Ex Parte Schneebeli et al

Board of Patent Appeals and Interferences

Feb 7, 2011

09160424 (B.P.A.I. Feb. 7, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
09/160,424 09/25/1998 SCOT L. SCHNEEBELI 1215 6327
21396 7590 02/07/2011
Sprint
6391 SPRINT PARKWAY
KSOPHT0101-Z2100
OVERLAND PARK, KS 66251-2100
EXAMINER
SURVILLO, OLEG
ART UNIT PAPER NUMBER
2442
MAIL DATE DELIVERY MODE
02/07/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte SCOT L. SCHNEEBELI, TERRY LEE OEHRKE,
and SCOTT CHRISTOPHER WELLS
_____________

Appeal 2009-007838
Application 09/160,424
Technology Center 2400
______________

Before: ROBERT E. NAPPI, THOMAS S. HAHN, and CARL W.
WHITEHEAD JR., Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL1

1 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 2009-007838
Application 09/160,424

This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 22, 24 through 31, 33 through 41, 43 through 46, and 48
though 54.
We affirm-in-part.

INVENTION
The invention is directed to a network for publishing software which
includes production and staging areas. See pages 4 and 5 of Appellants’
Specification. Claim 1 is reproduced below:
1. A system for publishing network content, the system
comprising:
(a) first and second production servers wherein each production server
provides production content to content users of a computer network in
response to requests routed to the production server from the content users;
(b) a staging server operatively connected to each of the first and
second production servers, wherein staging content is generated, edited
and/or tested by an administrator on the staging server and wherein the
staging content is automatically transferred from the staging server to the
first and second production servers for publication on the first and second
production servers at substantially the same time in response to a publish
command received on the staging server, wherein the transferred staging
content published on each of the production servers is the same staging
content; and
(c) wherein the transferred staging content replaces the production
content on the production server such that the transferred staging content
becomes subsequent production content accessible by the content users of
the computer network, and wherein access to the staging server is limited
such that the staging content is not accessible by the content users prior to
the transfer to the production server.

REFERENCES
Jain US 5,806,075 Sep. 8, 1998
Beck US 6,026,371 Feb. 15, 2000
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Appeal 2009-007838
Application 09/160,424

Chang US 6,026,371 Oct. 17, 2000
Inohara US 6,182,111 B1 Jan. 30, 2001

REJECTIONS AT ISSUE
The Examiner has rejected claims 1, 2, 6, 9, 14 through 16, 27, 30, 31,
34, 37, and 51 through 54 under 35 U.S.C. § 103(a) as being unpatentable
over Beck in view of Inohara. The Examiner’s rejection is on pages 4-11 of
the Answer.2
The Examiner has rejected claims 33, 38, 41, 43, 44, 46, 48, and 49
under 35 U.S.C. § 103(a) as being unpatentable over Beck in view of
Inohara and Jain. The Examiner’s rejection is on pages 11-16 of the
Answer.
The Examiner has rejected claims 3 through 5, 7, 8, 10 through 13, 17
through 22, 24 through 29, 35, 36, 39, 40, 45, and 50 under 35 U.S.C.
§ 103(a) as being unpatentable over Beck in view of Inohara and Chang.
The Examiner’s rejection is on pages 16-18 of the Answer.

ISSUES
Appellants argue on pages 11 through 16 of the Brief3 that the
Examiner’s rejection of independent claims 1, 14, 30, 37, and 51 under 35
U.S.C. § 103 is in error. Appellants’ arguments present us with the
following issues:

2 Through out this Decision we refer to the Examiner’s Answer dated July
25, 2008.
3 Throughout this Decision we refer to the Appeal Brief dated March 7, 2008
and Reply Brief dated September 15, 2008.
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Appeal 2009-007838
Application 09/160,424

First issue: Did the Examiner err in finding the combination of Beck
in view of Inohara teaches transferring of staging content to
first and second production servers at substantially the same
time?
Second issue: Did the Examiner provide a proper rationale to combine
Beck in view of Inohara?
Third issue: With respect to claims 30 and 37, did the Examiner err in
finding that the combination of Beck in view of Inohara teaches
the first and second access levels as claimed?

Appellants’ arguments on pages 16 and 17 of the Brief, directed to
independent claims 41 and 46 present us with the first two issues identified
above.

Appellants’ arguments on pages 16 and 17 of the Brief, directed to the
dependent claims assert that they are allowable for the reasons discussed
with respect to the independent claims.

ANALYSIS
First Issue
Appellants’ arguments have not persuaded us that the Examiner erred
in finding that the combination of Beck in view of Inohara teaches
transferring of staging content to first and second production servers at
substantially the same time. Appellants state that “Beck does not disclose
the ‘publication’ and ‘at substantially the same time’ limitations in that it
discloses only the exportation of an advertisement from a staging database to
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Appeal 2009-007838
Application 09/160,424

a single production database.” Brief 13. Further, Appellants argue that the
passages of Inohara cited by the Examiner do not teach publication at
substantially the same time. Brief 13-14, Reply Brief 2-5. In response, the
Examiner finds that Inohara teaches transmitting requests (data) to a
plurality of servers via multicast or broadcast, which one of ordinary skill in
the art would recognize means transmission to multiple users at substantially
the same time. Answer 19.
We concur with this finding by the Examiner and note that Appellants
have not addressed this finding by the Examiner. Further, we note that
Inohara teaches in column 14, lines 22-35, that it is known to transmit to
plural servers at the same time or sequentially, and that each procedure has
its advantages and disadvantages.
Further, Appellants’ arguments directed to “publishing” involving use
of a replication daemon that moves data from the production area to the
publication directory are not persuasive. Brief 13. As discussed by the
Examiner (Answer 19-20), this argument is not commensurate in scope with
claim 1 and improperly reads limitations from the Specification into the
claims. We concur.
Thus, Appellants’ arguments directed to the first issue have not
persuaded us of error in the Examiner’s rejection of independent claims 1,
14, 30, 37, and 51.

Second Issue
Appellants’ arguments have not persuaded us that the Examiner erred
in providing a proper rationale to combine Beck in view of Inohara.
Appellants argue that the references do not teach how one would go about
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Appeal 2009-007838
Application 09/160,424

modifying the references to achieve publication at the same time and as such
the rejection is based upon hindsight. Brief 14-15, Reply Brief 6. We are
not persuaded by this argument.
The Supreme Court has stated that “The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). “If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability.” Id. at 417.
The Examiner has found that the combination would result is caching
data to two or more servers in order to provide data as well as maintaining
coherency between two servers and allows for simultaneous data updates.
Answer 21. We concur with this rationale because the use of additional
servers along with simultaneous transmission is nothing more than using
known elements for their predictable functions. Thus, Appellants’
arguments have not persuaded us of error in the Examiner’s rejection of
independent claims 1, 14, 30, 37, and 51.

Third Issue
Appellants’ arguments have not persuaded us of error in the
Examiner’s in finding that the combination of Beck in view of Inohara
teaches the first and second access levels recited in claim 30, but have
persuaded us of error with respect to claim 37. The Examiner finds that
Beck discloses limiting access to a staging server for generating staging
content (first level) and limiting access for the publish command (second
level). Answer 22. Appellants’ arguments directed to these findings focus
on these two activities in Beck being performed by the same client, and thus
6

Appeal 2009-007838
Application 09/160,424

not disclosing a second access level. Reply Br 7-8. With respect to
independent claim 30, we are not persuaded by this argument. There is no
limitation in claim 30 which recites that the two access levels are to be
provided to different entities (clients or users). Thus, we concur with the
Examiner’s findings that the Beck two accesses meet the two access levels
recited in claim 30. Independent claim 37, however, recites that a first
access level is associated with a first user and a second access level is
associated with a second user. The Examiner has not shown that Beck
teaches two users with different access levels to perform different functions
as recited in claim 37. Accordingly, Appellants’ arguments have not
persuaded us of error in the Examiner’s rejection of independent claim 30,
but have persuaded us of error in the Examiner’s rejection of independent
claim 37.

CONCLUSION
Appellants’ arguments directed to the first and second issue have not
persuaded us of error. As these arguments are the only arguments directed
to the rejections of claims 1 through 22, 24 through 29, 41, 43 through 46,
and 48 through 54 we sustain the Examiner’s rejections of these claims.4

Appellants’ arguments directed to the third issue have not persuaded
us of error in the Examiner’s rejection of independent claim 30, but have
persuaded us of error in the rejection of independent claim 37. Accordingly

4 We note that claim 24 is ambiguous as it depends upon canceled claim 23,
for the sake of this decision it is assumed to ultimately depend upon
independent claim 14.
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Appeal 2009-007838
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we sustain: the Examiner’s rejections of claims 30, 31, and 33 through 36;
and will not sustain the Examiner’s rejections of claims 37 through 40.

ORDER
The decision of the Examiner to reject claims 1 through 22, 24
through 31, 33 through 41, 43 through 46 and 48 though 54 is affirmed-in-
part.
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) (2010).

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Appeal 2009-007838
Application 09/160,424

AFFIRMED-IN-PART

ELD

SPRINT
6391 SPRINT PARKWAY
KSOPHT0101-Z2100
OVERLAND PARK, KS 66251-2100
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