Ex Parte Meaney

Patent Trial and Appeal Board

Sep 27, 2016

13030381 (P.T.A.B. Sep. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/030,381 02/18/2011
36275 7590 09/27/2016
Egan, Peterman, Enders & Huston LLP,
1101 S. Capital of Texas Highway, Suite C200
Austin, TX 78746
FIRST NAMED INVENTOR
Roy Meaney
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.
DELL:OllCl 2624
EXAMINER
JAKOVAC,RYANJ
ART UNIT PAPER NUMBER
2445
MAILDATE DELIVERY MODE
09/27/2016 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 ROY MEANEY1
Appeal2015-005349
Application 13/030,381
Technology Center 2400
Before HUNG H. BUI, JOHN F. HORVATH, and MICHAEL J. ENGLE,
Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 1-3, 8, 14, 16, 18, and 20-24, which are all of the claims pending in
the application. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Technology
The application relates to "dynamically managing multicast sessions
for software downloads," including downloads "used in build-to-order
manufacturing" of computers. Abstract.
Representative Claim
Claim 1 is representative and reproduced below with the limitations at
issue emphasized:
1 Appellant states the real party in interest is Dell Products L.P. App. Br. 2.
Appeal2015-005349
Application 13/030,381
1. A manufacturing system for manufacture of information
handling systems including a managed multicast download
system, comprising:
a manufacturing line configured to manufacture a plurality
of information handling systems, the manufacturing line
including a software installation phase in which datasets are
downloaded to the information handling systems through a
plurality of multicast downloads while the information handling
systems are being manufactured;
a plurality of information handling systems being
manufactured within the manufacturing line and configured to
communicate through communication channels with multicast
infrastructure to receive datasets through the communication
channels during the manufacture of the information handling
systems;
multicast infrastructure in communication with the
manufacturing line and configured to download datasets to the
information handling systems through the communication
channels using a plurality of multicast downloads; and
a multicast session manager in communication with the
manufacturing line and the multicast infrastructure, the multicast
session manager being configured to receive multicast download
requests related to the information handling systems when they
reach the software installation phase, to create a plurality of
multicast sessions based upon the requests, to assign each
information handling system to a multicast session, and to
provide one or more multicast session control parameters to the
multicast infrastructure to cause the datasets to be downloaded
to the plurality of information handling systems through the
communication channels while the information handling systems
are being manufactured within the manufacturing line.
Examiners Rejections and References
(1) Claims 1-3, 8, 14, 16, 18, 20, 21, and 24 stand rejected under
35 U.S.C. § 103(a) as obvious over the combination of Blouin et al. (US
200510108512 Al; May 19, 2005) and Keller-Tuberg (US 2002/0165920
Al; Nov. 7, 2002). Final Act. 6.
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(2) Claims 22 and 23 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combination of Blouin; Keller-Tuberg; and Filali et al.,
Counting the Number of Members in Multicast Communication (2002).
Final Act. 11.
ISSUES
1. Did the Examiner err in finding the combination of Blouin and
Keller-Tuberg teaches or suggests the following limitation as recited in
claim 1 and commensurately recited in claim 14:
the multicast session manager being configured to receive
multicast download requests related to the information handling
systems when they reach the software installation phase, to create
a plurality of multicast sessions based upon the requests, to
assign each information handling system to a multicast session,
and to provide one or more multicast session control parameters
to the multicast infrastructure to cause the datasets to be
downloaded to the plurality of information handling systems
through the communication channels while the information
handling systems are being manufactured within the
manufacturing line?
2. Did the Examiner err in finding the combination of Blouin and
Keller-Tuberg teaches or suggests a "wait time represents an amount of time
after which a run-rate for the manufacturing line would be affected," as
recited in claims 3 and 24?
3. Did the Examiner err in finding Filali teaches or suggests a
"client count representing a number of information handling systems after
which if assigned to the multicast session, the multicast session will begin,"
as recited in claims 22 and 23?
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Application 13/030,381
ANALYSIS
Claims 1 and 14
Blouin relates to "the manufacturing of computer systems." Blouin
,-r 17. The computer system being manufactured, which Blouin refers to as a
system under test (SUT), has software loaded from the network, including an
operating system. Id. i-fi-1 18, 24. The operating system is loaded onto the
SUT by means of a "station": "The station 200 includes a sequencer 202 for
providing the appropriate operating system from the level 1 server 114 [to
the SUT] at the appropriate time in the manufacturing process." Id. ,-r 26.
"Each station 200 is coupled to one system under test (SUT) 300." Id. ,-r 25.
"Accordingly there is a one-to-one relationship between a station and an
SUT." Id. ,-r 26. Thus, in Blouin, each station provides the operating system
to only one SUT at a time. App. Br. 7. Appellant asserts the operating
system comes from a station and hence a device that has a one-to-one
relationship with an SUT. E.g., App. Br. 7. However, contrary to
Appellant's assertion, we note that multiple stations and SUTs are coupled to
receive an operating system from a single level 1 server 114. Blouin i-fi-125-
26, Figs. 1-2; Ans. 5; Final Act. 3.
According to the Examiner, "multicasting is a technique which allows
one-to-many communications. Multicasting makes it possible for a source
to efficiently send information to a group of devices in a single
transmission." Ans. 4. Keller-Tuberg teaches "multicasting of a file to a
plurality of end users." Keller-Tuberg Abstract. Specifically, Keller-Tuberg
teaches "receiving a plurality of requests for reception of offered content,"
where the requests are "from a group of the end user download devices." Id.
"In response to receiving ... the requests, an operation is performed for
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Application 13/030,381
nmlticasting the offered content for reception by each one of said end user
download devices in the group." Id.
Appellant contends "Keller-Tuberg does not create multicast sessions
in response to multicast download requests and does not assign these system
to multicasts sessions" because in Keller-Tuberg, "the centralized server 102
'remains unaware of the end user download devices 106 that are presently
members of any of its groups."' App. Br. 7 (quoting Keller-Tuberg i-f 22);
see also id. at 9. However, we agree with the Examiner that Keller-Tuberg
teaches "receiving a plurality of requests for reception of offered content
.... from a group of the end user download devices," and in response to the
requests, "multicasting the offered content for reception by each one of said
end user download devices in the group." Keller-Tuberg Abstract; Ans. 7.
Thus, regardless of whether the centralized server 102 is "unaware" of the
specific end user download devices, Keller-Tuberg's system is certainly
aware of the specific end user download devices. See e.g., Keller-Tuberg
FIGs. 3A-3B (showing separate columns for "Multicast Server Apparatus";
"Multicast-Capable Distribution Network"; and "End User Download
Devices," with the End User Download Devices "Transmitting Time-
Constrained Request For Receiving File" and the Multicast-Capable
Distribution Network "Receiving [the] Request," and subsequently passing
the request to the Multicast Server Apparatus). Appellant has not
sufficiently explained how that system fails to meet the claim language as
presently written.
Appellant also contends Keller-Tuberg does not multicast for
"systems being manufactured in a manufacturing line, as required by the
currently claimed invention." App. Br. 7. However, "[n]on-obviousness
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Application 13/030,381
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references." In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner
combines Keller-Tuberg' s "multicast downloads to a plurality of devices"
with Blouin's "automating the manufacture of computer systems." Ans. 4.
Thus, this argument fails to address the teachings of the combination, and
instead focuses on the teachings of Keller-Tuberg and Blouin individually.
Appellant further argues the combination of Blouin and Keller-Tuberg
would change the principle of operation of Blouin because Blouin can
immediately install an operating system as soon as it receives a request
whereas "waiting for multicasting sessions [as in Keller-Tuberg] would
likely slow down the installation of different operating systems to a
particular SUT." App. Br. 8-9; Reply Br. 3. In the Reply Brief, Appellant
re-characterizes this argument as "teaching away" because Blouin uses a
one-to-one relationship rather than multicasting. Reply Br. 2.
We are not persuaded by either argument. Instead, we agree with the
Examiner that "in Blouin, the principle of operation is loading operating
systems on a plurality of computer systems during computer manufacture"
and "[g]rouping systems together would not change the principle of
operation in Blouin but would merely enhance it in a manner ... which
would have produced the well- recognized and substantial advantage of
reduced bandwidth." Ans. 5. For example, claim 1 of Blouin requires
"loading the appropriate operating system" but does not recite any one-to-
one relationship between a station and an SUT, nor otherwise prohibit
multicasting. Moreover, in Blouin, multiple SUTs 300 receive an operating
system from a single server 114. See Blouin i-fi-125-26, Figs. 1-2; Ans. 5.
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Thus, Appellant has not persuaded us that any principle of operation of
Blouin would be lost in the combination.
Similarly, "[a] reference does not teach away ... if it merely
expresses a general preference for an alternative invention but does not
criticize, discredit, or otherwise discourage investigation into the invention
claimed." DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d
1314, 1327 (Fed. Cir. 2009) (quotation omitted). Appellant has not
identified any portion of Blouin that criticizes, discredits, or otherwise
discourages multicasting or seeking reduced bandwidth. To the contrary, the
Examiner finds Blouin's system already includes the hardware necessary to
multicast. Ans. 5---6. The mere fact that the combination is different than
Blouin alone or that the combination may entail some trade-off between
bandwidth and wait-time (the precise extent of which Appellant has not
shown) is insufficient to rise to either "changing a principle of operation" or
"teaching away."
Accordingly, we sustain the Examiner's rejection of independent
claims 1 and 14, and their dependent claims 2, 8, 16, 18, 20, and 21, which
Appellant does not argue separately.
Claims 3 and 24
Claims 3 and 24 recite calculating the "start time" based on "a time at
which a multicast download session is being created plus a wait time,
wherein the wait time represents an amount of time after which a run-rate for
the manufacturing line would be affected."
The Examiner finds "Keller-Tuberg teaches the start time"; Blouin
teaches providing software "at the appropriate time in the manufacturing
process"; and "a person of ordinary skill in the art would recognize that an
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appropriate time in the manufacturing process would be at [a] time where
the run-rate is not affected." Ans. 8. No citation is given for the latter
finding, and Appellant contends "the argument in the Examiner's Answer is
not supported by the references." Reply Br. 6. We agree with Appellant.
"Keller-Tuberg does not involve the manufacture of systems" so it "has no
concept of a 'run-rate for a manufacturing line."' Reply Br. 5. Moreover,
while we do not necessarily agree with Appellant that "the 'appropriate
time' in Blouin essentially incorporates no wait time as Blouin implements a
one-to-one relationship" between each station and its SUT (id.), we do not
see anything in Blouin that further explains what an "appropriate time"
means. In the absence of further cited evidence in Blouin or an additional
prior art reference, the Examiner has not adequately explained or provided
support for the finding that a person of ordinary skill in the art would
interpret Blouin's "appropriate time" as a "time where the run-rate is not
affected" without the benefit of hindsight or using the application's claims as
a guide.
Accordingly, we are constrained to reverse the Examiner's
obviousness rejection of claims 3 and 24.
Claims 22 and 23
Claims 22 and 23 recite a "client count" representing "a number of
information handling systems after which if assigned to the multicast
session, the multicast session will begin."
The Examiner relies on Filali for teaching this limitation. Filali
teaches "to count the number of downstream receivers[] for all active
multicast sessions." Filali § 1. This may be useful in "accounting and
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billing in multicast communication" and addressing "multicast congestion."
Id. § 6.
Appellant contends the Examiner's interpretation reads out the
conditional "if assigned" language. Reply Br. 6. The Examiner finds "the
features upon which appellant relies (i.e., using a client count to determine
when a multicast session will begin) are not recited in the rejected claim(s)."
Ans. 9. However, we agree with Appellant. While Filali certainly counts
the number of multicast clients, the Examiner has not shown that exceeding
a given number of clients is in any way related to beginning a multicast
session, as required by claims 22 and 23.
Accordingly, we do not sustain the Examiner's rejection of claims 22
and 23.
DECISION
For the reasons above, we affirm the Examiner's decision rejecting
claims 1, 2, 8, 14, 16, 18, 20, and 21. We reverse the Examiner's rejection
of claims 3 and 22-24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED-IN-PART
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