Ex Parte Kessler et al

Patent Trials and Appeals Board

Jan 31, 2013

11208298 - (D) (P.T.A.B. Jan. 31, 2013)

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.
11/208,298 08/19/2005 Carl Shawn Kessler RSW920050067US1 9632
58139 7590 02/01/2013
IBM CORP. (WSM)
c/o WINSTEAD P.C.
P.O. BOX 131851
DALLAS, TX 75313
EXAMINER
RUBIN, BLAKE J
ART UNIT PAPER NUMBER
2457
MAIL DATE DELIVERY MODE
02/01/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_____________

Ex parte CARL SHAWN KESSLER, GIOVANNI LANFRANCHI,
DAVID BRUCE LINDQUIST and BALA RAJARAMAN
_____________

Appeal 2010-007563
Application 11/208,298
Technology Center 2400
______________

Before KALYAN K. DESHPANDE, JASON V. MORGAN and
BRYAN F. MOORE, Administrative Patent Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL

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This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1-10 and 21-32. Br. 1. Claims 11-20 are canceled. Id.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

INVENTION
The invention is directed to the field of software distribution on a data
transmission network, and more particularly to distributing software on a
data transmission network based on the scheduled time to deploy the
software, the dynamic resource state of the systems involved in the
deployment of the software as well as based upon environmental data, e.g.,
network bandwidth, work order tickets, time of day pricing for connectivity.
See Spec. 1:6-11.
Claim 1 is exemplary of the invention and is reproduced below:
1. A method for distributing software comprising the steps of:
receiving a request to deploy an application on a designated
target client station at a designated scheduled time; and
determining, by a network management server, whether to
deploy said application on said designated target client station at said
designated time based on a resource state of said designated target
client station and a network management server as well as based on
environmental conditions, wherein said environmental conditions are
used to determine how opportune said deployment of said application
on said designated target client station at said designated scheduled
time is.

REFERENCES
Collins, III US 5,845,090 Dec. 1, 1998
Hubinette US 6,289,511 B1 Sept. 11, 2001
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Byers US 6,975,594 B1 Dec. 13, 2005
Newman US 6,983,449 B2 Jan. 3, 2006

REJECTIONS AT ISSUE
Claims 1-3, 6, 7, 10, 21, 22, 24, 26-28, 30 and 32 stand rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Collins and
Hubinette. Ans. 3-11.
Claim 4, 5, 23 and 29 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Collins, Hubinette, and Byers. Ans.
11-13.
Claim 8, 9, 25 and 31 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Collins, Hubinette, and Newman. Ans.
13-16.
ISSUES
1. Did the Examiner err combining Collins and Hubinette and in
finding that the combination teaches “determining whether to
deploy said application on said designated client station at said
designated time based on a resource state of said designated target
client and network management server as well as based on
environmental conditions, wherein the environmental conditions
are used to determine how opportune said deployment of said
application on said designated target client station at said
designated scheduled time is[,]” as recited in claim 1;
2. Did the Examiner err in finding that the combination of Collins
and Hubinette teaches “adjusting a time of deploying said
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application on said destination target client station if said
bandwidth usage in said connection that connects said network
management server with said designated target client station is
greater than a threshold[,]” as recited in claim 3;
3. Did the Examiner err in finding that the combination of Collins
and Hubinette teaches “determining if any work orders on said
designated target client station have not been completed[,]” as
recited in claim 6; and
4. Did the Examiner err in finding that the combination of Collins
and Hubinette teaches “adjusting a time of deploying said
application on said designated target client station because a work
order on said designated target client station has not been
completed[,]” as recited in claim 7; and
5. Did the Examiner err in combining Collins, Hubinette, and Byers
finding that the combination teaches “determining a time of day
pricing for using a connection connecting said network
management server with said designated target client station at said
designated scheduled time[,]” as recited in claim 4; and
6. Did the Examiner err in finding that the combination of Collins,
Hubinette, and Byer teaches “adjusting a time of deploying said
application on said designated target client station if an expense to
use said connection at said designated scheduled time exceeds a
threshold[,]” as recited in claim 5; and
7. Did the Examiner err in combining Collins, Hubinette, and
Newman and finding that the combination teaches “determining
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processor usage in one or more of said network management server
and said designated target client station[,]” as recited in claim 8;
and
8. Did the Examiner err in finding that the combination of Collins,
Hubinette, and Newman teaches “adjusting a time of deploying
said application on said designated target client station because of
processor usage in one or more of said network management server
and said designated target client station exceeding a threshold[,]”
as recited in claim 9?
ANALYSIS
35 U.S.C. § 103(a) – Collins and Hubinette
Claims 1-3, 6, 7, 10, 21, 22, 24, 26-28, 30 and 32
Claim 1
Appellants argue that combination of Collins and Hubinette does not
teach “determining whether to deploy said application on said designated
target client station at said designated time based on a resource state of said
designated target client station and a network management server as well as
based on environmental conditions, wherein said environmental conditions
are used to determine how opportune said deployment of said application on
said designated target client station at said designated scheduled time is.”
App. Br. 4. Specifically, Appellants’ argument is focused on the assertion
that “[t]here is no discussion in Hubinette of determining whether to deploy
an application based on a resource state of the target.” Id. This argument is
not persuasive.
Appellants do not provide a proposed definition for the term “resource
state.” The Specification recites that the resource states of a system involved
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in the deployment of software is something “such as the processor usage of
the network management server or the processor usage of the target client
station.” However, this is permissive language regarding one example of a
resource state rather than a definition of what things, including processor
usage, represent a resource state. Additionally, the importation of a narrow
embodiment into the broader independent claim 1 is improper. See
SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir.
2004) (“For example, a particular embodiment appearing in the written
description may not be read into a claim when the claim language is broader
than the embodiment.”). Given that the Appellant chose broader language
representing a status of a resource rather than specifically reciting “processor
usage,” we find that the broadest reasonable interpretation of “resource
state” includes the status of a resource.
Hubinette teaches a software distribution system whereby the
transmission determination is based in part on a schedule. Hubinette, 8:32-
33. Another factor in the determination to transmit is based on the software
configuration of the target, that is whether the target configuration is similar
to the configuration of another. Hubinette, 8:32-60. We agree with the
Examiner that the software configuration of the target meets the broadest
reasonable interpretation of resource state in the context of the Specification,
i.e., a status of a resource. Ans. 17. For example, the processor on the target
has a configuration relating to the software to be deployed such that the
configuration represents a status the resource, i.e. the processor.
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Motivation to Combine
Claim 1
The Examiner finds that “[i]t would have been obvious to one skilled
in the art at the time the invention was made to combine the software
distribution scheduling of Collins with the particular software upgrades of
Hubinette.” Ans. 4. The Examiner explains that “[t]he motivation to
combine being, to decrease the total software update time by updating the
computers whose configurations are in a similar state at the time of
deployment.” Id. Appellants argue that “[t]here is no language in Hubinette
(and in particular column 8, lines 32-39) that makes any suggestion to
determine whether to deploy an application based on a resource state of the
designated client (missing claim limitation) in order to decrease the upgrade
time (Examiner’s reasoning).” Br. 12.
We note that the U.S. Supreme Court has held that “[t]he obviousness
analysis cannot be confined by a formalistic conception of the words
teaching, suggestion, and motivation, or by overemphasis on the importance
of published articles and the explicit content of issued patents.” KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Instead, the relevant inquiry
is whether the Examiner has set forth “some articulated reasoning with some
rational underpinning to support the legal conclusion of obviousness. ” In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550
U.S. at 418). “As our precedents make clear, however, the analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” KSR, 550 U.S.
at 418.
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Hubinette teaches that the “schedule of software distributing [can be
planned] so as to minimize the total update time for the network 100 (step
414). For instance, network nodes with similar software may be upgraded as
a group [which] implies that a first network node with a particular software
configuration upgrades a second network node with an equivalent or
identical software configuration.” Hubinette, 8:32-36. Thus, Hubinette
teaches that the resource state, i.e. software configuration, of the target is
used to reduce update time. Collins uses a technique referred to as the
congestion control group to ensure efficient deployment of software. Collins,
3:50-67. Both references are concerned with ensuring that the deployment of
software is done efficiently. Upon reviewing the record before us, we find
that the Examiner’s suggestion for modifying Collins with Hubinette
suffices as an articulated reason with some rational underpinning to justify
the legal conclusion of obviousness.
Appellants do not make substantive arguments regarding claims 3, 4
and thus these claims fall with claim 1. Claim 7 contains essentially the
same limitation as claim 1, and claims 8-11 depend from claim 7, thus
claims 7-11 fall with claim 1.
Claim 3
Claim 3 requires that the “adjusting a time of deploying said
application on said destination target client station if said bandwidth usage in
said connection that connects said network management server with said
designated target client station is greater than a threshold.” Appellants argue
that Collins does not teach this limitation. Br. 9-10. Appellants admit that
“Collins teaches using a technique referred to as the congestion control
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group, which is a set of two or more targets which should not receive
simultaneous transmissions.” Br. 9; see also Collins, 3:50-67. Appellants
further admit “Collins teaches that if the candidate target is a member of the
congestion control group and n members of that group are presently
receiving a transmission, then that candidate is disqualified from the current
scan.” Id. Each candidate target represents a certain amount of bandwidth
which must be expended to deploy software to that candidate target. Thus,
we agree with the Examiner that limiting the number of members of the
which can receive a transmission at a given time to a fixed number n is
equivalent to setting a threshold for the usage, i.e., bandwidth, of the
connection with a target are recited in claim 3. Additionally, since the time
of deploying to a candidate target which is above the threshold is delayed,
Collins also teaches adjusting a time of deploying. Thus we are not
persuaded by Appellants’ arguments.
Claims 6 and 7
Claim 6 recites that the “determining if any work orders on said
designated target client station have not been completed.” Claim 7 recites
“adjusting a time of deploying said application on said designated target
client station because a work order on said designated target client station
has not been completed.” The Examiner cites column 3, lines 57-59 of
Collins as teaching the above-cited claim limitation. Appellants argue that
“[t]here is no language in the cited passage that teaches the concept of work
orders.” Br. 10. (emphasis omitted.)
This argument is persuasive. The Examiner does not respond to this
argument. Additionally, in our review of each of the portions of Collins and
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Hubinette cited by the Examiner, we did not find any teaching regarding the
concept of work orders, and more specifically basing the deployment of an
application on whether a work order is pending. Therefore, we cannot
sustain the Examiner’s rejection of claims 6 and 7 as well as claims 24 and
30 which contain essentially the same limitation as claim 7.
35 U.S.C. § 103(a) - Collins, Hubinette, and Byers
Claims 4, 5, 23, and 29
Claims 4 and 5
Claim 4 recites “determining a time of day pricing for using a
connection connecting said network management server with said
designated target client station at said designated scheduled time.” Claim 5
recites “adjusting a time of deploying said application on said designated
target client station if an expense to use said connection at said designated
scheduled time exceeds a threshold.” Appellants argue that “Byers teaches
periodically updating the allocation pricing [, however, u]pdating the
allocation pricing is not the same as” the limitation above. Br. 15. We are
not persuaded by this argument. Byers explicitly teaches that real time
pricing of bandwidth related to the time of day is maintained. Byers 5:55-67.
Byers also teaches that the cost of a bandwidth can be maintained for a
designated time duration. Byers, 7:36-56. Thus, we agree with the Examiner
that the combination of Collins, Hubinette, and Byers teaches the above
limitation. See Ans. 12.

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Motivation to Combine
Claims 4 and 5
The Examiner finds that “[i]t would have been obvious to one skilled
in the art at the time the invention was made to combine the teachings of
Collins and Hubinette with the teachings of Byers. The motivation to
combine being, to decrease the costs of implementing the method by
checking the cost of transferring data between computers.” Ans. 13.
Appellants argue that the Examiner does not provide a reason why one
would combine Collins with Byers. Br. 16-19. As noted above, Collins
teaches ensuring the efficient deployment of software and Byers teaches a
way to determine the cheapest time to deploy software. Upon reviewing the
record before us, we find that the Examiner’s suggestion for modifying
Collins with Byers suffices as an articulated reason with some rational
underpinning to justify the legal conclusion of obviousness.
Appellants do not make substantive arguments regarding claims 23
and 29, which contain essentially the same limitations as those discussed
above, thus those claims fall with claims 4 and 5.
35 U.S.C. § 103(a) - Collins, Hubinette, and Newman
Claims 8, 9, 25 and 31
Claims 8 and 9
Claim 8 recites “determining processor usage in one or more of said
network management server and said designated target client station.” Claim
9 recites “adjusting a time of deploying said application on said designated
target client station because of processor usage in one or more of said
network management server and said designated target client station
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exceeding a threshold.” Appellants argue that “there is no language in the
cited passage that teaches determining processor usage. Instead, Newman
determines the processor requirements.” Br. 20. We are not persuaded by
this argument. Newman explicitly teaches takes into account “processor
capacity or storage availability”, i.e., usage. Newman, 10:17-24. Thus, we
agree with the Examiner that the combination of Collins, Hubinette, and
Newman teaches the above limitation. See Ans. 14.
Motivation to Combine
Claims 8 and 9
The Examiner finds that “[i]t would have been obvious to one skilled
in the art at the time the invention was made to combine the teachings of
Collins and Hubinette with the teachings of Newman. The motivation to
combine being, to increase the efficiency of the method by checking to see if
the available resources are available to transfer data between computers.”
Ans. 15. Appellants argue that the Examiner does not provide a reason why
one would combine Collins with Newman. Br. 21-23. As noted above,
Collins teaches ensuring the efficient deployment of software and Newman
teaches a way to determine resources are available to transfer data at a given
time. Upon reviewing the record before us, we find that the Examiner’s
suggestion for modifying Collins with Newman suffices as an articulated
reason with some rational underpinning to justify the legal conclusion of
obviousness.
Appellants do not make substantive arguments regarding claims 25
and 31, which contain essentially the same limitations as those discussed
above, thus those claims fall with claims 4 and 5.
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DECISION
The Examiner’s decision to reject claims 1-3, 8-10, 21, 22, 25-28, 31,
and 32 is affirmed. The Examiner’s decision to reject claims 6, 7, 24, and 30
is reversed.
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).

AFFIRMED-IN-PART

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