10138478 (B.P.A.I. May. 29, 2012)

Ex Parte Liang et al

Board of Patent Appeals and InterferencesMay 29, 2012

10138478 (B.P.A.I. May. 29, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte JEREMY LIANG, JIN-SHI LEE, and TSUNG-LIN YU ___________ Appeal 2009-014118 Application 10/138,478 Technology Center 2400 ____________ Before DENISE M. POTHIER, ERIC B. CHEN, and BRUCE R. WINSOR, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-014118 Application 10/138,478 2 This is an appeal under 35 U.S.C. § 134(a) from the final rejection of claims 1, 2, 4-16, 18-28, and 30-50. Claims 3, 17, and 29 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Appellants’ invention relates to an Internet appliance, including an interface connecting the Internet appliance to a terminal, a memory, and a network connection connecting the Internet appliance to a network. Application-level antivirus programs are stored in the memory for detecting computer viruses in the received data. (Abstract.) Claim 1 is exemplary, with disputed limitations in italics: 1. An antivirus Internet appliance comprising: an interface connecting said Internet appliance to a terminal; a network connection connecting said Internet appliance to a network selected from the group consisting of a wide area network (WAN) and the Internet wherein data in said network are operable with a corresponding network protocol; a memory; protocol-level programs stored in said memory for receiving data being transmitted from said network to said terminal through said Internet appliance wherein said protocol-level programs are compatibly operable with said network protocol; application-level antivirus programs stored in said memory for detecting computer viruses in said received data wherein said antivirus programs serve as a firewall against said detected computer viruses for said terminal; a processor and an operating system stored in said memory for implementing said protocol-level programs and said antivirus programs[;] a redundancy control software component stored in said memory that controls a pointer switch for switching between an Appeal 2009-014118 Application 10/138,478 3 upgraded anti-virus program and a non-upgraded anti-virus program; wherein said antivirus programs are transparent to said terminal; and wherein said anti-virus Internet appliance has four operational modes that include a continuous-service mode, a maintenance mode in which service is terminated, an idle mode, and a service-maintenance mode in which an antivirus service continues with maintenance on the antivirus Internet appliance being performed in the background, and wherein transitions between modes include: 1) continuous-service mode to maintenance mode, 2) maintenance mode to continuous- service mode, 3) maintenance mode to idle mode, 4) continuous- service mode to idle mode, 5) idle mode to continuous-service mode, 6) continuous-service mode to service-maintenance mode, 7) and service-maintenance mode to continuous-service mode. Claims 1, 2, 4-16, 18-28, and 30-50 stand rejected under 35 U.S.C. § 103(a) as being obvious over Gladney (U.S. Patent Application Publication No. 2002/0049862 A1; Apr. 25, 2002), Fitzgerald (U.S. Patent No. 5,509,065; Apr. 16, 1996), and Lin (U.S. Patent No. 6,272,522 B1; Aug. 7, 2001). ANALYSIS We are persuaded by Appellants’ arguments (App. Br. 8) that the combination of Gladney, Fitzgerald, and Lin would not have rendered obvious independent claim 1, which includes the limitation “a redundancy control software component stored in said memory . . . for switching between an upgraded anti-virus program and a non-upgraded anti-virus program.” Appeal 2009-014118 Application 10/138,478 4 The Examiner found that the hot-swapable updating procedure of Gladney corresponds to the claim limitation “a redundancy control software component stored in said memory . . . for switching between an upgraded anti-virus program and a non-upgraded anti-virus program.” (Ans. 5, 18- 19.) We do not agree. Gladney relates to “providing optical networking to Wide Area Networks (WAN)[,] Metropolitan Area Networks (MAN), or Local Area Networks (LAN) as a peripheral device using modular components.” (¶ [0002].) Figure 2 of Gladney illustrates a Small Computer System Interface (SCSI) Optical Device 20 (reference character not shown) that is divided into a Network Interface Component (NIC) 30, a Network Access Controller (NAC) 28, and a SCSI Bus Interface 16 (¶ [0032]; Fig. 2), such that the NAC 28 handles virus detection (¶ [0033]). Gladney teaches that “[t]he updating procedure [of Operations, Administration, Maintenance, and Provisioning (OAM&P) software programs] will be hot-swapable, meaning NAC 28 remains running while the update is taking place.” (¶ [0034].) However, the Examiner has not provided any persuasive evidence that updating the OAM&P software programs would also necessarily update the computer virus detection. Even if the Examiner is correct that updating OAM&P software programs also updates the computer virus detection, Gladney does not expressly teach that the older version of the computer virus detection can be selected and utilized after the update has been completed. That is, Gladney does not teach or suggest that such hot- swapping would allow for “switching between an upgraded anti-virus program and a non-upgraded anti-virus program,” as recited in claim 1. Appeal 2009-014118 Application 10/138,478 5 Thus, we do not agree with the Examiner that the combination of Gladney, Fitzgerald, and Lin would have rendered obvious independent claim 1, which includes the limitation “a redundancy control software component stored in said memory . . . for switching between an upgraded anti-virus program and a non-upgraded anti-virus program.” Accordingly, we do not sustain the rejection of independent claim 1 under 35 U.S.C. § 103(a). Claims 2, 4-16, and 18-25 depend from independent claim 1. We do not sustain the rejection of claims 2, 4-16, and 18-25 under 35 U.S.C. § 103(a) for the same reasons discussed with respect to independent claim 1. Independent claim 26 recites limitations similar to those discussed with respect to independent claim 1. We do not sustain the rejection of claim 26, as well as claims 27, 28, and 30-50, which depend from claim 26, for the same reasons discussed with respect to claim 1. DECISION The Examiner’s decision to reject claims 1, 2, 4-16, 18-28, and 30-50 is reversed. REVERSED babc