Ex Parte Padhy et al

Patent Trial and Appeal Board

Feb 21, 2017

14008975 (P.T.A.B. Feb. 21, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/008,975 09/30/2013 Prashant K. Padhy LUTZ 201232US01 8741
48116 7590 02/23/2017
FAY STTARPF/T TTf’F.NT
EXAMINER
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2197
NOTIFICATION DATE DELIVERY MODE
02/23/2017 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PRASHANT K. PADHY, PAUL M. SUSA,
VASUMATHINARASIMHAN, and RITU SAMA
Appeal 2016-007130
Application 14/008,975
Technology Center 2100
Before ERIC S. FRAHM, NORMAN H. BEAMER, and ALEX S. YAP,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-007130
Application 14/008,975
INTRODUCTION
This is a decision on appeal under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—20. We have jurisdiction under 35
U.S.C. § 6(b). We reverse.
Illustrative Claim
1. A method for retrofitting a processor cluster, the
method comprising:
dividing the processor cluster into a plurality of
application processor groups, wherein the processor cluster
comprises a plurality of application processors;
retrofitting application software on an application
processor group selected from the plurality of application
processor groups, to obtain a retrofitted application
processor group;
yreservins at least one session of a subsequent application
processor group on the retrofitted application processor group',
and
retrofitting the application software onto the subsequent
application processor group.
Claim 1 (emphasis added). Remaining independent claims 8 and 16
recite commensurate limitations pertaining to the storage/preservation
of sessions and/or session data.
ANALYSIS
We have reviewed the Examiner’s rejection (Final Act. 2—8; Ans. 2—
8) in light of Appellants’ arguments (Br. 5—8) that the Examiner has erred, as
well as the Examiner’s response to Appellants’ arguments in the Briefs
(Ans. 8—16). We concur with Appellants’ contentions (App. Br. 7) that the
Examiner erred in finding claims 1—20 anticipated by Rathunde (US
2009/0007135 Al; published Jan. 1, 2009) because (i) Rathunde fails to
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Appeal 2016-007130
Application 14/008,975
specifically disclose “preserving at least one session of a subsequent
application processor group on the retrofitted application processor group”
as recited in independent method claim 1, and as commensurately recited in
remaining independent claims 8 and 16 (App. Br. 5; Reply Br. 2).
As described by Appellants in paragraphs 37, 40, and 50 of the
Specification, session module 114 preserves, and retrofitting device 108
transfers and stores, sessions and session data being handled by second
application processor group 112. The Examiner relies upon paragraphs 21
and 23 of Rathunde as disclosing the disputed limitations of
storing/preserving sessions and/or session data of a subsequent application
processor group (see Final Act. 3, 5, 7; Ans. 3, 5, 7, 11—12).
Although paragraphs 21 and 23 of Rathunde describe a second group
of processors G2 are at the ready to resume control of active client sessions,
Rathunde is silent as to whether any sessions or session data of the second
group G2 is actually preserved, transferred, and/or stored as recited in each
of independent claims 1, 8, and 16. And, while it might be obvious for some
reason that the second group of processors G2 in Rathunde might preserve
and/or store sessions and/or session data, we find no such disclosure in
Rathunde to support the Examiner’s position that this subject matter is
anticipated by Rathunde. We will not resort to speculation or assumptions to
cure the deficiencies in the Examiner’s fact finding. See In re Warner, 379
F.2d 1011, 1017 (CCPA 1967). As such, we find that the Examiner
improperly relies upon Rathunder to disclose and anticipate the disputed
claim limitations. See Warner at 1017.
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Appeal 2016-007130
Application 14/008,975
In view of the foregoing, we do not sustain the Examiner’s rejection
of independent claims 1, 8, and 16, as well as claims 2—7, 9-15, and 17—20,
which depend respectively therefrom, as being anticipated by Rathunde.
DECISION
The Examiner’s rejection of claims 1—20 is reversed.
REVERSED
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