Ex Parte O et al

Patent Trial and Appeal Board

Mar 13, 2017

10411835 (P.T.A.B. Mar. 13, 2017)

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.
10/411,835 04/11/2003 Patrick O'Neill 82235924 3722
22879
HP Tnr
7590 03/15/2017 EXAMINER
3390 E. Harmony Road
Mail Stop 35
RUTTEN, JAMES D
FORT COLLINS, CO 80528-9544 ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
03/15/2017 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):
ipa.mail@hp.com
barbl@hp.com
y vonne.bailey @ hp. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PATRICK O'NEILL and BINDU RAMA RAO
Appeal 2014-003397
Application 10/411,835
Technology Center 2100
Before JOHNNY A. KUMAR, MICHAEL J. STRAUSS, and
MONICA S. ULLAGADDI, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2014-003397
Application 10/411,835
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—3, 8, 16—19, 33—35, 37, and 39-41. Claims 4—7, 9-15, 30—32,
36, 38, and 42-45 are canceled. We have jurisdiction over the pending
claims under 35 U.S.C. § 6(b).
We affirm.
THE INVENTION
The claims are directed to the generation of update packages for and
their download to mobile devices. Spec., Abstract. Claims 1 and 16,
reproduced below, are illustrative of the claimed subject matter:
1. A mobile device communicatively coupled to a carrier
network supporting usage of the mobile device, the mobile
device comprising:
at least one of a firmware and a software stored on
memory in the mobile device;
at least one identifying characteristic of the mobile
device communicated to the carrier network, wherein, based on
the at least one identifying characteristic, the mobile device
receives a notification sent through the carrier network for a
user of the mobile device of availability of an update for at least
one of the firmware and the software; and
a download agent residing on the mobile device for
downloading an update package for the update sent through the
carrier network to the mobile device, wherein after the
downloading of the update package to the mobile device, the
download agent verifies, at the mobile device, that the
downloaded update package is appropriate for the mobile
device and validates, at the mobile device, content of the
downloaded update package,
wherein the downloaded update package and integrity of
the memory of the mobile device are verified after the
downloading of the update package to the mobile device and
prior to application of the downloaded update package to the
mobile device.
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16. A carrier network for updating a mobile device using at
least one update package, the carrier network comprising:
an update store for receiving the at least one update
package from a generator, storing the at least one update
package, and providing database management of a plurality of
update packages including the at least one update package;
at least one update server communicatively coupled to
the update store for controlling deployment and management of
update packages for mobile devices, including sending
notification through the carrier network to a user of a mobile
device of availability of at least one update package for the
mobile device, selectively retrieving the at least one update
package for the mobile device from the update store, and
downloading the at least one update package to the mobile
device through the carrier network; and
a management interface communicatively coupled to the
update store and the at least one update server for configuring
and controlling the update store and the at least one update
server,
wherein the at least one update package comprises an
update of at least one of software and firmware stored on
memory in the mobile device, wherein verification that the at
least one update package is appropriate for the mobile device
and validation of content of the at least one update package are
performed at the mobile device after the downloading, and
wherein the at least one update package and integrity of the
memory of the mobile device are verified after the downloading
of the at least one update package to the mobile device and
prior to application of the at least one update package to the
mobile device.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Kalwitz et al. US 5,815,722 Sept. 29, 1998
Miller US 5,832,520 Nov. 3, 1998
Taylor US 5,931,909 Aug. 3, 1999
Cheng US 6,151,643 Nov. 21,2000
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Appeal 2014-003397
Application 10/411,835
Reha
Kravitz
Francis et al.
Imamatsu
Engel et al.
Dillon et al.
Moskowitz et al.
McManus et al.
US 6,282,709 B1
US 6,397,385 B1
US 6,665,861 B1
US 6,687,901 B1
US 7,130,896 B2
US 2002/0059526 Al
US 2002/0116261 Al
US 2003/0101446 Al
Aug. 28, 2001
May 28, 2002
Dec. 16, 2003
Feb. 3,2004
Oct. 31,2006
May 16, 2002
Aug. 22, 2002
May 29, 2003
REJECTIONS
The Examiner made the following rejections:
Claims 1—3, 8, 33—35, and 41 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Imamatsu, Kravitz, Kalwitz, and Cheng. Final
Act. 6—16.
Claims 16—19, 26, 27, and 29 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, and Cheng.
Final Act. 16—21.
Claims 20-22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, and Taylor.
Final Act. 21—23.
Claim 23 stands rejected under 35 U.S.C § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, Taylor, and
McManus. Final Act. 23.
Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, and Engel.
Final Act. 23—24.
Claims 28 and 40 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, and Miller.
Final Act. 24—25.
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Claim 37 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, and Dillon.
Final Act. 25.
Claim 39 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Imamatsu, Francis, Kravitz, Kalwitz, Cheng, and Reha.
Final Act. 26.
APPELLANTS’ CONTENTIONS
1. Appellants contend Imamatsu is deficient because:
i. Rather than controlling deployment of update packages as
required by independent claims 16 and 33, the reference
specifically discloses such management is unnecessary. App. Br.
11-12.
ii. Imamatsu discloses the terminal device “take[s] the lead” in
initiating updates such that Imamatsus software-supply device
only provides the terminal with a number of transmission blocks
sent rather than notification sent through a carrier network of the
availability of an update as required by the independent claims.
App. Br. 12.
2. Appellants contend Kravitz is deficient because component validation is
performed before a card is upgraded rather than after the upgrade is
downloaded to a targeted card as required by the independent claims.
App. Br. 12-13.
3. Appellants contend Cheng is deficient because notification of software
updates is provided to a client computer by email, not through a carrier
network for or to a user of a mobile device of availability of an update
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for the mobile device as required by the independent claims. App. Br.
13-14.
4. In connection with independent claim 16, Appellants additionally
contend Francis is deficient because the disclosed generators generate
Enterprise Java Bean (EJB) models but do not provide an update
package for updating a mobile device nor does Francis disclose an
update store or an update server as required by claim 16. App. Br. 16—
17.
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments the Examiner has erred. We disagree with Appellants’
conclusions. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Final Act. 3—26)
and (2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellants’ Appeal Brief (Ans. 2—14) and concur with the
conclusions reached by the Examiner. We highlight the following for
emphasis.
Appellants’ contention l(i) is unpersuasive. Although Imamatsu
indicates “it is unnecessary for the software-supply device 100 to manage
each version of software in the radio terminal devices ...” (Imamatsu, col.
3,11. 38—42), such does not detract from the following, more detailed
description of functionality that is provided by software-supply device 100
(e.g., Imamatsu Figs. 2, 3, and 7 cited by the Examiner and corresponding
descriptions) which, under a broad but reasonable interpretation, teaches or
suggests the disputed limitation of controlling deployment and management
of update packages. As found by the Examiner, Appellants fail to explain
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why the disputed deployment control and management functionality of
independent claims 16 and 33 is not taught or suggested by Imamatsu’s
disclosure that “[t]he present invention includes the centralized software-
supply device 100 managing each version of the control-software 204 so as
to control the complicated management of the control-software versions
securely and efficiently on the network 300.” Ans. 2 quoting Imamatsu,
col. 3,11. 35—35. Although Appellants argue “[sjimply providing ‘control’ of
the control-software versions, however, does not constitute controlling
deployment and management of update packages for mobile devices, as
recited by Appellant” (Reply Br. 3), Appellants fail to support their
conclusion with sufficient evidence or technical reasoning. It is well settled
that mere attorney arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence).
In failing to persuade us of error, Appellants do not identify, for
example, any portion of the Specification providing a limiting definition of
the disputed limitation of “controlling deployment and management of
update packages for mobile devices” Appellants’ Specification discloses
that device server 411, described as providing the functionality
corresponding to the disputed limitation, “provides the update application
communication to the update agent 423 embedded within the mobile device
409”, in addition to some “[ojther functions” (provided by way of example
and, therefore, not clearly required). Spec. 148. We note Imamatsu’s
software-supply device 100 is disclosed as the equivalent of “a server
connecting to the network 300” (Imamatsu col. 1,11. 52—53) and, similarly
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to Appellants’ device server 411, “downloads the update-used software to the
radio terminal device 200” (Id. at col. 1,11. 33—34). That is, Appellants’
device server 411 and Imamatsu’s software-supply device 100 provide
similar functionality. Thus, Imamatsu’s software-supply device 100,
functioning as a server, teaches providing update application communication
to a mobile device (Imamatsu’s radio terminal device 200). Therefore, in the
absence of evidence of a limiting definition of the disputed “controlling
deployment and management of update packages” distinguishing over
functionality provided by Imamatsu’s software-supply device 100, we are
unpersuaded the Examiner erred in finding the reference teaches or suggests
the disputed limitation.
In connection with contention 1 (ii). Appellants argue “the Imamatsu
reference specifically provides that software-supply device 100 does not
notify the radio terminal device 200 of the latest software version through
the network 300.” App. Br. 12 (referring to Imamatsu col. 3,11. 46—50).
According to Appellants, Imamatsu’s control-software version number
including the total number of transmission blocks N, although provided to
mobile terminal device 10, is neither transmitted through the network nor
notification for or to the user of the terminal device of availability of an
update for the terminal device. Id., Reply Br. 3. The Examiner responds by
finding Appellants’ reliance on Imamatsu’s statement that notification is not
required (App. Br. 12 citing Imamatsu col. 3,11. 46—50) is not persuasive,
because
[A] broad but reasonable interpretation of the claim language
allows Imamatsu's Fig. 7, step J5, in combination with Figs. 2
and 3 depicting communication over a network, to provide a
reading on the claimed notification. Even if Imamatsu suggests
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that notification is not necessary, it is nonetheless clearly
described in the context of Fig. 7, step J5 and Figs. 2 and 3.
Ans. 3.
Instead, the Examiner finds Imamatsu’s disclosure of providing the
mobile device with the number of transmission block and software version
number teaches or suggests the disputed notification except that the
notification is “for a user”, for which the Examiner instead relies on the
Cheng reference. Final Act. 6—7.
We agree with the Examiner. Imamatsu’s indication that there is no
need for the latest software version number to be supplied to radio terminal
device 200 does not negate other disclosures of supplying information
including the number of transmission blocks and the software version of the
software supplied. Imamatsu discloses, if the mobile terminal device has the
latest software version, the total number of transmission blocks N is set to
zero whereas, if an update is required, the total number of transmission
blocks is that of the update-used software. Imamatsu col. 9,11. 40-56. The
mobile terminal device interprets a block number N of zero as indicating it
already has the latest version of the control-software 43 (i.e., no update is
available) and a number greater than zero indicating an update-used software
download is to be downloaded (i.e., an update is available). Imamatsu col.
9,11. 57—67. Furthermore, Imamatsu discloses software-supply device and
radio terminal device 200 are connected by a radio communication channel
(Imamatsu Fig. 2, Abstract). Similarly, Appellants’ Specification discloses
update packages are downloaded to mobile device 109 over communication
link 113. Fig. 1, Spec. 129. Therefore, under a broad but reasonable
interpretation consistent with Appellants’ Specification, Imamatsu’s
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notification of the availability of an update (a block number greater than
zero) is sent through a carrier network (a radio communication channel of a
mobile communication system). To the extent Appellants argue Imamatsu
fails to disclose the notification is “for a user”, such argument fails to
address the Examiner’s findings that Cheng, not Imamatsu, teaches the
disputed limitation. Final Act. 7, Ans. 3^4.
In connection with contention 2, Appellants argue Kravitz discloses
testing is performed prior to software installation, not after downloading into
memory. App. Br. 13. Thus, according to Appellants, Kravitz fails to teach
verification of an update package after downloading to or receipt by a
mobile device and prior to application of the update package. Id. The
Examiner responds by finding Imamatsu, not Kravitz, is relied upon for
teaching or suggesting downloading an update package whereas Kravitz is
only relied upon for software verification. Ans. 4—5. That is, the
combination of Imamatu’s downloaded update package and verification
according to Kravitz teaches or suggests the disputed limitation. Therefore,
according the Examiner, Appellants’ arguments improperly attack the
references individually when the rejection is based on their combination,
citing In re Keller1. Ans. 5.
We agree with the Examiner. Appellants fail to provide persuasive
evidence or line of technical reasoning explaining why the asserted
combination of Imamatsu and Kravitz fails to teach or suggest the disputed
limitation of contention 2.
In connection with contention 3, Appellants argue “Cheng . . . does
not disclose a notification sent through a carrier network for or to a user of a
1 642 F.2d 413, 425 (CCPA 1981))
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mobile device of availability of an update for the mobile device, as recited
by Appellants].” App. Br. 14. The Examiner responds, and we agree,
Appellants’ argument is unpersuasive, because it fails to address the
Examiner’s findings and is, instead, another attack on the references
individually. Ans. 5. In particular, of the claim language quoted by
Appellants, the argued Cheng reference is only relied upon for teaching
notification is “for a user.” Final Act. 7 (“[A] user of a device can be
notified regarding an update.”) Therefore, whether Cheng discloses
notification is provided to a client computer by email rather than through a
network or whether a notification indicates the availability of an update for
the mobile device is irrelevant because it does not address the Examiner’s
findings these limitations are taught by Imamatsu. Final Act. 6. To the
extent the Examiner relies on Cheng, we agree Cheng’s disclosure of user
approval of installation of an update, in response to notification that an
update is available, teaches or suggests notification for a user. Id.
Appellants’ contention 4 in connection with claim 16 is equally
unpersuasive for the reasons set forth by the Examiner. Ans. 5. In
particular, the Examiner relies on Francis for the limited disclosure of the
use of “generators” to create and deploy a software package, not for the type
of software package (i.e., an update package) or for receiving an update
package, the Examiner instead relying on Imamatsu. Thus, Appellants’
argument Francis does not disclose receiving an update package (App. Br.
16—17 ignores the Examiner’s findings concerning Imamatsu and is, instead,
an improper attack on the references individually when the rejection is based
on the combination of Imamatsu, Francis, Kravitz, Kalwitz, and Cheng.
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Appellants’ remaining arguments are substantial repetitions of those
discussed supra and found unpersuasive for the reasons given.
In summary, we are unpersuaded of Examiner error. Accordingly, we
sustain the rejections of independent claim 1 and, for the same reasons,
independent claims 1, 8, and 33 under 35 U.S.C. § 103(a) over Imamatsu,
Kravitz, Kalwitz, and Cheng and the rejection of independent claim 16 over
Imamatsu, Francis, Kravitz, Kalwitz, and Cheng. We further sustain the
rejection of dependent claims 2, 3, 17—19, 34, 35, 37, and 39-41 under
35 U.S.C. § 103(a) as these dependent claims were also not argued
separately with particularity.
DECISION
We affirm the Examiner’s decision to reject claims 1—3, 8, 16—19, 33—
35, 37, and 39-41.
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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