Ex Parte Zilavy

Patent Trial and Appeal Board

Mar 27, 2014

11731277 (P.T.A.B. Mar. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DANIEL ZILAVY
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Appeal 2011-008575
Application 11/731,277
Technology Center 2400
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Before HUBERT C. LORIN, ANTON W. FETTING, and
GAY ANN SPAHN, Administrative Patent Judges.

LORIN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-008575
Application 11/731,277

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STATEMENT OF THE CASE
Daniel Zilavy (Appellant) seeks our review under 35 U.S.C. § 134 of
the final rejection of claims 1-20. We have jurisdiction under 35 U.S.C.
§ 6(b) (2002).
SUMMARY OF DECISION
We REVERSE.1
THE INVENTION
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A partitionable server that enables user access thereto, comprising:
a plurality of partitions, each of the plurality of partitions
running an independent instance of an operating system (OS) and
having a virtual user interface and at least one physical input/output
(I/O) interface connected to the virtual user interface; and
a first management module located in the partitionable server
and interfacing with the plurality of partitions, wherein the first
management module is separate from the plurality of partitions and
includes a physical user interface connected to the at least one
physical I/O interface of each of the plurality of partitions to provide
local access to the partitionable server;
wherein the first management module is operable to provide
mapping of a physical user interface (UI) device, which locally
accesses the partitionable server through the physical user interface of
the first management module and through the at least one physical I/O
interface of any one of the plurality partitions as desired for accessing
the one partition.

1 Our decision will make reference to the Appellant’s Appeal Brief (“App.
Br.,” filed Jul. 19, 2010) and Reply Brief (“Reply Br.,” filed Feb. 7, 2011),
and the Examiner’s Answer (“Ans.,” mailed Dec. 10, 2010).
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THE REJECTIONS
The Examiner relies upon the following as evidence of
unpatentability:
Billau
Chawla
Kabzinski

US 2005/0240932 A1
US 2006/0112219 A1
US 2008/0104348 A1
Oct. 27, 2005
May 25, 2006
May 1, 2008
The following rejections are before us for review:
1. Claims 1-7 and 12-20 are rejected under 35 U.S.C. §102(b) as being
anticipated by Billau.
2. Claim 8 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Billau and Kabzinski.
3. Claims 9-11 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Billau and Chawla.

ISSUES
Did the Examiner err in rejecting claims 1-7 and 12-20 under 35
U.S.C. §102(b) as being anticipated by Billau?
Did the Examiner err in rejecting claim 8 under 35 U.S.C. §103(a) as
being unpatentable over Billau and Kabzinski?
Did the Examiner err in rejecting claims 9-11 under 35 U.S.C. §103(a)
as being unpatentable over Billau and Chawla?

FINDINGS OF FACT
We rely on the Examiner’s factual findings stated in the Answer.
Additional findings of fact may appear in the Analysis below.
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ANALYSIS
The rejection of claims 1-7 and 12-20 under 35 U.S.C. §102(b) as being
anticipated by Billau.
There are three independent claims: claim 1 to a “partitionable
server”; claim 13 to a “method for providing user access to a plurality of
partitions in a partitionable server”; and, claim 20 to a “computer readable
storage medium encoded with computer executable instructions to provide
user access to a plurality of partitions in a partitionable server.”
Claim 1
The claim element of the server defined by claim 1 that is at issue is
“a plurality of partitions, each of the plurality of partitions running an
independent instance of an operating system (OS) and having a virtual user
interface and at least one physical input/output (I/O) interface connected to
the virtual user interface.”
The Examiner takes the position that this element is expressly
described in Billau at Fig. 1 and ¶0022, ¶0030, and ¶0059. Ans. 5.
The Appellant disagrees, arguing that
As shown in Fig. 2, the OS partition 200 includes a virtual adapter
driver 212 connected to a virtual adapter interface 214 of the I/O
partition 208 via the hypervisor 216. The virtual adapter driver 212 of
the OS partition 200 is not a physical I/O interface connected to a
physical user interface of a management module, as recited in claim 1.
In fact, Billau discloses that the virtual adapter driver 212 replaces a
physical adapter driver (See Billau, paragraph [0030], lines 1-3).
App. Br. 10.

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In response, the Examiner argues that:
Billau teaches both a virtual and physical (I/O) connections [sic]. In
particular, Billau teaches virtual adaptor interface 214 in figure 2 or
element 310 in figure 3 (see Figures 2 and 3). Moreover, Billau
teaches that specific information, such as specialized information for a
particular adapter manufacturer, is specified in the interfaces for the
physical adapter drivers located in the I/O partition [paragraph 30],
which clearly and consequently results [sic] that Billau teach [sic] a
Physical adaptor interface for each portion. [A]lso, Billau teaches that
the interface performs specialized processing such as checking
whether the partition has authority to access the physical adapter
[paragraph 34], which illustrate that Billau teaches[,] beside[s] a
virtual adaptor[,] a physical adaptor. In addition, Billau teaches
performing a configuration to update the physical I/O adapter
[paragraph 59], which again and confirm [sic] that Billau teaches
Physical I/O adaptor [sic]. Also, Billau teaches an I/O partition 300
includes a plurality of physical adapters 302, each of which is coupled
to the I/O partition and is accessible by one or more consumer
partitions 304 (paragraph 39). Therefor [sic], Billau teaches that
each partition has an access to a physical I/O. Last, by definition
having virtual connections requires the existence of physical (I/O)
connections too. Therefor [sic], Since Billau disclose [sic] physical
I/O that inherently connected to a physical interface, then Billau meets
the scope of the claimed limitation as currently presented[.][sic]
Ans. 15-16.
The Examiner’s initial position relied on Figure 1 of Billau. But
Figure 1 does not show any “physical input/output (I/O) interface connected
to [a] virtual user interface” (claim 1). In response to the Appellant’s
argument, the Examiner directed attention to both Figures 2 and 3 – piecing
together the OS-depicted arrangement in Figure 2 with the plurality of
physical adapters shown in Figure 3.
Billau’s Figure 2 depicts “a consumer partition of [a] partitioned
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environment, such as an operating system partition, being coupled to an I/O
partition of the environment.” Billau, para. [0014]. Billau Figure 2 is
directed to “an operating system partition 200, which includes an operating
system 202, [and] is configured to share at least one I/O adapter 206 owned
by an I/O partition 208.” Id. para.[0028]. In that regard, “[A] [d]evice
driver 210 builds a command for the I/O device (e.g., disk device, network
device, etc.) to be accessed and forwards the command . . . to a virtual
adapter driver 212 of the operating system partition.” Id. para.[0029]. “The
virtual adapter driver replaces a physical adapter driver in the operating
system partition and is paired with a virtual adapter interface 214 in I/O
partition 208.” Id. para. [0030].
The difficulty with Figure 2 lies in mapping the partitions depicted in
Figure 2 to the partitions as claimed. Billau’s I/O partition (element 208)
does not run an independent instance of an operating system (OS) as the
claimed server requires. Billau’s other depicted partition – OS partition
(element 200) - does not show any “physical input/output (I/O) interface
connected to [a] virtual user interface” (claim 1). As Billau discloses, “[t]he
virtual adapter driver replaces a physical adapter driver in the operating
system partition and is paired with a virtual adapter interface 214 in I/O
partition 208.” Billau, para.[0030].
Figure 3 depicts “multiple partitions having access to one or more
adapters via an I/O partition.” Billau, para.[0015]. “[A]n I/O partition is
configured with a plurality of adapters to be shared by a plurality of
consumer partitions.” Id. para.[0039]. “For instance, an I/O partition 300
includes a plurality of physical adapters 302, each of which is coupled to the
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I/O partition (e.g., located within, external but coupled to, or therebetween)
and is accessible by one or more consumer partitions 304.” Id.
The difficulty with Billau’s Figure 3 lies in the fact that there is no
description, express or inherent, of “a plurality of partitions, each of the
plurality of partitions running an independent instance of an operating
system (OS) and having a virtual user interface” (claim 1) as the claimed
server requires.
While it is possible that one of ordinary skill in the art would have
been led to the claimed server by piecing Billau’s Figures 2 and 3 together,
the question here is one of anticipation not obviousness. Anticipation can be
found where the claimed subject matter is inherently described in a single
reference, but “a plurality of partitions, each of the plurality of partitions
running an independent instance of an operating system (OS) and having a
virtual user interface and at least one physical input/output (I/O) interface
connected to the virtual user interface” (claim 1) is not necessarily described
in Billau. It is at best a possibility. “Inherency . . . may not be established
by probabilities or possibilities. The mere fact that a certain thing may result
from a given set of circumstances is not sufficient.” Hansgirg v. Kemmer,
102 F.2d 212, 214 (CCPA 1939)(citations omitted), quoted in Continental
Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1269 (Fed. Cir. 1991).
“[The] reference must clearly and unequivocally disclose the claimed
[invention] or direct those skilled in the art to the [invention] without any
need for picking, choosing, and combining various disclosures not directly
related to each other by the teachings of the cited reference.” In re Arkley,
455 F.2d 586, 587 (CCPA 1972) quoted in Sanofi-Synthelabo, Inc. v.
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Apotex, Inc., 550 F.3d 1075, 1083 (Fed. Cir. 2008).
For the foregoing reasons, we do not sustain the rejection under §102
of claim 1 and claims 2-7 and 12 depending therefrom.

Claims 13-20
Both independent claims 13 and 20 call for providing a first physical
user interface (UI) device with access to a first selected partition of a
plurality of partitions in a partitionable server through a physical I/O
interface of the first selected partition. For reasons similar to those
discussed for the rejection of claim 1, we do not find Billau expressly or
inherently describes providing a first physical UI device with access to a
first selected partition through a physical I/O interface of the first selected
partition as claimed. As the Appellant points out, “in Billau the I/O partition
208 shown in Fig. 2 is connected to the OS partition 200 through its virtual
adapter driver 212 and not through a physical I/O interface.” App. Br. 12.
The Examiner responded by pointing to disclosure of physical adapters 206
and 218. See Ans. 17, relying on Billau, paras.[0034]-[0036], and [0059].
But Billau does not describe, expressly or inherently, physical adapters 206
and 218 as accessing a first selected partition as claimed. While it is
possible that one of ordinary skill in the art would have been led to the
claimed subject matter given Billau, the question here is one of anticipation
not obviousness.
For the foregoing reasons, we do not sustain the rejection under § 102
of claims 13 and 20, and the dependent claims 14-19.

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The rejection of claim 8 under 35 U.S.C. § 103(a) as being unpatentable
over Billau and Kabzinski.
Claim 8 depends from claim 1. For the same reasons that we do not
sustain the rejection of claim 1, we also do not sustain the rejection of claim
8.

The rejection of claims 9-11 under 35 U.S.C. § 103(a) as being unpatentable
over Billau and Chawla.
Claims 9-11 depend from claim 1. For the same reasons that we do
not sustain the rejection of claim 1, we also do not sustain the rejection of
claims 9-11.

CONCLUSIONS
The rejections of claims 1-7 and 12-20 under 35 U.S.C. § 102(b) as
being anticipated by Billau; claim 8 under 35 U.S.C. § 103(a) as being
unpatentable over Billau and Kabzinski; and, claims 9-11 under 35 U.S.C.
§ 103(a) as being unpatentable over Billau and Chawla, are not sustained.

DECISION
The decision of the Examiner to reject claims 1-20 is reversed.

REVERSED
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