Appeal 2007-2149
Application 10/224,099
2. Claim 20 is rejected under 35 U.S.C § 103(a) as unpatentable over
Krishan, Salgado, and Beaverton.
OPINION
In a rejection under 35 U.S.C. § 103, the Examiner applies the
teachings of Krishan and Salgado to demonstrate prima facie obviousness of
the subject matter as a whole of instant claim 1. The Examiner finds, as set
forth in the Answer, that Krishan shows the steps of claim 1 (see, e.g.,
“Updating of Device Firmware” in columns 15 and 16 of Krishan), but does
not expressly disclose that the software driver automatically updates the
firmware program independently of a further software application for the
portable card. The Examiner concludes that, in view of Salgado’s teachings,
it would have been obvious to update the firmware program independently
of a further software application for the portable card for the purpose of
obviating or minimizing required user interaction.
Appellant submits that Salgado does not teach or suggest a method for
a software driver to update a firmware program, being “specifically”
directed to a method for updating a printer driver on a workstation. (Appeal
Br. 7.) That Salgado does not describe updating a firmware program in a
non-volatile memory of a portable card is not disputed, because Krishan is
relied upon for that teaching. However, non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. In re Merck & Co., 800
F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986) (citing In re Keller,
642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981)).
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