Appeal No. 2006-0570 4
Application No. 09/706,960
not enable access to the network but, rather, it is whatever reads the bit which initiates
activity. Since Halladay intended an automatic system and boot disks were common at
that time, Halladay used a boot disk, relying on a user to initiate recovery. However,
continues the examiner, this is not a necessary step and, as indicated by Reynolds, can be
automated by the use of a failure detector that sets a flag, the flag being detected on
subsequent reboot, initiating recovery procedures.
We have carefully considered the evidence before us, including the disclosures of
the applied references, as well as the arguments of appellants and the examiner and we
conclude therefrom that the examiner has not established a prima facie case of
obviousness with regard to the subject matter of instant claims 1, 2, 9-11, 30, and 31.
While we appreciate the examiner’s creativeness in finding a common element
between the references, viz, a discussion of boot disks, it appears that Reynolds teaches
away from using the “well-worn floppy disk that contains an old-style character-based
operating system” (column 1, lines 58-59) in favor of running a GUI-based program which
is not possible with the character-based operating system (column 1, line 67-column 2, line
2). Instead, Reynolds permits a user to repair a GUI-based operating system from within
the very same operating system by providing automatic failure recovery through a special
“fail-safe” mode of the GUI-based operating system (column 2, lines 14-18). The special
flag employed by Reynolds is for indicating whether fail-safe mode is to be established in
response to a previous failure of an attempt to establish normal mode. Also, the flag can
be stored (column 6, lines 29-32). While Reynolds does appear to be interested in failure
recovery, it appears that the special flag disclosed therein is used only to enter a fail-safe
mode. The flag is not used to indicate if a fault has occurred within a first operational
element, or that a backup device enables access to a network in response to that flag
indicating a failure of the first operational element, as set forth in instant claim 1.
Therefore, to the extent Halladay and Reynolds can be combined, the combination
would not result in the claimed subject matter as neither reference discloses a flag, as
required by claim 1 because, by the examiner’s own admission, Halladay teaches no such
flag at all, and Reynolds’s flag is not used to indicate if a fault has occurred within a first
operational element, or that a backup device enables access to a network in response to
that flag indicating a failure of the first operational element.
Moreover, since Halladay appears to depend solely on a floppy disk for instituting a
fault recovery, and Halladay teaches away from the use of such a disk, or at least does not
teach that the special flag may be used with such a disk, the artisan, having knowledge of
Reynolds’ special flag and its use in fail-safe functionality from a computer system having
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