Ex Parte ODownload PDFBoard of Patent Appeals and InterferencesFeb 23, 201210311462 (B.P.A.I. Feb. 23, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte PATRICK J. O’NEILL ____________ Appeal 2011-012073 Application 10/311,462 1 Technology Center 2100 ____________ Before KALYAN K. DESHPANDE, ERIC B. CHEN, and MICHAEL R. ZECHER, Administrative Patent Judges. ZECHER, Administrative Patent Judge. DECISION ON APPEAL 1 Filed on May 13, 2003. This application is a national stage entry of PCT/US01/44034, filed on November 19, 2001. The real party in interest is Hewlett-Packard Development Co., LP. Br. 3. Appeal 2011-012073 Application 10/311,462 2 I. STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) (2002) from the Examiner’s Final Rejection of claims 123-138, 140-153, and 155-184. Br. 3; Ans. 2. Claims 1-122, 139, and 154 have been cancelled. Claims App’x. We have jurisdiction under 35 U.S.C. § 6(b) (2008). We affirm. Appellant’s Invention Appellant invented a method, system, and apparatus for updating information that reduces the size of an update and distributes the update in a platform independent manner. Spec. 1: 3-6. Illustrative Claims 123. A method of operating an electronic device having a non-volatile memory containing a first code version, the electronic device adapted for communication with at least one update server via a wireless network, the method comprising: updating at least one portion of the first code version using an update agent resident in the electronic device and an update package that is received by the electronic device, in its entirety via the wireless network, before use in updating the first code version, the update package comprising a set of instructions executable by the update agent to transform the at least one portion of the first code version. 141. A method of operating at least one update server for updating an electronic device having a non-volatile memory containing a first code version, the electronic device adapted to communicate via a wireless network, the method comprising: selecting an update package from a plurality of update packages, based upon an efficiency of update of the electronic device; distributing the selected update package to the electronic device, in its entirety via the wireless network; Appeal 2011-012073 Application 10/311,462 3 wherein the electronic device updates at least one portion of the first code version using an update agent resident in the electronic device and the received update package; wherein the update package comprises a set of instructions executable by the update agent; and wherein the efficiency of update of the electronic device comprises a measure representative of one or more of the following: an amount of information included in each of the plurality of update packages, an amount of information communicated by the at least one update server to the electronic device to perform an update of the electronic device, an amount of updated code that is represented by a single instruction of the update package, and an amount of transmission time needed to send the update package to the electronic device. 146. An update server system supporting the update of a first code version in an electronic device, the update server system comprising: storage comprising a plurality of update packages, each update package comprising a set of instructions executable by update agent code resident in the electronic device; at least one server for determining update package appropriate for application to the first code version from among the plurality of update packages, based upon at least one identifying characteristic of the electronic device and the first code version; the at least one server picking, from the appropriate update packages, a target update package for updating the first code version to a latest in time code versions; and the at least one server communicating the target update package for distribution to the electronic device via a wireless network. Prior Art Relied Upon Cole US 5,752,042 May 12, 1998 Bealkowski US 5,878,256 Mar. 2, 1999 Waldin, Jr. US 6,052,531 Apr. 18, 2000 Appeal 2011-012073 Application 10/311,462 4 Jones US 6,526,574 B1 Feb. 25, 2003 (PCT filed July 15, 1998) Hind US 7,069,452 B1 June 27, 2006 (filed July 12, 2000) Rejections on Appeal Claims 123-132, 140, 151-153, 155, 160-169, and 176-180 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Jones and Hind. Ans. 3-11. Claims 133-138, 156, 170-175, and 181 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Jones, Hind, and Bealkowski. Ans. 11-14. Claims 141-145 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Waldin, Jr. and Hind. Ans. 14-18. Claims 146-150 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Cole and Hind. Ans. 18-20. Claims 157-159 and 182-184 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Jones, Hind, Cole, and Waldin, Jr. Ans. 20-22. Examiner’s Findings and Conclusions 1. With respect to independent claims 123, 151, 160, and 177, the Examiner finds that there is a sufficient rationale to combine Jones and Hind. Ans. 4-5, 9-11, and 22-24. 2. The Examiner finds that Waldin, Jr. discloses choosing update packages based on the goal of minimizing the number of packages selected and, therefore, teaches or suggests the “efficiency of an update” as recited in independent claim 141 because the less information that needs to be transferred, the faster the update will occur. Ans. 25. Moreover, the Appeal 2011-012073 Application 10/311,462 5 Examiner finds that since independent claim 141 explicitly recites “the efficiency of update of the electronic device comprises a measure representative of one or more of the following: . . . an amount of information communicated by the at least one update server to the electronic device to perform an update of the electronic device,” the amount of information communicated to the electronic device is one measure of an efficiency of update. Ans. 25-26. Consequently, the Examiner finds that Waldin, Jr. teaches or suggests “selecting an update package from a plurality of update packages, based upon an efficiency of update of the electronic device,” as claimed. Ans. 14-15 and 25-26. Further, the Examiner finds that there is a sufficient rationale for combining Waldin, Jr. and Hind. Ans. 15-16 and 26- 27. 3. With respect to independent claim 146, the Examiner finds that there is a sufficient rationale to combine Cole and Hind. Ans. 19 and 28-29. Appellant’s Contentions 1. With respect to independent claims 123, 151, 160, and 177, Appellant contends that the Examiner does not provide a sufficient rationale to combine Jones and Hind. Br. 10-12. 2. Appellant contends that Waldin, Jr. discloses using fewer incremental updates and, therefore, teaches or suggests that less information needs to be transferred to an application. Br. 14. However, Appellant argues that this cited portion of Waldin, Jr. does not teach or suggest “selecting an update package from a plurality of update packages, based upon an efficiency of update of the electronic device,” as recited in independent claim 141. Br. 15 (emphasis in original). Moreover, Appellant alleges that since Hind is only directed to providing secure updates of Appeal 2011-012073 Application 10/311,462 6 firmware, Hind does not teach or suggest the disputed claim limitation. Id. Further, Appellant contends that the Examiner does not provide a sufficient rationale to combine Waldin, Jr. and Hind. Br. 16-18. 3. With respect to independent claim 146, Appellant contends that the Examiner does not provide a sufficient rationale to combine Cole and Hind. Br. 18-20. II. ISSUES 1. Did the Examiner err in concluding that the combination of Jones and Hind renders independent claims 123, 151, 160, and 177 unpatentable? In particular, the issue turns on whether the Examiner provides a sufficient rationale to combine Jones and Hind. 2. Did the Examiner err in concluding that the combination of Waldin, Jr. and Hind renders independent claim 141 unpatentable? In particular, the issue turns on whether: (a) Waldin, Jr. teaches or suggests “selecting an update package from a plurality of update packages, based upon an efficiency of update of the electronic device,” as recited in independent claim 141; and (b) the Examiner provides a sufficient rationale to combine Waldin, Jr. and Hind. 3. Did the Examiner err in concluding that the combination of Cole and Hind renders independent claim 146 unpatentable? In particular, the issue turns on whether the Examiner provides a sufficient rationale to combine Cole and Hind. Appeal 2011-012073 Application 10/311,462 7 III. CLAIM GROUPINGS Appellant does not provide separate and distinct arguments for patentability with respect to dependent claims 124-138, 140, 142-145, 147- 150, 152, 153, 155-159, 161-176, 178-184. See Br. 10-12. Consequently, we accept Appellant’s grouping of: 1) dependent claims 124-138 and 140 with independent claim 123; 2) dependent claims 142-145 with independent claim 141; 3) dependent claims 147-150 with independent claim 146; 4) dependent claims 152, 153, and 155-159 with independent claim 151; 5) dependent claims 161-176 with independent claim 160; and 6) dependent claims 178-184 with independent claim 177. Br. 12-13, 16, 18, and 20. Therefore, dependent claims 124-138, 140, 142-145, 147-150, 152, 153, 155-159, 161-176, 178-184 fall with their respective independent claims 123, 141, 146, 151, 160, and 177. See 37 C.F.R. § 41.37(c)(1)(vii). IV. ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s contentions that the Examiner has erred. We disagree with Appellant’s conclusions. The Examiner summarizes and addresses each of Appellant’s contentions with respect to independent claims 123, 141, 146, 151, 160, and 177. See Ans. 22-29. Accordingly, we adopt as our own: 1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (see Ans. 4-5, 9-11, 14-16, and 19); and 2) the reasons set forth by the Examiner in the Answer in response to Appellant’s Brief. See Ans. 22-29. It follows that the Examiner has not erred in concluding that: 1) the combination of Jones and Hind renders independent claims 123, 151, 160, and 177 unpatentable; 2) the combination of Waldin, Jr. and Hind renders Appeal 2011-012073 Application 10/311,462 8 independent claim 141 unpatentable; and 3) the combination of Cole and Hind renders independent claim 146 unpatentable. V. CONCLUSION OF LAW The Examiner has not erred in rejecting claims 123-138, 140-153, and 155-184 as being unpatentable under 35 U.S.C. § 103(a). VI. DECISION We affirm the Examiner’s decision to reject claims 123-138, 140-153, and 155-184. 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). AFFIRMED ELD Copy with citationCopy as parenthetical citation