Ex Parte Heisey et al

Board of Patent Appeals and Interferences

Jan 12, 2012

10016597 (B.P.A.I. Jan. 12, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CURTIS W. HEISEY, RAVINDRA V. GOKHALE and
KATHY A. KAMINSKI

___________

Appeal 2009-012978
Application 10/016,597
Technology Center 2100
____________

Before ROBERT E. NAPPI, JASON V. MORGAN, and ERIC B. CHEN,
Administrative Patent Judges.

CHEN, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-012978
Application 10/016,597

2
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-18. Claims 19-37 have been cancelled.
1
We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
Appellants‟ invention relates to a tool for replacing a code image in an
embedded device including a control program for issuing device commands
in order to replace a code image within the embedded device. A monitoring
program generates event indications in response to detecting a change in an
attribute associated with the embedded device. (Abstract.)
Claim 1 is exemplary, with disputed limitations in italics:
1. A system for replacing a code image in an embedded
device, comprising:
control program code responsive to at least one user command
for issuing a plurality of device commands including at least one
device command to replace said code image in said embedded device;
monitoring program code, asynchronous with respect to said
control program code, for generating at least one event indication in
response to a change of at least one predetermined attribute of said
embedded device and forwarding said at least one event indication to
said control program code; and
wherein said at least one device command replaces said code
image in response to said at least one event indication.
Claims 1-17 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Reynolds (U.S. Patent Application Publication No.
2003/0126195 A1).
Claim 18 stands rejected under 35 U.S.C. § 103(a) as being obvious
over Reynolds and Spring (U.S. Patent No. 6,549,943 B1).

1
Miscellaneous Communication to Appellants, mailed December 31, 2008.
Appeal 2009-012978
Application 10/016,597

3
ANALYSIS
Claims 1-17
Claim limitation – “of said embedded device”
We are not persuaded by Appellants‟ arguments (App. Br. 12
2
) that
Reynolds does not describe the claim limitation “of said embedded device.”
The Examiner found that each board of Reynolds corresponds to the
claimed “embedded device.” (Ans. 4.) The Examiner also found that the
board-by-board upgrade performed by a network device administrator
corresponds to the claim limitation “a change . . . of said embedded device.”
(Ans. 4.) We agree with the Examiner.
Reynolds relates to a “common command interface (CCI) [that]
provides an interface abstraction allowing network device applications to
maintain one set of code for each command regardless of which command
interface (e.g., web, CLI, NMS, etc.) initiates the command.” (Abstract.)
Upgrades are managed by a software management system (SMS) service
(¶ [0503]) and can be performed on a board-by-board basis (¶ [0505]).
Reynolds describes that SMS clients can include a Master Control Driver
(MCD) and a program supervisor module (PSM) within a mission kernel
image (MKI) on each board. (¶ [0512].) “A board-by-board upgrade may
allow a network device administrator to chose [sic] certain boards on which
to upgrade applications and allow older versions of the same applications to
continue running on other boards.” (¶ [0505].) In other words, the board-
by-board upgrade by the SMS corresponds to the claimed “embedded
device.”

2
The Reply Brief, filed July 3, 2007, was not considered by the Examiner
because it was not in compliance with 37 C.F.R. § 41.41(a).
Appeal 2009-012978
Application 10/016,597

4
Appellants argue that “Reynolds‟ download files are generic, and
Reynolds describes that they may be downloaded to any of the devices” and
“[t]hey are not specific to the embedded device, but are separate from the
device and are changed independently of the embedded device.” (App. Br.
12.) However, the claim language “embedded device” is broad enough to
encompass the SMS clients of Reynolds (e.g., the Master Control Driver
(MCD) and the program supervisor module (PSM) within the mission kernel
image (MKI) on each board).
Therefore, we agree with the Examiner that Reynolds describes the
claim limitation “of said embedded device.”
Claim limitation – “at least one predetermined attribute”
We are not persuaded by Appellants‟ arguments (App. Br. 12) that
Reynolds does not describe the claim limitation “a change of at least one
predetermined attribute.”
The Examiner found that the periodic polling of the installation
directory 1222 of Reynolds by the Master SMS 184 for new releases of
software corresponds to the claimed “a change of at least one predetermined
attribute.” (Ans. 4.) We agree with the Examiner.
As discussed previously, Reynolds describes that software upgrades
are managed by a software management system (SMS) service. (¶ [0503].)
“Master SMS 184 periodically polls installation directory 1222 for new sub-
directories including new releases . . . .” (¶ [0504].) In other words, this
software upgrade replaces a previous version of the software, which
corresponds to the claim limitation “at least one predetermined attribute.”
Furthermore, because the master SMS 184 “periodically polls” the
Appeal 2009-012978
Application 10/016,597

5
installation directory 1222 for new software releases, Reynolds discloses the
claim limitation “a change of at least one predetermined attribute.”
Appellants argue that “these files [of Reynolds] are not
predetermined” and “[t]he files in Reynolds arrive asynchronously and will
be unique.” (App. Br. 12.) However, as discussed previously, the software
upgrade of Reynolds replaces a previous version of the software, and thus
discloses the claim limitation “at least one predetermined attribute.”
Therefore, we agree with the Examiner that Reynolds describes the
claim limitation “a change of at least one predetermined attribute.”
Accordingly, we sustain the rejection of independent claim 1 under 35
U.S.C. § 102(e). Claims 2-9 depend from independent claim 1 and
Appellants have not presented any substantive arguments with respect to
these claims. Therefore, we sustain the rejection of claims 2-9 under 35
U.S.C. § 102(e) for the same reasons discussed with respect to independent
claim 1.
Independent claim 10 recites limitations similar to those discussed
with respect to independent claim 1, and Appellants have not presented any
substantive arguments with respect to this claim. We sustain the rejection of
claim 10, as well as claims 11-17, which depend from claim 10, for the same
reasons discussed with respect to claim 1.
Claim 18
With respect to the rejection of independent claim 18, Appellants
merely argue that “Spring . . . does not apply to the download of embedded
devices” and “Reynolds does not teach the „at least one event indication in
response to a change of at least one predetermined attribute of said
embedded device‟ element of claim 18.” (App. Br. 13.) We are not
Appeal 2009-012978
Application 10/016,597

6
persuaded by this argument for the same reasons discussed with respect to
independent claim 1. Accordingly, we sustain the rejection of independent
claim 18.

DECISION
The Examiner‟s decision to reject claims 1-18 is affirmed.
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