Appeal 2006-2621
Application 09/993,320
35 U.S.C § 103(a) REJECTION
With respect to the Examiner’s obviousness rejection of independent
claim 1 based on the combination of Ha and Itoh, Appellants’ arguments in
response assert a failure to set forth a prima facie case of obviousness since
all of the claim limitations are not taught or suggested by the Ha and Itoh
references. In particular, Appellants contend (Br. 13-14) that Itoh does not
cure the deficiency of Ha in disclosing the initiation of a firmware upgrade
without administrator invention. Aside form the fact that our earlier
discussion found that Ha, in fact, does disclose software updating without
administrator intervention, we find Appellants’ contention to be without
merit since the Examiner has relied upon Ha, not Itoh, for a teaching of
downloading software from a management device to a communication
device without administrator intervention. It is apparent from the
Examiner’s line of reasoning in the Answer that the basis for the
obviousness rejection is the combination of Ha and Itoh. One cannot show
nonobviousness by attacking references individually where the rejections are
based on combinations of references. In re Keller, 642 F. 2d 413, 425, 208
USPQ 871, 881(CCPA 1981); In re Merck & Co., Inc., 800 F. 2d 1091,
1096, 231 USPQ 375, 380 (Fed. Cir. 1986).
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