Ex Parte Fuller et al

Patent Trial and Appeal Board

Feb 28, 2017

11864949 (P.T.A.B. Feb. 28, 2017)

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.
11/864,949 09/29/2007 Bruce Gordon Fuller 07AB163 4345
70640 7590 03/02/2017
ROCKWELL AUTOMATION, INC / SR
Attn: Linda Kasulke
1201 S. 2nd Street
E-7C19
Milwaukee, WI 53204
EXAMINER
MILLER, VIVA L
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
03/02/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
s arah @ setterroche. com
u spto @ setterroche .com
raintellectu alproperty @ ra.rockwell .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRUCE GORDON FULLER, KEVIN GEORGE GORDON,
MARK DAVID HOBBS, and MOHAMED SALEHMOHAMED
Appeal 2016-005465
Application 11/864,949
Technology Center 2100
Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and
ADAM J. PYONIN, Administrative Patent Judges.
PER CURIAM.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1—18. Appeal Brief 2. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.
Introduction
Appellants’ invention relates to a “scheduling computer” that
“receives a plurality of schedules that contain times that a new or different
version of a software program will be available, times that one or more
Appeal 2016-005465
Application 11/864,949
machines controlled or monitored by automation computers will be inactive,
and times that a necessary resource will be available.” Abstract.
Representative Claim (Disputed limitations emphasized)
1. A method of managing software installation in an
automation environment comprising a plurality of machines
engaged in an industrial automation process, a scheduling
computer, and a first computer that is running a first version of a
software program, wherein said first computer comprises a
human-machine interface, and said first computer is associated
with a first machine of the plurality of machines, comprising:
in the scheduling computer, receiving a software schedule
that contains at least a time that a second version of said software
program will be available;
in the scheduling computer, receiving a first machine
schedule that contains at least one time period that said first
machine will be inactive;
in the scheduling computer, receiving a resource schedule
that contains at least one time period that a necessary resource
will be available;
in the scheduling computer, comparing at least said
software schedule, said first machine schedule, and said
resource schedule to determine at least one time period for
installing the second version of said software on said first
computer based on when the second version of said software
program will be available, when said first machine will be
inactive, and when said necessary resource will be available;
and,
displaying said at least one time period for installing the
second version of said software on said first computer.
Rejections on Appeal
Claims 1,7, and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cain et al. (US Patent Application Publication Number
2006/0080656 Al, published April 13, 2006), Criss et al. (US 2001/0029178
2
Appeal 2016-005465
Application 11/864,949
Al, published October 11, 2001), Powers (US Patent Application
Publication Number 2006/0075079 Al, published April 6, 2006), and
Applicant Admitted Prior Art (“AAPA”). Final Rejection 5.
Claims 2—6, 8—12, and 14—18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Cain, Criss, Powers, AAPA, and Barta(US Patent
Application Publication Number 2005/0102667 Al, published May 12,
2005). Final Rejection 10.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Final Rejection (mailed March 25, 2015), the Appeal Brief
(filed September 3, 2015), the Answer (mailed March 10, 2016), and the
Reply Brief (filed May 9, 2016) for the respective details. We have
considered in this decision only arguments Appellants actually raised in the
Briefs.
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellants’ Appeal Brief, to the extent
consistent with our analysis.
Appellants argue Examiner error because:
[t]he references, individually and in combination, fail to teach
using a scheduling computer to determine at least one time period
for updating the software on a first computer associated with a
first machine based on when the updated version of said software
program will be available, when said first machine will be
3
Appeal 2016-005465
Application 11/864,949
inactive, and when said necessary resource will be available, as
recited in claim 1.
Appeal Brief 5 (formatting omitted). Appellants contend that “[assuming
arguendo that the mobile device in Criss is equivalent to the first computer
of claim 1, since both are the devices to receive the update/upgrades, Criss
fails to teach a first machine associated with the mobile device and further
receiving and processing a first machine schedule to determine when to
update the mobile device.” Appeal Brief 6 (emphasis in original).
Appellants additionally contend “Criss fails to teach or suggest using a
separate scheduling computer to receive a software availability schedule and
a necessary resource schedule together with the machine schedule and then
comparing all three schedules.” Appeal Brief 6 (emphasis in original); see
also Reply Brief 2.
We are not persuaded by Appellants’ arguments. Regarding Cain, the
Examiner finds, and we agree, that the claimed “resource schedule to
determine . . . when said necessary resource will be available” encompasses
Cain’s disclosure of “[ojbtaining authorization may also include assessing
the risks and consequences of deploying the software update” that include
“reviewing the impact computer downtime.” (Answer 3, quoting Cain | 62).
Regarding Criss, the Examiner finds, and we agree, that:
in order to avoid normally busy times, the mobile terminals 36
may wake from a sleep mode during late evening or early
morning hours and transmit an inquiry to the host computer 30
to determine whether a software upgrade is needed.
Answer 14—15, quoting Criss 1120. The Examiner additionally finds, and
we agree, that timing of requests may also be scheduled in which “scheduled
times may be during evening hours or lower demand periods when the host
4
Appeal 2016-005465
Application 11/864,949
computer 30 and FTP server 31 are not overloaded with activityAnswer
15, quoting Criss 1125 (with emphasis by Examiner). The Examiner also
finds, and we agree, that the “mobile terminal [of Criss] is the said first
computer and it is associated with a first machine (the host [of Criss])”
(Answer 15), and “the host computer [of Criss] is the scheduling computer.”
Answer 16.
Here, Criss discloses both (1) scheduling of a software upgrade
transfer from the host to the mobile computer when the mobile computer is
otherwise inactive (when the mobile computer has just emerged from sleep
mode), and scheduling of the software upgrade transfer from the host to the
mobile computer when the host is scheduled as not overloaded with activity.
One skilled in the art at the time of invention would then recognize as part of
a software installation, the benefits of comparing schedules, including a
schedule when the first machine is inactive.
Appellants’ principal argument is not commensurate with the scope of
the claim, as claim 1 does not refer to either “updating the software” or “an
updated version of said software.” Similarly, the claim does not require “a
separate scheduling computer” as argued by Appellants but allows for the
scheduling computer to be the first machine. Appellants also attack Cain,
Criss, and Powers individually (see Appeal Brief 5—7) while the Examiner
finds the combination of Cain, Criss, Powers, and AAPA discloses or
suggests the disputed limitation {see, for example, Answer 13).1
1 “[0]ne cannot show non-obviousness by attacking references individually
where . . . the rejections are based on combinations of references.” In re
Keller, 642 F.2d413, 426 (CCPA 1981).
5
Appeal 2016-005465
Application 11/864,949
Accordingly, we sustain the Examiner’s rejection of independent
claim 1, and independent claims 7 and 13 commensurate in scope, and
claims 2—6, 8—12, and 14—18 not separately argued. See Appeal Brief 8.
DECISION
We affirm the Examiner’s rejection of claims 1—18.
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). See
37 C.F.R. § 41.50(f).
AFFIRMED
6