kevin A. Kettler DC-14555 5160
33438 7590 01/29/2018
TERRILE, CANNATTI, CHAMBERS & HOLLAND, LLP
P.O. BOX 203518
AUSTIN, TX 78720
EXAMINER
KESSLER, GREGORY AARON
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
01/29/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
tmunoz @ tcchlaw. com
heather@tcchlaw.com
US PTO @ dockettrak. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN A. KETTLER and
SHREE A. DANDEKAR
Appeal 2017-003774
Application 12/172,5441
Technology Center 2100
Before CARL L. SILVERMAN, MELISSA A. HAAPALA, and
JOYCE CRAIG, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final3 Rejection of claims 1, 2, 4, 6-8, 10, 12-14, 16, and 18, which
constitute all pending claims.
1 The real party in interest is identified as Dell Products L.P. Br. 1.
2 Application Serial Number 12/354,446 appears to be a Related Appeal and
is not identified in Appellants’ Appeal Brief. Br. 1. Please see 37 CFR
41.37 (c)(2), which sets forth the requirements for an Appeal Brief.
3 Although the “non-fmal” checkbox is checked in the Office Action
Summary, we treat this as a typographical error because we note that in the
body of the rejection, the Examiner specifically identifies the Action as a
Appeal 2017-003774
Application 12/172,544
We affirm.
STATEMENT OF THE CASE
The invention relates to information handling systems utilizing a
virtualization based personalizable consumer electronics platform. Abstract;
Spec. 2, 7. Claim 1 reproduced below, is exemplary of the subject matter
on appeal (emphasis added):
1. A method for delivering pre-packaged software solutions to a
consumer electronics type information handling system comprising:
providing a virtual machine (VM) host comprising a plurality of
VM resources operable to execute virtual machines;
providing a virtual appliance memory device, the virtual
appliance memory device comprising a virtual appliance stored on
the virtual appliance memory device, the virtual appliance comprising
a self-contained virtual machine, the self-contained virtual machine
comprising an operating system, an application and a default
configuration, the application corresponding to a pre-packaged
software solution, the virtual appliance comprising a digital
certificate of authenticity,
installing the virtual appliance onto the virtual machine host via
the virtual appliance memory device; hosting the application via the
virtual appliance so as to facilitate delivery of prepackaged software
solutions to the consumer electronics type information handling
system; and,
checking the validity of the certificate of authenticity when the
appliance is installed onto the virtual machine host, the validity of the
certificate of authenticity ensuring that only certified appliances
execute on the consumer electronics type information handling
system.
Final Action. See Final Act. 1, 7. Specifically, the Examiner states the
Action is made final because “[a] 11 claims are drawn to the same invention
claimed in the application prior to the entry of the submission under 37 CFR
§ 1.114 and could have been finally rejected on the grounds and art of record
in the next Office action if they had been entered in the application prior to
entry under 37 CFR § 1.114.” Final Act. 7 (Mailed 10/5/15).
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Appeal 2017-003774
Application 12/172,544
Br. 5 (Claims Appendix).
THE REJECTION
Claims 1, 2, 4, 6-8, 10, 12-14, 16, and 18 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Gebhart et al (U.S.
2009/0210869 Al; pub. Aug. 20, 2009) (“Gebhart”), Lam et al (U.S.
2008/0040716 Al, pub. Feb. 14, 2008) (“Lam”), and Miloushev et al. (U.S.
Pat. 2007/0078988 Al; pub. Apr. 5, 2007) (“Miloushev”). Final Act. 3-7.
ANALYSIS
Appellants argue the Examiner errs in finding Gebhart teaches the
preamble and identified limitations of claim 1 and that this deficiency is not
cured by Lam or Miloushev. Br. 3—4.
Appellants contend Gebhart teaches a method for deploying virtual
appliances, including receiving information representative of requirements
of virtual appliances and resources available to host the virtual appliances, in
which a download manager installs the virtual appliances. Id. at 3.
Appellants then argue Gebhart does not teach the claim 1 preamble, a
method for delivering pre-packaged software solutions to a consumer
electronics type information handling system, and Gebhart does not teach the
identified claim 1 limitations:
LI. providing a virtual appliance memory device, the
virtual appliance memory device comprising a virtual
appliance stored on the virtual appliance memory device, the
virtual appliance comprising a self-contained virtual machine,
the self-contained virtual machine comprising an operating
system, an application and a default configuration, the
application corresponding to a pre-packaged software solution,
the virtual appliance comprising a digital certificate of
authenticity.
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Appeal 2017-003774
Application 12/172,544
L2. hosting the application via the virtual appliance so
as to facilitate delivery of prepackaged software solutions to the
consumer electronics type information handling system; and,
L3. checking the validity of the certificate of
authenticity when the appliance is installed onto the virtual
machine host, the validity of the certificate of authenticity
ensuring that only certified appliances execute on the consumer
electronics type information handling system.
Id. at 3—4. (Emphasis and LI, L2, and L3 added).
The Examiner finds the claim 1 preamble “amounts to nothing more
than a statement of intended purpose or intended use of the method” and
“[t]he statements contained within the preamble would not result in a
manipulative difference between the claimed invention and the prior art.”
Ans. 8. The Examiner finds the prior art structure is capable of performing
the intended use recited in the preamble. Id.
The Examiner finds Gebhart teaches Media-Wiki is a pre-packaged
software solution and teaches limitation LI. Id. (citing Gebhart ^ 5; Fig. 1).
In particular, the Examiner finds “the cited portions of the reference teach
providing a virtual appliance, where the virtual appliance includes an
application” and “it is specifically stated that the application can be the
MediaWiki software, which is stated to be “all the necessary software ... to
run a wiki installation as a so-called ‘black box’,” which correlates to a pre­
packaged software solution.” Id. at 9.
The Examiner finds Gebhart teaches limitation L2. Id. at 9 (citing
Gebhart 43; Fig. 4). In particular, Gebhart teaches a system 170 including
virtual appliances (virtual machines 114a-d)) installed at customer locations
(element 180b-d) and download manager 184. Id.
The Examiner finds Lam teaches limitation L3. Id. at 9-10 (citing
Lam ^ 105, 106). We note Appellants refer to Gebhart as not teaching this
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Appeal 2017-003774
Application 12/172,544
limitation and state “[tjhese deficiencies of Gebhart are not cured by Lam or
Miloushev.” Br. 4.
We are not persuaded by Appellants’ arguments and agree, instead,
with the findings of the Examiner. The Examiner’s findings are reasonable.
See Final Act. 3-5; Ans. 7-10. Additionally, we note Appellants did not file
a Reply Brief to address the Examiner’s findings.
Appellants merely point out what the claims recite, which will not be
considered an argument for separate patentability of the claim. See
37 C.F.R. § 41.37(c)(l)(vii). Mere attorney arguments and conclusory
statements that are unsupported by factual evidence are entitled to little
probative value. See also In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); and Ex
parte Belinne, 2009 WE 2477843, at *3^1 (BPAI Aug. 10, 2009)
(informative). As the Federal Circuit stated, “[i]t is not the function of this
court to examine the claims in greater detail than argued by an appellant,
looking for [patentable] distinctions over the prior art.” In re Baxter
TravenolLabs., 952 F.2d 388, 391 (Fed. Cir. 1991).
In view of the above, we sustain the rejection of claim 1, independent
claims 7 and 13 which are argued together with claim 1, and dependent
claims 2, 4, 6, 8, 10, 12, 14, 16, and 18 as these claims are not argued
separately. See 37 C.F.R. § 41.37(c)(l)(iv).
DECISION
We affirm the Examiner’s decision rejecting claims 1, 2, 4, 6-8, 10,
12-14, 16, and 18 under 35 U.S.C § 103(a).
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Appeal 2017-003774
Application 12/172,544
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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