Ex Parte Semerdzhiev et alDownload PDFPatent Trial and Appeal BoardMay 8, 201310856247 (P.T.A.B. May. 8, 2013) Copy Citation 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 Appeal 2010-010169 Application 10/856,247 2 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 Appeal 2010-010169 Application 10/856,247 3 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; Appeal 2010-010169 Application 10/856,247 4 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; Appeal 2010-010169 Application 10/856,247 5 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). Appeal 2010-010169 Application 10/856,247 6 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). Appeal 2010-010169 Application 10/856,247 7 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 Appeal 2010-010169 Application 10/856,247 8 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 Appeal 2010-010169 Application 10/856,247 9 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 Appeal 2010-010169 Application 10/856,247 10 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 Appeal 2010-010169 Application 10/856,247 11 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? Appeal 2010-010169 Application 10/856,247 12 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 Appeal 2010-010169 Application 10/856,247 13 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 Appeal 2010-010169 Application 10/856,247 14 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 Appeal 2010-010169 Application 10/856,247 15 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 Appeal 2010-010169 Application 10/856,247 16 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. Appeal 2010-010169 Application 10/856,247 17 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? Appeal 2010-010169 Application 10/856,247 18 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. Appeal 2010-010169 Application 10/856,247 19 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 Appeal 2010-010169 Application 10/856,247 20 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). Appeal 2010-010169 Application 10/856,247 21 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 Copy with citationCopy as parenthetical citation