Ex Parte Govande et al

Patent Trial and Appeal Board

Sep 15, 2016

13164965 (P.T.A.B. Sep. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/164,965 06/21/2011
57299 7590 09/19/2016
Kathy Manke
A vago Technologies Limited
4380 Ziegler Road
Fort Collins, CO 80525
FIRST NAMED INVENTOR
Nilesh S. Govande
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
10-0418 2863
EXAMINER
LEWIS-TAYLOR, DAYTON A.
ART UNIT PAPER NUMBER
2181
NOTIFICATION DATE DELIVERY MODE
09/19/2016 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):
kathy.manke@broadcom.com
patent.info@broadcom.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NILESH S. GOV ANDE, RAKESH VERMA,
and VISHAL R. THAKKAR
Appeal2015-002577
Application 13/164,965
Technology Center 2100
Before JOHN A. JEFFERY, LARRY J. HUME, and
NORMAN H. BEAMER, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-5 and 9-19. Claims 6-8 have been indicated as
containing allowable subject matter. 1 Final Act. 11. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants' invention updates firmware for components in a storage
network by generating and distributing a "package buff er" with portions
1 Throughout this opinion, we refer to (1) the Final Rejection mailed
February 7, 2014 ("Final Act."); (2) the Appeal Brief filed July 10, 2014
("Br."); and (3) the Examiner's Answer mailed November 7, 2014 ("Ans.").
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having firmware for a corresponding component. See generally Abstract.
Claim 1 is illustrative:
1. A method for updating firmware for a plurality of components of a
storage network, the plurality of components comprising one or more
switching components and one or more target components, the method
compnsmg:
receiving in a switching component a package buffer comprising
firmware for each of the plurality of components;
updating firmware in the switching component based on a portion of
the package buffer comprising firmware for the switching component;
for each target component coupled directly to the switching
component, performing the steps of:
transmitting from the switching component to said each target
component a corresponding portion of the package buffer comprising
firmware for said each target component; and
updating firmware in said each target component based on the
corresponding portion of the package buffer received from the switching
component; and
for each other switching component directly coupled with the
switching component, performing the steps of:
transmitting the package buffer from the switching component to said
each other switching component; and
repeating the method within said each other switching component.
THE REJECTIONS
The Examiner rejected claims 1--4, 9, 11, 12, and 14--19 under 35
U.S.C. § 103(a) as unpatentable over Oikawa (US 2010/0058322 Al;
Mar. 4, 2010), Ramsey (US 2007/0168571 Al; July 19, 2007), and Patel
(US 2012/0173840 Al; July 5, 2012). Final Act. 4--9.
The Examiner rejected claims 5 and 13 under 35 U.S.C. § 103(a) as
unpatentable over Oikawa, Ramsey, Patel, and Krithivas (US 2008/0098321
Al; Apr. 24, 2008). Final Act. 9-10.
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The Examiner rejected claim 10 under 35 U.S.C. § 103(a) as
unpatentable over Oikawa, Ramsey, Patel, and Myrah (US 2012/0284435
Al; Nov. 8, 2012). Final Act. 10-11.
THE REJECTION OVER OIKAWA, RAMSEY, AND PATEL
Regarding claim 1, the Examiner finds that Oikawa updates firmware
for plural components by (1) receiving a package buffer comprising
firmware in a switching component (expander 73); (2) updating firmware in
the switching component based on a portion of the package buff er; and
(3) repeating the method within each of other switching components. Final
Act. 4--5. The Examiner also finds that Ramsey discloses both switching
components and target components, including hard disk drives (HDDs) 210,
and that a corresponding portion of a firmware-based package buffer is
transmitted from the switching component to each target component to
update firmware in each target component. Final Act. 5. The Examiner also
cites Patel for teaching transmitting a package buffer from one switching
component to another. Final Act. 5---6. Based on these collective teachings,
the Examiner concludes that claim 1 would have been obvious. Final
Act. 4--6.
Appellants argue that, unlike the prior art which upgrades devices
individually with firmware packages tailored for each device, the claimed
invention (1) delivers a single firmware package to a switching component,
and (2) propagates the package downstream to other devices that
individually "peel off' their required firmware updates from the package for
their respective upgrades. Br. 7. According to Appellants, Oikawa transfers
multiple firmware packages to respective devices so that each device can
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update its firmware according to its particular package. Id. Appellants add
that Ramsey merely ensures that all connected storage devices within the
same enclosure receive the same firmware update from an interconnection,
and Ramsey's firmware versions are not considered to be a delivery
mechanism as is the recited package buffer. Br. 8-9. Lastly, Appellants
contend that Oikawa teaches away from Ramsey, resulting in an inoperable
combination. Br. 10-11.
ISSUES
(1) Under§ 103, has the Examiner erred in rejecting claim 1 by
finding that Oikawa, Ramsey, and Patel collectively would have taught or
suggested updating firmware in switching and target components based on
respective portions of a received package buffer received by those
components?
(2) Is the Examiner's proposed combination supported by articulated
reasoning with some rational underpinning to justify the Examiner's
obviousness conclusion?
ANALYSIS
We begin by construing the term "package buffer." Notably, the term
"package buffer" is not defined in the Specification, unlike other terms
whose definitions leave no doubt as to their meaning. See, e.g., Spec.
i-fi-19-10 (defining "targeted components"), 20 (defining "directly coupled").
The Specification, however, does indicate that a package buffer comprises
plural portions, each portion comprising firmware for a corresponding
component type. Spec. i-f 17. Paragraph 22 of the Specification further
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explains that a package buffer may comprise portions for each of plural
system components, and each such portion may be the entire firmware
update for a corresponding component. Moreover, each portion may be
either the entire firmware update for a corresponding component, or may
represent a subset of that entire update. Spec. i-f 22.
Our emphasis on "may" here underscores the permissive and non-
limiting language used to describe the disclosed package buffer-permissive
language that is also used to describe the package buffer in paragraph 34.
Although this description informs our understanding of the disclosed
package buffer, it does not limit its construction. Accordingly, we construe
the term with its plain meaning.
Despite Appellants' proffered definition of "package" from a general-
purpose dictionary as "a wrapper or container that covers or holds
something" (Br. 9), the term "package" is defined in the computer context as
"a set of related programs." Ian R. Sinclair, THE HARPER COLLINS
DICTIONARY OF COMPUTER TERMS 175 (1991). The same computer
dictionary also defines the term "buffer" as "a memory device used for
temporary storage." Id. at 31. Under these computer-based definitions
considered in light of the Specification, then, a "package buffer" is a set of
related programs that are stored temporarily in a data structure.
Notably, Appellants' use of the term "buffer" in the recited "package
buffer" is somewhat inconsistent with its ordinary and customary meaning in
the art, namely a memory device used for temporary storage as noted in the
above definition. The Specification, however, notes that a package buffer is
not only generated and transmitted by an initiator component 102, but is
also forwarded by switching components 104, thus suggesting that a
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package buffer, in the context of claim 1, is a data structure containing
firmware-not a device. See Spec. i-fi-f 17-18. That Appellants' Figure 5
shows an exemplary data structure used as package buffer 500 as noted in
paragraph 44 only bolsters this conclusion.
It is well settled that any special meaning assigned to a term "must be
sufficiently clear in the specification that any departure from common usage
would be so understood by a person of experience in the field of the
invention." Multiform Desiccants Inc. v. Medzam, Ltd., 133 F.3d 1473,
1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip.,
Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) ("A patentee may act as its own
lexicographer and assign to a term a unique definition that is different from
its ordinary and customary meaning; however, a patentee must clearly
express that intent in the written description.") (citations omitted). In short,
"[ w ]here an inventor chooses to be his own lexicographer and to give terms
uncommon meanings, he must set out his uncommon definition in some
manner within the patent disclosure" to give ordinarily skilled artisans notice
of the change. In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994).
Here, although Appellants do not define the term "buffer" to notify
skilled artisans explicitly of Appellants' departure from the ordinary and
customary meaning of the term in the art, Appellants nonetheless at least
implicitly provide such notice on this record. That is, skilled artisans can
reasonably glean this departure from the term's usage and context in the
Specification, particularly in light of the package buffer's ability to be
generated, transmitted, and forwarded-properties that are consistent with
those of a data structure, not a memory device under the ordinary and
customary meaning of "buffer" in the art.
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With this construction, we see no error in the Examiner's reliance on
Oikawa and Ramsey for collectively at least suggesting the recited package
buffer. As shown in steps SP4 and SP18 of Oikawa's Figures 9 and 10,
respectively, download data is transmitted to a corresponding expander
("switching component") to update its firmware. Even assuming, without
deciding, that each expander's firmware can only be updated separately with
its own dedicated package as Appellants seem to suggest (see Br. 7), the
Examiner does not rely solely on Oikawa for teaching the recited package
buffer firmware updates, but also Ramsey and Patel. In short, Appellants'
arguments regarding Oikawa's individual shortcomings in this regard
(Br. 7-8) do not show nonobviousness where, as here, the rejection is based
on the cited references' collective teachings. See In re Merck & Co., Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986). Accord Ans. 3--4 (noting this point).
As noted previously, the Examiner finds that Ramsey discloses
interconnection-based switching components and target components,
including HDDs 210, and that a corresponding portion of a firmware-based
package buffer is transmitted from the switching component to each
associated target component to update firmware in each target component.
Final Act. 5; Ans. 4--6. This functionality is shown, for example, in
Ramsey's Figure 2, where controller 202 is connected to SCSI storage
subsystem 211 via an interconnection, namely SCSI bus 204, where the
subsystem's enclosure 212 includes I/O expanders and HDDs 210. See
Ramsey i-fi-1 44, 60. Specifically, a controller may (1) store copies of all
device firmware, and (2) automatically upgrade devices lacking the most
recent firmware revisions. Id. i156.
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Notably, Ramsey's system uses a single uniform release of firmware
updates that includes firmware code for all components of storage
subsystem 200, instead of individual updates. Id. i-f 55. As shown in
Ramsey's Figure 7, for example, the single uniform release includes
firmware releases for the (1) HDD; (2) enclosure; and (3) RAID/SCSI
components. Id. As shown in Ramsey's Figure 10, Ramsey's system
updates each hardware device attached to the interconnection using the
single uniform release. Ramsey i-f 75. In some embodiments, a host bus
adapter can automatically push these uniform firmware updates to the
respective devices. See Ramsey i-fi-156-57, 69.
Based on this functionality, we see no error in the Examiner's position
that Ramsey at least suggests using one package, namely a single uniform
release comprising firmware for multiple devices and components, to update
those devices and components. See Ans. 5-7. This package at least
suggests a "package buffer" under our construction, namely set of related
programs that are stored temporarily in a data structure, particularly given
the integrated firmware for three separate components shown in Figure 7,
and the integrated firmware's transmission to downstream components to
update those components as noted above and by the Examiner. Nor do we
find error in the Examiner's position that providing such functionality in
connection with Oikawa's expanders would have been obvious to ensure
that every device's firmware was updated via a single release. Ans. 6-7.
We reach this conclusion noting that Oikawa transmits download data
to each respective expander individually to update its firmware in step SP18
of Figure 10, and then repeats the process for other expanders to update their
firmware in step SP19. Given Ramsey's teaching of using a single uniform
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release to update firmware of multiple components instead of a piecemeal
approach that updates firmware on a component-by-component basis
(Ramsey i-f 55), we see no error in the Examiner's position that using such an
integrated approach in lieu of separate transmissions to update expander
firmware in Oikawa would have been obvious. Accord Final Act. 5;
Ans. 6-7. Nor do we find error in the Examiner's position that updating
components downstream from Oikawa's expanders from a single uniform
release or "package buffer" would have been obvious in light of Ramsey.
Ans. 6.
Appellants' contention that Ramsey does not update downstream
expanders as well as target devices with the same firmware package, but
rather just updates storage device firmware (Br. 8) is unavailing. First, as
noted above, Ramsey's single uniform release is not limited to only
firmware for storage devices, such as HDDs, but also includes firmware for
the enclosure and associated RAID and SCSI components as shown by
numerals 730 and 740 in Figure 7. See Ramsey i-f 55. Notably, Ramsey's
enclosure 212 includes I/O expanders as indicated in paragraph 44---a
teaching that at least suggests that the firmware release for enclosure 730 in
the single uniform release also applies to the enclosure's expanders, or that
such an update would have been at least an obvious variation.
Nor do we find that Oikawa teaches away from its combination with
Ramsey as Appellants contend. Br. 10-11. "A reference may be said to
teach away when a person of ordinary skill, upon reading 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
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applicant." Jn re Kahn, 441F.3d977, 990 (Fed. Cir. 2006) (citations and
internal quotation marks omitted).
Here, Appellants' assertion that Ramsey's single uniform release is
intended for multiple devices of the same type, and purportedly cannot be
applied to different types of devices, like expanders, bridges, disk drives,
etc. (Br. 11), is unavailing. As noted previously, Ramsey's single uniform
release includes firmware for different types of devices and components,
including not only HDDs, but also components associated with the enclosure
and RAID and SCSI functionality as shown by numerals 720 to 7 40 in
Figure 7. See Ramsey i-f 55. Notably, Ramsey's enclosure 212 includes I/O
expanders as indicated in paragraph 44---a teaching that at least suggests that
the firmware release for enclosure 730 in the single uniform release also
applies to the enclosure's expanders. Therefore, Appellants' contention that
Ramsey's single uniform release cannot be applied to expanders (Br. 11) is
not only unsubstantiated, it runs counter to Ramsey's teachings and
suggestions.
Nevertheless, even assuming, without deciding, that Ramsey's single
uniform release applies to only a single type of device as Appellants
contend, we still see no reason why such a release could not be applied to
different types of devices, such as Oikawa's expanders, particularly given
Ramsey's teaching of integrating firmware releases for diverse components
in a single release as shown in Figure 7. On this record, then, we cannot say
that skilled artisans would be discouraged from following the path set out in
Ramsey, or would be led in a direction divergent from Appellants' path to
teach away from those approaches. See Kahn, 441 F.3d at 990. Rather, the
Examiner's proposed enhancement uses prior art elements predictably
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according to their established functions-an obvious improvement. See KSR
Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007).
Lastly, we see no error in the Examiner's reliance on Patel for the
limited purpose for which it was cited, namely merely to show that
transmitting data between expander-based switching components is known
in the art as shown in Figure 2, and that using such a technique to transmit a
package buffer between such components in the Oikawa/Ramsey system
would have been obvious. Final Act. 5---6. Such an enhancement uses prior
art elements predictably according to their established functions-an
obvious improvement. See KSR, 550 U.S. at 417. The Examiner's proposed
combination is, therefore, supported by articulated reasoning with some
rational underpinning to justify the Examiner's obviousness conclusion.
Accordingly, we are not persuaded that the Examiner erred in
rejecting claim 1, and claims 2--4, 9, 11, 12, and 14--19 not argued separately
with particularity.
THE OTHER OBVIOUSNESS REJECTIONS
We also sustain the Examiner's obviousness rejections of claims 5,
10, and 13. Final Act. 9-11. Appellants do not address these rejections, let
alone persuasively rebut the Examiner's findings and conclusions regarding
these claims. See Br. 7-11. Nevertheless, to the extent that Appellants'
arguments regarding claim 1 apply to these rejections, we are not persuaded
by these arguments for the reasons previously discussed.
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CONCLUSION
The Examiner did not err in rejecting claims 1-5 and 9-19 under
§ 103.
DECISION
We affirm the Examiner's decision rejecting claims 1-5 and 9-19.
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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