Appeal 2007-2116
Application 10/318,000
with respect to the protocol used by the dynamic store. The Examiner
provides salient reasons in the Answer, however, with respect to why the
artisan would have considered it obvious to use an LDAP protocol with the
dynamic store, such as to avoid the requirement of conversion between
differing protocols.
Appellants posit that the reference does not support the proposed
modification because different types of data are maintained in the persistent
store as compared to the dynamic store. (Appeal Br. 14-15.) Appellants go
even further, in the Reply Brief (at 5-6), to allege that Freeman actually
“teaches away” from the proposed modification.
“A reference may be said to teach away when a person of ordinary
skill, upon [examining] the reference, would be discouraged from following
the path set out in the reference, or would be led in a direction divergent
from the path that was taken by the applicant.” Para-Ordnance Mfg., Inc. v.
SGS Importers Int’l, Inc. 73 F.3d 1085, 1090, 37 USPQ2d 1237, 1241 (Fed.
Cir. 1995) (quoting In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131
(Fed. Cir. 1994)). Appellants have not identified anything in the reference
that would warn or discourage the artisan from using an LDAP protocol with
the dynamic store. We do not find the reference’s silence to be a “teaching
away”; indeed, the dynamic store might have used an LDAP protocol, likely
for the reasons identified by the Examiner.
Moreover, to be nonobvious, an improvement must be “more than the
predictable use of prior art elements according to their established
functions.” KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740, 82
USPQ2d 1385, 1396 (2007). Appellants have provided no evidence that the
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