Ex Parte Klassen et al

Patent Trial and Appeal BoardSep 26, 2012

11097285 (P.T.A.B. Sep. 26, 2012)

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. 11/097,285 04/04/2005 Gerhard D. Klassen 16813-34US 3286 20988 7590 09/27/2012 NORTON ROSE CANADA LLP 1, Place Ville Marie SUITE 2500 MONTREAL, QC H3B 1R1 CANADA EXAMINER NGUYEN, TU X ART UNIT PAPER NUMBER 2618 MAIL DATE DELIVERY MODE 09/27/2012 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 GERHARD D. KLASSEN, GARTH NEWTON, and CHRISTOPHER R. WORMALD ____________________ Appeal 2010-003266 Application 11/097,285 Technology Center 2600 ____________________ Before ERIC S. FRAHM, TREVOR M. JEFFERSON, and LARRY J. HUME, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003266 Application 11/097,285 2 STATEMENT OF THE CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-11, all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellants’ Disclosed Invention Appellants disclose a web-page based mobile device diagnosis, test, application deployment and update solution (Spec. ¶¶ [0002], [0004], and [0015]), wherein the web-page employs an auto-detect feature that determines information about the phone and deploys the software specific to that phone (Spec. ¶ [0015]). Exemplary Claim An understanding of the invention can be derived from a reading of exemplary claim 1, which is reproduced below: 1. A method for deploying an application to a mobile device comprising: providing a web page to a computing device coupled to a communications network for receiving the web page, the web page comprising a configuration determination and loading component for deploying the application to the mobile device coupled to the computing device, said web page determining configuration information about the mobile device for determining specific application components for loading; and providing specific application components to the computing device for loading onto the mobile device in response to the configuration information determined by the web page. Appeal 2010-003266 Application 11/097,285 3 The Examiner’s Rejections (1) The Examiner rejected claims 1-7 and 9-11 under 35 U.S.C. § 102(b) as being anticipated by Kloba (US 2002/0052916 A1). Ans. 4-7. (2) The Examiner rejected claim 8 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Kloba and Capps (US 6,735,691 B1). Ans. 7. Appellants’ Contentions (1) Appellants contend (App. Br. 10-16; Reply Br. 2-5) that the Examiner erred in rejecting claims 1-7 and 9-11 under § 102(b) as being anticipated by Kloba for numerous reasons, including:1 (a) Kloba fails to disclose, teach, or suggest a web page with a configuration determination and loading component, because Kloba’s synchronization process is not the same as the feature recited in claim 1 of a configuration determination and badging component (App. Br. 10-14); (b) in Kloba, the user determines the software versions needed, and the user requests downloads, whereas claim 1 requires that the web page performs these operations (Reply Br. 4-5); (c) Kloba fails to teach or suggest a web page with a configuration component as recited in claim 10, and instead Kloba 1 Appellants only present arguments on the merits with regard to independent claim 1 (see App. Br. 10-14; Reply Br.2-5). Appellants argue that claims 2-7 are patentable for their dependence from claim 1 (App. Br. 14). Appellants also argue that independent claim 9 is patentable for the same reasons as independent claim 1 (see App. Br. 14-16). We select claim 1 as representative of the group of claims 1-7 and 9. 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2010-003266 Application 11/097,285 4 teaches that a user must proactively send configuration information (App. Br. 15); (d) Kloba fails to teach or suggest diagnosing a mobile device or determining updates or changes, as recited in claim 10 (App. Br. 15); and (e) Kloba fails to teach any configuration by a web server, or any web page, as recited in claim 11 (App. Br. 15). (2) Appellants also contend (App. Br. 16-18; Reply Br. 5-6) that the Examiner erred in rejecting claim 8 under § 103(a) as being unpatentable over the combination of Kloba and Capps because: (a) Capp fails to teach or suggest providing application components based on configuration information determined by a web page, and fails to teach determining configuration information for determining and loading application components for a mobile device, as recited in claim 8 (App. Br. 16-17); (b) Capp teaches away from the subject matter of claim 8 (App. Br. 17); and (c) Capp fails to cure the deficiencies of Kloba (App. Br. 16). Issue on Appeal Did the Examiner err in rejecting claims 1-7 and 9-11 on appeal because Kloba fails to disclose the limitations at issue? Appeal 2010-003266 Application 11/097,285 5 ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ contention in the Appeal Brief (App. Br. 10-18) and the Reply Brief (Reply Br. 2-6) that 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 and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief (Ans. 4-9; Reply Br. 2-5). We highlight and amplify certain arguments, as well as certain teachings and suggestions of the reference to Kloba as follows. We agree with the Examiner (Ans. 7-8) that Kloba’s web page is controlled by a user and configures to download and upgrade software applications for a mobile device via a web server and web pages. In other words, we find that the subject matter of claim 1 is encompassed by the Avant Go software of Kloba, and performs equivalent operations. This is evidenced by Appellants’ description in the Specification that (i) software such as Applets and ActiveX control server 102 to perform the recited functions (Spec. ¶ [0023]), and (ii) web server 102 performs the operations recited (see Spec. ¶ [0037]). Notably, the language of claim 1 does not preclude a server or server module from performing the “providing a web page …” function recited in claim 1, and Appellants even perform this operation in the same way as Kloba (see ¶ [0055]), through a server (e.g., web server 102 including web pages 103 as described at least in Spec. ¶ [0024]). Appeal 2010-003266 Application 11/097,285 6 In view of the foregoing, we sustain the Examiner’s rejection of representative claim 1, as well as claims 2-7 and 9 depending therefrom. With regard to claim 10, Kloba discloses determining configuration information for a mobile device for a diagnosis in paragraph [0175] (see also Fig. 2, steps 208 and 210). With regard to claim 11, Kloba discloses a computer program product (¶¶ [0155]-[0158]). Accordingly, Appellants’ arguments (App. Br. 15-16) as to claims 10 and 11 are not persuasive. With respect to the rejection of claim 8, we note that Capps is relied upon as merely teaching the use of an ActiveX control in a computing device, and that Appellants’ “teach away” arguments (App. Br. 16-17; Reply Br. 5) are not persuasive for the reasons stated by the Examiner (Ans. 9). We therefore sustain the Examiner’s rejection of claim 8 for similar reasons as provided with respect to claim 1. CONCLUSIONS (1) The Examiner did not err in rejecting claims 1-7 and 9-11 under 35 U.S.C. § 102(b) as being anticipated by Kloba. (2) The Examiner did not err in rejecting claim 8 under 35 U.S.C. § 103(a) as being unpatentable over the combination of Kloba and Capps. (2) Claims 1-11 are not patentable. DECISION The Examiner's rejections of claims 1-11 are 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). Appeal 2010-003266 Application 11/097,285 7 AFFIRMED msc