Ex Parte Pal

Patent Trial and Appeal Board

Feb 29, 2016

12634518 (P.T.A.B. Feb. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/634,518 12/09/2009 Suprio Pal
42425 7590 03/02/2016
HICKMAN PALERMO BECKER BINGHAM/ORACLE
1 Almaden Boulevard
Floor 12
SAN JOSE, CA 95113
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.
50277-3697 7682
EXAMINER
EDWARDS, JAMES A
ART UNIT PAPER NUMBER
2448
NOTIFICATION DATE DELIVERY MODE
03/02/2016 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):
usdocket@h35g.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUPRIO PAL
Appeal2014-002557
Application 12/634,518
Technology Center 2400
Before CARL W. WHITEHEAD JR, JEFFREYS. SMITH and
JOHN F. HORVATH, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant is appealing the final rejection of claims 1, 3-12 and 14-22
under 35 U.S.C. § 134(a). Appeal Brief 18 and 21. We have jurisdiction
under 35 U.S.C. § 6(b) (2012).
We affirm.
Introduction
The invention is directed to managing updating applications via
patches. Abstract.
Appeal2014-002557
Application 12/634,518
Representative Claim (disputed limitations emphasized)
1. A method comprising:
a server identifying a plurality of patches to one or more software
applications;
wherein the plurality of patches includes two or more patches that must each
be applied, at least partially, by bringing the one or more software
applications offline, wherein bringing the one or more software applications
offline comprises terminating one or more processes that are executing the
one or more software applications;
the server identifying a plurality of targets to which the plurality of patches
are to be applied, wherein each particular target of the plurality of targets
comprises a particular set of one or more processes that execute a particular
instance of the one or more software applications installed at the particular
target;
the server sending patch data indicating the plurality of patches to each of
the plurality of targets;
at each particular target of the plurality of targets, based on the patch data
from the server, applying the plurality of patches to the particular instance of
the one or more software applications installed at the particular target;
wherein each particular target applies the plurality of patches by bringing
the particular set of one or more processes at the particular target ojjline no
more than once during application of the plurality of patches at the
particular target; and
wherein the method is performed by a plurality of computing devices in a
distributed system comprising the server and the plurality of targets.
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Application 12/634,518
Rejections on Appeal
Claims 1, 3-5, 7-9, 12, 14, 15, 17 and 18 stand rejected under 35
U.S.C. §103(a) as being unpatentable over Deshpande (US Patent
Application Publication Number 2003/0218628 Al; published November
27, 2003) and Langen (US Patent Application Publication Number
2007/0118626 Al; published May 24, 2007). Answer 4-12.
Claims 6 and 16 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Deshpande, Langen and Gangwar (US Patent Application
Publication Number 200710240150 A 1; published October 11, 2007).
Answer 12-14.
Claims 11and20 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Deshpande, Langen and Hamanaka (US Patent
Application Publication Number 2007 /0244999 Al; published October 18,
2007). Answer 14-17.
Claims 10 and 19 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Deshpande, Langen and Borissov (US Patent Application
Publication Number 2010/0162226 Al; published June 24, 2010). Answer
17-20.
Claims 21and22 stand rejected under 35 U.S.C. §103(a) as being
unpatentable over Deshpande, Langen and Kryloff (US Patent Application
Publication Number 2006/0136514 Al; published June 22, 2006). Answer
20-26.
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Appeal Brief (filed June 17, 2013), the Reply Brief
(November 8, 2013), the Answer (mailed September 16, 2013) and the Final
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Application 12/634,518
Rejection (mailed November 28, 2012) for the respective details. We have
considered in this decision only those arguments Appellant actually raised in
the Briefs.
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We disagree with Appellant's
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
Appellant's Appeal Brief, and concur with the conclusions reached by the
Examiner. We highlight the following for emphasis.
Appellant argues Langen fails to disclose the claimed patches because
Langen only performs a software update. Appeal Brief 6-7. We do not find
Appellant's argument persuasive because Langen's software update is
inclusive of patches that are merely data employed to update software
applications and therefore not patentably distinguishable. See Specification
[0003].
Appellant further assert the claimed patches distinguish over Langen's
software update because the "Specification cited by the Examiner is not a
precise definition of a patch, but rather a general characterization meant to
introduce the reader to the patching process" and a "skilled person would
have recognized from both industry knowledge and the Specification's
continuing description of the patching process that a patch is in fact a more
specific and complicated construct than simply a collection of files." Appeal
Brief7. We do not find Appellant's arguments persuasive because, although
it is understood that patches have various degrees of complication depending
upon the software application update requirement, that fact does not alleviate
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Application 12/634,518
the simple fact that the patches are composed of data/data files as described
in Appellant's Specification. 1
Appellant argues that "Claim 1 explains that each patch is a construct
that, by itself, must be applied 'by bringing the [targeted] one or more
software applications offline"' and that "[t]here is no evidence that any
single one of the files in Langen's software update is a patch within this
meaning." Appeal Brief 7 -8. Appellant contends, "Rather, all that is known
is that a restart of Langen's windmill software is performed to complete the
entire software update," and therefore, "even if Langen's software update
could have suggested to the skilled person a patch in the general sense, there
is no evidence regarding how or even if the files of Langen's software
updates could have been applied individually." Appeal Brief 8.
Appellant's arguments are not commensurate with the scope of claim
1 because claim 1 does not require the updates to be applied individually.
Claim 1 recites, "wherein the plurality of patches includes two or more
patches that must each be applied." There is no indication that the patches
must be applied individually. Further, absent of some unexpected result, the
application of patches individually or together is well within the purview of
one of ordinary skill in the art.
Appellant argues, "[t]he relevant inquiry is not whether Langen's
single software update could be abstracted in such a manner as to be
multiple patches in a general sense, but rather whether the skilled person
1 During examination of a patent application, a claim is given its
broadest reasonable construction "in light of the specification as it would be
interpreted by one of ordinary skill in the art." In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (citations omitted) (internal
quotation marks omitted).
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Application 12/634,518
would have specifically considered Langen's single software update to
comprise more than one ofDeshpande's patches." Appeal Brief 8 (emphasis
omitted). We do not find Appellant's argument persuasive and agree with the
Examiner's findings that one of ordinary skill would have considered it
obvious to modify Deshpande's invention by Langen's software updating
procedure. 2 See Answer 6-7.
Appellant argues that "Claim 6 differs from Gangwar both in nature of
the login operation, and the actor that performs the login operation" because
"Claim 6 recites that a server provides credentials to perform a login
operation at a target to be patched." Appeal Brief 11. We do find
Appellant's argument persuasive because Gangwar provides "logon
credentials for the user to access a server containing data indicating any
patches/upgrade to any of the programs installed on the user system."
Gangwar, paragraph [0055]. Claim 6 simply requires a nondescript server to
provide credentials so that the login can occur and Gangwar discloses the
involvement of a server providing credentials in the login operation.
Appellant argues that claim 10 is erroneously rejected because there is
"absolutely no evidence that the shared program code is ever patched in such
a manner that only a 'first target modif[ies] the shared files in accordance
with the plurality of patches,' while 'the other targets of the two or more
targets do not modify the shared files in accordance with the plurality of
patches."' Appeal Brief 12. We do not find Appellant's arguments
2"As our precedents make clear, however, the analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ." KSR Int 'l v. Teleflex Inc.,
550 U.S. 398, 418 (2007).
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persuasive because the arguments are not commensurate with the scope of
claim 10, which does not limit the modification by the first target to only
specific shared files.
Appellant argues that claim 21 was improperly rejected because claim
21 discloses specific steps by which a plurality of patches may be applied so
as to "bring the particular set of the one or more processes at the particular
target offline no more than once during application of the plurality of
patches." Appeal Brief 13. We do not find Appellant's arguments
persuasive because Appellant attacks the Deschpande and Kryloff references
separately as opposed to addressing the combination of Deschpande, Lange
and Kryloff. 3 See Answer 34, 35.
Appellant argues that claim 11 was erroneously rejected because
"There is no evidence that Langen's software update is a construct that can
ever 'fail' and/or ever be 'reverted."' Appeal Brief 14. We do not find
Appellant's argument persuasive because it is well known in the art that an
update/patch can fail and is therefore not a sufficient reason to reverse the
Examiner's obviousness rejection of claim 11.4
Appellant argues claims 4 and 7 were erroneously rejected because "a
patch is a construct whose application requires consideration of
3 "Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references." In re Merck, 800 F.2d 1091, 1097 (Fed. Cir.
1986) (citing In re Keller, 642 F.2d 413, 425 (Fed. Cir. 1981)).
4 Once the Examiner has satisfied the burden of presenting a prima facie
case of obviousness, the burden then shifts to Appellant to present evidence
and/or arguments that persuasively rebut the Examiner's prima facie case.
See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
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'dependencies'" and is different from the software update described in
Langen. Appeal Brief 14-15. We do not find Appellant's argument
persuasive because Appellant has not present any concrete evidence that a
patch employed in updating software applications is patentable
distinguishable over Langen's disclosure of software updating. 5 See
Specification, paragraph [0003].
We sustain the Examiner's obviousness rejection of independent claim
1, as well as independent claim 12 that is commensurate in scope. We also
sustain the obviousness rejections of dependent claims 3-11 and 14-22.
DECISION
The Examiner's obviousness rejections of claims 1, 3-12 and 14-22
are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv). See 37
C.F.R. § 41.50(±).
AFFIRMED
5 See Footnote 2.
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