Ilya Firman et al.Download PDFPatent Trials and Appeals BoardSep 4, 201913411048 - (D) (P.T.A.B. Sep. 4, 2019) 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. 13/411,048 03/02/2012 Ilya Firman 1233-619US01 3513 98449 7590 09/04/2019 Shumaker & Sieffert, P.A. 1625 Radio Drive, Suite 100 Woodbury, MN 55125 EXAMINER SOWA, TIMOTHY JOHN ART UNIT PAPER NUMBER 2448 NOTIFICATION DATE DELIVERY MODE 09/04/2019 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): pairdocketing@ssiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ILYA FIRMAN and FICUS KIRKPATRICK ____________ Appeal 2018-004731 Application 13/411,0481 Technology Center 2400 ____________ Before ELENI MANTIS MERCADER, JOYCE CRAIG, and SCOTT E. BAIN, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–8 and 10–27, which constitute all claims pending in the application. Claim 9 has been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify Google Inc. as the real party in interest. App. Br. 1. Appeal 2018-004731 Application 13/411,048 2 STATEMENT OF THE CASE The Claimed Invention Appellants’ claimed invention relates to software distribution, and specifically, to an application marketplace. Spec. ¶¶ 1–4. Appellants’ invention permits convenient distribution of “supplemental files” associated with an application, such as “graphics, audio, or multimedia assets that are associated with the application.” Id. at ¶ 4. Claims 1, 13, and 21 are independent. Claim 1 is illustrative of the invention and the subject matter of the appeal, and reads as follows (with disputed limitations emphasized): 1. A computer-implemented system for distributing application files to a computing device from an application marketplaces, the system comprising: a server system interface arranged to receive, from a client application of the computing device that is one of a plurality of client computing devices, a communication that corresponds to a request to obtain or update a software application for the computing device; and an application marketplace server system programmed to: identify, in response to the communication, application files that include (a) a particular version of an executable application binary file that corresponds to the software application and (b) a particular version of one or more supplemental files that is a data resource of the software application and that each of a plurality of versions of the executable application binary file, including the particular version of the executable application binary file, is arranged to access and use while executing, and to send information that relates to the application files to the client application in response to receiving the communication, wherein a plurality of versions of the supplemental files for the software application are targeted to respective device Appeal 2018-004731 Application 13/411,048 3 groups based, at least in part, on one or more of: device screen size and device graphics processing capacity, wherein the application marketplace server system is programmed to perform the following operations to identify the particular version of the supplemental files for the computing device: determine a particular device group to which the computing device belongs based on one or more of: the computing device’s screen size and the computing device’s graphics processor, and identify, from among the plurality of versions of the supplemental files and independent of the particular version being selected from among the plurality of versions of the executable application binary file, the particular version of the supplemental files for the computing device based on the particular device group for the computing device, and identify stored files on the computing device that correspond to the application files, determine particular ones of the application files to download based on the identified stored files and the information that relates to the application files sent from the application marketplace server system, and initiate download of the particular ones of the application files, wherein determining the particular ones of the application files to download comprises identifying the executable application binary while excluding a set of the particular version of the one or more supplemental files upon determining that the set of the particular version of the one or more supplemental files are stored on the computing device and do not need updating on the computing device. App. Br. 9–10 (Claims App.) (emphases added). The Rejections on Appeal Claims 1–3, 13, 15, 21, 23, and 25–27 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, et al. (US 2010/0262619 A1; pub. Oct. 14, 2010) (“Zargahi”), McGuire et al. (US Appeal 2018-004731 Application 13/411,048 4 2005/0132382 A1; pub. June 16, 2005) (“McGuire”), and Byrnes et al. (US 8,346,223 B1; iss. Jan. 1, 2013) (“Byrnes”). Final Act. 2–23. Claims 4, 6, 16, and 17 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Cheng, et al. (US 6,151,643; iss. Nov. 21, 2000) (“Cheng”). Final Act. 24–25. Claims 5 and 22 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Flaming, Top 10 Questions on ThinApp. (pub. Dec. 21, 2009). Final Act. 26–27. Claims 7, 8, 11, 18, and 19 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Teodosiu et al. (US 7,536,458 B2; iss. May 19, 2009). Final Act. 27– 31. Claims 10 and 20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Koreeda, et al. (US 2010/0138536 A1; pub. Jun. 3, 2010). Final Act. 31–32. Claims 12 and 14 stand rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Giannini, et al. (US 8,286,155 B1; iss. Oct. 9, 2012). Final Act. 32–34. Claim 24 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Zargahi, McGuire, Byrnes, and Howard, et al. (US 2011/0246618 A1; pub. Oct. 6, 2011). Final Act. 34–35. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ arguments presented in this appeal. Arguments which Appellants could have made but did not make in the Brief are deemed to be waived. See Appeal 2018-004731 Application 13/411,048 5 37 C.F.R. § 41.37(c)(1)(iv). On the record before us, we are not persuaded the Examiner erred. We adopt as our own the findings and reasons set forth in the rejections from which the appeal is taken and in the Examiner’s Answer, and provide the following discussion for highlighting and emphasis. Rejection of Claim 1 Appellants argue the Examiner erred in finding the prior art teaches or suggests identifying particular versions of supplemental files “independent of the particular version . . . of the executable binary file” being selected, as recited in claim 1. App. Br. 5–6 (emphasis added); Reply Br. 1. Specifically, Appellants contend the Examiner erred in finding the disputed limitation is satisfied by McGuire’s teaching of “download[ing]” supplemental files in a manner “distinct from” executable application binary files. App. Br. 5–6. Appellants argue that in McGuire, “the selection of a supplemental file is dependent on the version of the executable application binary file.” Id. at 6. We, however, are not persuaded by Appellants’ arguments. As the Examiner finds, Zargahi teaches a “mobile device application provision system” including “mobile device applications and various items of data related to the provision of applications,” such as metadata related to the applications. Ans. 5; Zargahi Fig. 3, ¶¶ 16–17, 36, 40, 43–44. Zargahi teaches delivery of application-related data “includ[ing] binary (or other type) application files)” as well as the corresponding metadata. Id. The Examiner relies on the combination of Zargahi with McGuire, not McGuire alone, as teaching the file version identification recited in the disputed limitation. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references Appeal 2018-004731 Application 13/411,048 6 individually where the rejection is based upon the teachings of a combination of references.”). The Examiner finds, and we agree, that McGuire “discloses the selection of individual files for updating such that each and every file selected for updating is treated as a distinct [i.e., independent] individual file, with each file to be updated having its own versioning.” Ans. 5–6; McGuire ¶¶ 8, 101, 103. Appellants argue that McGuire’s “selection of a ‘delta patch’ [is] dependent on the ‘versions of an installed file,” rather than “independent” as recited in claim 1, but as the Examiner finds, McGuire’s file selection is “not [to map] supplemental files . . . to any version of the executable application binary file,” but rather to “versions of the corresponding supplemental files already installed on a given client device” (i.e., an update). Ans. 6; McGuire ¶¶ 101, 103. Moreover, we do not agree that the limitation “independent of the particular version” has the narrow meaning Appellants’ argument suggests. Giving the term its “broadest reasonable interpretation consistent with the specification,” as we must, we agree with the Examiner’s finding that the versions of supplemental files in McGuire are “independent of” the versions of executable application binary files. Id.; In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). McGuire teaches “the selection of individual files for updating[,] such that each and every file selected for updating is treated as a distinct, individual file, with each file to be updated having its own versioning.” Ans. 5; see also McGuire ¶¶ 8, 36–37, 69, 93, 101–103. Accordingly, we are not persuaded the Examiner erred, and we sustain the obviousness rejection of claim 1. Appeal 2018-004731 Application 13/411,048 7 Rejections of Remaining Claims Appellants do not argue the remaining claims separately from claim 1. App. Br. 7. For the same reasons as discussed above, therefore, we also sustain the obviousness rejections of remaining claims 2–8 and 10–27. DECISION We affirm the Examiner’s decision rejecting claims 1–8 and 10–27. 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. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation