Ex Parte Lewis

Patent Trial and Appeal Board

Feb 22, 2016

12823301 (P.T.A.B. Feb. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/823,301 06/25/2010
96411 7590 02/22/2016
Dinsmore & Shohl LLP
255 East Fifth Street, Suite 1900
Cincinnati, OH 45202
FIRST NAMED INVENTOR
Derek Lane Lewis
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.
2009-223 I 22562-325 7549
EXAMINER
MUSTAFA, IMRAN K
ART UNIT PAPER NUMBER
3663
MAILDATE DELIVERY MODE
02/22/2016 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 DEREK LANE LEWIS
Appeal2014-000621
Application 12/823,301
Technology Center 3600
Before JOHN C. KERINS, STEFAN STAICOVICI, and LEE L. STEPINA,
Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Derek Lane Lewis (Appellant) appeals under 35 U.S.C. § 134(a) from
the Examiner's decision rejecting claims 1-20. We have jurisdiction over
this appeal under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
CLAIMED SUBJECT MATTER
The claimed invention relates to automated vehicle systems updating.
Spec. ,-r 1.
Appeal2014-000621
Application 12/823,301
Claims 1, 8, and 13 are independent. Independent claims 1 and 8 are
illustrative of the claimed invention and read as follows:
1. A method of updating a vehicle ECU, the method
compnsmg:
establishing communication between a data
communications module of a vehicle and an update server via a
cellular network;
validating the vehicle using a key exchange protocol
between the data communications module and the update
server, wherein the key exchange protocol includes the data
communications module sending a first security key to the
update server, receiving a request for an updated security key
from the update server after sending the first security key, and
sending a second security key to the update server after
receiving the request for the updated security key; and
sending update information from the update server to the
data communications module of the vehicle via the cellular
network, the update information configured to be used to
update the vehicle ECU.
8. An over-the-air system for updating a vehicle, the system
compnsmg:
an update server including update information for use in
updating a vehicle ECU;
a data communications module on a vehicle configured
to communicate with the update server via a cellular network
for receiving the update information from the update server;
a diagnostic ECU on the vehicle configured to
communicate with the data communications module for
receiving the update information from the data communications
module; and
a vehicle ECU on the vehicle configured to communicate
with the diagnostic ECU for receiving update information from
the diagnostic ECU.
Br. 26-27.
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Application 12/823,301
REFERENCES RELIED ON BY THE EXAMINER
Goto
Link
Qing
US 2007/0106430 Al
US 2009/0119657 Al
US 2009/0296934 Al
REJECTIONS ON APPEAL
May 10, 2007
May 7, 2009
Dec. 3, 2009
Claims 8, 9, 11, and 12 are rejected under 35 U.S.C. §102(b) as
anticipated by Link.
Claims 1--4, 6, 7, 13-15, and 17-20 are rejected under 35 U.S.C.
§ 103 (a) as unpatentable over Link and Qing.
Claims 5 and 16 are rejected under 35 U.S.C. §103(a) as unpatentable
over Link, Qing, and Goto.
Claim 10 is rejected under 35 U.S.C. §103(a) as unpatentable over
Link and Goto.
ANALYSIS
The rejection of claims 8, 9, 11, and 12 as anticipated by Link
The Examiner finds that Link discloses that a "'first communications
device, such as an SDARS receiver, can be used to download software data.'
[Clearly a communication is established from a data communication model
on the vehicle and the server to establish the communication needed to
download the software.]" Final Act. 2-3 (citing Link i-f 79). The Examiner
also finds that Link discloses "a vehicle ECU on the vehicle configured to
communicate with the diagnostic ECU." Final Act. 3 (citing Link i-fi-136 and
39; Fig. 1 ).
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Appeal2014-000621
Application 12/823,301
Appellant asserts that the passages of Link relied on by the Examiner
"merely generally disclose a vehicle that may include various hardware
modules including various hardware components (e.g., processors and
memories) operable to perform a variety of functions and the ability to
download data from a central server via a communication device." Appeal
Br. 12. Appellant argues that "these paragraphs of Link do not expressly or
inherently disclose a diagnostic ECU receiving update information from a
data communication module and a vehicle ECU receiving the update
information from the diagnostic ECU, as recited in claim 8." Id.; see also
Reply Br. 3.
We are not persuaded by Appellant's arguments. Appellant does not
persuasively explain how the claimed data communication module, the
claimed diagnostic ECU, or the claimed vehicle ECU distinguishes over
Link's modules. With respect to a data communication module, as noted by
the Examiner, Link discloses that "a first communications device, such as an
SDARS receiver, can be used to download software data," and that the
"methods and systems provided can extract software for re-flashing the
onboard processors from an SDARS data stream." Link i-f 79. As for a
diagnostic ECU, Link discloses that processor 106 of module 101 [VTU]
"can receive a digital information stream broadcast by a high bandwidth
broadcast source, such as SDARS" that includes "software upgrades for the
computers onboard the vehicle." Id. at i-f 80; see also i-fi-136, 63. As per
Figures 4 and 5 of Link, once the software upgrades are received and
authenticated, the VTU upgrades a vehicle hardware module. See Link i-f 78;
Figs. 4 and 5. Specifically, Link discloses that "the VTU can upgrade an
engine controller through a CAN bus." Id. An engine controller is a vehicle
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Appeal2014-000621
Application 12/823,301
ECU, because Link discloses that hardware modules are "for power
windows, for power seats, for air bag monitoring and deployment, for engine
control, for transmission control, for radio, for tire pressure monitoring, for
anti-lock braking, for traction control, for climate control, and many other
function." Id. at i-f 36. As such, Link discloses a vehicle ECU consistent
with the Specification because Link's system "controls one or more of the
electrical systems or subsystems in a motor vehicle." Spec. i-f 18. Based on
the above, Link discloses a diagnostic ECU (101 having processor 106)
receiving update information from a data communication module (SDARS
receiver) and a vehicle ECU (vehicle hardware module) receiving the update
information from the diagnostic ECU, as recited in claim 8. Accordingly,
we are not apprised of error in the Examiner's rejection of claim 8.
Therefore, we sustain the Examiner's rejection of claim 8 and of claims 9,
11, and 12, depending therefrom, as being anticipated by Link.
The rejection of claims 1-4, 6, 7, 13-15, and 17-20 as unpatentable over
Link and Qing
The Examiner finds that Link discloses most of the steps of claim 1
including "validating the vehicle using a key exchange protocol between the
data communications module and the update server." Final Act. 5 (citing,
Link i-f 76. The Examiner also finds that Link discloses most of the steps of
claim 13 including "sending a security key from the data communications
module of the vehicle to the update server." Id. at 7 (citing Link i-f 76). The
Examiner relies on Qing as teaching "[ s ]ending a second security key to the
update server after receiving the request for the updated security key." Id. at
6 and 8 (citing Qing i-fi-16 and 64). The Examiner concludes that "[i]t would
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Appeal2014-000621
Application 12/823,301
have been obvious to modify Link to include the teachings of a key
exchange protocol of Qing for the purpose of ensuring safe and secure
communications." Id. at 6 and 9. In the Answer, the Examiner states that
Qing's paragraphs 49--50 and Figure 4 show a key exchange in detail. See
Ans. 8.
Appellant argues that paragraphs 6 and 64 of Qing "merely teach that
a security key may expire, and that upon expiration, a new security key must
be 'negotiated,"' and that Qing provides "no details regarding how such a
'negotiation' may take place." Appeal Br. 15. Appellant asserts that,
moreover, the negotiation in Qing's Fig. 4 "is the opposite of the claimed
key exchange protocol, which requires the update server to request an
updated security key from the vehicle communications module and the
vehicle communications module to send the security key to the update server
after receiving the request." Reply Br. 4--5.
We find Appeiiant's arguments persuasive. Qing's key request is
initiated by the Mobile Station (MS), not the Base Station (BS) (server), as
required by the claims. See Qing, i-f 50; Fig. 4; see also Ans. 8. Similarly,
the updated security key is sent to the MS (communication module) and not
the BS (server), as also required by the claims. Specifically, Qing discloses
that "a TEK may be negotiated via a TEK key request 406 sent to the BS,"
and that "[i]n response, the BS may generate a TEK key and send the TEK
and a corresponding lifetime for the TEK key (to the MS) in a TEK key
reply 408." Qing, i-f 50; Fig. 4. The Examiner does not explain how a
request from Qing' s data communication module qualifies as a request from
the update server, as recited in claims 1 and 13. The Examiner also does not
explain how Qing's sending a security key from the server to the data
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Application 12/823,301
communications module meets "sending a second security key to the update
server," as recited in claims 1 and 13. For these reasons, the Examiner has
not adequately established that Link as modified based on the teachings of
Qing describes each of the limitations of claims 1 and 13. Accordingly, we
do not sustain the rejection under 35 U.S.C. § 103(a) of claims 1--4, 6, 7,
13-15, and 17-20 as unpatentable over Link and Qing.
The rejection of claims 5 and 16 as unpatentable over Link, Qing, and Goto
The Examiner does not rely on Goto in any manner that would
remedy the deficiency of the rejection based on Link and Qing.
Accordingly, for the same reasons discussed above, we do not sustain the
rejection of claims 5 and 16 as unpatentable over Link, Qing, and Goto.
The rejection of claim 10 as unpatentable over Link and Goto
AppeUant makes no separate arguments for claim 10, but instead
relies on the arguments made against the rejection of independent claim 8.
See Appeal Br. 24--25; see also Reply Br. 3. Accordingly, we sustain the
rejection of claim 10 for the reasons discussed above regarding the rejection
of claim 8.
DECISION
The decision of the Examiner to reject claims 8, 9, 11, and 12 under
35 U.S.C. §102(b) as anticipated by Link is affirmed.
The decision of the Examiner to reject claims 1--4, 6, 7, 13-15, and
17-20 under 35 U.S.C. § 103(a) as unpatentable over Link and Qing is
reversed.
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Appeal2014-000621
Application 12/823,301
The decision of the Examiner to reject claims 5 and 16 under
35 U.S.C. § 103(a) as unpatentable over Link, Qing, and Goto is reversed.
The decision of the Examiner to reject claim 10 under 35 U.S.C.
§ 103 (a) as unpatentable over Link and Goto 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)(l)(iv).
AFFIRMED-IN-PART
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