Ex Parte Denissen

Patent Trial and Appeal Board

Feb 19, 2014

10892273 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte FRANK LODEWIJK DENISSEN
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Appeal 2012-011647
Application 10/892,273
Technology Center 2100
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Before THU A. DANG, JOHNNY A. KUMAR, and LARRY J. HUME,
Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL1

1 In a prior Decision (Appeal No. 2010-007093 (BPAI Sept. 30, 2010),
available at http://e-foia.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=
fd2010007093-09-28-2010-1 (“Decision”)), we affirmed the Examiner’s
rejection of claims 1-4 under 35 U.S.C. § 102(e) over Adamovits.
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Application 10/892,273

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-4. We have jurisdiction under 35 U.S.C. § 6 (b).
We reverse.

A. INVENTION
According to Appellant, the invention relates to a software
replacement method (Spec. 1, ll. 4-6).

B. ILLUSTRATIVE CLAIMS
Claim 1 is exemplary and reproduced below:
1. A software replacement method, said method comprising the steps
of:
installing a second software package to replace a first software
package comprising a command handling interface, at a computer system;
activating said second software package;
contacting said command handling interface by a contacting part of
said second software package after activation of said second software
package;
when said command handling interface is contacted by said contacting
part of said second software package, said command handling interface
switching from said first software package towards said second software
package; and
keeping a connection between an operator terminal and said command
handling interface open after said contacting part contacts said command
handling interface,
wherein the first software package is replaced with the second
software package via a connection between the operator terminal and said
command handling interface, said replacement occurs at a same time as said
connection, and said connection is maintained before and after said
replacement.

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C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Adamovits US 6,698,017 B1 Feb. 24, 2004
Claims 1-4 stand rejected under 35 U.S.C. § 103(a) over the teachings
of Adamovits.

II. ISSUE
Has Appellant shown the Examiner erred in finding that Adamovits
teaches or suggests “the first software package is replaced with the second
software package via a connection between the operator terminal and said
command handling interface” (claim 1, emphases added)?

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Adamovits
1. Adamovits teaches performing a migration of control from an
original to a replacement software system (Abstract). Prior to the software
migration, the active processing system 10 is loaded with and is under the
control of the original software system 50 (col. 5, ll. 45-51; Fig. 1). During
the software migration, the active processing system is loaded with the
replacement software system 70, which is installed and configured to take
control of the active processing element 10 (col. 5, l. 66 to col. 6, l. 2).
2. A communications path provides a mechanism for establishing
communications between the original and the replacement software system,
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as well as between each of these systems and components of other connected
resources. During software migration, the communications path provides a
safety mechanism so that processes of the original software system do not
write directly to memory dedicated to the replacement software system and
vice versa (col. 7, ll. 23-39).

IV. ANALYSIS
Appellant contends that Adamovits does not disclose that “the
replacement of the first software with the second software occurs at a same
time as the connection between the operator terminal and the command
handling interface” as required by claim 1 (App. Br. 5). According to
Appellant, “[t]he connection to the clients [as described in Adamovits] has
nothing to do with the replacement of original software with the replacement
software system” (id.). Appellant then contends that “clearly there is no
replacing of a first software package with a second software package via any
connection with any connected clients” in Adamovits (App. Br. 8).
Adamovits teaches performing a migration of control from an original
to a replacement software system (FF 1), wherein the original and
replacement systems are connected to operator terminals such that, during
software migration, processes of the original software system do not write
directly to memory dedicated to the replacement software system and vice
versa (FF 2). We find no error with the Examiner’s finding that “Adamovits
teaches that the services of processing element 10 are maintained during the
switchover and thereafter taken over by totally prepared new software
package 70, thus the connection is maintained before and after the
replacement without any loss of services” (Ans. 8). As set forth in our
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previous Decision, “we find that one of ordinary skill in the art would
consider Adamovits describing the ‘open connection’ of the claims”
(Decision 7).
However, although the Examiner also finds that “the communication
path 34 of Adamovits provides both a connection between the original
software system 50 and the replacement software system 70, and a
connection between the two software systems . . . and a connected operator
terminal” (Ans. 9, emphasis omitted), we find no teachings in the portions of
Adamovits cited by the Examiner that switchover between the software
systems is “via a connection between the operator terminal and said
command handling interface” as is now required by claim 1 (emphasis
added). In particular, the portions of Adamovits cited by the Examiner
merely disclose loading the replacement software, which then takes over
control of the active processing element (FF 1). While the communications
path establishes communications between the original and the replacement
software system, as well as between each of these systems and operator
terminals (FF 2), we find no teaching or suggestion in the cited sections of
Adamovits that the communications path is also the path for the software
migration. That is, we find no teaching or suggestion in the cited portions of
Adamovits that the software migration/replacement is done via the
established communications path.
Since the Examiner has not made a clear distinction as to what
embodiments of Adamovits teach or suggest the “connection” to operator
terminal “via” which the software packages are replaced, the Examiner has
failed to meet the initial burden of proof required for the rejection pursuant
to 35 U.S.C. § 103(a).
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Accordingly, we are constrained to reverse the Examiner’s rejection
of representative claim 1 over Adamovits. Independent claim 2 recites
similar limitations and thus stands with claim 1. Thus, we also reverse the
rejection of independent claim 2 and claims 3 and 4 depending respectively
from claims 1 and 2 over Adamovits.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-4 under 35 U.S.C. § 103(a) is
reversed.

REVERSED

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