Ex Parte Robb et al

Board of Patent Appeals and Interferences

Apr 28, 2011

10127726 (B.P.A.I. Apr. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
___________ 2
3
BEFORE THE BOARD OF PATENT APPEALS 4
AND INTERFERENCES 5
___________ 6
7
Ex parte TERENCE ALAN ROBB, JAMES LOUIS STANDLEE, 8
ANNE ELIZABETH BEVIS, AMANDA JO WILLIAMS, 9
MICHAEL NASH HAASE, BARBARA L. HALL, 10
RALPH SAMUEL HOEFELMEYER, and THERESA EILCCN PHILLIPS 11
___________ 12
13
Appeal 2010-004472 14
Application 10/127,726 15
Technology Center 3600 16
___________ 17
18
Before MURRIEL E. CRAWFORD, ANTON W. FETTING, and 19
JOSEPH A. FISCHETTI, Administrative Patent Judges. 20
FETTING, Administrative Patent Judge. 21
DECISION ON APPEAL 22
Appeal 2010-004472
Application 10/127,726

2
STATEMENT OF THE CASE1 1

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed August 25, 2009) and Reply Brief (“Reply Br.,” filed January 20,
2010), and the Examiner’s Answer (“Ans.,” mailed November 27, 2009).
Terence Alan Robb, James Louis Standlee, Anne Elizabeth Bevis, 2
Amanda Jo Williams, Michael Nash Haase, Barbara L. Hall, Ralph Samuel 3
Hoefelmeyer, and Theresa Eilccn Phillips (Appellants) seek review under 4
35 U.S.C. § 134 (2002) of a final rejection of claims 10-39 and 61-67, the 5
only claims pending in the application on appeal. We have jurisdiction over 6
the appeal pursuant to 35 U.S.C. § 6(b) (2002). 7
The Appellants invented an Application Infrastructure Platform to 8
supply applications and services to Application Service Providers 9
(Specification ¶ 08). 10
An understanding of the invention can be derived from a reading of 11
exemplary claim 10, which is reproduced below [bracketed matter and some 12
paragraphing added]. 13
10. A system for automatically providing application services, 14
the system comprising: 15
[1] a plurality of application service provider systems 16
providing application services to customer entities for use 17
in end user devices; and 18
[2] a common services environment 19
including hardware and software configured 20
to allow said end user devices to access and utilize 21
said application services of said plurality of 22
application service provider systems, and 23
Appeal 2010-004472
Application 10/127,726

3
said common services environment further including 1
management systems to provide 2
integrated application, 3
back-office, and 4
management services 5
to said application service provider systems 6
for use in managing and supporting access 7
by said end user devices 8
to said application services 9
of said plurality of application service 10
provider systems. 11
The Examiner relies upon the following prior art: 12
Tormasov US 2002/0143906 A1 Oct. 3, 2002
Campbell US 6,920,615 B1 Jul. 19, 2005
Claims 10-39 and 61-67 stand rejected under 35 U.S.C. § 103(a) as 13
unpatentable over Tormasov and Campbell. 14
15
ISSUES 16
The issue of obviousness turns on whether Tormasov describes its 17
virtual environment as an alternative to ASP’s, or as a support mechanism 18
for multiple ASP’s. 19
FACTS PERTINENT TO THE ISSUES 20
The following enumerated Findings of Fact (FF) are believed to be 21
supported by a preponderance of the evidence. 22
Facts Related to the Prior Art 23
Appeal 2010-004472
Application 10/127,726

4
Tormasov 1
01. Tormasov is directed to a computer hosting service where 2
computer clusters serving as a platform are configured 3
automatically and have a system of virtual environments that are 4
integrated with a distributed file system as a platform for 5
providing hosting services. Tormasov ¶ 0002 and 22. 6
02. A set of virtual environments is launched and several computers 7
are combined with a distributed file system and a control center 8
into a sharable cluster. End users are linked to their virtual 9
environments via the Internet. Tormasov ¶ 0024. 10
03. Application Service Providers (ASP) represent another class of 11
hosting services that are in demand. Usually, Application Service 12
Providers provide shared access to a shared application such as a 13
database, which is installed and administered by the provider's 14
system engineer. Tormasov identifies a problem to be solved with 15
ASP’s as user access being restricted to the database alone. Access 16
to office applications, for example, is practically impossible as 17
their installation implies that there is only one user. Security of 18
data access is yet another problem. Tormasov ¶ 0016. 19
Campbell 20
04. Campbell is directed to a service enablement gateway with a 21
service portal. Campbell 1:18-20. 22
05. Campbell’s portal server has an application server, a database, 23
and a web server. The application server supports billing, 24
Appeal 2010-004472
Application 10/127,726

5
authentication, profile maintenance, remote logging portion, and 1
authorized third party maintenance. Campbell 1:18-20. 2
ANALYSIS 3
We are unpersuaded by the Appellants’ argument that the art fails to 4
show limitation [1] was predictable. Appeal Br. 9-12. The Appellants 5
contend that the art also teaches away from the use of ASP’s. Id. The 6
Examiner found that Tormasov describes a computer hosting service where 7
computer clusters serve as a platform configured automatically having a 8
system of virtual environments that are integrated with a distributed file 9
system as a platform for providing hosting services. Ans. 4-5. See FF 01. 10
This is in response to Tormasov’s recognition of a need for such 11
environments to support ASP’s. FF 03. Thus, contrary to the Appellants’ 12
contention that Tormasov describes its virtual environment as an alternative 13
to ASP’s, instead Tormasov describes its virtual environment as a support 14
mechanism for multiple ASP’s. 15
We agree with the Appellants that the Examiner failed to present a prima 16
facie case as to separately argued claims 13, 22, 23, and 25. Appeal Br. 14. 17
The Examiner made no citations to support the findings as to these claims, 18
and we find no support in the applied art for the Examiner’s findings. The 19
Examiner took notice of the notoriety of product catalogs for claim 12 and 20
the Appellants did not challenge this notoriety. 21
CONCLUSIONS OF LAW 22
The rejection of claims 10-12, 14-21, 24, 26-39 and 61-67 under 35 23
U.S.C. § 103(a) as unpatentable over Tormasov and Campbell is proper. 24
Appeal 2010-004472
Application 10/127,726

6
The rejection of claims 13, 22, 23, and 25 under 35 U.S.C. § 103(a) as 1
unpatentable over Tormasov and Campbell is improper. 2
DECISION 3
To summarize, our decision is as follows. 4
 The rejection of claims 10-12, 14-21, 24, 26-39 and 61-67 under 35 5
U.S.C. § 103(a) as unpatentable over Tormasov and Campbell is 6
sustained. 7
 The rejection of claims 13, 22, 23, and 25 under 35 U.S.C. § 103(a) as 8
unpatentable over Tormasov and Campbell is not sustained. 9
No time period for taking any subsequent action in connection with this 10
appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. 11
§ 1.136(a)(1)(iv) (2007). 12
13
AFFIRMED-IN-PART 14
15
16
17
18
19
20
mev 21
22