Ex Parte Semerdzhiev et al

Patent Trial and Appeal Board

May 8, 2013

10856247 (P.T.A.B. May. 8, 2013)

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.
10/856,247 05/28/2004 Krasimir P. Semerdzhiev 6570P081 1730
45062 7590 05/09/2013
SAP/BSTZ
BLAKELY SOKOLOFF TAYLOR & ZAFMAN
1279 Oakmead Parkway
Sunnyvale, CA 94085-4040
EXAMINER
GOFMAN, ALEX N
ART UNIT PAPER NUMBER
2162
MAIL DATE DELIVERY MODE
05/09/2013 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 KRASIMIR P. SEMERDZHIEV and NICOLAI S. DIMITROV
____________________

Appeal 2010-010169
Application 10/856,247
Technology Center 2100
____________________

Before DEBRA K. STEPHENS, LYNNE E. PETTIGREW and
GEORGIANNA W. BRADEN, Administrative Patent Judges.

STEPHENS, Administrative Patent Judge.

DECISION ON APPEAL
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Appellants appeal under 35 U.S.C. § 134(a) (2002) from a final
rejection of claims 1-25. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

Introduction
The invention relates to a system, method and machine readable
medium for updating a computing system where an update module is
invoked to determine if updating is needed by replacing, modifying or
removing files during a start-up sequence, after other system components,
such as services and applications, have been instantiated by a virtual
machine, or at any time during the operations of the computer system
(Abstract).

STATEMENT OF THE CASE

Exemplary Claims
Claims 1, 5, 6, and 25 are exemplary claims and are reproduced below
(with disputed limitations emphasized and formatting added):

1. A system comprising:

a first index to track a first set of files;

a second index to track a second set of files;

a database containing a third set of files; and

a first update module in communication with
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the first and second index and database

to initiate a comparison of the first and second index and
initiate a retrieval of the third set of files stored in a first
location,

the first update module causing a fourth set of files
stored in a second location

to be replaced by the third set of files

while the fourth set of files is held in an open state by a first
virtual machine,

the third set of files to be transferred from the first location to
the second location to replace the fourth set of files,

the first update module invoking a release operation to close
each open file of the fourth set of files held by the first virtual
machine.

5. The system of claim 1, further comprising:

a second update module on a remote machine to initiate a
comparison of the first index with a third index and initiate a
retrieval of a fifth set of files,

the second update module causing a sixth set of files to be
replaced by the fourth set of files while data from the fourth set
of file is in use by a java virtual machine.

6. A method comprising:

accessing a database to determine a first set of component files
of an application to update on a target system;

retrieving a second set of component files of the application
from the database;
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closing a third set of component files held by the application on
the target system; and

replacing the third set of component files held by the
application on the target system by transferring the second set
of component files of the application from the database to the
target system while data from the third set of component files
is in use by the application.

25. A method comprising:

executing an update module by a virtual machine located in a
first system,

the update module to perform the following
operations:

reading a first index,

the first index to track a first set of files located in a first
system;

reading a second index in a database,

the second index to track a second set of files,

the database being located in a second system;

comparing the first index with the second index to determine a
third set of files located in the first system to update with a
fourth set of files located in the database,

the third set of files being a subset of the first set of files,

the fourth set of files being a subset of the second set of files;

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transferring the fourth set of files to a temporary location in the
first system;

invoking a release operation to close each file of the third set
of files held by an executing component separate from the
update module;

transferring the fourth set of files from the temporary location
to replace the third set of files located in the first system
without terminating the executing component, the executing
component using data from a file of the third set of files; and

updating the first index to reflect a current status of the third set
of files located in the first system.

References

Harris US 5,873,097 A Feb. 16, 1999
Getchius US 6,393,415 B1 May 21, 2002
Schmidt US 6,535,894 B1 Mar. 18, 2003

Rejections
(1) Claims 1-21 and 23-25 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Schmidt and Harris.
(2) Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schmidt, Harris, and Getchius.

Claim Groupings
Based upon Appellants’ arguments, we select representative claim 1
to decide this appeal for the group consisting of claims 1-4 and 6-25. (See
App. Br. 10-22 and 25-32).
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Based upon Appellants’ arguments, we address claim 5 separately.
(See App. Br. 22-25).
We have only considered those arguments that Appellants actually
raised in the Brief. Arguments Appellants could have made but chose not to
make in the Brief have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii)(2011).

ISSUE 1
35 U.S.C. § 103(a): Claims 1-21 and 23-25
With respect to independent claims 1, 6, and 25, Appellants assert the
Examiner has improperly combined Schmidt and Harris (App. Br. 10-12, 17-
19, and 25-27). Appellants contend the file update procedure in Harris cited
by the Examiner is problematical for updating extremely large files (App.
10-11, 17-18, and 25-26 (citing Harris, col. 5, ll. 10-34)). Appellants
additionally point out Schmidt concerns updating archive files (id. at 12
(citing Schmidt, Abstract)). Appellants note archive files tend to be large in
size because archive files are typically composed of multiple files (Reply Br.
3). Appellants then argue a person of ordinary skill in the art would not be
motivated to combine the file update procedure of Harris, disclosed to have
flaws with large files, with the method for updating archive files of Schmidt,
which would likely be performed on large files, because the resultant
combination would be problematic (id.). According to Appellants, Harris
teaches away from using such a procedure (App. Br. 12, 19, and 27).

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Issue 1: Has the Examiner improperly combined the teachings and
suggestions of Schmidt and Harris?

ANALYSIS
Appellants have not persuaded us the Examiner improperly combined
the teachings and suggestions of Schmidt and Harris. Although Harris states
the technique becomes problematical when the information file is extremely
large (Ans. 14 (quoting Harris, col. 5, ll. 29-30)), as the Examiner further
points out, Appellants’ Specification does not state the size of files being
updated (Ans. 14), nor do Appellants explicitly define the term “large.”
As set forth by the Examiner, Schmidt and Harris address updating of
data (Ans. 15). The Examiner characterizes the claimed invention as
describing updating of files currently in use (id.). We agree with the
Examiner that Schmidt teaches updating data in the files and Harris teaches
replacing files that are currently in use (id.). Additionally, we find the
Examiner articulates a motivation with a rational underpinning for
combining Harris with Schmidt (Ans. 15). Specifically, the Examiner finds
Harris states “the storage mechanism should be able to maintain partial
updates in nonvolatile storage, so as to reduce memory requirements,” (id.
(quoting Harris, col. 5, ll. 11-13)). The Examiner further specifies partial
updates always keep a version of a document, which may be recoverable,
and is how memory requirements are reduced (id.). We find this motivation
to combine Harris with Schmidt persuasive.
Additionally, Appellants have not shown a person of ordinary skill,
upon reading Harris, would be discouraged from following the path set out
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in Schmidt, or would be led in a direction divergent from the path that was
taken by the Appellants. A reference does not teach away if it merely
expresses a general preference for an alternative invention from amongst
options available to the ordinarily skilled artisan, and the reference does not
discredit or discourage investigation into the invention claimed. In re
Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Accordingly, Appellants have not provided sufficient evidence or
argument to persuade us the combination of the teachings of Schmidt and
Harris is improper.

ISSUE 2
35 U.S.C. § 103(a): Claims 1-4 and 25
Issue 2a:
Appellants next contend Schmidt fails to teach or suggest an update
module invoking a release operation to close each file of the fourth set of
files held by the first virtual machine, as recited in claim 1 (App. Br. 13).
Appellants argue sections of Schmidt cited by the Examiner disclose
comparing an original archive file with a target archive file to create a
difference archive file containing new entries in the target archive and a set
of instructions for creating a synthesized archive file based on the original
archive file and the difference file (id. (citing Schmidt, col. 10, ll. 47-59)).
Appellants note Schmidt also discloses replacing old files in the archive file
with new versions of the files in the target archive (id. at 13-14 (citing
Schmidt, col. 11, l. 63 – col. 12, l. 59)). However, Appellants argue Schmidt
does not disclose any files being held in an open state, and thus fails to
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disclose an update module invokes a release operation to cause a virtual
machine to close files being updated (App. Br. 14).

Issue 2b:
Appellants moreover assert Schmidt and Harris fail to disclose an
update module causing a fourth set of files stored in a second location to be
replaced by the third set of files while the fourth set of files is held in an
open state by a first virtual machine, as recited in claim 1 (App. Br. 15).
Specifically, according to Appellants, although Harris discloses replacing a
document file with an edited/temporary version of the document files and
that both files may be held in an open state or closed as needed, Harris does
not disclose the document file being held in an open state by a virtual
machine while the replacement occurs (App. Br. 15-16 and 28 (citing Harris,
col. 5, ll. 10-27); Reply Br. 5). Appellants point out the sections of Harris
cited by the Examiner disclose replacing a document file with an
edited/temporary version of the document file (Ans. 15-16 (citing Harris,
col. 5, ll. 19-27)). Appellants admit the document file and edited/temporary
version of the document file may be held in an open state by a word
processor (Ans. 16 (citing Harris, col. 5, ll. 19-27)). Appellants contend the
document file is not held in an open state by the word processor when the
replacement occurs (id.). Appellants argue Harris does not disclose the
document file being used by the processor in any way such that the
document file would be held in an open state (id.). Appellants further assert
Harris does not teach the document file being held in an open state by a
virtual machine (Reply Br. 6). Appellants further note the temporary file is
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not the file being replaced (Ans. 16). Therefore, Appellants argue Harris
does not teach “the first update module causing a fourth set of files stored in
a second location to be replaced by the third set of files while the fourth set
of files is held in an open state by a first virtual machine” as recited in claim
1.

Issue 2c:
With respect to claim 25, Appellants further argue the combination of
Schmidt and Harris does not teach or suggest the update module invoking a
release operation to close each file of the third set of files held by an
executing component separate from the update module (App. Br. 28).
Appellants argue the disclosure of Harris as set forth in their arguments with
respect to claim 1 (see App. Br. 15-16 and 28-29). Appellants then assert
Harris does not disclose an update module which invokes a release operation
and causes an executing component, which is separate from the update
module, to release a file held by the executing component (App. Br. 29
(citing Harris, col. 5, ll. 10-27)). Appellants further argue all operations
performed by the file update procedure in Harris are performed by the
executing component (i.e., the word processor) (id.). According to
Appellants, the word processing application of Harris would not need to
invoke a release operation to cause an executing component, separate from
the word processor, to close the base file since the word processing
application has complete control of the file (Reply Br. 14). Thus, Appellants
argue, the word processing application could close the base file without the
action of an executing component (id.). Therefore, Appellants argue Harris
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does not teach “invoking a release operation to close each file of the third set
of files held by an executing component separate from the update module”
as recited in claim 25.

Issue 2d:
Further with respect to claim 25, Appellants argue the combination of
Schmidt and Harris does not teach or suggest “transferring the fourth set of
files from the temporary location to replace the third set of files located in
the first system without terminating the executing component, the executing
component using data from a file of the third set of files,” as recited in claim
25 (App. Br. 30). Specifically, Appellants repeat their arguments set forth
with respect to claim 1 (as detailed in Issue 2b above) (see App. Br. 15-16
and App. Br. 30-31).

Therefore, we are presented with the following issues:
Issue 2a: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested a “first update module
invoking a release operation to close each open file of the fourth set of files
held by first virtual machine” as recited in claim 1?
Issue 2b: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested “the first update module
causing a fourth set of files stored in a second location to be replaced by the
third set of files while the fourth set of files is held in an open state by a first
virtual machine” as recited in claim 1?
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Issue 2c: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested “invoking a release
operation to close each file of the third set of files held by an executing
component separate from the update module” as recited in claim 25?
Issue 2d: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested “transferring the fourth
set of files from the temporary location to replace the third set of files
located in the first system without terminating the executing component, the
executing component using data from a file of the third set of files” as
recited in claim 25?

ANALYSIS
Issue 2a:
We agree with the Examiner’s findings that Schmidt teaches a process
of updating files (Ans. 16 (citing Schmidt, Fig. 7)). In addition, as the
Examiner finds, Harris teaches using an application which creates temporary
files to keep partially updated versions of the original files (Ans. 16 (citing
Harris, col. 5, ll. 16-19)). We further agree Harris teaches the original files,
referred to as base files, are in use by the application at the same time as the
temporary files are being updated (Ans. 16; Harris, col. 5, ll. 20-22). Harris
teaches once a user is ready to commit the updates, the system renames the
old base file to a second temporary name, then renames the first temporary
file to the name of the prior name of the base file (Ans. 16). We agree with
the Examiner that Harris thus teaches the temporary file becomes the new
base file while the base file is in use by the application (Ans. 16), and we
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find the base file is in use by the application during the copying. We further
find the application renames the old base file to a secondary name and then
deletes the old file (Harris, col. 5, ll. 23-25). Harris additionally teaches the
files which are renamed are no longer in use (id.). Thus, files no longer in
use are closed and no longer held by a virtual machine (i.e., a component)
(id.). We agree with the Examiner, at deletion, the old base file is replaced,
no longer in use, and no longer held.
Accordingly, we find the combination of Smith and Harris teaches
“first update module invoking a release operation to close each open file of
the fourth set of files held by first virtual machine” as recited in claim 1.

Issue 2b:
We further find Harris teaches using an application which creates
temporary files to keep partially updated versions of the original files (Ans.
16 (citing Harris, col. 5, ll. 16-19)). We agree with the Examiner that Harris
teaches the original files, referred to as base files, are in use by the
application at the same time as the temporary files are being updated (id.).
We agree with the Examiner the base file is in use by the application during
the copying. Harris teaches once a user is ready to commit the updates, the
system renames the old base file to a second temporary name, then renames
the first temporary file to the name of the prior name of the base file (id.).
Thus, Harris teaches the temporary file becomes the new base file while the
base file is in use by the application (id.). We find Harris teaches the
application program copies any unedited portions of the base information
into the temporary file (Harris, col. 5, ll. 20-22). In addition, the files, which
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are renamed, are no longer in use and are closed and no longer held by a
virtual machine (i.e., a component) (Ans. 16). We further find the
application renames the old base file to a secondary name and then deletes
the old file (Harris, col. 5, ll. 23-25). We agree with the Examiner, at
deletion, the old base file is replaced, is no longer in use, and is no longer
held. Therefore, Smith and Harris teach “the first update module causing a
fourth set of files stored in a second location to be replaced by the third set
of files while the fourth set of files is held in an open state by a first virtual
machine” as recited in claim 1.

Issue 2c:
We find Harris teaches “invoking a release operation to close each file
of the third set of files held by an executing component separate from the
update module,” as recited in claim 25 (Ans. 23). The Examiner contends
Harris teaches the application updates files while they are in use and then
renames files once changes are committed (id. (citing Harris, col. 5, ll. 11-
25)). We find Harris teaches the application program copies any unedited
portions of the base information into the temporary file along with the
partially edited version of the base information (Harris, col. 5, ll. 15-22).
We further find Harris teaches the application program does this to commit
updates (id., col. 5, ll. 19-25). Thus, we determine the application program
of Harris is the update module recited in claim 25. We further find the
application program opens a temporary file in “virtual memory” of a virtual
memory machine to store the partially edited version (id., col. 5, ll. 15-19).
Therefore, we determine the virtual memory machine of Harris is the
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executing component recited in claim 25. Harris teaches the virtual memory
machine as separate from the application program (id.).
Appellants argue the word processing application of Harris would not
need to invoke a release operation to cause an executing component,
separate from the word processor, to close the base file as recited in claim 25
(Reply Br. 14). We disagree. Claim 25 recites “invoking a release operation
to close each file of the third set of files held by an executing component
separate from the update module.” We determine the executing component
is not recited as closing each file, but holding each file. Therefore, we are
not persuaded the Examiner erred in finding Harris teaches “invoking a
release operation to close each file of the third set of files held by an
executing component separate from the update module,” as recited in claim
25.

Issue 2d:
We further find the application program (word processing application)
of Harris opens a temporary file in “virtual memory” of a virtual memory
machine to store the partially edited version (Ans. 23, col. 5, ll. 15-19).
Therefore, we determine the virtual memory machine is the executing
component recited in claim 25. Harris teaches the virtual memory machine
as separate from the application program (id.). Appellants argue the word
processing application of Harris would not need to invoke a release
operation to cause an executing component, separate from the word
processor, to close the base file as recited in claim 25 (Reply Br. 14). We
disagree. Claim 25 recites “invoking a release operation to close each file of
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the third set of files held by an executing component separate from the
update module.” We determine the executing component is not recited as
closing each file, but holding each file.
Claim 25 also recites “without terminating the executing component,
the executing component using data from a file of the third set of files.” As
mentioned above, we find Harris teaches copying information from the old
base file (Harris, col. 5, ll. 19-27). Appellants additionally assert there is no
discussion in Harris of data from the document file being used by an
executing component (Reply Br. 15). We disagree. Instead, we determine
the information from the old base file is data from a file an executing
component is using. Therefore, we are not persuaded the Examiner erred in
finding Harris teaches or suggests this limitation.
Therefore, we find Harris teaches “invoking a release operation to
close each file of the third set of files held by an executing component
separate from the update module, the executing component using data from
a file of the third set of files” as recited in claim 25.

Accordingly, we are not persuaded the Examiner erred in rejecting
independent claims 1 and 25 under 35 U.S.C. § 103(a). Dependent claims 2-
4, not separately argued (App. Br. 14), fall with claim 1 from which they
depend.

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ISSUE 3
35 U.S.C. § 103(a): Claim 6
Appellants additionally argue the combination of Schmidt and Harris
does not teach “replacing the third set of component files held by the
application on the target system by transforming the second set of
component files of the application from the database to the target system
while data from the third set of component files is in use by the application,”
as recited in claim 6 (App. Br. 19-20). Appellants again contend Harris
discloses replacing a document file with an edited/temporary version of the
document file, but argue the document file is not in use by the word
processor when the replacement occurs (App. Br. 20-21 (citing Harris, col.
5, ll. 19-27)). Again, Appellants assert the document file and the
edited/temporary version of the document file may be in use by a word
processor, which can open and close the document file as needed to
effectuate the swap; however, Appellants argue the document file is not in
use by the word processor when the replacement occurs (id.). Appellants
then point out there are no discussions in Harris of data from the document
file being used by an application (Reply Br. 9-10). Appellants additionally
argue Harris discloses the temporary file which replaces the document file is
in use but is not the file being replaced (App. Br. 21).
Issue 3: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested replacing a set of files
with another set of files while data from the set of files in an open state is in
use?

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ANALYSIS
We agree with the Examiner that Harris teaches using an application
which creates temporary files to keep partially updated versions of the
original files, referred to as base files (Ans. 19 (citing Harris, col. 5, ll. 16-
19)). Specifically, we find the base files are in use by the application at the
same time as the temporary files are being updated (id.). Harris also teaches
storing a partially edited version which can be stored in virtual memory (id.
(citing Harris, col. 5, ll. 15-20)). In addition, Harris teaches the partially
edited versions of the files which are being updated are kept in virtual
memory so that there is never a time when a complete, internally consistent
version of the information, does not exist in nonvolatile storage,” (id.
(quoting Harris, col. 5, ll. 15-20)). Thus, Harris’ system uses the partially
edited file while the base files are still in use (Ans. 19). As mentioned
above, we find Harris teaches the application program is using the old base
file by copying information from the old base file (Harris, col. 5, ll. 19-27).
Therefore, we find Schmidt and Harris teach “replacing the third set of
component files held by the application on the target system by transferring
the second set of component files of the application from the database to the
target system while data from the third set of files is still in use by the
application,” as recited in claim 6. Appellants do not argue dependent
claims 7-10 separately (App. Br. 22), and thus, these claims fall with
independent claim 6.

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ISSUE 4
35 U.S.C. § 103(a): Claim 5
Appellants argue the combination of Schmidt and Harris does not
teach or suggest “a second update module on a remote machine to initiate a
comparison of the first index with a third index and initiate retrieval of a
fifth set of files” (App. Br. 22-23). Appellants argue sections of Schmidt
cited by the Examiner disclose comparing an original archive file with a
target archive file to create a difference archive file (App. Br. 23 (citing
Schmidt, col. 10, ll. 47-59)). Appellants contend Schmidt fails to disclose an
update module initiating the update on a remote machine specifically
because Schmidt does not discuss who or what initiates the update procedure
(App. Br. 24-25). According to Appellants, Schmidt does not disclose that
the transfer of the original archive file from a client to a server initiates the
update procedure (App. Br. 25; Reply Br. 11 (citing Schmidt, col. 10, ll. 9-
15)).
Issue 4: Has the Examiner erred in finding the combination of
Schmidt and Harris would have taught or suggested “a second update
module on a remote machine to initiate a comparison of the first index with
a third index and initiate a retrieval of a fifth set of files,” as recited in claim
5?
ANALYSIS
Schmidt states, “the original archive file is created [and] transmitted
to client computer system,” (Ans. 20 (quoting Schmidt, col. 10, ll. 1-2)).
Schmidt further teaches the transmission may be done “by ‘transmitting the
original archive file to client computer system 102 from a server 100 via a
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data communication network 101’” (id. (quoting Schmidt, col. 10, ll. 12-
14)). Thus, we find the server in Schmidt, the “remote machine,” is
connected to a client via a network (Ans. 20). Appellants contend Schmidt
fails to disclose an update module initiating the update on a remote machine
and does not discuss who or what initiates the update procedure (App. Br. 24
(citing Schmidt, col. 10, ll. 47-59)). We disagree.
We agree with the Examiner that Schmidt teaches the creation of the
target file (Ans. 20). Schmidt states, “the target file is typically the result of
updating the program code represented by the original archive file to a new
version,” (id. (quoting Schmidt, col. 10, ll. 26-28)). We find Schmidt
teaches the difference archive file is created by comparing the original
archive file to the target archive file (Schmidt, col. 10, ll. 47-49). Schmidt
further teaches the difference archive file is transmitted to the client
computer system from the server (Schmidt, col. 10, ll. 60-61). Therefore,
we determine the server initiates the update procedure. Thus, we find
Schmidt and Harris teach “a second update module on a remote machine to
initiate a comparison of the first index with a third index and initiate a
retrieval of a fifth set of files,” as recited in claim 5.

ISSUE 5
35 U.S.C. § 103(a): Claims 11-21, 23, and 24
Appellants do not present sufficient evidence or argument to persuade
us of error in the Examiner’s rejection of claims 11-21, 23, and 24 (App. Br.
21-22). Therefore, we sustain the rejection of claims 11-21, 23, and 24
under 35 U.S.C. § 103(a).
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ISSUE 6
35 U.S.C. § 103(a): Claim 22
Appellants argue claim 22 based on its dependence from claim 21 and
its patentability (App. Br. 32). We are not persuaded the Examiner erred in
rejecting claim 21. Therefore, we sustain the rejection of claim 22 under 35
U.S.C. § 103(a).

DECISION
The Examiner’s rejection of claims 1-21 and 23-25 under 35 U.S.C.
§ 103(a) as being unpatentable over Schmidt and Harris is affirmed.
The Examiner’s rejection of claim 22 under 35 U.S.C. § 103(a) as
being unpatentable over Schmidt, Harris, and Getchius 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) (2011).

AFFIRMED

ELD