Ex Parte Anderson et al

Patent Trial and Appeal Board

Jan 19, 2018

11607663 (P.T.A.B. Jan. 19, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/607,663 12/01/2006 Lori Anderson TWAR.051A 9846
27299 7590 01/19/2018
GAZDZINSKI & ASSOCIATES, PC
16644 WEST BERNARDO DRIVE
SUITE 201
SAN DIEGO, CA 92127
EXAMINER
TECKLU, ISAAC TUKU
ART UNIT PAPER NUMBER
2193
MAIL DATE DELIVERY MODE
01/19/2018 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LORI ANDERSON and ALBERT WILLIAM STRAUB
Appeal 2016-006646
Application 11/607,663
Technology Center 2100
Before MARC S. HOFF, JOHNNY A. KUMAR, and
JOHN P. PINKERTON, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 8—11, 13, 14, and 84—99. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Exemplary Claims
Exemplary claims 8, 84, 88, and 89 under appeal reads as follows:
8. A method of operating a consumer premises device in operative
communication with a content delivery network so as to selectively
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Application 11/607,663
reconfigure said consumer premises device with a desired software
configuration, said method comprising:
generating an association file comprising a plurality of records, each
of said plurality of records configured to associate each of a plurality of
client devices to an individual one of a plurality of software components,
said individual one of said plurality of software components being
configured to, when downloaded and executed thereon, enable a respective
unique configuration of a client device to which it is associated;
enabling a third-party software source to insert a record into said
association file, said record being associated with a software component
purchased by a user of said consumer premises device from said third-party
software source;
installing a module operable to run on said consumer premises device
and configured to access said association file stored at an entity of said
network;
remotely causing said module to run on said consumer premises
device, thereby enabling said consumer premises device to access said
association file;
discovering, based at least in part on said act of accessing said
association file, said individual one of said plurality of software components
to download and install on said consumer premises device said individual
one of said plurality of software components comprising said third-party
software component purchased by said user;
downloading said individual one of said plurality of software
components to said consumer premises device; and
executing said downloaded individual one of said plurality of software
components on said consumer premises device;
wherein said acts of downloading and executing cause said consumer
premises device to be reconfigured according to said unique configuration.
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84. Consumer premises equipment (CPE) in operative
communication with at least one remote distribution entity via a
content delivery network, said CPE comprising:
at least one software module; and
at least one processor configured to run said at least one software
module thereon, said at least one remote distribution entity configured
to cause said at least one module to perform a first task for discovery
of at least two software components to download and install to said
CPE;
wherein said CPE is further configured to download and execute
said at least two software components, said at least two software
components comprising at least one previously untested software
component, and said execution thereof comprising a test or evaluation
thereof;
wherein said CPE is further configured to evaluate operation of
said at least one previously untested software component to determine
whether it conflicts with an other one of said at least two software
components executed by said CPE;
wherein said previously untested software component comprises
an individual one of a plurality of available software component
versions, said individual one being associated with one or more
attributes of said CPE; and
wherein, in response to a determination that said test or
evaluation is successful, said previously untested software component
being designated and distributed for general use.
88. A method of operating consumer premises equipment (CPE)
configured for use within a content distribution network, said CPE
having a module operable to run thereon and adapted to perform a
first task, said method comprising:
remotely causing said module to run on said CPE, thereby
invoking said first task;
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identifying, based at least in part on said running of said module,
at least one software component to download and install, said
software component comprising a particular one of a plurality of
available software components;
downloading said at least one software component to said CPE;
and executing said downloaded at least one component on said
CPE;
wherein said downloaded at least one component comprises a
particular one of said plurality of available software components
which is specific to both a user associated with said CPE and a
configuration of said CPE.
89. Consumer premises equipment (CPE) for use with a content
distribution network, said CPE having a module operable to run
thereon and configured to perform a first task, said CPE further
comprising:
a processor configured to run at least one computer program
thereon, said at least one program comprising a plurality of
instructions which are configured to, when executed:
receive at said CPE a command from a remote entity, said
command configured to cause said module to be run on said CPE,
thereby invoking said first task;
identify, based at least in part on said invocation of said first task
of said module, at least one software component from among a
plurality of available software components to download and execute;
download said at least one software component to said CPE;
and execute said downloaded at least one component on said
CPE;
wherein said plurality of available software components are each
individually associated with respective ones of a plurality of CPE
configurations; and
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wherein said downloaded at least one software component
comprises a software component specific to both a user associated
with said CPE and a particular configuration of said CPE.
Rejections1
Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Prus et al. (US 2005/0144651 Al; published June 30, 2005) in view of
Maclnnis (US 2003/0028899 Al; published Feb. 6, 2003), further in view of
Walker et al. (US 7,681,245 B2; issued Mar. 16, 2010) and Ronning et al.
(US 8,271,396 B2; issued Sept. 18, 2012).
Claims 84—87 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Prus in view of Maclnnis, further in view of Grover et al.
(US 2010/0017793 Al; published Jan. 21, 2010); Kuzmin et al. (US
2003/0229889 Al; published Dec. 11, 2003); Srivastava et al. (US
2006/0129994 Al; published June 15, 2006).
Claims 88, 89, 91, 94, 96, 97, and 99 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Prus in view of Maclnnis.
Claims 9-11, 13, and 14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Prus in view of Maclnnis, Walker, and Ronning,
further in view of Chaney (US 2007/0150892 Al; published June 28, 2007).
Claims 90, 92, and 95 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Prus in view of Maclnnis, further in view of Chaney.
1 Separate patentability is not argued for claims 9—11, 13, 14, and 85—87, and
90—99. Except for our ultimate decision, this rejection of these claims is not
discussed further herein.
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Claims 93 and 98 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Prus in view of Maclnnis, further in view of Margolus et
al. (US 7,693,814 B2; issued Apr. 6, 2010).
Issues on Appeal
Did the Examiner err in rejecting claims 8—11, 13, 14, and 84—99 as
being obvious?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’
conclusions.
A.
Appellants contend that the Examiner erred in rejecting claim 8 under
35 U.S.C. § 103(a) because:
Prus discloses accessing the CVT (which allows for the
download of the code) before the reboot of the CPE by the watchdog
process, and thus the accessing of the CVT in Prus always occurs before
the bootloader is caused to be run by the emergency headend messages.
Appellants] note[] it is Prus’ own disclosure (see, e.g.,
paragraph [0039]), and such disclosure clearly indicates that accessing
of the CVT occurs before the reboot of the CPE by the watchdog
process.
Reply Br. 2—3.
As to Appellants’ assertion, we disagree. Appellants’ “accessing...
before the reboot” argument is not commensurate with the scope of the
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claim language. The language of claim 8 does not preclude Prus’ accessing
the CVT before the reboot of the CPE.
B.
Appellants also contend that the Examiner erred in rejecting claim 84
under 35 U.S.C. § 103(a) because the combination of Prus, Maclnnis,
Grover, Kuzmin, and Srivastava fails to teach or suggest
wherein said CPE is further configured to evaluate operation of said at
least one previously untested software component to determine
whether it conflicts with another one of said at least two software
components executed by said CPE; [as claimed in claim 84]
App. Br. 6—7 (emphasis added).
As to Appellants’ above assertions, we are not persuaded of error. We
begin our analysis by first considering the scope and meaning of the claim
limitation “conflicts,” which must be given the broadest reasonable
interpretation consistent with Appellants’ disclosure, as explained in In re
Morris'.
[T]he PTO applies to the verbiage of the proposed claims the
broadest reasonable meaning of the words in their ordinary usage
as they would be understood by one of ordinary skill in the art,
taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written
description contained in the applicant’s specification.
In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). See also In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989) (stating that “claims must be interpreted
as broadly as their terms reasonably allow”).
In the present case, the Specification does not provide an express
definition of “conflicts.” On page 34, Appellants’ Specification discloses:
For example, if a given CPE identification (e.g., MAC, TUNER
ID, opaque variable, etc.) has say five (5) different applications
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associated with it, and a particular version of a first of those
applications is known to conflict with or cause undesirable behaviors
when running at the same time as a particular version of another of the
five applications, this combination can be flagged as “high risk” or
“undesirable” by the server process 202, and the version of one of
those applications (or both) changed until all high risk/undesirable
application combinations have been eliminated on that CPE. This may
comprise a multi-variate analysis; i.e., when one application version is
changed, such change may produce a new incompatibility with the
same or another application.
In other words, conflicts include incompatibilities between different
versions of the software. Although this disclosure is not limiting of the
claimed invention, it provides context for which the phrase “conflicts” is
interpreted.
The Examiner finds Srivastava (Figure 2, para 37) teaches binary
change analysis 204 to compare two versions of the same program to debug
a new program. (Ans. 10). See also Srivastava, paragraph 38.
Based on our review of Srivastava and consistent with the Examiner’s
stated position (Ans. 2—3), we interpret the claim language “conflicts” using
the broadest reasonable interpretation consistent with Appellants’ disclosure,
to include, for example, the change analysis in Srivastava. See Morris,
127 F.3d at 1054.
C.
Appellants contend that the Examiner erred in rejecting claims 88 and
89 under 35 U.S.C. § 103(a) because Prus and Maclnnis do not teach
“available software components which is specific to both a user associated
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with said CPE and a configuration of said CPE,” as recited in claim 88, and
similarly recited in claim 89. App. Br. 8—9.
The Examiner finds, and we agree:
Both these references [Pras and Maclnnis] disclose the
downloaded software specific to the particular model of set-top box.
The downloaded software are version variants of the pre-installed
software and hence specific to the set-top box and particular
configuration of the se-top box (see for example Pras: [0003], [0040]
Table 1; Maclnnis: [0012] and [0028-0031]). For example Pras in
[0040] Table 1 discloses “.. ..In the cable systems with mix of set tops
(i.e. CPEFs) from many suppliers this provides the method to
download different versions of software depending on the
manufacturer. 2. Within each OEM group operator may create logical
groups (like the "new software field test group", "better flavor of OS
for paying more", "basic software", "Windows CE box" etc.). This is
second level of table partitioning. 3. Each CVT record in the set
contains hardware ID range for which given version of software is
destined...”). Both prior arts teach the downloaded software that
are specific to each CPE and hence specific to both a customer/user
associated with the CPE and a particular configuration of the CPE.
The very existence of downloading version variants of the software
versions mandates the teaching of the ‘software components which is
specific to both a user associated with the CPE and a configuration of
the CPE’ aspect of the limitation, (emphasis added). From the above
cited portion of Pras, it is clear that Pras is dealing with mix of
settops (CPEs) that have software components which is specific to
both a user associated with the CPE and a configuration of the CPE.
Ans. 12.
For the reasons set forth above, we agree with the Examiner (Ans. 12)
that the combination of Pras and Maclnnis would have taught or suggested
all of the contested limitations of representative claims 88 and 89 to one of
ordinary skill in the art.
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CONCLUSION
The Examiner has not err in rejecting claims 8—11, 13, 14, and 84—99
as being unpatentable under 35 U.S.C. § 103(a).
DECISION
The Examiner’s rejection of claims 8—11, 13, 14, and 84—99 as being
unpatentable under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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