Kevin B. Bates et al.

Patent Trials and Appeals Board

Sep 26, 2019

14986953 - (D) (P.T.A.B. Sep. 26, 2019)

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.
14/986,953 01/04/2016 Kevin B. Bates SVL920120005US2/0920.0184 8763
46157 7590 09/26/2019
EDELL, SHAPIRO, & FINNAN, LLC
9801 Washingtonian Blvd.
Suite 750
Gaithersburg, MD 20878
EXAMINER
CHOWDHURY, ZIAUL A.
ART UNIT PAPER NUMBER
2192
NOTIFICATION DATE DELIVERY MODE
09/26/2019 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):
epatent@usiplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KEVIN B. BATES, WILLIAM J. CARPENTER,
and MICHAEL G. WINTER1
________________

Appeal 2018-007971
Application 14/986,953
Technology Center 2100
________________

Before CARL W. WHITEHEAD JR., BRADLEY W. BAUMEISTER, and
JASON V. MORGAN, Administrative Patent Judges.

MORGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s Final
Rejection of claims 1–24. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Summary of the disclosure
Appellant’s Specification discloses updating a system that includes a
plurality of server instances by adding one or more operational features

1 Appellant is the applicant and real party in interest, International Business
Machines Corporation. Appeal Br. 2.
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“based on a comparison between the determined levels of configuration of
the operating server instances and minimum levels of configuration
associated with the one or more sets of operational features.” Abstract.
Illustrative claim (key limitations emphasized)
1. A computer-implemented method of updating a system
including a plurality of sever instances comprising:
determining a level of revision for each operating server
instance;
adding one or more sets of operational features
compatible with an operating server instance to the system
based on a comparison indicating that the determined levels of
revision of each of the other operating server instances of the
system satisfy levels of revision required by each of the one or
more sets of operational features; and
performing server operations of the operating server
instances and applying the added one or more sets of
operational features to the server operations.
The Examiner’s rejections and cited references
The Examiner rejects claims 1–4, 6–12, 14–20, and 22–24 under
35 U.S.C. § 103(a) as being unpatentable over Toeroe
(US 2008/0244552 A1; published Oct. 2, 2008) and Wetherly et al.
(US 2006/0236317 A1; published Oct. 19, 2006) (“Wetherly”). Final Act. 3–
16.
The Examiner rejects claims 5, 13, and 21 under 35 U.S.C. § 103(a) as
being unpatentable over Toeroe, Wetherly, and Hammond et al.
(US 2005/0144616 A1; published June 30, 2005) (“Hammond”). Final
Act. 16–20.
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ANALYSIS
In rejecting claim 1 as obvious, the Examiner finds that Wetherly’s
controlled distribution of software updates—which includes generating a
multi-field version number representing different aspects of an application—
teaches or suggests adding one or more sets of operational features
compatible with an operating server instance to the system based on a
comparison indicating that the determined levels of revision of each of the
other operating server instances of the system satisfy levels of revision
required by each of the one or more sets of operational features. Final Act. 4
(citing Wetherly ¶¶ 4, 19, 20); see also Ans. 5–8 (further citing Wetherly
¶¶ 11, 17, 38–41, 43, 45, 49–51; Toeroe ¶ 9), Ans. 10–12 (further citing
Wetherly ¶¶ 5, 12, 16, 18, 19, 48).
Appellant contends the Examiner erred because Wetherly merely
teaches “updating a specific device based on the application version of that
particular device relative to the version number of the update (regardless of
whether the update is compatible with the other devices).” Appeal Br. 13
(emphasis added). Appellant contrasts this purported aspect of Wetherly
with the claimed invention, which Appellant characterizes as “updating that
specific device when all of the other devices can support the update.” Id.
Appellant’s arguments accord with claim 1’s recitation of “adding one
or more sets of operational features compatible with an operating server
instance to the system based on a comparison indicating that the determined
levels of revision of each of the other operating server instances of the
system satisfy levels of revision” (emphasis added). That is, the disputed
recitation requires that instead of analyzing each operating server instance in
isolation for compatibility with additional features, the other operating
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server instances must be considered to ensure that the other operating server
instances are compatible with the new feature.
This required condition for installing the new feature is illustrated in
the Specification’s Figure 2, which checks revision levels on all servers at
step 220 and installs the requested new feature only if the revision level is
sufficient on all servers to support the new feature. Performing this check
mitigates problems where “different server instances (e.g., instances of
physical or virtual servers) [operating] with different code revision levels.”
Spec. ¶ 12. Specifically, the disclosed invention addresses the problem of
“[n]ewer code revisions [being] aware of previous metadata elements and
functionality, but older code revisions hav[ing] no knowledge of new data
elements and/or functionality.” Id. Checking the revision levels on all
servers ensures “that newer server instances do not introduce new data
elements or change the processing behavior for existing data elements in a
way that causes integrity issues for either the old or new server instances.”
Id.
Appellant’s arguments further accord with Wetherly, which teaches
checking for compatibility of an update with the device on which the update
is to be installed (see Wetherly Fig. 5), but is silent about checking whether
the update is compatible with other systems before performing the
installation (see, e.g., Wetherly ¶ 50). That is, the cited teachings of
Wetherly do not teach or suggest ensuring that each of the other operating
server instances of the system satisfy levels of revision required by each of
one or more sets of operational feature.
The Examiner appears to base the rejection on two alternative
interpretations. Under the first interpretation, the Examiner appears to be
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interpreting Weatherly as teaching that an operational feature is added to a
server instance when the levels or revisions of each server instance satisfy or
support the update, as claimed. According to the Examiner, the Specification
discloses that compatibility of the software update with each of the server
instances
“. . . is determined using the update version number” (please see
¶[0017]) . . . . Therefore, Wetherly sufficiently discloses
providing update[s] to the distributed terminal devices as equal
to claimed server instances (different server instances (e.g.,
instances of physical or virtual servers) are enabled to operate
with different code revision levels (please see original
specification ¶[0011])), wherein the updates including major
upgrade providing new features or functionality to the distributed
terminals in an incremental manner based on potential update
aspect relating to the features. Moreover, Wetherly teaches that
the compatibility of the software update is determined by a
software identifier [that] uniquely identif[ies] an application
affected by the potential update.
Ans. 4.
We disagree. We understand Wetherly as merely verifying the version
numbers of those server instances that are receiving the updates—not the
other servers of the system. Wetherly ¶¶ 11, 17–20.
The Examiner alternatively reasons that “each of the other operating
server instances has broad scope.” Ans. 12. We are unable, however, to
discern under what reasonably broad interpretation of this recitation, when
read in light of Appellant’s Specification, claim 1 could be interpreted
broadly enough to read on the cited teachings of Wetherly.
For example, the Examiner cites to the Specification’s disclosures of
server instances managing and communicating code revision levels and to a
server system hosting a single server instance or a plurality of server
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instances. Id. at 11–12 (citing Spec. ¶¶ 16, 17). But the Examiner does not
explain how these disclosures evince a meaning for the claim language
“each of the other operating server instances” that would be broad enough
to read on Wetherly’s manner of installing updates on a plurality of systems.
Ans. 11–12 (citing Wetherly ¶¶ 5, 16–18, 48). Therefore, we agree with
Appellant that the Examiner’s findings do not show that Wetherly teaches or
suggests the disputed recitation of claim 1.
Although the Examiner cites to a teaching in Toeroe related to a
platform that routes requests for services to different entities supporting
different sets of features (Toeroe ¶ 9 (cited in Ans. 6)), the Examiner’s
findings do not show that Toeroe cures the noted deficiency of Wetherly.
Nor does the Examiner show that Hammond cures the noted deficiency.
Accordingly, we do not sustain the Examiner’s 35 U.S.C. § 103(a) rejection
of claim 1, and the Examiner’s 35 U.S.C. § 103(a) rejections of claims 2–24,
which contain similar recitations and are rejected based on similar findings
and conclusions.
DECISION
We reverse the Examiner’s decision rejecting claims 1–24.

REVERSED