Ex Parte Haserodt et al

Patent Trial and Appeal Board

Dec 19, 2016

13624928 (P.T.A.B. Dec. 19, 2016)

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.
13/624,928 09/22/2012 Kurt Haserodt 4366YDT-149 5820
48500 7590 12/21/2016
SHERIDAN ROSS P.C.
1560 BROADWAY, SUITE 1200
DENVER, CO 80202
EXAMINER
RAMPURIA, SATIS H
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
12/21/2016 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):
cjacquet@ sheridanross.com
pair_Avay a @ firsttofile. com
edocket @ sheridanross .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KURT HASERODT and WILLIAM T. WALKER
Appeal 2016-003533
Application 13/624,9281
Technology Center 2100
Before CARLA M. KRIVAK, HUNG H. BUI, and
JEFFREY A. STEPHENS, Administrative Patent Judges.
BUI, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) from the
Examiner’s Final Rejection of claims 1—20, which are all the claims pending
in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Avaya Inc. App. Br.
2.
2 Our Decision refers to Appellants’ Appeal Brief, filed August 18, 2015
(“App. Br.”); Reply Brief, filed February 19, 2016 (“Reply Br.”);
Examiner’s Answer, mailed December 22, 2015 (“Ans.”); Final Office
Action, mailed March 31, 2015 (“Final Act.”); and original Specification,
filed September 22, 2012 (“Spec.”).
Appeal 2016-003533
Application 13/624,928
STATEMENT OF THE CASE
Appellants ’ Invention
Appellants’ invention relates to methods and systems for distributing
downloadable pluggable services to upgrade a communication system.
Spec. 11; Abstract. The downloadable pluggable services include multiple
component parts that can be distributed among different servers in the
communication system being upgraded along with instructions that enable
the component parts to instruct each server in the communication system to
operate in a coordinated fashion so as to provide the downloaded service.
Abstract. A downloadable pluggable service may be packaged into a single
object custom built to accommodate one or more customer-specific service
requests, as shown in Figure 6. Spec. 37, 56. The single object may
package multiple sub-components customized to accommodate specific
versions of the servers (or processors) that will ultimately execute each sub­
component upon deployment. Spec. 1 56.
FIG. 6
Figure 6 is a block diagram of a deployable object. Spec. 137.
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Representative Claims
Claims 1, 12, and 19 are independent. Representative claims 1 and 19
are reproduced below with disputed limitations in italics'.
1. A method, comprising:
receiving a request from a customer to obtain a
downloadable pluggable service for a communication system of
the customer;
in response to receiving the request, preparing the
downloadable pluggable service, wherein preparing the
downloadable pluggable service includes obtaining a first and
second sub-component that are packaged into a single object,
wherein the first sub-component includes instructions for
operating a first server of the customer’s communication
system, and wherein the second sub-component includes
instructions for operating a second server of the customer’s
communication system; and
transmitting the single object to the customer.
19. A communication system, comprising:
a communication server including a processor and
memory, the memory including instructions configured to be
executed by the processor, the instructions including:
an object unpacker configured to receive a single
object from a service warehouse, the single object
comprising a plurality of sub-components that, when
distributed among servers in the communication system,
cause the communication system to provide a service to
users of the communication system, wherein the plurality
of sub-components include a first and second sub­
component that are packaged into the single object; and
an object distributor configured to distribute the
first sub-component and the second sub-component to
different servers in the communication system in
accordance with deployment instructions contained in
the single object.
App. Br. 15, 18 (Claims Appendix).
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Application 13/624,928
Evidence Considered
Halpem et al.
Deo et al.
Oh et al.
Williams et al.
Knobel
US 6,282,711 B1
US 7,024,450 B1
US 2011/0154441 Al
US 2012/0089971 Al
US 2012/0297030 Al
Aug. 28, 2001
Apr. 4, 2006
June 23, 2011
Apr. 12, 2012
Nov. 22, 2012
Examiner’s Rejections
(1) Claims 2 and 13 stand provisionally rejected on the ground of
non-statutory obviousness-type double patenting as being unpatentable over
claims 10 and 20 of co-pending US Application 13/624,925 in view of
Halpem.3 Final Act. 2—6.
(2) Claims 1, 2, 6, 7, 12, 13, 15, and 19 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Halpem and Deo. Final Act.
7-12.
(3) Claims 3, 4, 8, 9, 11, 14, and 16 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Halpem, Deo, and Oh. Final
Act. 12-17.
(4) Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Halpem, Deo, Oh, and Williams. Final Act. 17—18.
3 US Application 13/624,925 issued as US Patent No. 9,116,772 on August
25, 2015. Thus, the obviousness-type double patenting rejection is no longer
provisional. We will consider the rejection as such.
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(5) Claims 10, 17, 184, and 205 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Halpem, Deo, and Knobel.
Final Act. 18—19.
Issue on Appeal
Based on Appellants’ arguments, the dispositive issue on appeal is
whether the cited prior art teaches or suggests the following limitations:
(1) “preparing the downloadable pluggable service includes
obtaining a first and second sub-component that are packaged
into a single object, wherein the first sub-component includes
instructions for operating a first server of the customer’s
communication system, and wherein the second sub-component
includes instructions for operating a second server of the
customer’s communication system,”
as recited in Appellants’ independent claim 1 and similarly recited in
independent claim 12. App. Br. 7—10; Reply Br. 4—8;
(2) “an object unpacker configured to receive a single object
from a service warehouse, the single object comprising a
4 Claim 18 is rejected (see Final Act. 1, Office Action Summary) but not
listed by the Examiner under the obviousness-type double patenting or
§ 103(a) rejections. However, we find this oversight on the Examiner’s part
is harmless error and interpret the rejection of dependent claim 18 to be
rejected under § 103(a) as is its base claim 17. Further discussion of claim
18 is presented in our analysis below.
5 Claim 20 is rejected (see Final Act. 1, Office Action Summary) but not
listed by the Examiner under the obviousness-type double patenting or
§ 103(a) rejections. Again, we find this oversight on the Examiner’s part is
harmless error and interpret the rejection of dependent claim 20 to be
rejected under § 103(a) over Halpem, Deo, and Knobel, because claim 20
includes the features of its base claim 19 (rejected based on Halpem and
Deo) as well as features similar to claim 10 (rejected based on Knobel).
Further discussion of claim 20 is presented in our analysis below.
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plurality of sub-components that, when distributed among
servers in the communication system, cause the communication
system to provide a service to users of the communication
system, wherein the plurality of sub-components include a first
and second sub-component that are packaged into the single
object; [and] . . .
an object distributor configured to distribute the first sub­
component and the second sub-component to different servers
in the communication system in accordance with deployment
instructions contained in the single object,”
as recited in Appellants’ independent claim 19. App. Br. 11—12; Reply Br. 8;
(3) “the downloadable pluggable service further includes
deployment instructions that provide instructions for installing
the first and second sub-component on the first and second
servers of the customer’s communication system, respectively,”
as recited in Appellants’ claims 2 and 13. App. Br. 12—13; Reply Br. 8—9;
(4) “deployment instructions, when executed by an object
distributor, cause the first sub-component to be deployed to the
first server where it is installed, and wherein the deployment
instructions, when executed by the object distributor, cause the
second sub-component to be deployed to the second server
where it is installed,”
as recited in Appellants’ claim 11. App. Br. 13; Reply Br. 9.
ANALYSIS
At the outset, we note Appellants do not address the non-statutory
obviousness-type double patenting rejection of claims 2 and 13 based on
claims 10 and 20 of US Application 13/624,925 (now US Patent No.
9,116,772). As such, the final rejection of these claims on the ground of
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non-statutory obviousness-type double patenting over claims 10 and 20 of
US Application 13/624,925 in view of Halpem is sustained pro forma.
Turning now to the obviousness rejections of claims 1—20, we will
address claims 1, 12, 19, 2, 13, 11, 18, and 20 in turn.
§ 103(a) Rejection of Claims 1, 3—10, 12, and 14—18
based on Halpern and Deo
With respect to independent claim 1, the Examiner finds Halpem’s
single file is a downloadable pluggable service including first and second
sub-components—which are the user’s desired software components—
packaged into a single object. Final Act. 8 (citing Halpem 7:21—29, 7:52—
55, Fig. 1); Ans. 15.
The Examiner acknowledges Halpem does not disclose “the first sub­
component includes instmctions for operating a first server of the customer’s
communication system, and wherein the second sub-component includes
instmctions for operating a second server of the customer’s communication
system,” but relies on Deo for teaching different sub-components for
operating different servers of a customer’s communication system, in order
to support the conclusion of obviousness. Final Act. 9; Ans. 15—16 (citing
Deo 7:47-67, 10:32-A2, Fig. 3(c)).
Appellants dispute the Examiner’s factual findings regarding Halpem
and Deo. In particular, Appellants argue “Halpem does not suggest that the
custom installation package be installed on a server - let alone two different
servers.” App. Br. 8 (citing Halpem 7:52—56). Appellants also argue
“Halpem actually teaches away from a single installation package for
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different clients because each user selects the specific components he/she
want to download.” App. Br. 8; see also Reply Br. 5—6.
Regarding Deo, Appellants argue Deo does not teach a downloadable
service with instructions for multiple servers because Deo’s “downloaded
application does not include instructions for multiple service nodes”; rather,
Deo “downloads an application with software for an individual service node
(also a single device).” App. Br. 9—10 (citing Deo 7:47—56, Fig. 1); see also
Reply Br. 7—8. According to Appellants, “[n]either reference suggests a
single installation package that has instructions for two different devices (the
first and second server of claim 1) or more specifically two servers.” App.
Br. 10; see also Reply Br. 8.
We do not find Appellants’ arguments persuasive and commensurate
with the scope of Appellants’ claim 1. Rather, we find the Examiner has
provided a comprehensive response to Appellants’ arguments supported by a
preponderance of evidence. Ans. 14—25. As such, we adopt the Examiner’s
findings and explanations provided therein. Ans. 14—25.
Contrary to Appellants’ argument that “Halpem does not suggest that
the custom installation package be installed on a server” (App. Br. 8),
Halpem teaches the custom installation is for “a client or server machine”
(see Halpem 2:47, 7:52—56). Also, contrary to Appellants’ argument that
Deo’s downloadable service is not for multiple servers but only “for an
individual service node (also a single device)” (App. Br. 10), Deo teaches
the downloadable service is for “ server (s) resident at the service node” (Deo
9:47—50 (emphasis added); see also Ans. 19 (citing Deo 10:58—11:8)). As
such, we agree with the Examiner the combination of Halpem’s
downloadable single file with Deo’s sub-components with instmctions for
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operating multiple servers at one or more service nodes and external systems
teaches and suggests the claimed single object downloadable pluggable
service with a first sub-component for operating a first server and a second
sub-component for operating a second server, as recited in claim 1. Ans.
18-19.
We are also not persuaded that Halpem “teaches away from a
download that has subcomponents for two clients (or two servers).” Reply
Br. 6. “[M]ere disclosure of alternative designs does not teach away.” In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here, Halpem does not
criticize, discredit, or discourage creating a download with sub-components
for two servers. Halpem teaches the single file download is sent to the
requesting client (see Halpem 7:52—56), without Halpem criticizing or
discouraging the inclusion of two servers in that client. Ans. 16—17.
Separately, we also note claim terms are given their broadest
reasonable interpretation consistent with the Specification. In re Am. Acad.
ofSci. Tech Ctr., 367 F.3d 1359, 1369 (Fed. Cir. 2004). Under the broadest
reasonable interpretation, claim terms are given their ordinary and
customary meaning, as would be understood by one of ordinary skill in the
art in the context of the entire disclosure. In re Translogic Tech., Inc.,
504 F.3d 1249, 1257 (Fed. Cir. 2007). Appellants’ Specification does not
provide an explicit and exclusive definition of the claimed terms “server,”
“first server,” and “second server.” Rather, Appellants’ Specification
provides a list of non-exhaustive examples of such server(s) as follows:
the term “server” as used herein should be understood to
include any server, collection of servers, processors within a
server, blades within a server, one or more virtual machines
being executed by a server, containers or processes being
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executed by a server, etc. In other words, “servers ” are not
necessarily limited to individual hardware components with
dedicated processors and memory. “Servers ” are also not
limited to a particular type of container executed by a server,
such as a J2EE server or any other version of a Java EE server.
Non-limiting examples of containers that may be executed by or
constitute a server include application containers (e.g., Java
Virtual Machines), applet containers (e.g., web browsers or
applet viewers), Enterprise JavaBeans (EJB) containers, web
containers, Application Programming Interfaces (APIs ), and
the like.
Spec. 124 (emphases added). Appellants’ Specification also provides that
multiple servers may be implemented by a single server.
The various servers and components depicted in Fig. 3 may be
implemented separately (i.e., on different servers) or together
(i.e., on a single server). In particular, two or more depicted
components (e.g., communication server 316 and application
server 336) may be implemented on a single server without
departing from the scope of the present invention.
Spec. 1 83 (emphases added).
Based on Appellants’ Specification, the Examiner has broadly
interpreted the terms “first server” and “second server” as encompassing
Halpem’s client system 101 including user 105 as shown in Figure 1, and
Deo’s communications network 200 with nodes and external systems, as
shown in Figure 1. Final Act. 8—9 (citing Halpem 7:21—29, 7:52—55, Fig. 1;
Deo 7:47-49, 10:32-42, Figs. 1, 3(c)).
We find the Examiner’s interpretation reasonable and consistent with
Appellants’ Specification. Halpem’s user is a “client or server machine”
(see Halpem 2:47, 7:55—56), and Deo’s communications network 200
includes a service processing node 204 with “server(s) resident at the service
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node” (see Deo 9:47—50, Fig. 1). Thus, Halpem’s client and Deo’s node and
communication network are commensurate with the broad description of
“servers” in Appellants’ Specification.
For the reasons set forth above, Appellants have not demonstrated
Examiner error. As such, we sustain the Examiner’s obviousness rejection
of claim 1 based on Halpem and Deo, and similarly, independent claim 12
for which Appellants provide the same arguments, and dependent claims 3—
10 and 14—18, which Appellants do not argue separately. App. Br. 10—11.
§ 103(a) Rejection of Claims 19 and 20 based on Halpern and Deo
With respect to independent claim 19, the Examiner finds Halpem’s
client system receives a single file package that includes a self-extracting
executable with an extraction program, thereby teaching an object unpacker
configured to receive a single object as recited in claim 19. Ans. 21 (citing
Halpem 5:9—18, 6:15—19, 7:52—55). The Examiner also finds Halpem’s
single file package/single object comprises multiple sub-components, which
are the user’s desired software components packaged into the single object.
Ans. 21—22 (citing Halpem 6:17—20, 7:21—29, 7:52—55). The Examiner
acknowledges Halpem does not disclose the claimed “object distributor
configured to distribute the first sub-component and the second sub­
component to different servers in the communication system in accordance
with deployment instructions,” but relies on Deo for teaching the object
distributor to support the conclusion of obviousness. Ans. 22—23. In
particular, the Examiner finds Deo’s MOCE 228 and Data Distribution
system 510 distribute a first sub-component (services) to a communication
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network’s server, and a second sub-component (data) to an external systems’
server. Ans. 22—23 (citing Deo 7:47-49, 10:32-42, Fig. 1, Fig. 3(c)).
Appellants argue “Halpem does not discuss the client unpacking the
customer software package and then distributing the first or second sub­
components to multiple servers”; rather, Halpem’s “client installs the
custom installation package on a single client.” App. Br. 12. We are not
persuaded because Deo (not Halpem) is relied upon for teaching distribution
of multiple software components to multiple servers. Ans. 22—23.
Regarding Deo, Appellants argue “Deo only discloses an individual
node being updated by with a software package.” App. Br. 12. We remain
unpersuaded because Appellants’ arguments do not address the Examiner’s
findings. Reply Br. 8. Moreover, as discussed supra with respect to claim
1, Deo teaches distributing multiple software components to multiple
servers. See also Deo 9:46—50 (discussing “services and data to distribute to
which nodes, which services will mn on which server(s) resident at the
service node, and which data will be cached to local memory resident
associated with IDNA/NGIN node server(s)T (Emphases added)).
For the reasons set forth above, we sustain the rejection of
independent claim 19, and its dependent claim 20, which Appellants do not
argue separately. App. Br. 12.
§ 103(a) Rejection of Claims 2 and 13 based on Halpern and Deo
Claims 2 and 13 depend from claims 1 and 12, and each further recite
“the downloadable pluggable service further includes deployment
instmctions that provide instmctions for installing the first and second sub-
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component on the first and second servers of the customer’s communication
system, respectively.” App. Br. 15 (Claims Appendix).
The Examiner finds Halpem’s single file/custom installation package
is a downloadable pluggable service as claimed because the single file
includes first and second sub-components (user’s desired software
components and customized files), as well as deployment instructions
including a client installer program and an executable extraction program.
Final Act. 10 (citing Halpem 6:5—10, 6:17—20, Fig. 1); Ans. 24—25 (citing
Halpem 5:49—55, 6:1—25). Thus, the Examiner finds “the custom
installation files of Halpem include the deployment instmction for a custom
installation.” Ans. 25.
Appellants argue Halpem does not disclose the claimed deployment
instmctions included in a downloadable pluggable service because Halpem’s
interface templates are not part of a downloadable service. App. Br. 12—13
(citing Halpem, Fig. 1). Appellants’ arguments, however, do not address the
Examiner’s specific findings that Halpem’s client installer program and
executable extraction program teach the claimed deployment instmctions
included in Halpem’s single file/downloadable pluggable service. Final Act.
10; Ans. 24-25.
Appellants also argue Halpem’s “download for a client” does not
teach “installing the first and second subcomponents on the first and
second servers of the customer’s communication system” as claimed.
Reply Br. 8—9. Appellants argue that Halpem’ file set “is for a local install
on a specific client” and does not “contain[] instmctions for a second client
(or a second server as required by claim 1).” Reply Br. 9. Appellants’
arguments have not addressed the Examiner’s specific findings directed to
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Halpem in combination with Deo. Specifically, the Examiner relied on Deo
as disclosing a first sub-component with instructions for operating a first
server, and a second sub-component with instructions for operating a second
server as required by claims 1 and 2. See Ans. 15—16. As discussed supra
with respect to claim 1, we agree with the Examiner’s findings that Deo
discloses first and second sub-components with instructions for operating
multiple servers of a customer’s communication system.
For the reasons set forth above, we sustain the § 103(a) rejection of
claim 2 and claim 13.
§ 103(a) Rejection of Claim 11 based on Halpern and Deo
Dependent claim 11 recites “deployment instructions, when executed
by an object distributor, cause the first sub-component to be deployed to the
first server where it is installed, and wherein the deployment instructions,
when executed by the object distributor, cause the second sub-component to
be deployed to the second server where it is installed.” App. Br. 16.
The Examiner finds Halpem’s single file includes a self-executing
extraction utility that includes deployment instmctions at a client system.
Final Act. 16 (citing Halpem 7:46—56). Appellants argue Halpem does not
disclose instmctions “to deploy the second sub-component (i.e., a second
application) to second server because there are only in instmctions to
deploy sub-components (applications) to a single client.” Reply Br. 9; see
also App. Br. 13. As such, Appellants argue Halpem teaches away from
having deployment instmctions for different clients in a single package.
App. Br. 13.
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We are not persuaded Halpem teaches away from having deployment
instructions for different servers being packaged in a single object as
required by claim 11. Halpem does not criticize, discredit, or discourage
packaging deployment instmctions for different servers in a single object.
Halpem teaches the single object is sent for deployment at the requesting
client/user (see Halpem 7:52—56), and Halpem does not limit the client/user
to a single server as Appellants argue (App. Br. 13; Reply Br. 9). Moreover,
Deo teaches or at least suggests a client/user may include multiple servers.
See Deo 9:47-48 (discussing “server(s) resident at the service node”
(emphases added)).
Additionally, as discussed supra with respect to claim 1, we agree
with the Examiner that Deo teaches a first sub-component with instmctions
for operating a first server, and a second sub-component with instmctions
for operating a second server. Ans. 18. The combination of Halpem’s
single file deployment instmctions with Deo’s multiple sub-components
with instmctions for operating multiple servers teaches and suggests the
claimed deployment instmctions causing the first sub-component to be
deployed to a first server and the second sub-component to be deployed to a
second server. Ans. 25; Final Act. 16.
For the reasons set forth above, we sustain the § 103(a) rejection of
claim 11.
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§ 103(a) Rejections of Claims 18 and 20
Claim 18 is rejected (see Final Act. 1, Office Action Summary) but
not listed by the Examiner under the double patenting or § 103(a)
rejections.6
We find this oversight on the Examiner’s part is harmless error and
interpret the rejection of dependent claim 18 to be rejected under § 103(a)
over Halpem, Deo, and Knobel, as is its base claim 17. Additionally, we
note the specific features recited in claim 18 are similar to claim 11 whose
rejection was based on Halpem (see Final Act. 16).
Claim 20 is rejected (see Office Action Summary of Final Action) but
not listed by the Examiner under the double patenting or § 103(a)
rejections.7
We find this oversight on the Examiner’s part is harmless error and
interpret the rejection of dependent claim 20 to be rejected under § 103(a)
over the combination of Halpem, Deo, and Knobel. For the reasons set forth
above regarding independent claims 12 and 19, we also sustain the
Examiner’s obviousness rejection of dependent claims 18 and 20. App. Br.
11-12.
6 Appellants list claim 18 as rejected “over various combinations of U.S.
Patent No. 6,282,711 to Halpem et al., U.S. Patent No. 7,024,450 to Deo et
al., U.S. Patent Application Publication No. 2011/015441 to Oh et al., U.S.
Patent Application Publication No. 2012/0089971 to Williams et al, and
U.S. Patent Application Publication No. 2012/0297030 to Knobel.” App.
Br. 6.
7 Appellants list claim 20 as rejected “over U.S. Patent No. 6,282,711 to
Halpem et al. in view of U.S. Patent No. 7,024,450 to Deo et al.” App. Br.
6.
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CONCLUSION
On the record before us, we conclude Appellants have not
demonstrated the Examiner erred in rejecting claims 1—20 under
35 U.S.C. § 103(a).
DECISION
As such, we AFFIRM the Examiner’s final rejection of claims 1—20.
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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