Ex Parte Broghammer et al

Patent Trials and Appeals Board

Mar 29, 2019

13855581 - (D) (P.T.A.B. Mar. 29, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/855,581 04/02/2013 Markus Broghammer
109676 7590 04/02/2019
Brooks Kushman P.C./Harman
1000 Town Center
Twenty Second Floor
Southfield, MI 48075
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.
HARM0324PUSA 5024
EXAMINER
RUTTEN, JAMES D
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
04/02/2019 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):
docketing@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARKUS BROGHAMMER and DIRK FRIES
Appeal 2018-006261 1
Application 13/855,581
Technology Center 2100
Before BRADLEY W. BAUMEISTER, JAMES B. ARPIN, and
ADAM J. PYONIN, Administrative Patent Judges.
ARPIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants2 appeal under 35 U.S.C. § 134(a) the Examiner's final
rejection of claims 1--4, 7-14, and 17-26, all of the pending claims. Final
Act. 2. Claims 5, 6, 15, and 16 are canceled. Id. We have jurisdiction
under 35 U.S.C. § 6(b ).
We affirm-in-part.
1 In this Decision, we refer to Appellants' Appeal Brief ("App. Br.," filed
December 22, 2017) and Reply Brief ("Reply Br.," filed May 29, 2018); the
Final Office Action ("Final Act.," mailed June 28, 2017); the Examiner's
Answer ("Ans.," mailed March 28, 2018); and the originally-filed
Specification ("Spec.," filed April 2, 2013). Rather than repeat the
Examiner's findings and determinations and Appellants' contentions in their
entirety, we refer to these documents.
2 Appellants assert Harman Becker Automotive Systems GmbH is the real
party-in-interest. App. Br. 1.
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Application 13/855,581
STATEMENT OF THE CASE
Appellants' recited systems and methods relate "to embedded systems
for updating firmware. In particular, the present system relates to embedded
systems with multiple domains. Further, the present system relates to
updating multiple domain embedded systems." Spec. ,r 2.
As noted above, claims 1--4, 7-14, and 17-26 are pending. Claims 1,
11, and 20 are independent. App. Br. 1-5 (Claims App.). Claims 2--4, 7-10,
21, and 22 depend directly or indirectly from claim 1; claims 12-14, 17-19,
23, and 24 depend directly or indirectly from claim 11; and claims 25 and 26
depend directly or indirectly from claim 20. Id.
Claim 1, reproduced below, is illustrative of the appealed claims:
1. A system for updating a multiple domain embedded system, each
domain configured for isolating executed applications from one
another so that they do not affect each other, the system
compnsmg:
a processor configured to operate in an automotive system;
and
memory communicatively coupled to the processor, the
memory including:
instructions executable by the processor to identify an
electronic device associated with the multiple domain embedded
system;
instructions executable by the processor to identify a
driver that supports the electronic device;
instructions executable by the processor to determine at
least one domain associated with the driver;
instructions executable by the processor to determine a
first configuration label of a first configuration of the multiple
domain embedded system, the first configuration label including
a first list of first files that are associated with the at least one
domain;
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instructions executable by the processor to transmit the
first configuration label, an identification of the driver, and an
identification of the electronic device to a configuration
database, wherein the identification of the electronic device
includes a device number, a type designation, and a vendor ID;
instructions executable by the processor to receive, from
the configuration database, a second configuration label of a
second configuration of the multiple domain embedded system,
and a session identification as a unique identifier for updating
firmware, where the second configuration label includes a
second list of second files that are associated with the at least one
domain; and
instructions executable by the processor to update the
driver based on the second files and the second file list,
where in response to detection by the processor of failure
of the update of the driver, the processor further configured to
roll back the driver based on the first files and the first file list
and overwriting the secondfiles with the respective first files.
Id. at 1-2 (disputed limitations emphasized).
REFERENCES AND REJECTIONS
The Examiner relies upon the following references:
Name Number Issued/Pu bl' d
Dowling3 us 6,026,478 Feb. 15,2000
Ogawa US 2002/0138567 Al Sept. 26, 2002
Cicciarelli US 2003/0037327 Al Feb.20,2003
Meza US 2004/0073912 Al Apr. 15, 2004
Seick US 2005/0054400 Al Mar. 10,2005
Glaum US 2005/0132179 Al June 16, 2005
Azami US 2010/0094979 Al Apr. 15, 2010
3 All reference citations are to the first named inventor only.
3
Filed
Dec. 23, 1997
Mar. 20, 2002
Aug. 15, 2001
Oct. 7, 2003
Aug. 20, 2003
May 1, 2004
Sept. 16, 2009
Appeal2018-006261
Application 13/855,581
Name Number Issued/Pub I'd Filed
Hart US 8,270,963 B 1 Sept. 18, 2012 Oct. 1, 2010
Noe US 2013/0297352 Al Nov. 7, 2013 Feb. 18,2013
The Examiner rejects the pending claims on the following grounds:
(1) Claims 1--4, 7, 11-14, 17, 20, 21, 23, and 25 stand rejected
under 35 U.S.C. § I03(a) as rendered obvious over the combined teachings
of Meza, Hart, Cicciarelli, Ogawa, Azami, and Glaum. Final Act. 3-14.
(2) Claims 8, 9, and 18 stand rejected under 35 U.S.C. § I03(a) as
rendered obvious over the combined teachings of Meza, Hart, Cicciarelli,
Ogawa, Azami, Glaum, and Seick. Id. at 14--15.
(3) Claims 10 and 19 stand rejected under 35 U.S.C. § I03(a) as
rendered obvious over the combined teachings of Meza, Hart, Cicciarelli,
Ogawa, Azami, Glaum, and Dowling. Id. at 15-16.
(4) Claims 22, 24, and 26 stand rejected under 35 U.S.C. § I03(a)
as rendered obvious over the combined teachings of Meza, Hart, Cicciarelli,
Ogawa, Azami, Glaum, and Noe. Id. at 16.
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. 4 Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential). Arguments not made are waived. See 37 C.F.R.
§ 41.3 7 ( c )( 1 )(iv). Unless otherwise indicated, we adopt the Examiner's
findings in the Answer as our own and add any analysis and additional
findings of fact appearing below for emphasis. We address the rejections
below.
4 Appellants do not argue independent claims 11 and 20 or the dependent
claims, with the exception of claims 21 and 23, separately from their
independent base claims. App. Br. 7-8, 9-10; Reply Br. 4--5.
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ANALYSIS
A claim is unpatentable under 35 U.S.C. § 103(a) if the differences
between the claimed subject matter and the prior art are such that the subject
matter, as a whole, would have been obvious at the time the invention was
made to a person having ordinary skill in the art to which said subject matter
pertains. KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007).
1. Issues
a. Does Glaum teach or suggest a "memory including ... instructions
executable by the processor to update the driver based on the
second files and the second file list, where in response to detection
by the processor of failure of the update of the driver, the processor
further is configured to roll back the driver based on the first files
and the first file list and overwrite the second files with the
respective first files," as recited in claim 1? App. Br. 4--6; Reply
Br. 1--4.
b. Does Hart teach or suggest "a display configured to display a
message notifying a user of an incompatibility of the second files
and the at least one domain," as recited in claim 21? App. Br. 8-9;
Reply Br. 5---6.
2. Independent Claims 1, 11, and 20
The Examiner determines that claim 1 is rendered obvious over the
combined teachings of Meza, Hart, Cicciarelli, Ogawa, Azami, and Glaum.
Final Act. 3-9; see Ans. 3---6. In particular, the Examiner finds, inter alia,
that:
Meza, Hart, Cicciarelli, Ogawa, and Azami do not
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expressly disclose: where in response to detection by the
processor of failure of the update of the driver, the processor
further configured to roll back the driver based on the first files
and the first file list and overwrit[e] the second files with the
respective first files. However, Glamn teaches roll-back
recovery of a failed update. See ,r [O 148], e.g. "Backups of
NK/kemel and reserved ( e.g., radio) regions are provided, so that
in the event that an update fails, after some specifiable number
of retries, the backup of the original image partition contents can
be restored and the installation aborted (i.e., roll-back recovery)."
Also see ,r [O 157], "If a power failure occurs while writing the
new image out, the backup copy of the old image exists, and that
is used in recovering the image (if the log file specifies that the
new image was in the process of being written out, the . . .
compressed backup file is used to restore the copy of the old
image)." Glaum's files are organized according to the partitions
in Fig. 2. In order to "restore" the old image, they would need to
be written into the proper partition over the new image. If they
didn't overwrite the files, the system would attempt to utilize the
wrong set of files and the system would not function properly.
It would have been obvious to one of ordinary skill in the art at
the time the invention was made to use Meza's update with
Glaum's roll-back in order to restore a first set of files in the
event of an update failure, as suggested by Glaum.
Final Act. 8-9; see Glaum ,r 148 ("the backup of the original image partition
contents can be restored and the installation aborted (i.e., roll-back
recovery)" (emphasis added)).
Further, Glaum's claims 30 and 31 recite
30. The system of claim 25 wherein the protected storage
of the device is partitioned into a plurality of partitions, and
wherein a selected partition is updated by the update component
by building a replacement image for the partition and writing the
replacement image over an existing image in the selected
partition.
31. The system of claim 30 wherein the update component
backs up the existing image in the selected partition to a backup
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image for restoring to the selected partition if the replacement
image is not successfully written to the selected partition.
Glaum, Claims 30 and 31 (emphases added). Thus, the Examiner finds that
Glaum teaches both the retention of a pre-update version of stored data and
restoration that version via overwriting. Ans. 4.
In addition, the Examiner notes that the Specification describes
"[a] version rollback may occur at operation 29, where previous versions of
the affected files of the update operation overwrite new binary date bin and
rebuild the system 1 to a previous configuration of the system 1." Spec. ,r 56
( emphases added; bolding omitted); see Ans. 3. This is the only identified
reference to overwriting in the Specification, and Appellants contend that
this disclosure supports the disputed limitations of independent claims 1, 11,
and 20. App. Br. 2; Reply Br. 2. We note that the Specification describes
overwriting as part of a rollback operation.
A "rollback" is "[a] return to a previous stable condition, as when the
contents of a hard disk are restored from a backup after a destructive hard
disk error" or "[t]he point in an online transaction when all updates to any
databases involved in the transaction are reversed." MICROSOFT COMPUTER
DICTIONARY, 456 (5th ed. 2002) (emphases added). Because the term
"rollback" was known to include the restoration of content and/or the
reversal of updates, we are persuaded that a person of ordinary skill in the art
would have understood the term to include overwriting.
Appellants disagree and contend that
Glaum merely states that if a power failure occurs while writing
the new image out [to a partition], then the old image is used to
recover the image. This condition of Glaum does not involve
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overwriting the partition including the new image with the
backup copy of the old image as asserted by the Office.
Reply Br. 2 ( emphasis omitted) ( citing Glaum ,r 157).
Appellants further contend Glaum's "claim 30 merely discloses
updating one replacement image over an existing image in a selected
partition during a pending update" and "[ c ]laim 31 of Glaum provides an
update component that simply backs up an existing image for a selected
partition that is available as a backup image for use in the event the new
image ( or replacement image) is not successfully written to the selected
partition." Id. at 3 (citing Glaum ,r,r 49, 57, 145, 154). Finally, Appellants
contend that, per Glaum's claim 31, a system cannot overwrite an image that
was not successfully written. Reply Br. 4. Thus, Appellants contend that,
although Glaum teaches that content can be replaced or restored with a
backup, Glaum does not teach overwriting. Id.
We find this contention to be contrary to the plain teaching of Glaum
regarding rollbacks, as that term would have been understood by a person of
ordinary skill in the art, and to at least the recitation in Glaum's claim 30 of
"writing the replacement image over an existing image." Ans. 3-6; see
Glaum ,r,r 53, 148, 149, 157, claim 30. Further, the language of Glaum's
claim 31 teaches or suggests, to one of ordinary skill in the art, the system
can overwrite any unsuccessful attempt at writing new content in order to
restore the original content. See Ans. 5. Thus, we are persuaded that Glaum
teaches the disputed limitation of independent claim 1, as well as the
corresponding limitations of independent claims 11 and 20. Final Act. 12
(claim 11), 13 (claim 20); Ans. 6; see App. Br. 7-8; Reply Br. 4--5.
Consequently, we are not persuaded that the Examiner erred in
determining that the combined teachings of Meza, Hart, Cicciarelli, Ogawa,
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Azami, and Glaum, render independent claims 1, 11, and 20 obvious, and we
sustain those rejections.
3. Dependent Claims 2-10, 12-19, 25, and 26
Appellants do not argue dependent claims 2-10, 12-19, 25, and 26
separately from their base claims. See App. Br. 9-10. Accordingly, on this
record, we sustain the Examiner's obviousness rejections of these dependent
claims for the reasons given by the Examiner. Final Act. 9-10, 12-13, 14--
16; see Ans. 7-8.
4. Dependent claims 21-24
Claim 21 recites that the system of claim 1 further comprises "a
display configured to display a message notifying a user of an
incompatibility of the second files and the at least one domain." App. Br. 5
(Claims App.) (emphasis added). The Examiner finds that Hart teaches this
limitation. Final Act. 13; see Ans. 6-7. In particular, the Examiner notes
that Hart teaches use of an integrity verification application to detect an
unauthorized modification to the contents of a memory. Ans. 6-7; see Hart,
5:50-6:9. The Examiner asserts that, although the claim recites notifying the
user of "incompatibility," "there's no reason that Hart's integrity verification
failure indication should not apply to a broad but reasonable interpretation of
'incompatibility."' Ans. 6.
Initially, we note that the Examiner provides insufficient factual basis
to support the broad interpretation of "incompatibility" to encompass an
"unauthorized modification." See generally Final Act. The Specification
includes a single mention of "incompatibility." Spec. ,r 26; see also Reply
Br. 5---6 ( discussing the meaning of "incompatibility" in the context of the
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Specification). The Examiner's interpretation of the term "incompatibility,"
however, does not consider the teachings of the Specification. Final Act. 13;
Ans. 6-7. During examination, pending claims are given their broadest
reasonable construction consistent with the specification. In re Prater, 415
F.2d 1393, 1404---05 (CCPA 1969); In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1364 (Fed. Cir. 2004). Nor does the Examiner provide sufficient
extrinsic evidence to support a conclusion that one of ordinary skill would
understand the term "incompatibility" to encompass a lack of authorization.
Thus, the Examiner's interpretation of "incompatibility" is unsupported.
Moreover, claim 21 recites that the display provides a notification of
an "incompatibility" between the second files and the at least one domain.
As Appellants correctly contend, the Examiner fails to demonstrate how
Hart's disclosure regarding "unauthorized modification" of a memory
teaches the recited notification of such an "incompatibility." App. Br. 9;
Reply Br. 5-6. We agree.
Appellants' contentions regarding claim 21 are equally applicable to
claim 23. App. Br. 9; Reply Br. 6. Thus, we are persuaded that the
Examiner erred in determining that the combined teachings of Meza, Hart,
Cicciarelli, Ogawa, Azami, and Glaum, render dependent claims 21 and 23,
as well as claims 22 and 24, 5 which depend from claims 21 and 23,
respectively, obvious. We, therefore, do not sustain those rejections.
5 Although the Examiner relies on Noe in addition to the references applied
to claims 21 and 23 to support the rejections of claims 22 and 24, the
Examiner does not assert- nor do we find-that Noe supplies the limitations
of claims 21 and 23 missing from the references applied to those claims by
the Examiner. See Final Act. 16.
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CONCLUSIONS
(1) The Examiner did not err in rejecting:
(a) claims 1--4, 7, 11-14, 17, 20, and 25 as rendered obvious over
the combined teachings of Meza, Hart, Cicciarelli, Ogawa,
Azami, and Glaum;
(b) claims 8, 9, and 18 as rendered obvious over the combined
teachings of Meza, Hart, Cicciarelli, Ogawa, Azami, Glaum, and
Seick;
( c) claims 10 and 19 as rendered obvious over the combined
teachings of Meza, Hart, Cicciarelli, Ogawa, Azami, Glaum, and
Dowling; and
( d) claim 26 as rendered obvious over the combined teachings of
Meza, Hart, Cicciarelli, Ogawa, Azami, Glaum, and Noe.
(2) The Examiner erred in rejecting claims 21-24 as rendered
obvious over the combined teachings of Meza, Hart, Cicciarelli,
Ogawa, Azami, and Glaum, alone or in combination with Noe.
(3) Claims 1--4, 7-14, 17-20, 25, and 26 are not patentable.
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DECISION
We affirm the Examiner's rejections of claims 1--4, 7-14, 17-20, 25,
and 26.
We reverse the Examiner's rejections of claims 21-24.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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