Ex Parte Merkin

Board of Patent Appeals and Interferences

Aug 16, 2010

10027618 (B.P.A.I. Aug. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte CYNTHIA M. MERKIN
____________________

Appeal 2009-007802
Application 10/027,6181
Technology Center 2400
____________________

Before JAY P. LUCAS, ST. JOHN COURTENAY III, and THU A. DANG,
Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL2

1 Application filed October 22, 2001. The real party in interest is Dell
Products L.P.
2 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007802
Application 10/027,618

STATEMENT OF THE CASE
Appellant appeals from a final rejection of claims 1 to 32 under
authority of 35 U.S.C. § 134(a). The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b).

We affirm the rejections.

Appellant’s invention relates to an operating system independent
technique for accessing and writing event log data on failure of a computer
system (Spec. 1, ll. 7 to 9). In the words of Appellant:
[W]riting data to the event log is monitored for
completion. … [M]onitoring the task for
completion includes determining whether the
BIOS program writes data to the event log within a
configurable time period of [a] timer.
(Spec. 12, ll. 9 to 12).
[I]f [a] system controller determines that the
execution of the BIOS did not result in the writing
of the data to the event log before expiration of a
time period established by [a] timer then the
system controller responds to the event. For
example, if the execution of the BIOS program
causes the second failure described earlier then the
BIOS program would not be able to be completed,
e.g., would be unable to write data to the event log
before expiration of the timer. The system
controller responds by reading data describing the
event and subsequently writing data to an event
log.
(Spec. 13, ll. 18 to 25).
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Appeal 2009-007802
Application 10/027,618

The following claim is illustrative of the claims on
appeal:
Claim 1:
1. In a system management controller included
in a computer system, a method of accessing event
data describing a failure, the method comprising:

configuring the system management
controller to monitor a task of writing data to an
event log, the task being executed by a Basic Input
Output System (BIOS) program in response to the
failure;

monitoring the task for completion;

accessing the event data if the task fails to
complete; and,

writing the event log via the system
management controller in response to accessing
the event data.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Davis US 6,205,547 B1 Mar. 20, 2001
Kosugi US 2001/0044841 A1 Nov. 22, 2001
(filed Jan. 22, 2001)
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Appeal 2009-007802
Application 10/027,618

REJECTIONS
The Examiner rejects the claims as follows:

R1: Claims 1 and 3 to 17 and 22 to 32 stand rejected under
35 U.S.C. § 102(e) for being anticipated by Kosugi.
R2: Claims 2, 18, 19, and 21 stand rejected under 35 U.S.C. § 103(a) for
being obvious over Kosugi in view of Davis.

We have only considered those arguments that Appellant actually
raised in the Brief. Arguments that Appellant could have made but chose
not to 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
The issues are whether Appellant has shown that the Examiner erred
in rejecting the claims under 35 U.S.C. §§ 102(e) and 103(a). The § 102(e)
issue is whether the Kosugi reference teaches Appellant’s “system
management controller” of claim 1. Specifically, the § 102(e) issue is
whether Kosugi’s controller is “monitoring” within the computer system
experiencing a failure. The § 103(a) issue turns on whether the Examiner
provided a legally sufficient justification for combining Kosugi and Davis.

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Appeal 2009-007802
Application 10/027,618

FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
Disclosure
1. Appellant has invented a method and system of accessing and writing
event data describing a failure when booting a computer (Spec. 4, ll. 5 to 9
and 9, ll. 13 to 15). Appellant’s method includes a controller that monitors
writing data to an event log, accessing the event data if the task of writing
data fails to complete, and writing the event log via the controller in
response to accessing the event data. (See claim 1.) The Specification says
a computer system may be a server machine (Spec. 10, ll. 1 to 2).
Kosugi
2. The Kosugi reference discloses accessing event data describing a
trouble during the BOOT processing of a server machine’s operating system.
(See Abstract and ¶ [0029].) Kosugi further discloses a controller 88 that
monitors writing data to an event log, accessing the event data if the writing
of data fails to complete, monitoring the task for completion, accessing the
event data if the task fails to complete, and writing the event log via the
controller in response to accessing the event data (¶ [0030]). Kosugi’s event
log is written in an email attachment forwarded to a remote server via a
LAN module (id.). However, if the LAN module fails (or also if it does not
fail), the WAN module is still available to notify the remote maintenance
server of operating system trouble via a public telephone network (id.).
Davis
3. The Davis reference discloses system interrupts (col. 4, ll. 12 to 37).

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Appeal 2009-007802
Application 10/027,618

PRINCIPLE OF LAW
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006).

ANALYSIS
Arguments with respect to the rejection
of claims 1, 3 to 17, and 22 to 32
under 35 U.S.C. § 102(e) [R1]

The Examiner has rejected the noted claims for being anticipated by
Kosugi, as expressed in the Answer, pages 3 to 9.
Appellant argues that the “system management controller” of claim 1
monitors within the system where event data is generated, and not merely
within the system logging event data (Brief 5). In other words, system
monitoring must be internal to the computer experiencing a failure (id.).
Although we read no limitations from the Specification into the claim
language, we read the claims in light of the Specification. See In re Van
Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Here, the Specification
discloses that Appellant’s computer system may be a server (FF#1). We
thus read the “system” of claim 1 as being a server. Within Kosugi’s server
(i.e., the “system,” as claimed), a controller 88 (cited as Appellant’s claimed
“system management controller”) records trouble in the operating system,
and a local area network (LAN) sends the system log describing the trouble
in an email attachment to a remote site. (See FF#2.) Since Kosugi discloses
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Appeal 2009-007802
Application 10/027,618

that the trouble occurs within the server machine’s operating system (id.),
we find unconvincing Appellant’s argument that the claimed “controller” is
not within the system generating event data. Kosugi’s disclosure of a remote
monitoring station that receives the logged information does not alter our
view that Kosugi’s controller 88 is can be read on the claimed “system
management controller.” We thus find no error with the Examiner’s
rejection of claim 1.

Argument with respect to the rejection
of claims 2, 18, 19, and 21
under 35 U.S.C. § 103(a) [R2]

The Examiner has rejected the noted claims for being obvious over
Kosugi in view of Davis, as expressed in the Answer, pages 8 to 9.
Appellant appears to argue that the justification for combining the
Kosugi and Davis references is legally insufficient (Brief 6 to 8).
Specifically, a skilled artisan would not have started with Kosugi’s trouble
notification in booting a computer (FF#2) and then considered Davis’s
disclosure of system interrupts (FF#3) in order to make the claimed
invention (id.). However, we find that the Examiner articulates a reason for
combining the Kosugi and Davis disclosures having a rational underpinning.
See KSR Int’l v. Teleflex Inc., 550 U.S. 398, 418 (2007). Specifically, the
Examiner finds that the skilled artisan would have considered Davis’s
interrupts because they are well-known indicators of error detection when
booting up a computer. (See Ans. 9, top.) We adopt and endorse the
Examiner’s findings and stated rationale. Moreover, we find unpersuasive
Appellant’s mere allegations of patentability, such as those presented in the
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Appeal 2009-007802
Application 10/027,618

Brief, pages 6 to 8. (See 37 C.F.R. § 41.37(c)(1)(vii).) Accordingly, we find
no error.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has not shown that the Examiner erred in rejecting claims 1 to 32.

DECISION
We affirm the Examiner’s rejections [R1 and R2] of claims 1 to 32.

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)(iv).

AFFIRMED

peb

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