Ex Parte El-Beik

Patent Trial and Appeal BoardJan 31, 2014

10418894 (P.T.A.B. Jan. 31, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ADEL EL-BEIK ____________ Appeal 2011-005427 Application 10/418,894 Technology Center 2400 ____________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005427 Application 10/418,894 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-19, 21-34, 36-46, 48, 49, 51, 52, 54, and 55. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION The invention is directed to distributing data over a computer network (Spec. 1:10-11). Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A system for distributing data electronically via a computer network comprising: an update unit adapted to receive one or more computer software programs from a first remote data supplier and a second remote data supplier, the first remote data supplier being separate from the second remote data supplier; a storage unit adapted to store the one or more computer software programs received by the update unit; a catalog unit adapted to communicate with a plurality of users comprising a managed user and an unmanaged user, the catalog unit further adapted to communicate in a first manner with the managed user and to communicate in a second manner with the unmanaged user, the first manner being different from the second manner, the first manner comprising automatically sending one of the one or more computer software programs from the update unit to the managed user without a request from the managed user, and the second manner comprising sending a list of the one or more computer software programs stored in the update unit to the unmanaged user and sending one of the one or more computer software programs to the unmanaged user according to a selection received by the Appeal 2011-005427 Application 10/418,894 3 catalog unit from the unmanaged user, the selection indicating one of the one or more computer software programs received by the update unit; and an administration unit adapted to control reception of the one or more computer software programs by the update unit and sending of selected one or more computer software programs by the catalog unit based on administration information received from an administrator. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Cole Apfel Meding Ims US 5,752,042 US 5,974,454 US 6,684,224 B2 US 7,099,926 B1 May 12, 1998 Oct. 26, 1999 Jan. 27, 2004 (filed Jan. 16, 2001) Aug. 29, 2006 (filed July 6, 2000) REJECTIONS Claims 1, 2, 16, 17, 31, 32, 46, 48, 51, and 54 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Apfel and Cole. Claims 3, 4, 7-12, 18, 19, 21, 22, 33, 34, and 36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Apfel, Cole, and Meding. Claims 5, 6, 13-15, 23-30, and 37-45 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Apfel, Cole, Meding, and Ims. Claims 49, 52, and 55 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Apfel, Cole, and Ims. Appeal 2011-005427 Application 10/418,894 4 ANALYSIS Appellant contends neither Apfel nor Cole discloses a “catalog unit” that is adapted to communicate with both “a managed user and an unmanaged user” and to communicated [sic] in both “a first manner with the managed user and to communicate in a second manner with the unmanaged user” as recited in Claim 1 (App. Br. 14). Appellant further contends “the Examiner does not provide any reason why one would be motivated to provide a ‘catalog unit’” that communicates with both managed and unmanaged users (App. Br. 14-15). Moreover, Appellant contends Cole “teaches that it may be undesirable to automatically send updates to clients because some clients may not wish to endure the cost and download time of receiving the update” and thus teaches away from the claim 1 limitation “the first manner comprising automatically sending one of the one or more computer software programs . . . without a request from the managed user” (App. Br. 16). Appellant also contends the combination of Apfel and Cole fails to disclose “an administration unit adapted to control reception of the one or more computer software programs by the update unit and sending of selected one or more computer software programs by the catalog unit based on administration information received from an administrator,” as recited in claim 1 (App. Br. 17-18). Additionally, Appellant contends the Apfel and Cole combination fails to disclose “an update unit adapted to receive one or more computer software programs from a first remote data supplier and a second remote data supplier, the first remote data supplier being separate from the second remote data supplier,” as also recited in claim 1 (App. Br. 18-19). We disagree with Appellant. Appeal 2011-005427 Application 10/418,894 5 We are not persuaded by Appellant’s argument that neither reference individually discloses a catalog unit communicating with both a managed user and unmanaged user (see App. Br. 14) because the Examiner relies on the combination of references in concluding this feature would have been obvious (see Ans. 4-6). We are also not persuaded by Appellant’s argument that the Examiner has not provided any reason why one would have been motivated to combine Apfel and Cole (see App. Br. 14-15). The Examiner clearly states one would have been motivated “to provide a client the option to turn down an update when it is not desired due to ‘cost, download time or other reason’ (Cole: Col. 1, ln. 31-37)” (Ans. 6). We are not convinced that “this statement merely provides conclusory assertions” (App. Br. 15) because it is an explicit reason Cole provides as a basis for using the selective update feature Cole describes (see Cole, col. 1, ll. 30-65). We are also not convinced Cole teaches away from combining this selective update feature with Apfel’s automatic update system by disclosing that “some clients may not wish to obtain the update” automatically (Cole, col. 1, ll. 31- 37). The fact that “some clients” may not desire automatic updates does not negate the fact that some other clients may indeed desire such automatic updates (Ans. 16). Accordingly, Cole does not teach away from Apfel as Appellant argues (App. Br. 16), but rather provides an alternative and non- mutually-exclusive aspect to updating software. Additionally, Apfel discloses “updating software program module components or installing new software program module components over the Internet either automatically, or manually based upon user input” (Apfel, col. 3, ll. 25-28) (emphasis added). Apfel’s disclosure that the update may be either automatic or manual bolsters the Examiner’s combination of Cole Appeal 2011-005427 Application 10/418,894 6 with Apfel to provide an update system that provides both automatic updates and updates by user selection from a list. Appellant’s argument that the combination of Apfel and Cole fails to disclose an administration unit as claimed (App. Br. 17-18) is not persuasive because Apfel discloses that an administrator has control over the update feature and can “deactivate the auto-autoupdate feature” (Apfel, col. 6, ll. 59-62). Accordingly, there must be some mechanism—i.e., “an administration unit”—for controlling the update feature by an administrator. We are also not persuaded by Appellant’s argument that the Examiner’s combination fails to disclose “an update unit” that can receive computer software from separate first and second remote data suppliers (App. Br. 18- 19). Apfel discloses: The servers are further responsible for providing the download target in the form of an URL if a new upgrade is available. Providing the URL may include load balancing between servers because if a primary server has a high volume, URLs of alternate servers with the same upgrade package may be utilized. (Apfel, col. 7, ll. 19-24). Apfel’s multiple distinct servers from which upgrades can be downloaded discloses the claim 1 feature of separate first and second remote data suppliers. We are therefore not persuaded that the Examiner erred in rejecting claim 1, and claims 2-19, 21-34, 36-46, 48, 49, 51, 52, 54, and 55 not specifically argued separately. CONCLUSIONS The Examiner did not err in rejecting claims 1-19, 21-34, 36-46, 48, 49, 51, 52, 54, and 55 under 35 U.S.C. § 103(a). Appeal 2011-005427 Application 10/418,894 7 DECISION The Examiner’s decision rejecting claims 1-19, 21-34, 36-46, 48, 49, 51, 52, 54, and 55 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). See 37 C.F.R. § 41.50(f). AFFIRMED msc