Ex Parte Husain et al

Board of Patent Appeals and Interferences

Mar 1, 2010

10662955 (B.P.A.I. Mar. 1, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SYED MOHAMMAD HUSAIN,
TODD JOHN ENRIGHT, and BARRY W. THORNTON
____________

Appeal 2009-001135
Application 10/662,955
Technology Center 2800
____________

Decided: March 1, 2010
____________

Before ALLEN R. MACDONALD, JOHN A. JEFFERY, and ELENI
MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2009-001135
Application 10/662,955

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-30. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Appellant’s Invention
Appellants’ invention is directed to Distributed Computing
Infrastructure (DCI) system and method for automatic software retrieval on
a peer-to-peer network. Software may be sent from a first computer system
to one or more remote computer systems along with instructions for
automatically installing the software at the remote computer systems. The
instructions for deploying the software may comprise one or more messages
in a portable format (e.g., XML). Using DCI, the instructions for installing
the software may be translated from the portable format to an executable
format at each of the one or more remote computer systems, thereby
generating executable instructions. The executable instructions may then be
executed to install the software at each of the one or more remote computer
systems. (Spec. 5:24-6:4).
Claim 1 is illustrative of the invention and reads as follows:
1. A method comprising:
receiving software at one or more remote computer systems; and
receiving instructions for installing the software at the one or more
remote computer systems, wherein the instructions for installing the
software comprise one or more messages in a portable format;
translating the instructions for installing the software from the
portable format to an executable format at each of the one or more remote
computer systems, thereby generating executable instructions; and
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executing the executable instructions to install the software at each of
the one or more remote computer systems.

The Examiner’s Rejections
The Examiner’s Answer cites the following prior art references:
Turpin US 6,144,992 Nov. 7, 2000

Vigue US 6,983,326 B1 Jan. 3, 2006
(effectively filed
Apr. 6, 2001)

1. The Examiner rejected claims 1-6, 8-14, 16-22, and 24-30
under 35 U.S.C. § 102(b) as being anticipated by Turpin.
2. The Examiner rejected claims 7, 15, and 23 under 35 U.S.C.
§ 103(a) as being unpatentable over Turpin in view of Vigue.
We note that Appellants (Br. 5-8) argue rejected claims 1-3, 8-11, 16-
19, and 24-30 together as a group, making particular reference solely to
independent claim 1. Accordingly, we select claim 1 as representative. 37
C.F.R. § 41.37(c)(1)(vii) (2004). Similarly, for the group of claims 4, 12,
and 24 (Br. 8-9), we select claim 4 as representative. We also select claim 5
as representative for the group of claims 5, 13, and 21. For the group of
claims 6, 14, and 22 (Br. 9-10), we select claim 6 as representative, and for
the group of claims 7, 15, and 23 (Br. 10-11), we select claim 7 as
representative.

ISSUES
With respect to claim 1, Appellants (Br.6) argue that while Turpin’s
recipient computer system receives packets of data and executes commands
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located in the command field of each packet to process the data accordingly,
none of the commands are translated from a portable format to an executable
format, nor are any of the commands executable to translate other
instructions (e.g., instructions for installing software) from one format to
another format.
Appellants (Br. 8) further argue that Turpin does not teach or suggest
that instructions for installing the software are recorded in the manner
recited in claim 4 where the same instructions for installing the software are
received at the one or more remote computer systems and translated from a
portable format to an executable format at each of the one or more remote
computer systems.
With respect to claim 5, Appellants (Br. 9) argue that Turpin does not
teach or suggest that the instructions to send the software to an additional
remote computer system and install the software on the additional remote
computer system are recorded in the same manner as recited in claims 4 and
5.
With respect to claim 6, Appellants (Br. 10) argue that Turpin does
not teach user input to select the one or more remote computer systems from
a plurality of available computer systems.
With respect to claim 7, Appellants (Br. 11) argue that the
combination of Turpin and Vigue would not have been obvious for the
Examiner’s articulated motivation (i.e., allowing for flexibility in mark-up of
sections in the message allowing for flexibility in displaying and presenting
data) because it was not found in either one of the references.
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Thus, the pivotal issues before us are whether Turpin teaches:
(1) the limitation of “translating the instructions for installing the
software from the portable format to an executable format at each of the one
or more remote computer systems, thereby generating executable
instructions” as recited in claim 1;
(2) the limitation of “receiving user input to record the instructions for
installing the software” as recited in claim 4; and
(3) the limitation of user input to send the software to an additional
remote computer system as recited in claim 6.
The last issue is whether:
(4) Turpin and Vigue are combinable for the Examiner’s articulated
reason which was not found in either reference.

FINDINGS OF FACT
The record supports the following relevant findings of fact (FF) by a
preponderance of the evidence:
1. Turpin teaches that under a user command, computer software can be
installed on one or more computers simultaneously over a network
(col. 3, l. 66-col. 4, l. 3; col. 1, ll. 10-21).
2. Turpin teaches that a “master” computer transfers the data from its
disk drive or drives to one, some or all of the other computers on the
network designated as “slaves” (col. 6, l. 64-col. 7, l. 2).
3. Turpin teaches that a slave computer uses the IMGSLAVE program to
listen for data from the IMGBLSTR program from the master
computer across the network and write such data to its local disk drive
(col. 4, ll. 46-51; col. 7, ll. 30-35).
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4. Turpin teaches that each packet of data received on the socket
contains a command field which tells IMGSLAVE what the data
contained in the packet is used for and how the data is to be processed
(col. 5, ll. 19-25).
5. Turpin teaches that the master “Sector Data & Flush” command
requires the slave computer to write the received data to buffer and
flush the data to a disk (see fifth entry in Table of col. 5).
6. Turpin teaches that the binary data on one computer are mirrored or
copied to one or more computer’s hard disk drive (col. 1, ll. 7-10).
7. Turpin teaches that the operator/user enters the commands on the
command line allowing the operator to specify whether to upload or
download an application during which the operator provides the name
of the file and the complete path along with the indication to send the
drive data to other slave computers via broadcast packets (col. 3, l. 66-
col. 4, l. 3; col. 5, ll. 16-19; col. 9, ll. 46-63).
8. Turpin teaches that the operator enters the commands on the
command line (col. 5, ll. 11-18).
9. Turpin teaches that “upon user command” computer software and
computer data files can be installed on more than one computer
simultaneously (col. 3, l. 66-col. 4, l. 3).
10. Turpin expressly teaches that “a system operator can transfer data
stored on a single computer system to all or some” of the computer
systems over a computer network (Abstract; also see col. 1, ll. 10-13)
(emphasis added).
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11. It is uncontested by Appellants that the XML package format allows
marking-up sections in the message thereby allowing for flexibility in
displaying and presenting data.
12. Vigue teaches using “the well-accepted and widely utilized XML
format” as a packet format (col. 8, ll. 14-19).

PRINCIPLES OF LAW
Motivation to combine references can be found either in the
references themselves or in the knowledge generally available to one of
ordinary skill in the art. See In re Fine, 837 F.2d 1071, 1074 (Fed. Cir.
1988).
Discussing the question of obviousness of a patent that claims a
combination of known elements, KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398 (2007), explains:
If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and
a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the
technique is obvious unless its actual application is beyond his
or her skill. Sakraida [v. AG Pro, Inc., 425 U.S. 273 (1976)]
and Anderson's-Black Rock[, Inc. v. Pavement Salvage Co.,
396 U.S. 57 (1969)] are illustrative—a court must ask whether
the improvement is more than the predictable use of prior art
elements according to their established functions.
KSR, 550 U.S. at 417.

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ANALYSIS
I. The 35 U.S.C. § 102(b) rejection of claims 1-3, 8-11, 16-19,
and 24-30 as anticipated by Turpin.

Turpin teaches that under a user command, computer software can be
installed on one or more computers simultaneously over a network (FF 1).
Turpin teaches that a “master” computer transfers the data from its disk
drive or drives to one, some or all of the other computers on the network
designated as “slaves” (FF 2). A slave computer uses the IMGSLAVE
program to listen for data from the IMGBLSTR program from the master
computer across the network and write such data to its local disk drive (FF
3). Turpin teaches that each packet of data received on the socket contains a
command field which tells IMGSLAVE what the data contained in the
packet is used for and how the data is to be processed (FF 4). Turpin teaches
that the master “Sector Data & Flush” command requires the slave computer
to write the received data to buffer and flush the data to a disk (FF 5).
Turpin teaches that the binary data on one computer (i.e., master) are
mirrored or copied to one or more computer’s hard disk drive (i.e., slaves)
(FF 6).
Accordingly, Turpin teaches translating the instructions for installing
the software from the portable format (i.e., instructions contained in the
command field of the packet data dictating how the data is to be used) to an
executable format (i.e., received data to buffer and flushed to a disk) thereby
generating executable instructions (i.e., copied binary data from a master to
a slave computer) (FF 1-6). Therefore, we do not agree with Appellants’
argument (Br. 6) that none of the commands are translated from a portable
format to an executable format. We also remain unconvinced by
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Appellants’ argument (Br. 6) that none of the commands are executable to
translate other instructions (e.g., instructions for installing software)
especially since Turpin explicitly teaches that by sending packets of data
having embedded commands computer software are installed on one or more
computers simultaneously over a network (FF 1 and FF 4).
For the foregoing reasons, we will sustain the rejection of claim 1 and
of claims 2, 3, 8-11, 16-19, and 24-30, which fall with claim 1.

II. The 35 U.S.C. § 102(b) rejection of claims 4, 12, and 20 as
anticipated by Turpin.

We are not persuaded by Appellants’ argument (Br. 8) that Turpin
does not teach or suggest that instructions for installing the software are
recorded in the manner recited in claim 4. Claim 4 requires “receiving user
input to record the instructions for installing the software.” Turpin teaches
that the operator/user enters the commands on the command line allowing
the operator to specify whether to upload or download an application (i.e.,
install an application) during which the operator provides the name of the
file and the complete path along with the indication to send the drive data to
other slave computers via broadcast packets (FF 7). Accordingly, Turpin
teaches that when the operator enters the commands on the command line
(FF 8), the command line records the user input into the computer (i.e.,
records the instructions for installing the software).
With respect to Appellants’ argument (Br. 8) that Turpin does not
teach that the “same” instructions for installing the software are received at
one or more remote computer systems, we note that this argument is not
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commensurate in scope with the claim 4 which recites nothing regarding the
instructions being the “same.”
Accordingly, we will also sustain the Examiner’s rejection of claims
4, 12, and 20.

III. The 35 U.S.C. § 102(b) rejection of claims 5, 13, and 21 as
anticipated by Turpin.

Appellants repeat the same argument as articulated supra with respect
to claim 4. Accordingly, we will sustain the Examiner’s rejection of claims
5, 13, and 21 for the same reasons as stated above.

IV. The 35 U.S.C. § 102(b) rejection of claims 6, 14, and 22 as
anticipated by Turpin.

We do not agree with Appellants’ argument (Br. 10) that Turpin does
not teach user input to select the one or more remote computer systems from
a plurality of available computer systems. Turpin teaches that “upon user
command[,]” computer software and computer data files can be installed on
more than one computer simultaneously (FF 9). Turpin expressly teaches
that “a system operator can transfer data stored on a single computer system
to all or some” of the computer systems over a computer network (FF 10)
(emphasis added). Accordingly, Turpin teaches user input to select the one
or more remote computer systems from a plurality of available computer
systems.
Thus, we will also sustain the Examiner’s rejection of claim 6 and of
claims 14 and 22 that fall with claim 6.
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V. The 35 U.S.C. § 103(a) rejection of claims 7, 15, and 23 as
unpatentable over Turpin in view of Vigue.

We do not agree with Appellants’ argument (Br. 11) that the
combination of Turpin and Vigue would not have been obvious for the
Examiner’s articulated reason (i.e., wherein using XML allows marking-up
sections in the message thereby allowing for flexibility in displaying and
presenting data) because it was not found in either one of the references.
At the outset, we note that it is uncontested by Appellants that
XML has the capability for providing the recited flexibility (FF 11).
Thus, the pertinent issue is whether motivation must be found in the
references themselves or can also be found in the knowledge generally
available to one of ordinary skill in the art.
We agree with the Examiner (Ans. 20) that Vigue’s teaching of
using “the well-accepted and widely utilized XML format” as a packet
format (FF 12) implemented in Turpin would provide the predictable
result of allowing marking-up sections in the message thereby
allowing for flexibility in displaying and presenting data language
based on the knowledge generally available to one of ordinary skill in
the art. See In re Fine, 837 F.2d at 1074; KSR, 550 U.S. at 417.
Thus, we will also sustain the Examiner’s rejection of claims 7, 15,
and 23.

CONCLUSIONS OF LAW
(1). Turpin teaches the limitation of “translating the instructions for
installing the software from the portable format to an executable format at
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each of the one or more remote computer systems, thereby generating
executable instructions;”
(2). Turpin teaches the limitation of “receiving user input to record the
instructions for installing the software;”
(3). Turpin teaches the limitation of “user input to send the software to
an additional remote computer system;”
(4). Turpin and Vigue are combinable for the Examiner’s articulated
reason which was not found in either reference.

DECISION
The Examiner’s decision rejection of claims 1-30 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)(1)(iv).

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AFFIRMED

ELD

JEFFREY C. HOOD
MEYERTONS, HOOD, KIVLIN, KOWERT & GOETZEL
P.O. BOX 398
AUSTIN, TX 78767

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