Michael B. Mccune et al.

Patent Trials and Appeals Board

Nov 21, 2019

12215220 - (D) (P.T.A.B. Nov. 21, 2019)

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.
12/215,220 06/25/2008 Michael B. McCune 05220.483 (P447) 4819
14400 7590 11/21/2019
LOWENSTEIN SANDLER LLP / Red Hat
Patent Docket Administrator
One Lowenstein Drive
Roseland, NJ 07068
EXAMINER
GIROUX, GEORGE
ART UNIT PAPER NUMBER
2125
NOTIFICATION DATE DELIVERY MODE
11/21/2019 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
patents@lowenstein.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL B. MCCUNE, PETER A. VETERE,
ROBIN L. NORWOOD, and MAUREEN E. DUFFY
____________________

Appeal 2019-000178
Application 12/215,2201
Technology Center 2100
____________________

Before JOSEPH L. DIXON, HUNG H. BUI, and JON M. JURGOVAN,
Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL

Appellant seeks review under 35 U.S.C. § 134(a) from a Final
Rejection of claims 1–15, 17–21, and 23–25, which are all the claims
pending in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.2

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. The real party in interest is Red Hat Inc. (Appeal Br. 3.)
2 Our Decision refers to the Specification (“Spec.”) filed June 25, 2008, the
Final Office Action (“Final Act.”) mailed November 29, 2017, the Appeal
Brief (“Appeal Br.”) filed April 27, 2018, the Examiner’s Answer (“Ans.”)
mailed August 10, 2018, and the Reply Brief (“Reply Br.”) filed October 8,
2018.
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CLAIMED INVENTION
The claims are directed to a method and system for “managing
entitlements [(a right/license to run a copy of an operating system)] in a
networked environment” using a centralized server that distributes copies of
an operating system from a software vendor to virtual guests of a virtual host
running on a physical computing machine, whereby the “centralized server
may interact with a hypervisor of the physical computing machine to
determine what type of license of the operating system the virtual host has
and a number of copies of the operating system requested by the virtual
guests.” (Spec. ¶¶ 2, 15; Abstract.)
Claims 1, 8, and 17 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method comprising:
querying, by a processing device of a first server, a
hypervisor of a physical computing machine, the physical
computing machine executing a virtual host and a first virtual
guest, wherein the querying is regarding entitlements associated
with the virtual host and the first virtual guest, and wherein the
virtual host provisions the first virtual guest with a copy of an
operating system executing on the virtual host;
receiving, from the hypervisor, identification of a type of
entitlement corresponding to the operating system of the virtual
host and the operating system currently used by the first virtual
guest;
distributing, by the processing device in view of the type
of entitlement and a number of copies of the operating system
provisioned by the virtual host, a copy of the operating system to
at least a second virtual guest;
retrieving, by the processing device synchronizing with an
external server of a software vendor, metadata related to the
operating system provisioned by the virtual host;
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retrieving, by the processing device, a specification and
resource requirements of the second virtual guest received by the
first server through a graphical user interface;
creating, by the processing device for the second virtual
guest, a provisioning profile in view of the operating system, the
metadata related to the operating system, and in view of the
specification and resource requirements of the second virtual
guest;
responsive to receiving updated information associated
with the entitlements, updating, by the processing device, the
provisioning profile for the second virtual guest to generate an
updated provisioning profile; and
instructing the hypervisor of the physical computing
machine, by the first server in response to a request, to provision
the second virtual guest in view of the updated provisioning
profile.
(Appeal Br. 37–45 (Claims App.).)

REJECTIONS & REFERENCES
(1) Claims 1–15, 17–21, and 23–25 stand rejected under
35 U.S.C. § 101 as directed to non-statutory subject matter. (Final Act. 3–
5.)
(2) Claims 1–3, 6–10, 14, 15, 17–19, and 23–25 stand rejected
under 35 U.S.C. § 103(a) based on Neil (US 2006/0004667 A1, published
Jan. 5, 2006), Davis et al. (US 2008/0082811 A1, published Apr. 3, 2008)
(“Davis”), Everdell et al. (US 2002/0165961 A1, published Nov. 7, 2002)
(“Everdell”), and Reasons et al. (US 2004/0044895 A1, published Mar. 4,
2004) (“Reasons”). (Final Act. 6–14.)
(3) Claims 4, 11, and 20 stand rejected under 35 U.S.C. § 103(a)
based on Neil, Davis, Everdell, Reasons, and Official Notice of “well-known
practices in the art.” (Final Act. 15.)
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(4) Claims 5, 12, 13, and 21 stand rejected under
35 U.S.C. § 103(a) based on Neil, Davis, Everdell, Reasons, and
WIKIPEDIA, Windows Update,
http://en.wikipedia.org/w/index.php?title=Windows_Update&oldid=206841
973 (last visited “10/19/2011”) (“Windows Update”). (Final Act. 16–18.)

ANALYSIS
Rejection under 35 U.S.C. § 101
Patent eligibility is a question of law that is reviewable de novo.
Dealertrack, Inc. v. Huber, 674 F.3d 1315, 1333 (Fed. Cir. 2012).
Accordingly, we review the Examiner’s § 101 determinations concerning
patent eligibility under this standard.
Patentable subject matter is defined by 35 U.S.C. § 101, as follows:
[w]hoever invents or discovers any new and useful process,
machine, manufacture, or composition of matter, or any new
and useful improvement thereof, may obtain a patent therefor,
subject to the conditions and requirements of this title.
In interpreting this statute, the Supreme Court emphasizes that patent
protection should not preempt “the basic tools of scientific and technological
work.” Gottschalk v. Benson, 409 U.S. 63, 67 (1972) (“Benson”); Mayo
Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 71 (2012)
(“Mayo”); Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014)
(“Alice”). The rationale is that patents directed to basic building blocks of
technology would not “promote the progress of science” under the U.S.
Constitution, Article I, Section 8, Clause 8, but instead would impede it.
Accordingly, laws of nature, natural phenomena, and abstract ideas, are not
patent-eligible subject matter. Thales Visionix Inc. v. United States, 850
F.3d 1343, 1346 (Fed. Cir. 2017) (citing Alice, 573 U.S. at 216).
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The Supreme Court set forth a two-part test for subject matter
eligibility in Alice (573 U.S. at 217–18). The first step is to determine
whether the claim is directed to a patent-ineligible concept. Id. (citing
Mayo, 566 U.S. at 76–77). If so, then the eligibility analysis proceeds to the
second step of the Alice/Mayo test in which we “examine the elements of the
claim to determine whether it contains an ‘inventive concept’ sufficient to
‘transform’ the claimed abstract idea into a patent-eligible application.”
Alice, 573 U.S. at 221 (internal quotation marks omitted) (quoting Mayo,
566 U.S. at 72, 79). There is no need to proceed to the second step,
however, if the first step of the Alice/Mayo test yields a determination that
the claim is directed to patent-eligible subject matter.
The Patent Office has recently revised its guidance for how to apply
the Alice/Mayo test in the 2019 Revised Patent Subject Matter Eligibility
Guidance, 84 Fed. Reg. 50–57 (Jan. 7, 2019) (“2019 Revised Guidance”).
Applying Step 1 of the Revised Guidance (which is unchanged from the
prior guidance) to the present case, we determine independent claim 1
recites a “method,” independent claim 8 recites a “system,” and independent
claim 17 recites a “non-transitory computer-readable medium,” which are a
form of “process,” “machine,” and “manufacture,” respectively, thereby
falling within one of the categories enumerated under § 101 and satisfying
Step 1 of the Revised Guidance.
We proceed to apply Step 2A of the Revised Guidance to determine if
the claims are “directed to” a judicial exception. Step 2A of the Revised
Guidance corresponds to the first step of the Alice/Mayo test but is in part
changed from the 2014 Interim Guidance on Patent Subject Matter
Eligibility, 79 Fed. Reg. 74618–74633 (December 16, 2014).
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The first Prong of Step 2A under the Revised Guidance is to
determine whether the claims recite a judicial exception including (a)
mathematical concepts; (b) certain methods of organizing human activity;
and (c) mental processes. 2019 Revised Guidance, 84 Fed. Reg. at 51–52.
Here, the Examiner determines that claims 1, 8, and 17 are directed to
“managing entitlements, including determining whether correct entitlements
are present” to “detect misuse of entitlements and provide ways of acquiring
additional entitlements, as well as determining [] metadata and system
resource requirements,” which is an abstract idea of “organizing and
manipulating information through mathematical correlations,” “collecting
and analyzing information to detect misuse and notifying a user when such
is detected,” and “displaying . . . [the] results of the collection and analysis.”
(Final Act. 3–4 (citing FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d
1089 (Fed. Cir. 2016); CyberSource Corp. v. Retail Decisions, Inc.,
654 F.3d 1366 (Fed. Cir. 2011); Elec. Power Grp., LLC, v. Alstom S.A., 830
F.3d 1350 (Fed. Cir. 2016); Digitech Image Techs., LLC v. Elecs. for
Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014); buySAFE, Inc. v. Google,
Inc., 765 F.3d 1350 (Fed. Cir. 2014)); Ans. 6–7.)
We are not persuaded by the Examiner’s findings, as we are unable to
agree that the Examiner has adequately found the concept of claims 1, 8, and
17 to be similar to others found to be abstract ideas by our reviewing courts.
(See Appeal Br. 19–25.) Appellant’s claims 1, 8, and 17 recite a method and
system for creating a virtual guest on a virtual host executed by a physical
computing machine, and using a hypervisor of the physical computing
machine to provision the virtual guest with an operating system. Here, we
are unable to determine from the Examiner’s analysis whether such
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technique for creating a virtual guest on a virtual host describes subject
matter that is a mathematical concept, a method of organizing human
activity, or a mental process (i.e., one of the three types of abstract ideas
identified by the Revised Guidance).
Even if Appellant’s claims were considered to recite an abstract idea,
we are persuaded by Appellant’s arguments that the claims integrate an
abstract idea into a practical application under the second Prong of Step 2A.
(2019 Revised Guidance 84 Fed. Reg. at 54–55; see Appeal Br. 12–15, 17–
18; Reply Br. 3–4, 6.) Particularly, we agree with Appellant the claims
integrate an abstract idea into a practical application of “provisioning and
distributing operation systems to multiple virtual machines [on a physical
computing machine] according to existing entitlements,” using a “hardware-
centric, non-abstract” technique that “directly impact[s] the installation and
use of an operating system by a virtual guest on a physical computing
machine that includes the hypervisor.” (Appeal Br. 14, 29; Reply Br. 4.)
Claim 1 recites a combination of additional elements including (i)
distributing, in view of a type of entitlement and a number of copies of an
operating system provisioned by a virtual host, a copy of the operating
system to a second virtual guest, (ii) creating and updating a provisioning
profile for the second virtual guest, and (iii) instructing the hypervisor of the
physical computing machine to provision the second virtual guest in view of
the updated provisioning profile. The claim’s additional elements provide a
practical application of a process of building a machine (the second virtual
guest) based on an entitlement (availability of an operating system’s
license). (See Spec. ¶¶ 4, 14–15, 26, 34, 36.)
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As Appellant explains, the claimed technique for creating a virtual
guest on a virtual host provides “improvements in the field of provisioning
and distributing operation systems to multiple virtual machines within a
customer’s internal network according to existing entitlements.” (Appeal
Br. 12–14, 29.) Appellant’s claim provides improved functionality for
creating a new virtual guest at the direction of a server (claimed “first
server”) directing an operating system’s distribution and a provisioning of
the virtual guest on the physical computing machine “so that one does not
have to manually install the operating system” on each new virtual guest.
(Reply Br. 3, 5; Appeal Br. 14–15; see Spec. ¶¶ 4, 22, 26.) Thus,
Appellant’s technique enables automatic provisioning and distribution of
operating systems to multiple virtual machines on a physical computing
machine, according to existing entitlements/licenses for operating system
copies. (Appeal Br. 14–15, 17, 29.)
Thus, Appellant’s claim 1 (and similarly, claims 8 and 17) integrates
the management of entitlements/licenses for networked virtual machines,
into a process rooted in computer and network technologies. (See Spec.
¶¶ 2, 15, 26, 34; DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245,
1257–58 (Fed. Cir. 2014) (holding patent-eligible a claim that “address[es] a
business challenge (retaining website visitors)” by enabling visitors “to
purchase products from the third-party merchant without actually entering
that merchant’s website,” thus providing a “claimed solution . . . necessarily
rooted in computer technology in order to overcome a problem specifically
arising in the realm of computer networks”).)
Because claims 1, 8, and 17 integrate the judicial exception into a
practical application, we find claims 1, 8, and 17, and their dependent claims
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2–7, 9–15, 18–21, and 23–25, are not directed to a judicial exception
(abstract idea), rather, they are directed to patent-eligible subject matter
under § 101. Accordingly, we do not address Step 2B of the Revised
Guidance (corresponding to step two of the Alice/Mayo test).
For these reasons, we do not sustain the Examiner’s rejection of
claims 1–15, 17–21, and 23–25 as directed to non-statutory subject matter
under 35 U.S.C. § 101.

Rejection under 35 U.S.C. § 103(a)
With respect to independent claims 1, 8, and 17, Appellant argues the
claims together. (Appeal Br. 35.) Therefore, we select independent claim 1
as the representative claim for the group and will address Appellant’s
arguments presented in the Appeal Brief and Reply Brief. See 37 C.F.R.
§ 41.37(c)(1)(iv).
With respect to independent claim 1, Appellant contends Everdell
does not teach or suggest “retrieving, by the processing device
synchronizing with an external server of a software vendor, metadata related
to the operating system provisioned by the virtual host” as claimed. (Appeal
Br. 30–31; Reply Br. 7–8.) Particularly, Appellant argues Everdell (i) does
not gather “metadata . . . related to the operating system provisioned by the
virtual host,” (ii) does not teach or suggest “synchronizing with an external
server of a software vendor” to retrieve the metadata, and (iii) does not
mention a virtual host, a virtual guest, or a hypervisor, and thus is unrelated
to the claimed “provisioning . . . in relation to operating systems on virtual
machines.” (Appeal Br. 30–31; see also Reply Br. 8.) With respect to
Reasons, Appellant argues that (i) Reasons does not create the claimed
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“provisioning profile in view of the operating system, the metadata related
to the operating system, and in view of the specification and resource
requirements of the second virtual guest,” and Reasons’ “entitlement
profile . . . is not related to provisioning ‘a copy of the operating system to a
virtual guest,’” (ii) Reasons does not teach or suggest “instructing the
hypervisor of the physical computing machine, by the first server in
response to a request, to provision the second virtual guest in view of the
updated provisioning profile,” and (iii) Reasons “fails to teach or suggest
why or how . . . [its entitlement] profile would be updated, or how such an
updated provisioning profile would be employed.” (Reply Br. 8; Appeal Br.
31–33.) Appellant further argues that: the Examiner “does not state any
reasons why Everdell would be combinable with Reasons”; and the
Examiner’s combination of Neil and Everdell is improper because Neil and
Everdell are non-analogous to one another and cannot logically be
combined. (Appeal Br. 32, 34–35; Reply Br. 9.) We do not agree.
We agree with and adopt the Examiner’s findings as our own with
respect to the obviousness rejection. (Ans. 8–9; Final Act. 6–11.)
Particularly, we agree with the Examiner that Everdell retrieves metadata
related to a provisioned operating system, as required by claim 1. (Ans. 8;
Final Act. 8–9.) For example, Everdell discloses “gather[ing] necessary
information[, ]i.e., metadata” that allows “hot upgrades and downgrades” of,
e.g., “portions of the kernel [that] may be hot upgraded under certain
circumstances,” where “the kernel includes operating system software.”
(See Everdell ¶¶ 111–112 (emphases added).) Thus, Everdell retrieves
metadata related to the operating system (i.e., the operating system of the
kernel being upgraded in Everdell).
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Regarding the claimed “synchronizing with an external server of a
software vendor” to retrieve metadata related to the operating system, the
Examiner finds Everdell teaches this limitation because Everdell’s
“metadata is collected for software including the operating system
which may be updated by an external server.” (Final Act. 8–9 (citing
Everdell ¶¶ 111–113, 940).) We agree with the Examiner’s findings.
Everdell’s metadata (that enables upgrades for a kernel including operating
system software) is distributed through a “modular software architecture”
that “can be implemented on any network device (including routers) or other
types of computer systems” and can include “a network computer system
with a loosely coupled distributed processing system . . . or a combination of
distributed and central processing.” (See Everdell ¶¶ 112–113; see also
Everdell ¶ 109 (the “modular software architecture solves some of the more
common scenarios seen in existing architectures when software is upgraded
or new features are deployed”).) Everdell’s gathering of metadata to enable
kernel upgrades in a distributed processing system is commensurate with the
broad description of “synchronizing with an external server” to retrieve
metadata in Appellant’s Specification.3
Appellant also argues that claim 1’s “virtual host [that provisions the
operating system] is executing on ‘the physical computing machine,’ not the
first server [whose processing device retrieves metadata related to the
operating system, and has a graphical user interface],” in contrast to Everdell
where the graphical user interface (GUI) and software updates “are related to

3 Appellant’s Specification describes “synchroniz[ing] with the external
server by retrieving from the external server updates to items previously
retrieved from periodically or in response to user requests” to “update a copy
of the item on the centralized server 110 accordingly.” (Spec. ¶¶ 23, 28.)
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the machine that is going to be hot upgraded or downgraded.” (Reply Br. 8.)
Appellant’s argument is not commensurate with the scope of claim 1, which
does not require the “first server” (and its “processing device”) to be
separate from the claimed “physical computing machine.”
Regarding the claimed term “provisioning profile,” Appellant’s
Specification does not provide an explicit and exclusive definition of a
“provisioning profile.” Rather, the Specification merely provides discussion
of non-limiting examples of the term.4 Reasons describes an “entitlement
profile” including new or updated “entitlement information” regarding
“entitlement rights for a user-desired operation” executed on a local
computer, where the “user-desired operation is a computer-controlled
operation and includes . . . the execution of an operating system function”
and “obtaining access to a hardware system or operating system.” (See
Reasons ¶¶ 10–12, 21, 23, 26.) Reasons further explains “the entitlement
status of the user-desired operation may be checked” based on the
“obtain[ed] information about the local machine.” (Id. ¶ 26.) We agree with
the Examiner that Reasons’ entitlement profile, which is based on
information about the local machine and is used to provision the machine
with “access to computer operations, including operating systems,” is
commensurate with the term provisioning profile as claimed and with the
broad description of a provisioning profile in Appellant’s Specification.
(See Reasons ¶¶ 9, 11–12, 23–26; Ans. 8; Final Act. 9–10.)

4 Appellant’s Specification broadly describes “a provisioning profile”
created as follows: “users of the centralized server may input specifications
and/or requirements of the virtual machines” and “[b]ased on the user input,
processing logic creates a provisioning profile for each type or class of
system.” (Spec. ¶ 34 (emphases added).)
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We further agree with the Examiner the skilled artisan would envision
Reasons’ provisioning profile to have been created in view of the operating
system (that is to be accessed and executed on Reasons’ local machine), in
view of metadata related to the operating system (as taught by Everdell’s
metadata enabling kernel upgrades), and in view of a specification and
resource requirements of Reasons’ local machine (e.g., “information or data
about the local computer” described in paragraphs 25 and 26 of Reasons).5
(Ans. 8–9; Final Act. 9–10; see Reasons ¶¶ 25–26 (“information about the
local machine [is obtained] so that the local machine may be properly
identified and the entitlement status of the user-desired operation may be
checked”).)
Appellant also argues, unpersuasively, that Reasons “fails to teach or
suggest why or how . . . [its entitlement] profile would be updated, or how
such an updated provisioning profile would be employed.” (Appeal Br. 33.)
Reasons does explain how an updated provisioning profile is used: “a
localized entitlement system for controlling access to computer operations,
including operating systems . . . may be updated through a remote system
such as the Internet” and contacts “an entitlement server . . . to obtain
updated entitlement information or to create an entitlement profile for the
user,” to thereby “obtain or validate the entitlement status for a user-desired
operation accessed by the local computer.” (See Reasons ¶¶ 11–12, 19, 25–
26.)
With regard to Appellant’s arguments that “Everdell does not mention

5 Claim 1 broadly recites the provisioning profile is created in view of the
operating system, in view of metadata related to the operating system, and in
view of the specification and resource requirements of the second virtual
guest.
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a virtual host, a virtual guest, or a hypervisor” or an “operating system
provisioned by a virtual host for a virtual guest,” and Reasons does not
instruct a hypervisor to provision a virtual guest (see Appeal Br. 31, 33), we
note the Examiner cited Neil and Davis for teaching virtual hosts and guests
and a hypervisor, and “provisioning operating systems and monitoring of
licenses (entitlements) of the virtual hosts and guests.” (See Ans. 8–9; Final
Act. 6–8.) The Examiner also provided reasoned rationales to use Reasons’
system for checking/provisioning entitlements and Everdell’s metadata and
requirements collection and provisioning, in the provisioning of operating
systems within virtual environments disclosed by Neil and Davis. (Final
Act. 8–11; Ans. 8–9.)
Appellant also argues the Examiner failed to provide articulated
reasoning to combine Everdell with Reasons. (Appeal Br. 32; Reply Br. 9.)
We disagree, as the Examiner has provided a reasoned rationale to combine
Reasons’ use and update of an entitlement profile for provisioning computer
operations (including access and execution of an operating system), with
Everdell’s provisioning of software upgrades using metadata for “seamless
extensibility” allowing new software processes to be added and existing
software processes to be upgraded. (Ans. 8–9 (citing Everdell ¶¶ 112, 182,
190, 915–918, 927, 940); Final Act. 9–10 (citing Reasons ¶¶ 11–12, 23–
26).) We have reviewed the Examiner’s findings and rationale, and
conclude there is sufficient support for the finding of obviousness.
We are also not persuaded by Appellant’s argument that Neil and
Everdell are non-analogous to one another because Everdell’s “virtual ATM
interfaces and virtual connections related to the virtual ATM interfaces . . .
are not related to virtual machines for which operating systems would need
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to be provisioned in Neil.” (Appeal Br. 34.) Everdell, however, is not
restricted to ATM interfaces and ATM software upgrades, as Everdell is also
concerned with upgrading kernels (that include operating system software)
for “other applications, for example, Internet Protocol (IP) applications,
Frame Relay and MultiProtocol Label Switching (MPLS) applications.”
(See Everdell ¶¶ 112, 161, Abstract.) We agree with the Examiner that
Everdell and Neil are analogous art in the field of software distribution and
software updating. (Final Act. 9; Ans. 9.)
For these reasons, Appellant has not persuaded us of error in the
Examiner’s rejection of claim 1. As such, we sustain the Examiner’s
obviousness rejection of claim 1, independent claims 8 and 17 argued for the
same reasons as claim 1, and dependent claims 2–7, 9–15, 18–21, and 23–25
for which no separate arguments for patentability are presented.6 (Appeal
Br. 35.)

DECISION SUMMARY
The Examiner’s rejection of claims 1–15, 17–21, and 23–25 under
35 U.S.C. § 101 is REVERSED.
The Examiner’s rejection of claims 1–15, 17–21, and 23–25 under
35 U.S.C. § 103(a) is AFFIRMED.

6 We acknowledge Appellant’s objection to the Examiner’s taking of
Official Notice in the rejection of dependent claims 4, 11, and 20. (See
Appeal Br. 35.) However, Appellant has not adequately traversed the
Examiner’s assertion of Official Notice. For example, Appellant did not
specifically point out the supposed errors in the Examiner’s initial taking of
Official Notice (in the Examiner’s earlier Office Action dated March 2,
2015), and did not state why the officially noticed fact is not considered to
be common knowledge or well-known in the art. See MPEP § 2144.03.
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In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–15, 17–21, 23–
25
101 non-statutory 1–15, 17–
21, 23–25
1–3, 6–10, 14, 15,
17–19, 23–25
103(a) Neil, Davis,
Everdell, Reasons
1–3, 6–10,
14, 15, 17–
19, 23–25

4, 11, 20 103(a) Neil, Davis,
Everdell,
Reasons, Official
Notice
4, 11, 20
5, 12, 13, 21 103(a) Neil, Davis,
Everdell,
Reasons,
Windows Update
5, 12, 13, 21
Overall Outcome 1–15, 17–21,
23–25

Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, the Examiner’s decision is affirmed. See 37
C.F.R. § 41.50(a)(1).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED