MEGAN ROZMAN et al.

Patent Trials and Appeals Board

Oct 26, 2021

2021004573 (P.T.A.B. Oct. 26, 2021)

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.
90/013,967 06/15/2017 RE43500 12437.0238 3127
112093 7590 10/26/2021
Boisbrun Hofman, PLLC
1255 West 15th Street, Suite 400
Suite 400
Plano, TX 75075
EXAMINER
BANANKHAH, MAJID A
ART UNIT PAPER NUMBER
3992
MAIL DATE DELIVERY MODE
10/26/2021 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MEGAN ELIZABETH ROZMAN, MELANIE ANN ROZMAN,
and MORGAN LEE ROZMAN
Patent Owner and Appellant
____________

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Technology Center 3900
____________

Before ALLEN R. MacDONALD, JOHN A. JEFFERY, and
JENNIFER S. BISK, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. §§ 134 and 306 the Examiner’s
decision to reject claims 21, 25–30, 34–41, and 46–65. Claims 22–24, 31–
33, 42–45, and 66–71 have been indicated as containing patentable subject

1 Appellant identifies the real parties in interest as Alfonso Cioffi and Allen
Rozman’s heirs. Appeal Br. 7.
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matter. We have jurisdiction under 35 U.S.C. §§ 134 and 306, and we heard
the appeal on September 21, 2021.2
We AFFIRM and enter a new ground of rejection.

STATEMENT OF THE CASE
This proceeding arose from a request for ex parte reexamination filed
on June 7, 20173 of United States Patent RE43,500 E (“the ’500 patent”),
issued to Allen F. Rozman and Alfonso J. Cioffi on July 3, 2012.4
The ’500 patent describes a system that protects a computer system
from malicious software. To this end, the computer system includes first
and second data processors and associated memory spaces, and is configured
such that a malware program downloaded from a network executes on the
second data processor, but cannot initiate access to the first memory space.
See Abstract. Claim 21 is illustrative and reproduced below:
21. A portable computing and communication device
capable of executing instructions using a common operating
system, comprising:
a network interface device configured to exchange data
across a network of one or more computers using a wireless
connection;
an intelligent cellular telephone capability with a secure
web browser including a first web browser process and a
second web browser process;
at least a first memory space and a second memory space,
the first memory space containing at least one system file; and

2 Throughout this opinion, we refer to the transcript of this oral hearing filed
October 5, 2021 (“Tr.”).
3 A corrected request for reexamination was filed on June 15, 2017.
4 The ’500 patent reissued U.S. Patent 7,484,247 that issued on January 27,
2009.
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at least one electronic data processor communicatively
coupled to the network interface device and to the first and
second memory space;
the at least one electronic data processor configured to
execute the first web browser process within the common
operating system, wherein the first web browser process is
capable of accessing data of a website via the network,
accessing data contained in the first memory space and is
further capable of initializing the second web browser process;
the at least one electronic data processor further
configured to execute the second web browser process within
the common operating system, wherein the second web browser
process is capable of accessing data contained in the second
memory space and is further capable of generating data;
the at least one electronic data processor further
configured to pass data from the first web browser process to
the second web browser process;
wherein the portable computing and communication
device is configured such that the at least one system file
residing on the first memory space is protected from corruption
by a malware process downloaded from the network and
executing within the second web browser process.

RELATED PROCEEDINGS
This appeal is said to be related to various pending proceedings. First,
Appellant informs us of ex parte reexamination proceedings (Control
Numbers 90/013,968 and 90/013,969) in connection with two related
patents, where both proceedings were on appeal. See Appeal Br. 8.5 Both of
those appeals have been decided. See Ex parte Rozman, Appeal 2021-

5 Throughout this opinion, we refer to (1) the Final Rejection mailed July 30,
2019 (“Final Act.”); (2) the Appeal Brief filed August 31, 2020 (“Appeal
Br.”); (3) the Examiner’s Answer mailed February 16, 2021 (“Ans.”); and
(4) the Reply Brief filed May 17, 2021 (“Reply Br.”).
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003751 (PTAB Aug. 11, 2021); see also Ex parte Rozman, Appeal 2021-
004039 (PTAB Aug. 19, 2021) In the ’3751 appeal, we affirmed in part the
Examiner’s decision to reject the claims, and designated our affirmance of
the rejection of one claim as a new ground of rejection. In the ’4039 appeal,
we affirmed the Examiner’s decision to reject the claims, and designated our
affirmance of the rejection of various claims as a new ground of rejection.
Notably, the prior art at issue in both appeals is largely the same as that at
issue here.
Second, Appellant informs us of pending district court litigation
involving the ’500 patent. See Appeal Br. 8; Reply Br. 5 (citing Cioffi v.
Google, Inc., No. 2:13-cv-00103 (E.D. Tex.).
The ’500 patent was also at issue in a decision of the Court of Appeals
for the Federal Circuit that reversed and remanded the case to the district
court due to various recited terms that were incorrectly construed. See Cioffi
v. Google, Inc., 632 F. App’x 1013, 1014–24 (Fed. Cir. 2015) (unpublished).
The ’500 patent was also at issue in two Board proceedings where
another panel of this Board denied institution for covered business method
patent review. See Google Inc. v. Cioffi, CBM2017-00011, Paper 10 (PTAB
May 1, 2017); see also Google Inc. v. Cioffi, CBM2017-00014, Paper 9
(PTAB May 1, 2017).
Lastly, in demonstratives provided in connection with this appeal’s
oral hearing, Appellant informs us of a District Court order denying
Google’s motion for post-trial relief on invalidity under 35 U.S.C. § 251.
See Order and Memorandum Opinion Regarding Defendant’s Rule 50(b)
Motions Based on 35 U.S.C. § 251 and the Rule Against Recapture
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Supported by Findings of Fact and Conclusions of Law, No. 2:13-cv-00103-
JRG (E.D. Tex. Aug. 26, 2021). In those demonstratives, Appellant also
informs us of the District Court’s memorandum opinion and order that was
filed under seal on September 2, 2021 denying Defendant’s motion for post-
trial relief. Accord Tr. 3 (noting this related case).

THE REJECTIONS
The Examiner rejected claims 21, 26, 29, 30, 34, 38, 39, 41, 49, 51,
and 53–65 under 35 U.S.C. § 103 as unpatentable over Joshi (US 7,694,328
B2; issued Apr. 6, 2010) and Jacobs (US 2004/0054588 Al; published Mar.
18, 2004) (“Ground 4”).6 Final Act. 49–63.
The Examiner rejected claims 25, 37, and 52 under 35 U.S.C. § 103 as
unpatentable over Joshi, Jacobs, and Hasbun (US 2005/0188173 Al;
published Aug. 25, 2005) (“Ground 5”). Final Act. 63–65.
The Examiner rejected claims 27, 28, 35, 36, and 46–48 under 35
U.S.C. § 103 as unpatentable over Joshi, Jacobs, and Wolff (US
2002/0174137 Al; published Nov. 21, 2002) (“Ground 6”). Final Act. 65–
70.
The Examiner rejected claims 40 and 50 under 35 U.S.C. § 103 as
unpatentable over Joshi, Jacobs, and Angelo (US 6,581,162 B1; issued June
17, 2003) (“Ground 7”). Final Act. 70–71.

6 For clarity, we identify each ground of rejection on appeal numerically
consistent with the Examiner’s and Appellant’s nomenclature.
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SUBSTANTIAL NEW QUESTION OF PATENTABILITY (SNQ)
Appellant disputes the Examiner’s SNQ determination in this
proceeding because the record ostensibly does not support treating Joshi
differently in the present ex parte reexamination proceeding of the ’500
patent as compared to the patent’s prosecution. See Appeal Br. 62–63.
According to Appellant, Joshi was not relied upon in any substantive
rejection during the ’500 patent’s prosecution despite the Examiner citing
Joshi with only four other prior art references. Appeal Br. 62–63.
On this record, we see no error in the Examiner’s SNQ determination.
As the Examiner explained during prosecution, the Joshi reference is
presented or viewed in a new light or different way in this proceeding,
namely with respect to, among other things, the functionality of Joshi’s web
browser processes. See Final Act. 4; see also Office Action Ordering
Reexamination mailed Aug. 1, 2017 (“Reexam Order”), at 15–18. Because
of these new and non-cumulative teachings, as well as those in various other
cited prior art references, an SNQ was deemed to be raised and, therefore,
reexamination was ordered. See Reexam Order at 2, 15–18. On this record,
we see no error in these findings and conclusions.
Accordingly, we are unpersuaded of error in the Examiner’s SNQ
determination.

THE REJECTION OVER JOSHI AND JACOBS (“GROUND 4”)
Regarding independent claim 21, the Examiner finds that Joshi
discloses a portable computing and communication device including, among
other things, a secure web browser, namely software for browsing the web,
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that comprises (1) a first web browser process, namely an Internet Explorer
instance in a Protected Context, and (2) a second web browser process,
namely an Internet Explorer instance in an Isolated Context, where both web
browser processes can perform their respective recited functions. See Final
Act. 49–50; Ans. 9–10, 19–20.
The Examiner also finds that Joshi’s first web browser process,
namely an Internet Explorer instance in the Protected Context, can not only
access website data via a network and access data in a first memory space
containing at least one system file, but also initialize the second web browser
process, namely an Internet Explorer instance in an Isolated Context, via an
ActiveX control. Final Act. 50–51; Ans. 26–30. The Examiner also finds
that data, namely a Uniform Resource Locator (URL) and window handle,
are passed from the first web browser process in the Protected Context to the
second web browser process in the Isolated Context. Final Act. 51; Ans.
32–34. The Examiner adds that Joshi’s secure web browser, namely
software for browsing the web, is configured such that a system file residing
on a first memory space, namely that associated with the Protected Context,
is protected from corruption by the website content potentially containing
malware in the second web browser process, namely the Internet Explorer
instance in the Isolated Context. Final Act. 51–52; Ans. 25–26, 35.
Although the Examiner acknowledges that Joshi’s portable computing
and communication device lacks an intelligent cellular telephone capability,
the Examiner cites Jacobs for teaching that feature in concluding that the
claim would have been obvious. Final Act. 50; Ans. 21–23.
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Appellant argues that the cited prior art does not teach or suggest a
portable computer and communication device including an intelligent
cellular telephone capability with a secure web browser including a first web
browser process and a second web browser process as claimed. Appeal Br.
64–103; Reply Br. 16–20. According to Appellant, not only does the
Examiner incorrectly construe the term “web browser process” differently
from the other recited web browser processes, Joshi lacks an overarching
secure web browser process, namely a discrete web browser application,
comprising the two recited web browser processes. Appeal Br. 65–72.
Rather, Joshi is said to disclose two web browser processes, namely Internet
Explorer in the Protected and Isolated Contexts. Appeal Br. 65–68.
Appellant also argues that the cited prior art does not teach or suggest
an intelligent cellular telephone capability with a secure web browser as
claimed. Appeal Br. 72–76; Reply Br. 16–17. According to Appellant,
Jacobs’ “single comment” in paragraph 30 that advertising-supported email
software can be operated on intelligent cellular telephones with built-in web
browsers does not motivate ordinarily skilled artisans to combine Jacobs
with Joshi as the Examiner proposes. Appeal Br. 73. Appellant adds that
not only were the Windows and MacOS operating systems on which Jacobs
and Joshi rely unavailable on cellular telephones in 2004, Joshi’s two web
browser programs are not a single secure web browser including two web
browser processes. Appeal Br. 73–75.
Appellant also argues that the cited prior art does not disclose a
portable computing and communication device including (1) a first memory
space having at least one system file, and (2) a second memory space as
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claimed. Appeal Br. 76–81; Reply Br. 17. According to Appellant, because
applications running in Joshi’s Isolated Context, which the Examiner maps
to the second memory space, can access shared memory in the Protected
Context, which the Examiner maps to the first memory space, the two
memory areas are not distinct, which is contrary to the District Court’s
construction of the recited memory spaces as distinct from each other. See
Appeal Br. 79–81. Appellant adds that if all memory accessible to all
programs in the Protected Context overlaps with memory accessible by
programs running in the Isolated Context, then Joshi’s system does not
protect a system file residing on the first memory space from corruption by a
downloaded malware process executing within the second web browser
process as claimed. Appeal Br. 77.
Appellant also argues that Joshi’s first web browser process, namely
the Protected Context, does not initialize the second web browser process as
claimed. Appeal Br. 81–93; Reply Br. 17–18. According to Appellant,
Joshi’s ActiveX control—which is said to not be a web browser process—
runs in conjunction with the Protected Context and passes a “window
handle” to a child window created in the Isolated Context, where the handle
creates an Internet Explorer web browser control and causes rendering
Internet Explorer in the child window area. Appeal Br. 83. According to
Appellant, Joshi’s ActiveX control and Browser Helper Object (BHO) are
(1) processes separate from Internet Explorer regardless of Context, and
(2) ancillary programs that are not web browser processes, but rather
instances of code distinct from Internet Explorer’s executed code. Appeal
Br. 85–88. Appellant adds that just because separate instances of ActiveX
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and Internet Explorer share the same address space does not merge them into
a single instance of a program or code to constitute the recited first web
browser process. Appeal Br. 91; Reply Br. 19.
Appellant further contends that the cited prior art does not pass data
from the first web browser process to the second web browser process as
claimed. Appeal Br. 93–100; Reply Br. 18–20. According to Appellant,
Joshi’s ActiveX control (1) creates a window in the Protected Context for
the Isolated Context, and (2) passes data, namely the window handle, to the
Isolated Context. Appeal Br. 94–96. Appellant emphasizes that the
ActiveX control—a program different from Internet Explorer’s Protected
Context that the Examiner maps to the first web browser process—passes
the window handle to the child window created in the Isolated Context and,
therefore, the first web browser process, namely Internet Explorer’s
Protected Context, does not pass data to the second web browser process,
namely Internet Explorer’s Isolated Context. Appeal Br. 94–98; Reply Br.
18–20.
Appellant also argues that Joshi does not disclose a secure web
browser configured such that at least one system file residing on the first
memory space is protected from corruption by a downloaded malware
process executing within the second web browser process as claimed.
Appeal Br. 100–03; Reply Br. 20. According to Appellant, because Joshi’s
shared memory is within the Examiner’s identified first memory space,
malware executing in the second web browser process, namely the Isolated
Context, can access Joshi’s memory space shared with the Protected Context
and, therefore, a system file on the first memory space would not be
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protected from corruption. See Appeal Br. 100–03. Appellant argues other
recited limitations summarized below.

ISSUES
I. Under § 103, has the Examiner erred by finding that Joshi and
Jacobs collectively would have taught or suggested:
(1) a portable computing and communication device comprising (a) an
intelligent cellular telephone capability with a secure web browser
including first and second web browser processes; (b) first and
second memory spaces, where the first memory space contains at
least one system file; and (c) at least one electronic data processor
configured to perform the recited functions, where the portable
device is configured such that the system file in the first memory
space is protected from corruption by a downloaded malware
process executing within the second web browser process as
recited in claim 21?
(2) the first web browser process is protected from executing
instructions initiated by a malware process downloaded from the
network and executing as part of the second web browser process
as recited in claim 29?

II. Is the Examiner’s obviousness conclusion erroneous in light of the
evidence of secondary considerations of non-obviousness?

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ANALYSIS
Claims 21, 26, 30, 34, 39, 41, 51, and 53–65
We begin by construing a key disputed limitation of claim 21 that
recites, in pertinent part, a secure web browser. As noted above, the claim
recites that the secure web browser comprises first and second web browser
processes. The ’500 patent’s Specification, however, does not define the
term “web browser process,” let alone a “secure web browser.”
Although the Federal Circuit did not construe the term “secure web
browser” in its decision that involved the ’500 patent, it did, however, hold
that (1) the term “web browser process” is a process that can access data on
websites, and (2) the district court incorrectly construed a “web browser
process” as requiring direct access capability. See Cioffi, 632 F. App’x at
1018–22, 1023. Given this holding, we, therefore, construe the term “web
browser process” as a process capable of accessing data on websites directly
or indirectly.
The court, however, did not construe the term “process”—a key
element of the recited web browser processes. Nor does the ’500 patent
define that term. Accordingly, we construe the term “process” with its plain
meaning in the art. A noted computer dictionary defines the term “process”
as “[a] program or part of a program; a coherent sequence of steps
undertaken by a program.” Process, MICROSOFT COMPUTER DICTIONARY
423 (5th ed. 2002) (“Microsoft Computer Dictionary”). Another special-
purpose dictionary defines the term “process,” in pertinent part, as “[a]
sequence of steps, events, operations, functions, or the like, which leads to a
given result.” Process, Steven M. Kaplan, WILEY ELECTRICAL &
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ELECTRONICS ENGINEERING DICTIONARY 605 (2004) (“Wiley EE
Dictionary”).
Under its broadest reasonable interpretation in light of the
Specification and these authorities, a “web browser process” is effectively a
sequence of steps, events, operations, functions, or the like, which leads to a
given result, namely the ability to access data on websites directly or
indirectly.
Given this web browser process capability, namely the ability to
access data on websites directly or indirectly, a web browser is, therefore, a
means to achieve that end, namely software that enables accessing data on
websites directly or indirectly. A secure web browser, then, is software that
enables accessing data on websites directly or indirectly securely. The term
“secure” is defined, in pertinent part, as “[s]afe from unauthorized use,
access, interception, monitoring, or the like.” Secure, Wiley EE Dictionary,
at 690. Therefore, under its broadest reasonable interpretation, a secure web
browser is software that enables accessing data on websites directly or
indirectly, where the software is safe from unauthorized use, access,
interception, monitoring, or the like.
Given our interpretation, we see no error in the Examiner’s finding
that a secure web browser includes software for browsing the web (Ans. 9,
19), at least to the extent this software enables, or otherwise facilitates,
accessing data on websites directly or indirectly, where the software is safe
from unauthorized use, access, interception, monitoring, or the like.
Turning to Joshi, Joshi’s “security solution” separates a client into
(1) a “Protected Context,” namely the client’s real files and resources, and
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(2) an “Isolated Context,” which is a restricted execution environment that
uses virtualized resources to execute applications and modify content in the
Isolated Context without allowing explicit access to resources in the
Protected Context. See Joshi Abstract; col. 4, ll. 54–60.
As shown in Joshi’s Figure 1, client 10 is connected to network 20 via
enterprise server 30. Joshi col. 4, ll. 61–63. “[S]ecurity solution” 40 is
installed on the network, where this “solution” provides general policy-
based definitions to servers to identify and tag external content. Joshi col. 4,
ll. 64–67. In addition, security solution security client software 50 is
installed on the client, where this software provides (1) local policies and
mechanisms for identifying content origin; (2) tagging mechanisms;
(3) means for creating restricted execution and virtual environments;
(4) means for consolidating the user interface; (5) visual indication of
untrusted content; and (6) means for detecting user intent. Joshi col. 4, l.
67–col 5, l. 6.
Notably, the combination of (1) security solution security client
software 50 (which Joshi also refers to as a “security client” 50), and
(2) “security solution” 40 (which Joshi also refers to as “security server” 40)
allow the user environment on client 10 to be separated into environments or
contexts, namely Isolated Context 60 and Protected Context 70. Joshi col. 5,
ll. 6–10.
This functionality associated with Joshi’s security solution security
client software 50, security solution 40, and Internet Explorer, collectively
constitutes a secure web browser, for it is effectively software that enables
accessing data on websites directly or indirectly, where the software is safe
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from unauthorized use, access, interception, monitoring, or the like. Accord
Joshi col. 3, ll. 4–8 (noting that the security solution’s goal is to allow
enterprise users unfettered access to external, potentially malicious content,
such as web pages, without exposing the enterprise to the risk of infection or
other malicious action). That Joshi refers to this software-based
functionality as a security solution underscores the secure aspects of this
web browser and its associated software.
Notably, nothing in the claim or the Specification limits the recited
secure web browser to a single, discrete program or instance as the Examiner
indicates. See Ans. 19; see also Ans. 10 (noting that the plain meaning of
“web browser” does not prescribe the number of programs that make up the
software). To the extent Appellant contends otherwise (see Appeal Br. 41,
47, 69; Reply Br. 10), such arguments are not commensurate with the scope
of the claim.
We reach this conclusion despite Dr. Dunsmore’s view that a secure
web browser is an “actual web browser program,” such as Internet Explorer
or Firefox, where this browser is a single, discrete web browser application.
See Second Supplemental Declaration of H.E. Dunsmore, Ph.D. In Support
of Patent Owner’s Response to Office Action dated May 20, 2019 (“2d
Supp. Dunsmore Decl.”) ¶¶ 21, 23, 33; Third Supplemental Declaration of
H.E. Dunsmore, Ph.D. In Support of Patent Owner’s Response to First
Office Action dated Nov. 12, 2019 (“3d Supp. Dunsmore Decl.”) ¶ 15.
Although we appreciate Dr. Dunsmore’s insights in this regard, neither the
claim nor the Specification limits the recited secure web browser to a single,
discrete program or instance to preclude multiple programs or instances that
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collectively constitute a secure web browser, namely software that enables
accessing data on websites directly or indirectly, where the software is safe
from unauthorized use, access, interception, monitoring, or the like. That
another panel of this Board in a related proceeding noted that the ’500
patent’s claims are directed to a “very general web browser process that is
capable of accessing data,” and do not indicate the type of web browser7
underscores the recited secure web browser’s breadth and high level of
generality.
Therefore, nothing in the claim precludes Joshi’s secure web browser,
namely the software associated with security solution security client
software 50, security solution 40, and Internet Explorer, as effectively
comprising (1) a first web browser process, namely the functionality
associated with creating an instance of the Internet Explorer web browser
running in the Protected Context, and (2) a second web browser process,
namely the functionality associated with creating an instance of Internet
Explorer running in the Isolated Context. Accord Final Act. 49, 51; Ans.
19–20. That Joshi (1) refers to “a web browser process running in the
Protected Context” explicitly in column 34, lines 21 and 22 (emphasis
added), and (2) uses similar “process” language in connection with the
Isolated Context in column 34, lines 26 to 29 underscores these respective
web browser processes.

7 See Google Inc. v. Cioffi, CBM2017-00011, Paper 10 (PTAB May 1,
2017), at 7; see also Google Inc. v. Cioffi, CBM2017-00014, Paper 9 (PTAB
May 1, 2017), at 7.
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As Joshi explains, the security solution employs an Internet Explorer
switching feature that enables the user to browse web sites seamlessly by
launching Internet Explorer in either the Protected or Isolated Context by
using the URL to decide the target context. Joshi col. 33, ll. 30–35. To this
end, the client implements a BHO and Pluggable Protocol handler to switch
Internet Explorer contexts based on the URL. Joshi col. 33, ll. 35–38.
As shown in Joshi’s Figure 10, after the user launches Internet
Explorer, the BHO checks the target’s context based on the URL being
navigated to and, if the context differs, the BHO launches Internet Explorer
in the Isolated Context. Joshi col. 33, ll. 45–60; Fig. 10 (steps 1010, 1020,
1060). If the target context is the same as the current context, however, the
BHO checks whether the page is internal or external in step 1030 and, if
external, the page is displayed in the Isolated Context in step 1040;
otherwise, the page is displayed in the Protected Context. See Joshi col. 33,
ll. 45–60; Fig. 10.
In one implementation, an ActiveX control or plugin is implemented
from a web browser process running in the Protected Context that takes, as a
parameter, a URL to a page that should be rendered in the Isolated Context.
Joshi, col. 34, ll. 14–22. At startup, a child window of the browser’s
window is created, and the ActiveX control (1) creates a process in the
Isolated Context by, for example, using the security solution COM proxy,
and (2) passes that process the window handle to the child window just
created. Joshi col. 34, ll. 20–29. The Isolated Context process may
(1) create an Internet Explorer web browser control, and (2) cause it to
render itself into a child window of the window created by the ActiveX
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control in the Protected Context. Joshi col. 34, ll. 28–33. In this way, the
security solution effectively overlays the area of the web browser that is
used to contain external or untrusted content with a window that runs in the
Isolated Context and is able to display web content. Joshi col. 34, ll. 33–36.
The control can also command the Isolated Context process to cause the web
browser control to load the URL that was passed to the original (Protected
Context) control. Joshi col. 34, ll. 37–42.
Given these processes, Joshi discloses (1) a first web browser process,
namely the software-based functionality associated with creating an instance
of the Internet Explorer web browser running in the Protected Context, and
(2) a second web browser process, namely the software-based functionality
associated with creating an instance of Internet Explorer running in the
Isolated Context. Both these web browser processes comport fully with the
broadest reasonable interpretation of the term, namely a sequence of steps,
events, operations, functions, or the like, which leads to a given result which,
as noted previously, is the ability to access data on websites directly or
indirectly.
Notably, because these two web browser processes are made possible
by the functionality associated with security solution security client software
50 and security solution 40, these web browser processes are effectively part
of Joshi’s web browser. As noted previously, a secure web browser is
software that enables accessing data on websites directly or indirectly, where
the software is safe from unauthorized use, access, interception, monitoring,
or the like. Joshi’s first and second web browser processes, namely (1) the
software-based functionality associated with creating an instance of the
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Internet Explorer web browser running in the Protected Context, and (2) the
software-based functionality associated with creating an instance of Internet
Explorer running in the Isolated Context, are effectively part of Joshi’s
secure web browser, namely the software associated with security solution
security client software 50, security solution 40, and Internet Explorer.
Accord Joshi col. 33, ll. 31–35 (“The security solution employs an Internet
Explorer switching feature that enables the user to seamlessly browse web
sites by launching, Internet Explorer in the right context (Protected
Context/isolated Context) by using the URL to decide the target context.”);
id. at col. 34, ll. 33–36 (“Effectively what the security solution has done is
overlaid the area of the web browser that used to contain external or
untrusted content, with a window that runs in the Isolated Context and is
able to display web content.”); id. at col. 32, ll. 16–23 (noting that by
injecting logic into Internet Explorer via the pluggable protocol handler, the
security solution can ensure that when the user chooses (1) a restricted
shortcut, it opens up in an Internet Explorer instance running in the Isolated
Context, and (2) an unrestricted shortcut, it is launched into an Internet
Explorer instance running in the Protected Context) (emphasis added).
Nor do we find error in the Examiner’s reliance on Joshi and Jacobs
for collectively at least suggesting an intelligent cellular telephone
capability8 with the recited secure web browser. Final Act. 50; Ans. 21–23.

8 Although the claim recites a cellular telephone capability whose apparent
breadth suggests capabilities beyond telephones, such as computer-based
telephone emulations, Appellant’s representative nonetheless clarified at the
oral hearing that the claim is directed to a telephone that can handle
browsing applications, such as a smart phone. See Tr. 5.
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Appellant contends that Jacobs’ “single comment” in paragraph 30
that advertising-supported email software can be operated on intelligent
cellular telephones with built-in web browsers does not motivate ordinarily
skilled artisans to combine Jacobs with Joshi as the Examiner proposes.
Appeal Br. 73. According to Appellant, not only were the Windows and
MacOS operating systems on which Jacobs and Joshi rely unavailable on
cellular telephones in 2004, Joshi’s two web browser programs are not a
single secure web browser including two web browser processes. Appeal
Br. 73–74.
Dr. Dunsmore likewise avers that ordinarily skilled artisans would
not—and indeed could not—combine the teachings of Joshi and Jacobs
because (1) Jacobs is non-analogous art; and (2) the Windows and MacOS
operating systems on which Jacobs and Joshi rely were unavailable on
cellular telephones in 2004. 2d Supp. Dunsmore Decl. 106–109; 3d Supp.
Dunsmore Decl. ¶¶ 133–136.
Although we appreciate Dr. Dunsmore’s insights in this regard, the
Examiner’s findings and conclusions regarding the proposed combination
are not persuasively rebutted on this record. First, prior art is analogous if it
is (1) from the same field of endeavor regardless of the problem addressed,
or (2) reasonably pertinent to the particular problem with which the inventor
is involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Here,
Jacobs is at least reasonably pertinent to Appellant’s problem, at least with
respect to displaying content on an intelligent cellular telephone with a
secure web browser. See Jacobs ¶ 30. That Jacobs’ paragraph 30 states
explicitly that a client device can be an intelligent cellular telephone with a
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built-in secure web browser only underscores its pertinence to Appellant’s
problem in this regard.
In addition, although Appellant and Dr. Dunsmore emphasize
Jacobs’s email software in connection with Jacobs’s alleged shortcomings
(see Appeal Br. 73; 2d Supp. Dunsmore Decl. ¶¶ 108–109; 3d Supp.
Dunsmore Decl. ¶¶ 135–136), Jacobs’ paragraph 30 refers to email messages
as exemplary primary content delivered to client devices by using the term
“e.g.,” thus underscoring that email is merely one example of content
delivered to those devices with web browsers.
Nevertheless, even assuming, without deciding, that the Windows and
MacOS operating systems were unavailable on cellular telephones in 2004
as Appellant and Dr. Dunsmore indicate, that does not mean that these
operating systems were necessarily unavailable as of either Joshi’s, Wolff’s,
or Jacobs’s presumed effective filing dates that are before 2004.
But leaving this inconsistency aside, the Examiner’s rejection is not
based on bodily incorporating Jacobs into Joshi, nor is it premised on
physically substituting Jacobs’ intelligent cellular telephone for Joshi’s
computer 10. See Ans. 21–22. Rather, the Examiner’s rejection is based on
what the cited references collectively would have suggested to ordinarily
skilled artisans. See id.
On this record, we see no error in the Examiner’s findings and
conclusions in this regard, for it is well settled that “a determination of
obviousness based on teachings from multiple references does not require an
actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322,
1332 (Fed. Cir. 2012) (citations omitted). Nor is the test for obviousness
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whether a secondary reference’s features can be bodily incorporated into the
structure of the primary reference. In re Keller, 642 F.2d 413, 425 (CCPA
1981). Rather, as the Examiner indicates (Ans. 21), the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art. Id.
Nor is there persuasive evidence on this record proving that
displaying web content on an intelligent cellular telephone, such as that in
Jacobs, would have been uniquely challenging or otherwise beyond the level
of ordinarily skilled artisans. See Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Notably, Appellant does not
squarely address—let alone persuasively rebut—the Examiner’s reliance on
Hasbun for evidencing that implementing first and second web browser
processes as in Joshi on a personal computer 10 or an intelligent cellular
telephone as in Jacobs would have been within the level of ordinary skill in
the art. See Ans. 22. Although Hasbun was not cited in the rejection, we
nonetheless see no error in the Examiner’s relying on its teachings merely
for this limited evidentiary purpose—a limited evidentiary reliance that is
not squarely addressed, much less persuasively rebutted.
We also see no error in the Examiner’s finding that Joshi at least
suggests an electronic data processor configured to execute the first web
browser process such that the first web browser process can access data
contained in a first memory space, namely that associated with the client’s
real files and resources—including critical system files—in the Protected
Context. See Final Act. 50–51; Ans. 23–26. Nor do we see error in the
Examiner’s finding that Joshi at least suggests an electronic data processor
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configured to execute the second web browser process, such that the second
web browser process can access data contained in a second memory space,
namely that associated with virtualized resources in the Isolated Context.
See Final Act. 51; Ans. 23–26.
As Appellant indicates (Appeal Br. 48), the District Court construed
the term “first memory space” to mean “memory space distinct from a
second memory space.” Cioffi v. Google Inc., No. 2:13-CV-103-JRG-RSP,
2014 WL 4293978, at *14 (E.D. Tex. 2014) (unpublished). The court,
however, emphasized that although the memory spaces are distinct from one
another, the Defendant in that case failed to demonstrate that the recited first
memory space must have no common memory storage area with the second
memory space. Id. at *13. Notably, because the Defendant failed to
establish that the first memory space must be physically separate from the
second memory space, the court rejected the Defendant’s proposed
construction. Id.
The import of this authority is that although the recited memory
spaces are distinct from each other, they need not be physically separated
from each other. See Cioffi, 2014 WL 4293978, at *13. Nor does the
court’s construction preclude the two memory spaces from having at least
some common storage area, so long as they are distinct. See id.; accord
Ans. 24 (noting the District Court’s construction). In other words, memory
spaces can overlap, yet still be distinct.
This point is consistent with plain meaning of the term “distinct” that
is defined, in pertinent part, as “not identical; separate; different.” Distinct,
THE OXFORD AMERICAN DESK DICTIONARY 166–67 (Frank Abate ed. 1998)
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(“Oxford Dictionary”). That is, distinct memory spaces, namely those that
are not identical or different, can still overlap. In other words, the fact that
the memory spaces overlap does not mean that they are identical or the same
to render them indistinct; rather, they remain distinct despite their overlap.
Moreover, overlapping memory spaces can also be considered “separate”
under the alternative dictionary definition of the term “distinct,” for these
memory spaces are at least partially separated from each other, at least with
respect to their non-overlapping portions. Although the recited memory
spaces need not be separated physically under the District Court’s
construction, they can nonetheless be distinct from each other by being
separated at least partially with respect to their non-overlapping portions, or
even separated logically as the Examiner indicates. See Ans. 24.
Appellant’s contention, then, that Joshi’s respective memory areas
associated with Joshi’s Isolated and Protected Contexts are ostensibly not
distinct because applications running in Joshi’s Isolated Context can access
shared memory in the Protected Context (Appeal Br. 80) is unavailing and
not commensurate with the scope of the claim. Even assuming, without
deciding, that the shared resources to which Joshi refers in column 12, lines
9 to 21 are shared memory spaces associated with both the Protected and
Isolated Contexts as Appellant seemingly suggests, that does not mean the
respective memory spaces are indistinct; rather, they are still distinct despite
their overlap.
We reach this conclusion despite Dr. Dunsmore’s view to the
contrary. See 3d Supp. Dunsmore Decl. ¶¶ 21–22. Although we appreciate
Dr. Dunsmore’s insights in this regard, Joshi nonetheless at least suggests
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two distinct memory spaces associated with the Protected and Isolated
Contexts, respectively, particularly given Joshi’s preventing the virtual
environment associated with the Isolated Context from accessing actual
system resources via various techniques, including copying those resources.
See Joshi col. 17, ll. 35–59. That Joshi can redirect the restricted
environment for certain resources, including shared sections, to copies of
requested resources—not the actual resources themselves— in column 17,
lines 52 to 55 underscores that critical files are protected from corruption
despite sharing resources, including memory. Given this functionality
considered in light of that associated with the respective Internet Explorer
Contexts that is made possible by the security solution, Joshi not only
suggests two distinct memory spaces as claimed, but also that critical files in
the first memory space associated with the Protected Context are protected
from corruption. That Joshi repeatedly refers to restricting services available
to external, potentially malicious content by protecting resources, including
locally-stored files (see Joshi col. 5, ll. 25–33; col. 11, ll. 55–66), only
underscores Joshi’s functionality that protects critical files from corruption.
Accord Ans. 24–26 (noting this functionality).
Appellant’s arguments in this regard are unavailing. In connection
with claim 21, Appellant contends that if all memory accessible to all
programs in the Protected Context overlaps with memory accessible by
programs running in the Isolated Context, then Joshi’s system ostensibly
does not protect a system file residing on the first memory space from
corruption by website content potentially containing malware executing in
the second web browser process as claimed. Appeal Br. 77.
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First, our emphasis on Appellant’s term “if” underscores a speculative
assumption about the broad scope and extent of Joshi’s memory overlap—if
it exists at all. Second, our emphasis on both instances of the term “all”
underscores that Appellant’s contention presupposes that all memory
accessible to all programs in the Protected Context overlaps with memory
accessible by programs running in the Isolated Context. See Appeal Br. 77.
On this record, there is no persuasive evidence substantiating that
assumption. Moreover, to the extent that Appellant contends that Joshi must
be limited to that particular scenario to preclude other scenarios, including
those where only some memory accessible to only some programs in the
Protected Context overlaps with memory accessible by programs running in
the Isolated Context, we disagree.
We also see no error in the Examiner’s finding that Joshi at least
suggests an electronic data processor that can execute the first web browser
process, namely the software-based functionality associated with creating an
instance of the Internet Explorer web browser running in the Protected
Context, where the first web browser process can initialize the second web
browser process, namely the software-based functionality associated with
creating an instance of the Internet Explorer web browser running in the
Isolated Context. See Final Act. 50–51; Ans. 26–32.
As Joshi explains, an ActiveX control or plugin is implemented from
a web browser process running in the Protected Context that takes, as a
parameter, a URL to a page that should be rendered in the Isolated Context.
Joshi col. 34, ll. 14–22. At startup, a child window of the browser’s window
is created, and the ActiveX control (1) creates a process in the Isolated
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Context by, for example, using the security solution COM proxy, and
(2) passes that process the window handle to the child window just created.
Joshi col. 34, ll. 20–29. The Isolated Context process may (1) create an
Internet Explorer web browser control, and (2) cause it to render itself into a
child window of the window created by the ActiveX control in the Protected
Context. Joshi col. 34, ll. 28–33. In this way, the security solution
effectively overlays the area of the web browser that is used to external or
untrusted content with a window that runs in the Isolated Context and is able
to display web content. Joshi col. 34, ll. 33–36. The control can also
command the Isolated Context process to cause the web browser control to
load the URL that was passed to the original (Protected Context) control.
Joshi col. 34, ll. 37–42.
Our emphasis underscores that although an ActiveX control or plugin
creates a process in the Isolated Context, the ActiveX control or plugin is
implemented from the web browser process running in the Protected
Context. See Joshi col. 34, ll. 14–25. In other words, by implementing the
ActiveX control or plugin from the web browser process running in the
Protected Context, Joshi’s first web browser process, namely the software-
based functionality associated with creating an instance of the Internet
Explorer web browser running in the Protected Context, effectively
initializes the second web browser process, namely the software-based
functionality associated with creating an instance of the Internet Explorer
web browser running in the Isolated Context.
Notably, claim 21 does not specify how the second web browser
process is initialized, nor does the ’500 patent define the term “initialize” to
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so limit its interpretation. We, therefore, construe the term “initialize” with
its plain meaning, namely “set or prepare for the start of an operation.”
Initialize, Oxford Dictionary, at 305. Given this construction, the claim does
not preclude Joshi’s first web browser process associated with the Protected
Context initializing the second web browser process associated with the
Isolated Context despite using an ActiveX control or plugin to achieve that
end.
We reach this conclusion even assuming, without deciding, that
ActiveX controls and plugins are programs or instances of code that are
separate from the Internet Explorer browser as Appellant and Dr. Dunsmore
indicate. See Appeal Br. 83–84; see also Reply Br. 17–18; 2d Supp.
Dunsmore Decl. ¶¶ 44–51, 120–121; 3d Supp. Dunsmore Decl. ¶¶ 26–27,
150–154. Although we appreciate Dr. Dunsmore’s insights in this regard,
the claim nevertheless does not preclude implementing an ActiveX control
or plugin from the web browser process running in the Protected Context to
initialize a second web browser process associated with the Isolated Context.
See Joshi col. 34, ll. 18–29.
That is, the fact that Joshi’s first web browser process associated with
the Protected Context calls, invokes, triggers, or otherwise initiates, an
ActiveX control or plugin that creates a process in the Isolated Context
means that the first web browser process effectively triggers or initializes the
second web browser process associated with the Isolated Context. In other
words, by invoking, triggering, or otherwise initiating an ActiveX control or
plugin, Joshi’s first web browser process effectively initializes the second
web browser process associated with the Isolated Context by at least setting
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or preparing for the start of that operation consistent with the plain meaning
of the term “initialize.” Appellant’s arguments to the contrary (Appeal Br.
26–32; Reply Br. 17–18) are, therefore, unavailing and not commensurate
with the scope of the claim.
We also see no error in the Examiner’s finding that Joshi’s first web
browser process, namely the software-based functionality associated with
creating an instance of the Internet Explorer web browser running in the
Protected Context, can pass data, including a “window handle” and URL, to
the second web browser process, namely the software-based functionality
associated with creating an instance of the Internet Explorer web browser
running in the Isolated Context. See Final Act. 51; Ans. 32–34.
As Joshi explains, an ActiveX control or plugin is implemented from
a web browser process running in the Protected Context that takes, as a
parameter, a URL to a page that should be rendered in the Isolated Context.
Joshi col. 34, ll. 14–22. At startup, a child window of the browser’s window
is created, and the ActiveX control (1) creates a process in the Isolated
Context by, for example, using the security solution COM proxy, and
(2) pass that process the window handle to the child window just created.
Joshi col. 34, ll. 20–29. The control can also command the Isolated Context
process to cause the web browser control to load the URL that was passed to
the original (Protected Context) control. Joshi col. 34, ll. 37–42.
Although Joshi’s first web browser process uses an ActiveX control to
pass data, namely the “window handle” and URL, to the second web
browser process, the ActiveX control is implemented from the web browser
process running in the Protected Context. See Joshi col. 34, ll. 14–25. In
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other words, by implementing the ActiveX control or plugin from the web
browser process running in the Protected Context, Joshi’s first web browser
process, namely the software-based functionality associated with creating an
instance of the Internet Explorer web browser running in the Protected
Context, effectively passes data to the second web browser process, namely
the software-based functionality associated with creating an instance of the
Internet Explorer web browser running in the Isolated Context.
Notably, claim 21 does not specify how the first web browser process
passes data to the second web browser process. Given this limitation’s
scope, breadth, and high level of generality, nothing in the claim precludes
Joshi’s first web browser process from passing data to the second web
browser process via an ActiveX control used by the first web browser
process. Appellant’s arguments to the contrary (Appeal Br. 93–100; Reply
Br. 18–20) are unavailing and not commensurate with the scope of the
claim.
We reach this conclusion even assuming, without deciding, that
ActiveX controls and plugins are programs or instances of code that are
separate from the Internet Explorer browser as Appellant and Dr. Dunsmore
indicate. See Appeal Br. 95–98; see also Reply Br. 19–20; 2d Supp.
Dunsmore Decl. ¶¶ 122–129; 3d Supp. Dunsmore Decl. ¶¶ 156–162.
Although we appreciate Dr. Dunsmore’s insights in this regard, the claim
nevertheless does not preclude implementing an ActiveX control or plugin
from the web browser process running in the Protected Context to pass data
to a second protected web browser process associated with the Isolated
Context. See Joshi col. 34, ll. 18–29.
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Accordingly, on the record before us, we see no error in the
Examiner’s findings and conclusions in connection with the obviousness
rejection of claim 21 over Joshi and Jacobs.

Secondary Considerations
In determining obviousness of the claimed invention, objective
evidence of secondary considerations pertaining to nonobviousness must be
considered, including evidence of commercial success, long-felt but
unsolved needs, failure of others, and copying. In re Huang, 100 F.3d 135,
139 (Fed. Cir. 1996) (citing Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966)). “If rebuttal evidence of adequate weight is produced, the holding of
prima facie obviousness . . . is dissipated. Regardless of whether the prima
facie case could have been characterized as strong or weak, the examiner
must consider all of the evidence anew.” In re Piasecki, 745 F.2d 1468,
1472 (Fed. Cir. 1984).
Although evidence of secondary considerations must be considered
and “may often be the most probative and cogent evidence in the record,”
Pentec, Inc. v. Graphic Controls Corp., 776 F.2d 309, 315 (Fed. Cir. 1985),
it does not control the obviousness conclusion. Newell Cos., Inc. v. Kenney
Mfg. Co., 864 F.2d 757, 768 (Fed. Cir. 1988). Indeed, a strong case of
obviousness cannot be overcome by a far weaker showing of objective
indicia of nonobviousness. Tokai Corp. v. Easton Enters., Inc., 632 F.3d
1358, 1371 (Fed. Cir. 2011).
Nevertheless, “[o]bjective indicia of nonobviousness play a critical
role in the obviousness analysis.” Leo Pharm. Products, Ltd. v. Rea, 726
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F.3d 1346, 1358 (Fed. Cir. 2013). These indicia are not just a cumulative or
confirmatory part of the obviousness analysis, but rather constitute
independent evidence of nonobviousness that can be the most probative
evidence in that regard “in avoiding the trap of hindsight when reviewing,
what otherwise seems like, a combination of known elements.” Id.
Here, Appellant contends that there is evidence of secondary
considerations of non-obviousness, namely (1) commercial success;
(2) long-felt, but unmet, need; (3) the lack of independent and/or
simultaneous invention; (4) unexpected results; and (5) skepticism.9 Appeal
Br. 48–62; Reply Br. 15. We address each in turn.

Commercial Success
In connection with the proffered evidence of commercial success,
Appellant notes that the Requester’s commercially successful Chrome
browser was found to practice and infringe claim 43 of the ’500 patent.
Appeal Br. 49. According to Appellant, Dr. Dunsmore, and Dr. Rubin,
another technical expert, the ’500 patent’s key inventive concept is “per-
process sandboxing,” where a second web browser process within a secure
web browser process is “sandboxed” from the rest of the secure web browser
process. Appeal Br. 49 (citing 2d Supp. Dunsmore Decl. ¶¶ 58, 61–66; 3d

9 Although Appellant omits skepticism from the particular secondary
considerations of non-obviousness enumerated in the bolded headings on
pages 48 to 62 of the Appeal Brief, Dr. Dunsmore and the Examiner
nonetheless address this additional consideration. See 2d Supp. Dunsmore
Decl. ¶¶ 87–88; 3d Supp. Dunsmore Decl. ¶¶ 114–115; see also Ans. 18.
We, therefore, address this additional consideration.
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Supp. Dunsmore Decl. ¶¶ 72, 75–83; Supplemental Declaration of Dr. Aviel
D. Rubin, Ph.D. In Support of Patent Owners’ Response to Office Action,
dated May 20, 2019 (“Supp. Rubin Decl.”) ¶¶ 23–26, 30–33, 47–54).
Appellant indicates that in the underlying District Court litigation, the
Requester explained that the Chrome browser’s commercial success was due
to four aspects, namely (1) speed, (2) simplicity, (3) security, and
(4) stability, where each aspect contributed equally to Chrome’s commercial
success. Appeal Br. 49–50. Given this equal contribution, 25% of
Chrome’s success was therefore attributed to the browser’s security—a fact
consistent with the views of both Dr. Rubin and Mr. Walter Bratic who,
while not a technical expert, is a Certified Public Accountant and testified as
to Chrome’s developmental history and commercial success. See Appeal Br.
50; see also Supp. Rubin Decl. ¶ 51; Declaration of Walter Bratic In Support
of Patent Owners’ Response to Non-Final Office Action, dated May 20,
2019 (“Bratic Decl.”) ¶¶ 31. Despite his views on Chrome’s developmental
history and commercial success, Mr. Bratic nonetheless admits that he is not
a technical expert and, therefore, does not have an ultimate opinion on
whether the ’500 patent’s inventive aspects are a key contributor to the
Chrome browser’s security to establish a nexus between the ’500 patent and
Chrome’s commercial success. Bratic Decl. ¶ 4.
According to Appellant and Dr. Rubin, Chrome’s most important
security feature is the browser’s multi-process architecture where the second
web browser process is “sandboxed” from the first. Appeal Br. 50; Supp.
Rubin Decl. ¶ 41. Appellant contends that because (1) the ’500 patent’s
claims provide the key security feature for the Chrome browser, and (2) the
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browser’s security is responsible for 25% of the browser’s commercial
success, there is a nexus between the infringing Chrome browser and the
inventive aspects of the ’500 patent claims. Appeal Br. 50.
But after considering this evidence along with other proffered
secondary considerations evidence, the Examiner concludes that the
evidence of non-obviousness does not outweigh the evidence of
obviousness. See Ans. 12–16. On this record, we see no error in that
determination.
We add that Appellant’s evidence does not pertain to its own
commercial success, but rather to that of another, namely Google. See
Appeal Br. 48–55. Where, as here, Appellant attributes its own commercial
success to that of another, and Appellant proffers no evidence showing its
own commercial success apart from that of another, the probative value of
such evidence is diminished. Although Appellant’s evidence regarding
Google’s commercial success may tangentially relate to Appellant’s claimed
invention, its probative value is nonetheless reduced and weighed
accordingly when considering the totality of evidence on this record.
This is not a case where another party deliberately copied Appellant’s
invention and profited from that malicious act. See 2d Supp. Dunsmore
Decl. ¶ 69 (acknowledging unawareness of evidence of direct copying of the
patented invention); 3d Supp. Dunsmore Decl. ¶ 96 (same). Rather, this is a
case where the claimed invention’s purported commercial success is tied
solely to that of another—a fact that reduces the associated evidence’s
probative value.
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In addition, it is well settled that a nexus must be shown between the
proffered evidence of commercial success and the claimed invention. Tokai,
632 F.3d at 1369. But if commercial success is due to an element in the
prior art, no nexus exists. Id.
So even assuming, without deciding, that Google’s commercially
successful Chrome browser has elements that are common to the claimed
invention as Appellant contends, at least some of those elements—including
those regarding security—were nonetheless known in the art as the
Examiner indicates, particularly given the claimed invention’s scope,
breadth, and high level of generality. See Ans. 13–14. Although we
appreciate Dr. Dunsmore’s insights (2d Supp. Dunsmore Decl. ¶¶ 68–75; 3d
Supp. Dunsmore Decl. ¶¶ 95–102), as well as insights from Dr. Rubin
(Supp. Rubin Decl. ¶¶ 47–54) and Mr. Bratic (Bratic Decl. ¶¶ 7–32)
regarding the Chrome browser’s developmental history and commercial
success, this evidence nevertheless does not outweigh the evidence of
obviousness on this record.
For the reasons noted above, as well as those indicated by the
Examiner, we do not find the proffered evidence of commercial success,
considered with other proffered secondary considerations evidence of non-
obviousness, outweighs the evidence of obviousness on this record.

Long-Felt Need
We also see no error in the Examiner’s determination that Appellant’s
evidence of a long-felt, but unmet, need for web browser security that drove
the Chrome browser’s development after the claimed invention’s effective
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filing date, considered with other proffered secondary considerations
evidence of non-obviousness, does not outweigh the evidence of
obviousness. See Ans. 12–18.
To establish a long-felt need, three elements must be proven. First,
the need must have been a persistent one that was recognized by ordinarily
skilled artisans. In re Gershon, 372 F.2d 535, 538 (CCPA 1967). Second,
the long-felt need must not have been satisfied by another before Appellant’s
invention. See Newell, 864 F.2d at 768 (“[O]nce another supplied the key
element, there was no long-felt need or, indeed, a problem to be solved . . .
.”). Third, the invention must, in fact, satisfy the long-felt need. See In re
Cavanagh, 436 F.2d 491, 496 (CCPA 1971).
Here, Appellant contends that there was a long-felt, but unmet need
for web browser security that drove the Chrome browser’s development
after the claimed invention’s effective filing date. See Appeal Br. 56.
According to Appellant, proffered evidence, including Dr. Dunsmore’s
testimony and an internal Google memorandum, demonstrate a long-felt, but
unmet need for effective browser security that was purportedly solved by the
’500 patent. Appeal Br. 56–57.
Dr. Dunsmore explains that web browser security for a long time was
“very problematic” because no solution was good at protecting system files
from corruption by malicious content while simultaneously allowing for
efficient browser operation, and this long-felt, but unmet need drove Chrome
browser development. 2d Supp. Dunsmore Decl. ¶ 77; 3d Supp. Dunsmore
Decl. ¶ 104. According to Dr. Dunsmore, developing multi-process
architectures with Google’s security sandboxing features was beyond the
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grasp of Chrome’s developers several years after the ’500 patent was filed.
2d Supp. Dunsmore Decl. ¶ 78; 3d Supp. Dunsmore Decl. ¶ 105. Dr.
Dunsmore adds that Google acquired the GreenBorder company to develop
its Chrome security features. 2d Supp. Dunsmore Decl. ¶ 78; 3d Supp.
Dunsmore Decl. ¶ 105.
Based on this history, Dr. Dunsmore concludes that Google’s
(1) inability to craft a solution, and (2) need to acquire a speciality group of
engineers to develop a viable security solution represents the difficulty of the
’500 patent’s claimed invention in 2006. 2d Supp. Dunsmore Decl. ¶ 78; 3d
Supp. Dunsmore Decl. ¶ 105. Dr. Dunsmore adds that later development of
browsers by Apple and Microsoft that “appear to” incorporate the ’500
patent features similarly evidences the long-felt need that was met by the
’500 patent’s claimed invention. 2d Supp. Dunsmore Decl. ¶ 79; 3d Supp.
Dunsmore Decl. ¶ 106.
Given this testimony, there was apparently a persistent need for web
browser security that was recognized by ordinarily skilled artisans. See
Gershon, 372 F.2d at 538. But this long-felt need was satisfied by another
before Appellant’s invention. See Newell, 864 F.2d at 768 (“[O]nce another
supplied the key element, there was no long-felt need or, indeed, a problem
to be solved . . . .”). Given the scope and breadth of the problem, namely
web browser security, the need was satisfied by at least Joshi before
Appellant’s invention for the reasons noted previously. And to the extent
Appellant contends that this long-felt, but unmet need, must be limited to
“per-process sandboxing” to exclude other web browser security features
(see Appeal Br. 56–58), Appellant’s claimed invention is not only not
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limited to that particular security feature, it was nonetheless in the prior art,
including Joshi, as noted previously and as the Examiner indicates. See Ans.
13.
Nevertheless, even if we were to accept Appellant’s contention that
Joshi did not satisfy the purported long-felt need—which we do not—it is
apparent from Dr. Dunsmore’s testimony that, if anything, it was Google
Chrome, and later, browsers from Microsoft and Apple, that satisfied that
need—not Appellant’s claimed invention. See 2d Supp. Dunsmore Decl.
¶¶ 77–79; 3d Supp. Dunsmore Decl. ¶¶ 104–106. In short, this third-party
satisfaction reduces the probative value of Appellant’s evidence in this
regard. See Cavanagh, 436 F.2d at 496 (“[E]ven if we accept that there was
a problem, it was still incumbent upon appellant, if he wished by this method
to rebut the inference of obviousness arising from the similarity of his
process to the prior art, to bring forward evidence of his satisfaction of the
need.”) (emphasis added). Where, as here, Appellant attributes its own
satisfaction of a long-felt need to that of another, and Appellant proffers no
evidence showing its own satisfaction of that need apart from that of
another, the probative value of such evidence is diminished. Although
Appellant’s evidence regarding Google’s satisfying a long-felt need may
tangentially relate to Appellant’s claimed invention, its probative value is
nonetheless reduced and weighed accordingly when considering the totality
of evidence on this record.
Therefore, on this record, we do not find the proffered evidence of a
long-felt, but unmet, need for web browser security, considered with other
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proffered secondary considerations evidence of non-obviousness, outweighs
the evidence of obviousness.

Independent Development/Simultaneous Invention
We also see no error in the Examiner’s determination that Appellant’s
evidence of the lack of independent and/or simultaneous invention,
considered with other proffered secondary considerations evidence of non-
obviousness, does not outweigh the evidence of obviousness. See Ans. 12–
18.
Dr. Dunsmore avers that Chrome’s development and Google’s effort
to patent aspects of the Chrome browser supports non-obviousness. 2d
Supp. Dunsmore Decl. ¶ 82; 3d Supp. Dunsmore Decl. ¶ 109. According to
Dr. Dunsmore, U.S. Patent 8,291,078 (“’078 patent”), assigned to Google,
not only discloses and claims the same limitations as those in the ’500
patent, but the ’078 patent’s four named inventors are, or were, Google
employees working on developing the Chrome browser. 2d Supp.
Dunsmore Decl. ¶¶ 82–83; 3d Supp. Dunsmore Decl. ¶¶ 109–110. Dr.
Dunsmore avers that, after the ’500 patent’s filing date, Google stated
internally that multi-process architecture was one of the key inventions in
Chrome. 2d Supp. Dunsmore Decl. ¶ 84; 3d Supp. Dunsmore Decl. ¶ 111.
Dr. Dunsmore acknowledges, however, that the ’078 patent10 is drawn only

10 The ’078 patent is also referred to by its first-named inventor, Fisher. See
Final Act. 46. But see Dunsmore Supp. Decl. ¶ 214 (referring to “the
Fischer patent”). Because the ’078 patent identifies the first-named inventor
as Darrin Fisher, we presume Dr. Dunsmore’s spelling of “Fischer” refers to
this inventor and is, therefore, a typographical error.
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to multi-process architecture—not security. Supplemental Declaration of
H.E. Dunsmore, Ph.D. In Support of Patent Owner’s Response to Final
Office Action, dated Oct. 21, 2018 (“Dunsmore Supp. Decl.”) ¶ 214.
The Examiner, however, not only finds that per-process sandboxing
was known in the art, including Joshi, but also distinguishes the ’078
patent’s disclosed and claimed invention from that of ’500 patent in various
key respects. See Ans. 17–18. Appellant does not persuasively rebut these
findings and conclusions.
On this record, we do not find the proffered evidence of the lack of
independent and/or simultaneous invention, considered with other proffered
secondary considerations evidence of non-obviousness, outweighs the
evidence of obviousness.

Unexpected Results
We also see no error in the Examiner’s determination that Appellant’s
evidence of purportedly unexpected results, considered with other proffered
secondary considerations evidence of non-obviousness, does not outweigh
the evidence of obviousness. See Ans. 12–18.
We reach this conclusion acknowledging that non-obviousness can be
supported with unexpected results, namely where the claimed invention
exhibits some superior property or advantage that ordinarily skilled artisans
would have found surprising or unexpected. See Forest Labs., LLC v.
Sigmapharm Labs., LLC, 918 F.3d 928, 937 (Fed. Cir. 2019) (citing United
States v. Adams, 383 U.S. 39, 51–52 (1966)).
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Here, Dr. Rubin avers that the state of the art in 2004 was sandboxing
the entire browser. Supp. Rubin Decl. ¶ 58. According to Dr. Dunsmore,
Google’s engineers characterized the state of the art as “two poles,” namely
total browser solutions and sandboxing explicit code, and the goal of
Google’s security teams was a solution between those “poles,” namely a per-
process sandboxed browser. 2d Supp. Dunsmore Decl. ¶ 86; 3d Supp.
Dunsmore Decl. ¶ 113. Dr. Dunsmore adds that by separating the web
browser into separate processes and sandboxing the process that handles
web content—a technique that is said to be “the heart of the rejected
claims”—the Chrome browser’s architecture was able to block 70% of the
known critical browser vulnerabilities from executing arbitrary code. 2d
Supp. Dunsmore Decl. ¶ 86; 3d Supp. Dunsmore Decl. ¶ 113. According to
Dr. Dunsmore, this result is significant and was not implemented by others
until years after August 2004. 2d Supp. Dunsmore Decl. ¶ 86; 3d Supp.
Dunsmore Decl. ¶ 113.
The Examiner, however, did not find this evidence persuasive.
Notably, the Examiner found that the evidence failed to show that the results
noted by Appellant were unexpected, not only in view of the stated goal of
the Chrome browser’s engineering team, but also the fact that separating the
web browser into separate processes and sandboxing the process that
handles web content was known in the art. See Ans. 18. For the reasons
noted above and those indicated by the Examiner, Appellant does not
persuasively rebut the Examiner’s findings and conclusions.
We add that even if the results proffered by Appellant exhibited some
superior property or advantage that ordinarily skilled artisans would have
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found surprising or unexpected—which they do not—Appellant’s evidence
does not pertain to its own purportedly unexpected results, but rather to
those of another, namely Google. See Appeal Br. 60–61. Where, as here,
Appellant attributes its own purportedly unexpected results to those of
another, and Appellant proffers no evidence showing its own unexpected
results apart from those of another, the probative value of such evidence is
diminished. Although Appellant’s evidence regarding Google’s allegedly
unexpected results may tangentially relate to Appellant’s claimed invention,
its probative value is nonetheless reduced and weighed accordingly when
considering the totality of evidence on this record.
On this record, we do not find the proffered evidence of the purported
unexpected results, considered with other proffered secondary
considerations evidence of non-obviousness, outweighs the evidence of
obviousness.

Skepticism
We also see no error in the Examiner’s determination that Appellant’s
evidence of skepticism, considered with other proffered secondary
considerations evidence of non-obviousness, does not outweigh the evidence
of obviousness. See Ans. 12–18.
We reach this conclusion acknowledging that evidence of industry
skepticism weighs in favor of non-obviousness. WBIP, LLC v. Kohler Co.,
829 F.3d 1317, 1335 (Fed. Cir. 2016). If industry participants or ordinarily
skilled artisans are skeptical about whether or how a problem could be
solved or the claimed solution’s workability, this skepticism favors non-
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obviousness. Id. Moreover, ordinarily skilled artisans’ doubt or disbelief
regarding the likely success of a combination or solution weighs against
combining elements in references to achieve the claimed invention. Id.
Here, Dr. Dunsmore avers that Google’s internal documents
demonstrate the skepticism related to the ’500 patent’s claimed invention,
and show that most Google engineers did not view the claimed features as
obvious. 2d Supp. Dunsmore Decl. ¶ 88; 3d Supp. Dunsmore Decl. ¶ 115.
The Examiner, however, found that the evidence did not show that
Google or others expressed disbelief with respect to the claimed invention.
Ans. 18 (citing Manual of Patent Examining Procedure (MPEP) § 716.05
(9th ed. rev. 10.2019 June 2020)). Appellant does not squarely address—let
alone persuasively rebut—the Examiner’s findings and conclusions in this
regard.
On this record, we do not find the proffered evidence of Google’s
purported skepticism, considered with other proffered secondary
considerations evidence of non-obviousness, outweighs the evidence of
obviousness.

Obviousness Conclusion
Based on the record before us, we see no error in the Examiner’s
conclusion that the evidence of obviousness on this record outweighs the
evidence of non-obviousness when considered as a whole. Therefore, based
on the totality of the evidence before us, we are not persuaded that the
Examiner erred in rejecting independent claim 21 over Joshi and Jacobs.
Nor are we persuaded of error in the Examiner’s obviousness rejection of
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claims 26, 30, 34, 39, 41, 51, and 53–65 not argued separately with
particularity.11

Claims 29, 38, and 49
We also sustain the Examiner’s rejection of claim 29 reciting that the
first web browser process is protected from executing instructions initiated
by a malware process downloaded from the network and executing as part of
the second web browser process.
Despite Appellant’s arguments to the contrary (Appeal Br. 107–09;
Reply Br. 21), we see no error in the Examiner’s reliance on Joshi for
anticipating the recited limitations for the reasons noted above and by the
Examiner. Final Act. 52–53; Ans. 36–37 (citing Joshi col. 3, ll. 3–22; col. 4,
ll. 54–60; col. 17, ll. 37–55).
As noted previously, Joshi teaches two distinct memory spaces
associated with the Protected and Isolated Contexts, respectively,
particularly given Joshi’s preventing the virtual environment associated with
the Isolated Context from accessing actual system resources via various
techniques, including copying those resources. See Joshi col. 17, ll. 35–59.
That Joshi can redirect the restricted environment for certain resources,
including shared sections, to copies of requested resources—not the actual
resources themselves— in column 17, lines 52 to 55 underscores that critical

11 Although Appellant nominally argues claims 26, 30, 34, 39, 41, 51, 53–
59, 61, 63, and 65 separately, Appellant reiterates arguments made for claim
21. See Appeal Br. 103–07, 110–13; Reply Br. 20–21. We, therefore, group
these claims accordingly.
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files associated with the first web browser process are protected from
corruption despite sharing resources, including memory.
Given this functionality considered in light of that associated with the
respective Internet Explorer Contexts that is made possible by the security
solution, Joshi not only teaches two distinct memory spaces as claimed, but
also that critical files in the first memory space associated with the Protected
Context are protected from corruption, including corruption via instructions
initiated by a downloaded malware process executing as part of the second
web browser process associated with the Isolated Context. That Joshi
repeatedly refers to restricting services available to external, potentially
malicious content by protecting resources, including locally-stored files (see
Joshi col. 5, ll. 25–33; col. 11, ll. 55–66), underscores Joshi’s functionality
that effectively protects the associated first web browser process, namely
that associated with the Protected Context, from executing instructions
initiated by a downloaded malware process executing as part of the second
web browser process, namely that associated with the Isolated Context.
Appellant’s arguments and Dr. Dunsmore’s averments in this regard,
including the alleged shortcomings of “GreenBorder,” which is said to
correspond to Joshi’s software embodiment that “sandboxes” the entire
browser, are unavailing. See Appeal Br. 108–109; Reply Br. 21; 2d Supp.
Dunsmore Decl. ¶¶ 163; 3d Supp. Dunsmore Decl. ¶¶ 171. Although we
appreciate Dr. Dunsmore’s insights in this regard, the claim does not
preclude Joshi’s above-noted functionality that effectively protects the first
web browser process, namely that associated with the Protected Context,
from executing instructions initiated by a downloaded malware process
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executing as part of the second web browser process, namely that associated
with the Isolated Context.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 29, and claims 38 and 49 not argued separately with particularity.

THE OBVIOUSNESS REJECTION OVER JOSHI, JACOBS, AND
HASBUN (“GROUND 5”)

We also sustain the Examiner’s rejection of claim 25 reciting that the
electronic data processor is selected from the group consisting of an
Application Specific Integrated Circuit, a Field Programmable Gate Array,
plural electronic data processors, and a multi-core electronic data processor.
Despite Appellant’s arguments to the contrary (Appeal Br. 113–18;
Reply Br. 21–22), Appellant does not persuasively rebut the Examiner’s
reliance on Joshi, Jacobs, and Hasbun for collectively at least suggesting the
recited limitations. See Final Act. 63–64; Ans. 38.
According to Appellant, if an ordinarily skilled artisan were to start
with Joshi’s web browser processes, there would ostensibly be no motivation
to look to prior art that applies to operating system (OS) and OS control
(scheduler) processes, such as those in Hasbun. Appeal Br. 117. Appellant
adds that ordinarily skilled artisans would not reasonably expect success in
applying Hasbun’s OS-specific disclosure with Joshi’s web browser-specific
application as the Examiner proposes. Id.
But Hasbun’s distinction between trusted and untrusted processes is
reasonably analogous to Joshi’s distinction between trusted and untrusted
content, where trusted content is executed in a trusted environment, namely
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the Protected Context, and untrusted content is executed in an untrusted
environment, namely the Isolated Context. See Joshi col. 14, ll. 54–58; col.
35, ll. 36–39; Hasbun ¶¶ 4–5, 12). Therefore, implementing Joshi’s trusted
and untrusted execution environments on respective cores of a multi-core
processor as the Examiner proposes has a rational basis on this record,
particularly given Hasbun’s teaching of executing distinct sets of processes
in different domains in different processing cores 200a and 200b,
respectively. See Hasbun Abstract; ¶¶ 16, 21–22; 34–35; Figs. 1, 3.
We reach this conclusion noting that nothing in Hasbun limits its
core-based execution to solely OS-based processes to preclude its
application to trusted and untrusted web browser processes as Appellant
seemingly suggests. See Appeal Br. 117. Rather, the Examiner’s proposed
combination uses prior art elements predictably according to their
established functions—an obvious improvement. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007). Moreover, where, as here, (1) a
technique, such as executing different processes on respective cores of a
multi-core processor, has been used to improve one device, such as that in
Hasbun; and (2) an ordinarily skilled artisan would recognize that it would
improve similar devices, such as those in Joshi that execute distinct web
browser processes, in the same way, using the technique is obvious unless its
actual application is beyond his or her skill. See id. There is no persuasive
evidence on this record proving that applying a multi-core processing
technique, such as that in Hasbun, to Joshi’s system as the Examiner
proposes would have been uniquely challenging or otherwise beyond the
level of ordinarily skilled artisans.
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We reach this conclusion despite Dr. Dunsmore’s view that ordinarily
skilled artisans would have no motivation to combine Hasbun and Joshi. See
2d Supp. Dunsmore Decl. ¶ 243; 3d Supp. Dunsmore Decl. ¶ 219.
According to Dr. Dunsmore, Hasbun does not split applications like Internet
Explorer into separate OS processes, nor does Hasbun refer to using more
than one processor for parallel execution to increase speed or efficiency
despite the Examiner’s statements to the contrary. 2d Supp. Dunsmore Decl.
¶ 243; 3d Supp. Dunsmore Decl. ¶ 219. Dr. Dunsmore further avers that
adding multi-core processing does not necessarily improve efficiency, but in
some environments, can actually slow a program down when the program is
broken up into individual processes for simultaneous execution. 2d Supp.
Dunsmore Decl. ¶ 243; 3d Supp. Dunsmore Decl. ¶ 219.
Although we appreciate Dr. Dunsmore’s insights in this regard, the
Examiner’s findings and conclusions regarding the proposed combination
are not persuasively rebutted for the reasons noted previously. On this
record, the Examiner’s proposed combination uses prior art elements
predictably according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 25, and claims 37 and 52 not argued separately with particularity.12

12 Although Appellant nominally argues claims 37 and 52 separately,
Appellant reiterates arguments made for claim 25. See Appeal Br. 118–19.
We, therefore, group these claims accordingly.
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THE OBVIOUSNESS REJECTION OVER JOSHI, JACOBS, AND
WOLFF (“GROUND 6”)

Claims 28, 36, and 48
We also sustain the Examiner’s rejection of claim 28 reciting that the
portable computing and communication device is configured to (1) close the
second web browser process, and (2) automatically delete at least one file
selected from the group consisting of (a) a temporary internet file; (b) a
cookie; and (c) at least one corrupted file.
Notably, claim 28’s automatic file deletion is not contingent upon
closing the second web browser process, nor does the claim require that file
deletion occurs after closing the second web browser process. Rather, all
the claim requires is that the recited device be configured to perform both
recited functions in any order—an unordered sequence that likewise applies
to method claim 36 where, as here, Appellant has not shown that the
Specification expressly or implicitly requires the particular recited order.
See Altiris, Inc. v. Symantec Corp., 318 F.3d 1363, 1369–70 (Fed. Cir. 2003)
(noting that method steps are not ordinarily construed to require an order
unless the claim or Specification requires performance in that order).
Accord Tr. 6 (acknowledging that although claim 36 was intended to recite
closing the second web browser process and then deleting the recited file,
the claim could nonetheless be construed more broadly).
The Examiner’s rejection, however, is nevertheless premised on
performing the steps in the recited order, namely closing the second web
browser process and then automatically deleting a corrupted file. See Ans.
40 (noting that an ordinarily skilled artisan would have been prompted to
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remove corrupted files from Joshi’s Isolated Context when the second
instance of Internet Explorer is closed). That is, the Examiner’s rejection is
premised on automatic file deletion being contingent upon closing the
second web browser process. See id.
Given the claim’s scope and breadth, we agree with the Examiner that
claim 28 would have been obvious over the cited prior art, but for different
reasons.
The Examiner finds that Joshi’s Isolated Context uses copies of files
needed to execute the second web browser process, and ordinarily skilled
artisans would conclude that these files and the environment’s virtualized
view are no longer needed when the second web browser process is
terminated. Final Act. 66–67 (citing Joshi col. 17, ll. 37–55). The Examiner
also finds that Wolff deletes files automatically when malicious content is
detected. Final Act. 66–67 (citing Wolff ¶¶ 24, 29). The Examiner then
concludes that given Joshi’s, Jacobs’s, and Wolff’s collective teachings, an
ordinarily skilled artisan would have been prompted to delete the files in the
Isolated Context and remove malicious content when the second web
browser process is terminated. See Final Act. 66–67; Ans. 39–40.
But as Appellant indicates, the Examiner’s rejection presupposes that
ordinarily skilled artisans would be prompted to remove potentially
malicious content from Joshi’s Isolated Context when closing the second
Internet Explorer instance—an unsubstantiated assumption. See Appeal Br.
123. We reach this unsubstantiation conclusion despite Wolff’s system
deleting malicious content automatically in paragraphs 24 and 29, for this
deletion occurs upon detecting malicious content—not after a second web
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browser process closes under the Examiner’s rationale. Accord Appeal Br.
122; 2d Supp. Dunsmore Decl. ¶¶ 253–254; 3d Supp. Dunsmore Decl. ¶¶
229–230 (noting this point).
Dr. Dunsmore avers that it would be “counter-intuitive” to delete
Joshi’s virtualized resources automatically every time Internet Explorer was
closed in the Isolated Context, and reload those same resources when
Internet Explorer is opened again. 2d Supp. Dunsmore Decl. ¶ 253; 3d
Supp. Dunsmore Decl. ¶ 229. According to Dr. Dunsmore, automatically
deleting and reloading virtualized resources under the Examiner’s proposed
combination would ostensibly “grind the user’s web browser experience to a
halt” every time the user changed contexts between trusted and untrusted
web content. 2d Supp. Dunsmore Decl. ¶ 253; 3d Supp. Dunsmore Decl.
¶ 229.
Although we appreciate Dr. Dunsmore’s insights in this regard, there
is no persuasive evidence on this record to substantiate the purported
deleterious slowdowns caused by deleting and reloading virtualized
resources under the proposed combination, let alone corroborate that theory.
Accordingly, the probative value of Dr. Dunsmore’s opinion regarding these
purported deleterious effects on the user’s “web browser experience” is
diminished.
But what we can say is that there is no persuasive evidence on this
record substantiating the Examiner’s finding that Joshi, Hasbun, and Wolff
collectively would have taught or suggested deleting a corrupted file
automatically when the second web browser process closes under the
Examiner’s rationale. Our emphasis underscores that the Examiner relies
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solely on corrupted files in concluding the recited automatic deletion would
have been obvious. See Final Act. 66–67; Ans. 39–40.
Although we find problematic the Examiner’s premise that deleting a
corrupted file automatically when the second web browser process closes
would have been obvious over Joshi, Jacobs, and Wolff, the same cannot be
said for other files, including cookies and temporary internet files. Indeed,
the very nature of temporary files, including temporary internet files, is that
they are temporary: they are used only when needed, and deleted when not
needed.
A noted computer dictionary defines the term “temporary file,” in
pertinent part, as “[a] disk file written by an application program while it is
running, to hold some of its working data, but which is automatically deleted
when the application terminates.” Temporary File, Dick Pountain, THE
PENGUIN CONCISE DICTIONARY OF COMPUTING 441 (2003). Another
computer dictionary defines the term “temporary file” similarly as “[a] file
created by an executing program to store working or intermediate data, such
as the information required to reconstruct previous document states when the
Undo command is chosen.” Temporary File, Bryan Pfaffenberger,
WEBSTER’S NEW WORLD COMPUTER DICTIONARY 369–70 (10th ed. 2003).
Notably, that dictionary adds that “[n]ormally, these files are deleted when
the application is closed, but some applications are not well-mannered in
this respect.” Id. at 369 (emphasis added).
Our emphasis underscores that temporary files, including temporary
internet files, are (1) created by an executing program or application;
(2) used only when needed; and (3) deleted automatically when the
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associated application terminates. Indeed, the same can be said for cookies,
for they, too, are temporary files that are deleted automatically when a web
browser process terminates. See Wiley EE Dictionary, at 780 (defining
“temporary cookie” as “[a] cookie that is deleted or otherwise disappears
when a Web browser is closed, or after a comparatively short time”)
(emphasis added).
Given this well-known web browser deletion functionality, Joshi at
least suggests deleting a file, namely a temporary internet file or a cookie,
automatically when the second web browser process, namely that associated
with Internet Explorer in the Isolated Context, closes. See Joshi col. 33, l. 5–
col. 34, l. 41. In short, the recited temporary internet file or cookie deletion
would have been at least an obvious variation given the known file deletion
functionality of Joshi’s Internet Explorer web browser.
We, therefore, agree with the Examiner to the extent that the claimed
invention would have been obvious, but for different reasons. Accordingly,
we sustain the Examiner’s obviousness rejection of claims 28, 36, and 48.
But because our determination changes the thrust of the Examiner’s
rejection, we designate our affirmance of the Examiner’s obviousness
rejection of these claims as a new ground of rejection. See In re Kronig, 539
F.2d 1300, 1302–03 (CCPA 1976).

Claims 27, 35, 46, and 47
We also sustain the Examiner’s rejection of claims 27, 35, 46, and 47.
Although Appellant nominally argues claims these claims separately,
Appellant reiterates arguments similar to those made previously. See Appeal
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Br. 119–20; Reply Br. 22. Accordingly, we are not persuaded that the
Examiner erred in rejecting claims 27, 35, 46, and 47 for the reasons
previously discussed.

THE OBVIOUSNESS REJECTION OVER JOSHI, JACOBS, AND
ANGELO (“GROUND 7”)

We also sustain the Examiner’s obviousness rejection of claims 40
and 50. Final Act. 70–71. Despite nominally arguing these claims
separately, Appellant reiterates similar arguments made in connection with
independent claims 30 and 41, and alleges that Angelo fails to cure those
purported deficiencies. See Appeal Br. 124–25. We are not persuaded by
these arguments for the reasons previously discussed.

CONCLUSION
The Examiner’s decision rejecting claims 21, 25–30, 34–41, and 46–
65 is affirmed. We designate our affirmance of the Examiner’s rejection of
claims 28, 36, and 48 as a new ground of rejection.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
21, 26,
29, 30,
34, 38,
39, 41,
49, 51,
53–65
103 Joshi, Jacobs 21, 26,
29, 30,
34, 38,
39, 41,
49, 51,
53–65

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25, 37,
52
103 Joshi, Jacobs,
Hasbun
25, 37, 52
27, 28,
35, 36,
46–48
103 Joshi, Jacobs,
Wolff
27, 28,
35, 36,
46–48
28, 36,
48
40, 50 103 Joshi, Jacobs,
Angelo
40, 50
Overall
Outcome
21, 25–
30, 34–
41, 46–65
28, 36,
48

REQUESTS FOR EXTENSIONS OF TIME
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

NEW GROUND OF REJECTION
This Decision contains a new ground of rejection pursuant to 37
C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
Section 41.50(b) also provides:

When the Board enters such a non-final decision, the
appellant, within two months from the date of the decision,
must exercise one of the following two options with respect to
the new ground of rejection to avoid termination of the appeal
as to the rejected claims:

(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
Appeal 2021-004573
Reexamination Control 90/013,967
Patent US RE43,500

56
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.

(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.

Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.

AFFIRMED
37 C.F.R. § 41.50(b)

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