Ex Parte MCLAREN et al

Board of Patent Appeals and Interferences

May 29, 2003

08588942 (B.P.A.I. May. 29, 2003)

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The opinion in support of the decision being entered
today was not written for publication in a law journal
and is not binding precedent of the Board.
Paper No. 21
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte WAYNE A. MCLAREN, ANTHONY INGENOSO
and PAUL C. PERRITT

Appeal No. 2001-1206
Application No. 08/588,942

ON BRIEF

Before KRASS, GROSS and BARRY, Administrative Patent Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1-10, 12-23, 25-36 and 38-45.
The invention is directed to a method and system for
executing a program under one of a plurality of mutually
exclusive operating systems without having to reboot the entire
system. When a secondary operating system is required to run a
Appeal No. 2001-1206
Application No. 08/588,942
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particular program, work in progress by the primary operating
system is temporarily suspended, but not terminated, wherein the
software state of the computer system is saved until a subsequent
restoration of the primary operating system, after running of the
program by the secondary operating system. This is made possible
by the use of a “shell” from which the program in the secondary
operating system is executed, constraining the secondary
operating system such that another program cannot be invoked
under the secondary operating system until after control is
returned to the first operating system.
Representative independent claim 1 is reproduced as follows:
1. A method within a data processing system for executing a
program under one of a plurality of mutually exclusive operating
systems, said data processing system having a nonvolatile mass
storage device, a volatile memory, and a processor, said method
comprising:
in response to invocation of a program which executes under
a second operating system among said plurality of operating
systems while said processor is executing a first operating
system among said plurality of operating systems, automatically
performing the steps of:
causing said data processing system to achieve a quiescent
state;
determining a state of said first operating system from
contents of said volatile memory;
storing said state of said first operating system within
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Application No. 08/588,942
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either said volatile memory or said nonvolatile mass storage
device;
loading at least a portion of said second operating system
into said volatile memory in response to said storage of said
state of said first operating system; and
thereafter, executing said program under said second
operating system, wherein executing said program under said
second operating system comprises executing said program from a
shell that constrains said second operating system such that
another program cannot be invoked under said second operating
system until after control is returned to said first operating
system.
The examiner relies on the following references:
Moore et al. (Moore) 5,696,975 Dec. 9, 1997
(filed Nov. 26, 1996)
Crump et al. (Crump) 5,715,464 Feb. 3, 1998
(filed Jun. 7, 1995)
Cutler et al. “SCO UNIX in a Nutshell,” A Desktop Quick Reference
for SCO UNIX & Open Desktop, O’Reilly & Associate, pp. 69, 139,
144-145.
Claims 1-10, 12-23, 25-36 and 38-45 stand rejected under
35 U.S.C. 103. As evidence of obviousness, the examiner cites
Crump in view of Cutler with regard to claims 1-10, 12-23, 25-36,
38 and 39, adding Moore to this combination with regard to claims
40-42. It is not clear whether claims 43-45 are rejected because
they do not appear in any statement of rejection in the answer.
However, we presume they stand rejected under 35 U.S.C. 103
because the examiner mentions them at page 7 of the answer in the
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Application No. 08/588,942
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sense of the claims being rejected.
Reference is made to the briefs and answer for the
respective positions of appellants and the examiner.
OPINION
At the outset, we note that, in accordance with appellants’
grouping of claims, at page 5 of the principal brief, all claims
will stand or fall together. Accordingly, we will focus on
independent claim 1.
With regard to claim 1, it is the examiner’s position that
Crump discloses the invoking of a program which executes under a
second operating system among a plurality of operating systems.
At page 3 of the answer, the examiner also lists the other steps
of the claim and corresponding portions of Crump. However, the
examiner recognizes that Crump does not recite executing the
second operating system from a shell, as claimed. The examiner
turns to Cutler and identifies pages 144, 139 and 69 as teaching
the execution of a second operating system from a shell,
concluding that it would have been obvious “to execute the
operating system through a shell for the reason set forth on page
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Application No. 08/588,942
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144” [answer-page 6].
We REVERSE.
While we are unsure of the “reason” set forth on page 144 of
Cutler, we are willing to give the examiner the benefit of the
doubt that Crump discloses the claimed invention but for the
execution of the second operating system from a shell and that
Cutler discloses the execution of a second operating system from
a shell. Even so, and assuming there was an adequate motivation
to combine these teachings, we still fail to find, within the
applied references, a teaching that the shell which executes the
program under the second operating system “constrains said second
operating system such that another program cannot be invoked
under said second operating system until after control is
returned to said first operating system,” as claimed.
The examiner responds to this by stating, at page 9 of the
answer,
Cutler simply show that the programs from UNIX SVR2
could be executed on the second operating system UNIX
SVR3 [through UNIX shell] and another program cannot be
invoked under second operating system because,
execution is done through UNIX SVR3 shell and not UNIX
SVR2 shell (keeping in min d that shell is a program
that understand your command in this case UNIX SVR3
command).
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We agree with appellants, at page 2 of the reply brief, that
this statement is “nonsensical and unsupported” by any teaching
of Cutler. As explained by appellants, since the UNIX system is
a multitasking operating system that supports the concurrent
execution of multiple applications by multiple users, the
execution of a program under the UNIX SVR3 operating system of
Cutler would not appear to preclude the concurrent execution of
one or more other programs and we find nothing within Cutler that
would contradict this.
Accordingly, we find nothing in the combination of applied
references that would have suggested the claimed shell which
“constrains said second operating system such that another
program cannot be invoked under said second operating system
until after control is returned to said first operating system.”
Since each independent claim contains this limitation, we
will not sustain the rejection of claims 1-10, 12-23, 25-36 and
38-45 under 35 U.S.C. 103.
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Application No. 08/588,942
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The examiner’s decision is reversed.
REVERSED
ERROL A. KRASS )
Administrative Patent Judge )
)
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)
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ANITA PELLMAN GROSS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
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LANCE LEONARD BARRY )
Administrative Patent Judge )
EK/RWK
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