Appeal 2007-1099
Application 09/955,469
that Bruck’s servers can dynamically reconfigure assignments of virtual IP
addresses among themselves to provide enhanced network availability and
improved server response to clients over the Internet (see Bruck, col. 7, l. 11
through col. 8, l. 49, Fig. 3) (Answer 14).
The Examiner relies upon the secondary Brendel reference for the
teaching of a real [i.e., physical] network server address. The Examiner
concludes that it would have been obvious to one of the ordinary skill in the
art to implement Brendel’s real network server address in Bruck’s
distributed server cluster because such modification would have allowed
[Bruck’s] routers to use the real IP address of the assigned server to route
data packets to the assigned server and thus balance the load on each server
(see Brendel, col. 76, ll. 46-63) (Answer 14-15).
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598
(Fed. Cir. 1988). In so doing, the Examiner must make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17, 148
USPQ 459, 467 (1966). “[T]he examiner bears the initial burden, on review
of the prior art or on any other ground, of presenting a prima facie case of
unpatentability.” In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . . [H]owever, the analysis need not seek out precise
teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
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