Ex Parte DominickDownload PDFPatent Trial and Appeal BoardJul 20, 201613349983 (P.T.A.B. Jul. 20, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/349,983 01/13/2012 30596 7590 07/22/2016 HARNESS, DICKEY & PIERCE, PLC P.O.BOX 8910 RESTON, VA 20195 FIRST NAMED INVENTOR Lutz Dominick 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. 32860-001954/US 6055 EXAMINER KABIR, MOHAMMAD H ART UNIT PAPER NUMBER 2197 NOTIFICATION DATE DELIVERY MODE 07/22/2016 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): dcmailroom@hdp.com siemensgroup@hdp.com pshaddin@hdp.com PTOL-90A (Rev. 04/07) Appeal2015-000518 Application 13/349,983 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LUTZ DOMINICK Appeal2015-000518 Application 13/349,983 Technology Center 2100 Before KRISTEN L. DROESCH, KAL YAN K. DESHPANDE, and JUSTIN T. ARBES, Administrative Patent Judges. DESHPANDE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF CASE1 Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 1-25, 36, and 39.2 We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We REVERSE. 1 Our decision makes reference to Appellant's Reply Brief ("Reply Br.," filed October 2, 2014), and Appeal Brief ("App. Br.," filed June 9, 2014), and the Examiner's Answer ("Ans.," mailed August 7, 2014) and Final Office Action ("Final Act.," mailed November 21, 2013). 2 Claims 26-35, 37, and 38 have been canceled previously. 1 Appeal2015-000518 Application 13/349,983 INVENTION The invention is directed to the deployment and merger of software application releases. Spec. i-f 1. Claim 1 is illustrative of the invention and is reproduced below: 1. A method comprising: intercepting an application installation procedure; classifying the application; determining the information associated with the application; and installing the application based on the classification and the determined information. App. Br. 21 (Claims App'x). G linsky et al. DePoy Vidal et al. REFERENCES US 2007/0277115 Al US 2011/0296401 Al US 2011/0296395 Al REJECTIONS5 Nov. 29, 2007 Dec. 1, 2011 3 T"""!o.. ... I"\, A ... ... LL uec. i, LUl l ~ Claims 1, 3, 4, 7, 9, 10, 12, 36, and 39 stand rejected under 35 U.S.C. § 102(e) as anticipated by DePoy. Final Act. 5-8; Ans. 2. 3 Application filed May 26, 2011. Provisional Application filed May 27, 2010. 4 Application filed May 27, 2010. 5 The Examiner's headings for the rejections in the Final Action and Examiner's Answer include claims that were cancelled after the mailing of the Final Action, but before the filing of the Appeal Brief. See Final Act. passim; Ans. passim; Response to Final Act. filed January 30, 2014; Advisory Action mailed February 26, 2014 (entering amendment cancelling claims 26-35, 37, and 38). The Examiner's heading for the DePoy and Vidal rejection in the Final Action incorrectly states that claim 13 is also 2 Appeal2015-000518 Application 13/349,983 Claims 2, 5, 6, 11, 14, 15, 17-20, and 22-25 stand rejected under 35 U.S.C. § 103(a) as unpatentable over DePoy and Vidal. Final Act. 9-19. Claims 8 and 13 stand rejected under 35 U.S.C. § 103(a) as unpatentable over DePoy and Glinsky. Final Act. 19-20. Claims 16 and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over DePoy, Vidal, and Glinsky. Final Act. 20-21. ISSUE The issue of whether the Examiner erred in rejecting claims 1-25, 36, and 39 turns on whether DePoy discloses "intercepting an application installation procedure," as recited in independent claim 1, and similarly recited in independent claims 36 and 39. ANALYSIS Independent claim 1 requires, inter alia, "intercepting an application installation procedure." Independent claim 36 similarly recites "a first module including code segments that, when executed by the processor, cause the processor to, intercept an application installation procedure," and independent claim 39 similarly recites "intercepting an application call." Appellant argues DePoy does not disclose "intercepting an application installation procedure." App. Br. 9-14; Reply Br. 2-7. Specifically, Appellant argues that DePoy discloses analyzing market needs to determine which applications an original equipment manufacturer should pre-install on rejected. See Final Act. 9. The Examiner's heading for the DePoy and Vidal rejection in the Answer incorrectly omits claim 11, and incorrectly states that claim 13 is rejected. See Ans. 6. We find this to be harmless error and make the appropriate changes to the headings here. 3 Appeal2015-000518 Application 13/349,983 a computing device, rather than intercepting an application installation procedure that has begun. App. Br. 10. We agree with Appellant that DePoy fails to disclose "intercepting an application installation procedure." The Examiner finds DePoy discloses the use of need-based analytics to determine which applications are to be pre- installed or executed on computing devices. Final Act. 6 (citing DePoy i-f 44); Ans. 3--4. The Examiner points out that the Specification provides examples of intercepting an application installation procedure, such as "stopping or pausing a software release installer." Ans. 5 (citing Spec. i-f 53). Thus, the Examiner concludes that the use of analytics in DePoy intercepts an application installation procedure because analytics are used to determine whether to stop and/or pause installation of a software application based upon the needs of that application. Ans. 3-6. DePoy discloses an online marketplace where original equipment manufacturers of computers can use analytics to determine the software needs of their end-user customers. DePoy, Abstract, i-f 44. DePoy further discloses that based upon customer needs, the manufacturer can optimize which software applications are to be pre-installed on the computers. DePoy ,-r,-r 3-5' 44. However, we disagree with the Examiner that DePoy teaches intercepting an application installation procedure. See Ans. 3---6. We are unable to discern from the Examiner's rejection a finding that DePoy teaches intercepting an application installation procedure by analytically determining which software applications are to be pre-installed on computers. In other words, the Examiner does not explain sufficiently how an application 4 Appeal2015-000518 Application 13/349,983 installation procedure (or an application "call," as recited in claim 39) is being intercepted, or what procedure is being intercepted. Accordingly, we do not sustain the Examiner's rejection of independent claims 1, 36, and 39. Appellant argues that dependent claims 2-25, which depend from claim 1, and independent claims 36 and 39, are patentable for the same reason as independent claim 1. App. Br. 14, 19. Accordingly, we do not sustain the Examiner's rejection of these claims for the reasons discussed above in our analysis of claim 1. This issue is dispositive with respect to the rejection of these claims; therefore, we need not reach the remaining arguments presented by Appellant. CONCLUSION The Examiner erred in rejecting claims 1, 3, 4, 7, 9, 10, 12, 36, and 39 under 35 U.S.C. § 102(e) as anticipated by DePoy. The Examiner erred in rejecting claims 2, 5, 6, 11, 14, 15, 17-20, and 22-25 under 35 U.S.C. § 103(a) as unpatentable over DePoy and Vidal. The Examiner erred in rejecting claims 8 and 13 under 35 U.S.C. § 103(a) as unpatentable over DePoy and Glinsky. The Examiner erred in rejecting claims 16 and 21under35 U.S.C. § 103(a) as unpatentable over DePoy, Vidal, and Glinsky. DECISION To summarize, the rejection of claims 1-25, 36, and 39 is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation