Ex Parte Randall et al

Patent Trial and Appeal BoardMay 6, 2013

10955021 (P.T.A.B. May. 6, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RODERICK K. RANDALL, HARRI OKKONEN, and BINDU RAMA RAO ____________________ Appeal 2011-000763 Application 10/955,021 Technology Center 2100 ____________________ Before ALLEN R. MacDONALD, DAVID M. KOHUT and STACEY G. WHITE, Administrative Patent Judges. Per Curiam DECISION ON APPEAL Appeal 2011-000763 Application 10/955,021 2 SUMMARY Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-28. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. STATEMENT OF CASE The present invention relates to a method of updating software or firmware components in a mobile electronic device. (Spec. ¶ 0049). Claim 1 is illustrative and is reproduced below (disputed limitation in italics): 1. A method of updating a mobile electronic device, the method comprising: copying and storing a copy of one of firmware and software to be updated in the mobile electronic device after determining to update the one of firmware and software; updating the one of firmware and software; determining whether the update was successful; and rolling back to the stored copy of the one of firmware and software upon determining that the update was unsuccessful. REJECTIONS 1) Claims 1, 2, 8-14, 19-22, 27, and 28 stand rejected under 35 U.S.C. § 103(a) over Das (U.S. Pat. No. 7,216,343 B2) and Lill (U.S. Pub. No. 2007/0169075 A1). 2) Claims 3 and 15 stand rejected under § 103(a) over Das, Lill, and Marsh (U.S. Pub. No. 2002/0073304 A1). 3) Claims 4-7, 16-18, 25, and 26 stand rejected under § 103(a) over Das, Lill, and Chamberlain (U.S. Pat. No. 7,073,172 B2). 4) Claims 23 and 24 stand rejected under § 103(a) over Das, Lill, and Cronce (U.S. Pub. No. 2003/0156719 A1). Appeal 2011-000763 Application 10/955,021 3 We have only considered those arguments that Appellants actually raised in the Briefs. Arguments Appellants could have made but chose not to make in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). ISSUES Appellants’ response to the Examiner’s positions presents the following issues: 1) Did the Examiner err in finding Lill discloses “copying and storing a copy of one of firmware and software to be updated in the mobile electronic device after determining to update the one of firmware and software” as recited by claim 1? 2) Did the Examiner err in finding Lill discloses “wherein the one of firmware and software and the stored copy are compressed; decompressing the one of firmware and software; updating the one of firmware and software; re-compressing the updated one of firmware and software” as recited by claim 21? 3) Did the Examiner err in finding Marsh discloses “deleting the stored copy of one of firmware and software upon determining that the update was successful” as recited by dependent claim 3? ANALYSIS We disagree with Appellants’ arguments and conclusions as to all rejections. 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. We also concur with the conclusions reached by Appeal 2011-000763 Application 10/955,021 4 the Examiner and further highlight and address specific findings and arguments for emphasis as follows. Appellants assert that Lill does not disclose “copying and storing a copy of one of firmware and software to be updated in the mobile electronic device after determining to update the one of firmware and software” recited by claim 1. (Br. 7-8) We agree with Examiner’s finding and reasoning on this issue. (Ans. 5-6, 17-18). As a cumulative finding, we note that Appellants’ interpretation of Lill is unduly narrow. Lill’s cell control unit (“CCU”) may be configured to store current, previous, and next versions of software in order to provide a safety net that would allow the CCU to revert its software to a previous version in case of error. (Lill 0023, 0031). “Appellant[s] maintain[] that saving a current software version does not teach copying and storing a copy. The ‘save’ function is considered in the computer arts to be fundamentally different and separate from the copy /store function (e.g., to make a backup).” (Reply Br. 3 (emphasis in original)). We disagree. Lill’s “previous version” is used to rollback the software on a CCU. (Lill Fig. 10; 0073). Lill also discloses that “it is possible to store a copy of the current package set … to facilitate rapid recovery from accidental or malicious corruption of a current software version.” (0032). An artisan would learn from Lill to store a copy of a software in order to later use that copy to rollback to the previous version in case of an error. As such, Lill teaches or suggests the disputed limitation and therefore, we sustain the Examiner’s rejection of claim 1. As to independent claim 11, Appellants stand on their arguments regarding claim 1 and aver that this argument is further amplified because Appeal 2011-000763 Application 10/955,021 5 claim 11 specifies that a “new copy” is to be stored. (Br. 9). We are not persuaded by Appellants’ argument. We agree with the Examiner and adopt the Examiner’s finding and conclusions as to claim 11. (Ans. 6-7, 18). Therefore, we sustain the Examiner’s rejection of claim 11. Appellants also challenge the Examiner’s finding that Lill discloses “wherein the one of firmware and software and the stored copy are compressed; decompressing the one of firmware and software; updating the one of firmware and software; re-compressing the updated one of firmware and software” recited by claim 21. (Br. 9-10; Reply Br. 5-6). The Examiner provides persuasive reasons for determining that an artisan would have reasonably understood Lill to disclose this limitation. (Ans. 7-8, 19-20). Appellants fail to persuade us that a skilled artisan would not understand Lill’s discussion of packaging software compressed with the Gzip software program to disclose the disputed limitation. As such, we sustain the Examiner’s rejection of claim 21. Finally, Appellants assert that Marsh does not disclose “deleting the stored copy of one of firmware and software upon determining that the update was successful” as recited by claim 3 and a commensurate limitation recited in claim 15. (Br. 11). Here again, we adopt the Examiner’s findings and conclusions. (Ans. 11-12; 20). The Examiner has provided substantial reasoning as to why a skilled artisan would understand Marsh, as viewed in light of the teaching of Das and Lill, to disclose the disputed limitation. We agree with the Examiner and sustain the rejection of claims 3 and 15. For the foregoing reasons, Appellants’ arguments have not persuaded us of error in the Examiner’s rejection of claims 1, 3, 11, 15, and 21. Appeal 2011-000763 Application 10/955,021 6 Accordingly, we sustain the Examiner’s rejection of those claims and dependent claims 2, 4-10, 12-14, 16-20, and 22-28, which are not argued separately, which fall with independent claim 1. DECISION The Examiner’s decision rejecting claims 1-28 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). See 37 C.F.R. § 1.136(a)(1)(iv) (2010). AFFIRMED msc