Appeal No. 2006-0570 5
Application No. 09/706,960
a GUI, would not have been led to use any such flag in the fault recovery system of Halladay.
Accordingly, we will not sustain the rejection of claims 1, 2, 9-11, 30, and 31 under
35 U.S.C. §103.
We also will not sustain the rejection of claims 3-7 and 32 under 35 U.S.C. §103
because the examiner brings in Stevens for the teaching of an interface comprising a
network stack having an IP layer, but Stevens does not provide for the deficiency of
Halladay and Reynolds in their failure to provide for the claimed flag and the backup
device enabling access to the network in response to that flag indicating a failure of a first
operational element.
Similarly, since Yen also does not provide for this deficiency, we will not sustain the
rejection of claim 8 under 35 U.S.C. §103.
With regard to independent claims 14 and 20, the examiner relies on the
combination of Halladay and Stevens to reject these claims under 35 U.S.C. §103.
The examiner contends that Halladay discloses the claimed subject matter but for
the network for communication and retrieving, via a browser, using a network stack
including an IP layer. The examiner turns to Stevens to show that the use of such an IP
layer was well known, and concludes that the subject mater of claims 14 and 20 would
have been obvious, within the meaning of 35 U.S.C. §103.
Appellants’ position is that claims 14 and 20 both require a browser. Claim 14
requires that the backup software routine comprises a browser, where the browser is
executed to access the network through a network stack including an IP layer to retrieve
data comprising an image containing user data in an operating system. Claim 20 recites
the loading of a browser from a backup storage device to enable network communication
through a network stack including an IP layer for retrieving an image to recover a system,
where the image comprises user data in an operating system.
Appellants contend that there is no teaching in either Halladay or Stevens of a
browser that is executed to load data containing an image having user data in an operating
system. Appellants note that “browser” refers to a “Web browser.”
The examiner contends that Halladay discloses that backup data is accessible via
a network, citing column 3, line 44 et seq.; that a backup software routine is loaded from
a backup device, citing column 7, line 57 et seq.; and that the backup software routine
comprises a browser, wherein the browser is executed to access the network to retrieve
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