Ex Parte Little et al

Patent Trial and Appeal Board

Jun 5, 2017

13207958 (P.T.A.B. Jun. 5, 2017)

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.
13/207,958 08/11/2011 Rodney A. Little CA920110037US1 7062
138366 7590
LEE LAW, PLLC
IBM ENDICOTT IP
P.O. BOX 189
PITTSBORO, NC 27312
06/07/2017 EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
NOTIFICATION DATE DELIVERY MODE
06/07/2017 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 @ leelawpllc .com
docketing_archive @ leelawpllc .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RODNEY A. LITTLE and LEHO NIGUL
Appeal 2016-004974
Application 13/207,958
Technology Center 2100
Before JOHN A. JEFFERY, JOHNNY A. KUMAR, and CATHERINE
SHIANG, Administrative Patent Judges.
JEFFERY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 9—32. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE
Appellants’ invention provides software service notifications based on
software usage, configuration, and deployment topology. In one aspect,
available software update notifications are provided responsive to
determining that the updates are targeted to tracked software configuration
and topological information. See generally Abstract; Spec. 11. Claim 9 is
illustrative:
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9. A system, comprising:
a memory; and
a processor programmed to:
track, within the memory, changes to topological
inter-product responsibility options associated with a
plurality of software program instances installed on at
least one computing device;
identify an available software update for at least one
of the plurality of software program instances and at least
one software update suggestion rule that targets the
available software update to an installation-specific set of
available target topological inter-product responsibility
options;
determine, using the at least one software update
suggestion rule, whether the available software update is
targeted to the tracked changes to the topological inter­
product responsibility options; and
provide a notification of the available software
update in response to determining that the available
software update is targeted to the tracked changes to the
topological inter-product responsibility options.
THE REJECTIONS
The Examiner rejected claims 9—32 under 35 U.S.C. § 112(a) or 35
U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement. Ans. 2—A.1
The Examiner rejected claims 9—32 under 35 U.S.C. § 112(b) or 35
U.S.C. § 112 (pre-AIA), second paragraph, as indefinite. Ans. 4—6.
The Examiner rejected claims 9, 15, 17, 23, 25, and 31 under 35
U.S.C. § 103(a) as unpatentable over Moshir (US 2002/0100036 Al; pub.
1 Throughout this Opinion, we refer to (1) the Appeal Brief filed September
15, 2015 (“App. Br.”); (2) the Examiner’s Answer mailed February 9, 2016
(“Ans.”); and (3) the Reply Brief filed April 7, 2016 (“Reply Br.”).
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July 25, 2002), Allen (US 5,675,802; iss. Oct. 7, 1997), Kothandaraman (US
2005/0080801 Al; pub. Apr. 14, 2005), and Cain (US 2006/0080656 Al;
pub. Apr. 13, 2006). Ans. 6—16.
The Examiner rejected claims 10, 14, 18, 22, 26, and 30 under 35
U.S.C. § 103(a) as unpatentable over Moshir, Allen, Kothandaraman, Cain,
and further in view of Canning (US 2006/0075001 Al; pub. Apr. 6, 2006),
and/or Rathi (US 2010/0088692 Al; pub. Apr. 8, 2010). Ans. 16—18.
The Examiner rejected claims 11—13, 19-21, and 27—29 under 35
U.S.C. § 103(a) as unpatentable over Moshir, Allen, Kothandaraman, Cain,
Seo (US 2011/0137979 Al; pub. June 9, 2011), and/or Banga (US
2011/0099547 Al; pub. Apr. 28, 2011), and/or Lipsky (US 2005/0086357
Al; pub. Apr. 21, 2005). Ans. 18—23.
The Examiner rejected claims 16, 24, and 32 under 35 U.S.C. § 103(a)
as unpatentable over Moshir, Allen, Kothandaraman, Cain, and Lipsky.
Ans. 23—25.
The Examiner rejected claims 9, 12, 16, 17, 20, 24, 25, 28, and 32
under the doctrine of obviousness-type double patenting as unpatentable
over claims 1, 3, and 7 of U.S. Patent 8,707,292 B2.2 Ans. 26—27.
THE WRITTEN DESCRIPTION REJECTION
The Examiner finds that the recited topological inter-product
responsibility options associated with plural installed software program
2 Although the Examiner characterizes this rejection as provisional (Ans.
26), we nonetheless treat this rejection as non-provisional because the claims
on which the rejection is based are patented. Accord App. Br. 27 (omitting
the provisional designation in connection with the Examiner’s double
patenting rejection).
3
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instances is not supported by Appellants’ original disclosure. Ans. 2-4.
Although the Examiner acknowledges that the Specification discusses
responsibility differences between programs and devices, the Specification
does not discuss responsibility options in this regard, let alone tracking
topological inter-product responsibility options as claimed. Ans. 2-4, 27—
34,38-41.
Appellants argue that because (1) different responsibilities may be
configured and exist between different products, and (2) topology may
change over time as noted in paragraphs 18, 25, and 26 of Appellants’
Specification, Appellants’ original disclosure supports tracking these
topological inter-product responsibility options as they change over time.
App. Br. 15—16, 27—34; Reply Br. 3—6.
ISSUE
Has the Examiner erred in rejecting claim 9 under § 112, first
paragraph, by finding that Appellants’ original disclosure does not convey
with reasonable clarity that Appellants possessed tracking changes to
topological inter-product responsibility options associated with plural
installed software program instances (the “topological inter-product
responsibility options tracking limitation”)?
ANALYSIS
We begin by noting that the limitation at issue in the written
description rejection, namely tracking changes to topological inter-product
responsibility options, was not recited in the original claims, but rather was
added during prosecution in an amendment filed November 3, 2014. As
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originally claimed, the processor was programmed to track software
configuration information and topological information associated with
installed software program instances. See claim 9 of original disclosure,
filed Aug. 11, 2011. But now, claim 9 recites that the processor is
programmed to track changes to topological inter-product responsibility
options associated with these instances.
Despite this distinction, we find that Appellants’ original disclosure
reasonably conveys possession of this limitation. In the Summary of
Claimed Subject Matter section on page 4 of Appellants’ opening brief,
Appellants cite the Specification’s paragraphs 18 and 47 in connection with
the topological inter-product responsibility options tracking limitation. In
paragraph 18, the Specification notes that terms “topology” and
“topological” refer to (1) interconnectivity between programs and/or
devices, and (2) dynamic options for interplay between programs and/or
devices. For example, topological information may include information
such as (1) different responsibilities that may be configured for programs
and/or devices; (2) inter-product dependencies (e.g., relations to other
products) that may exist; and (3) any other variation between different
installed programs, devices, and systems. Moreover, the concept of
“topology” applies to interplay between multiple instances of a software
program and one or more devices or systems. Spec. 118.
According to the Specification, the term “configuration” can refer to
installation options for a given software program, including options that
define behavior of a product installation. Spec. 117. Notably, a
“configuration” option may include information about how a particular
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installation is configured to work with other products ’ installation options.
Id.
The Specification’s paragraph 25 notes that installation-specific
interconnection and responsibility differences may exist between respective
devices, and that inter-product dependencies may also exist. Notably, these
differences in configuration are either known by, or communicated to, server
110 for monitoring and tracking. Spec. 125.
Reading paragraphs 17, 18, and 25 together, then, we find that the
original disclosure reasonably supports tracking topological inter-product
responsibility options as claimed. As noted above, different topological
responsibilities may be configured for programs and/or devices in paragraph
18—a configuration that involves options that define a product installation’s
behavior in paragraph 17. Notably, differences in these configurations—
including responsibility differences—can be tracked in paragraph 25.
Because inter-product dependencies may exist—a fact noted immediately
after the tracked and configurable responsibility differences in paragraphs 18
and 25—skilled artisans would understand that tracking topological
responsibility options can include those involving different products (i.e.,
inter-product responsibility options).
To be sure, the Specification does not articulate the term “topological
inter-product responsibility options” expressly, let alone that these specific
options are tracked. And we recognize that a description that merely renders
the invention obvious does not satisfy the written description requirement.
AriadPharms., Inc. v. EliLilly & Co., 598 F.3d 1336, 1352 (Fed. Cir. 2010)
(en banc) (citations omitted).
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But the written description requirement does not demand any
particular form of disclosure or require a verbatim recitation. Id. That is the
case here, for the Specification’s paragraphs 17, 18, and 25, when read
together, reasonably convey possession of tracking topological inter-product
responsibility options as one form of various trackable configuration
differences.
Therefore, we are persuaded that the Examiner erred in rejecting (1)
independent claim 9; (2) independent claims 17 and 25, which recite
commensurate limitations; and (3) the dependent claims for similar reasons.
THE INDEFINITENESS REJECTION
The Examiner finds that, among other things, claim 9 is indefinite
because, among other things, the metes and bounds of the recited
responsibility options cannot be determined, let alone topological inter­
product responsibility options associated with plural installed software
program instances. Ans. 4—6, 27—34.
Appellants argue that claim 9 is definite. App. Br. 15—16, 28—29, 34—
37; Reply Br. 3—6. According to Appellants, the topological inter-product
responsibility options tracking limitation is clear when construed in light of
the Specification because, among other things, (1) different responsibilities
may be configured and exist between different products, and (2) topology
may change over time. App. Br. 16; Reply Br. 5—6. Therefore, Appellants
contend, the limitation is directed to tracking these topological inter-product
responsibility options as they change over time. Id.
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ISSUE
Has the Examiner erred in rejecting claim 9 under § 112, second
paragraph, by finding that the topological inter-product responsibility
options tracking limitation renders the claim indefinite?
ANALYSIS
As with the written description rejection, the dispute regarding the
Examiner’s indefmiteness rejection centers on the topological inter-product
responsibility options tracking limitation. Although Appellants possessed
the subject matter associated with this limitation for the reasons noted
previously, that does mean that the limitation is sufficiently clear to satisfy
the second paragraph of Section 112.
Notably, the Specification is replete with definitions of terms in, for
example, paragraphs 16 to 19, 66, and 78, that leave no doubt what these
terms mean; yet the term “responsibility” is not so defined. Although
paragraph 18 notes that different responsibilities can be configured for
programs and/or devices, and paragraph 25 indicates that responsibility
differences may exist between respective devices, the Specification does not
explain what these responsibilities are, let alone what particular aspects of
the associated programs and devices pertain to these responsibilities. Apart
from these brief and generalized references to responsibilities, the
Specification does not further explain what they mean.
We, therefore, construe the term “responsibility” according to its plain
meaning in the art, namely “any purpose, obligation, or required capability
of the instances of a class or package.” Dictionary of Computer Science,
Engineering, and Technology 423 (Phillip A. Laplante ed. 2001)
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(emphasis added). This dictionary adds that “[a] responsibility is typically
implemented by a cohesive collection of one or more features. A
responsibility can be a responsibility for doing, a responsibility for knowing,
or a responsibility for enforcing.” Id. (emphasis added).
Given this very broad, general, and open-ended definition, we fail to
see how skilled artisans can reasonably ascertain the scope of the recited
responsibility options, let alone topological inter-product responsibility
options. Construing this term in light of the above definition yields, at best,
options that pertain to any purpose, obligation, or required capability of
associated programs or devices. Notably, as the definition indicates, these
responsibilities could be (but not necessarily are) with respect to doing,
knowing, or enforcing something—the particulars of which are unclear on
this record even if these aspects were required (which they are not).
That these unspecified responsibility options are topological inter­
product options does not clarity this ambiguity, for this qualifier, at best,
merely suggests that these options can include those involving different
products (i.e., inter-product responsibility options) as noted previously in
connection with the written description rejection. But the Specification says
nothing about exactly what these responsibilities are or what they mean,
regardless of whether they pertain to different products or otherwise. Nor
does the plain meaning of the term clarity this ambiguity; indeed, it further
underscores the claim’s ambiguity.
To be sure, merely because claims are broad in scope does not mean
that they are indefinite. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970)
(“Breadth is not indefmiteness”). But where, as here, a claim is amenable to
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two or more plausible claim constructions,3 the USPTO is justified in
requiring Appellants to more precisely define the metes and bounds of the
claimed invention by holding the claim unpatentable under 35U.S.C. § 112,
second paragraph, as indefinite. Ex parte Miyazaki, 89 USPQ2d 1207, 1211
(BPAI2008) (precedential). Appellants’ arguments to the contrary (App. Br.
15—16, 28—29, 34—37; Reply Br. 3—6) are, therefore, unavailing given the
claim’s ambiguity.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 9, and claims 10-32 not argued separately with particularity.
THE OBVIOUSNESS REJECTION OVER MOSHIR, ALLEN,
KOTHANDARAMAN, AND CAIN
The Examiner finds that Moshir discloses many recited elements of
claim 9 including, among other things, a processor programmed to track
changes to responsibility options, namely (1) configuration dependencies,
(2) configurable options for software, or (3) dependency information related
to versioned/maintained software products or versions, where these options
are associated with software program instances installed on at least one
computing device. Ans. 6—8. Although the Examiner acknowledges that
Moshir’s tracked responsibility options are not topological inter-product
responsibility options, the Examiner cites Allen for teaching this feature.
Ans. 9-10, 35 (finding that Allen teaches topological inter-product
relationships and/or configurations).
3 See Ans. 43 (articulating multiple interpretations of limitations in claim 9);
see also App. Br. 42, 47, 51; Reply Br. 7 (acknowledging these
interpretations).
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The Examiner also acknowledges that Moshir does not identify,
among other things, at least one software update suggestion rule that targets
the available update to an installation-specific set of available target
topological inter-product responsibility options, but cites Kothandaraman for
teaching this limitation. Ans. 10—12. The Examiner also acknowledges that
Moshir does not provide a notification of the available software update
responsive to determining that the update is targeted to the tracked changes
to the topological inter-product responsibility options, but cites Cain to cure
this deficiency. Ans. 12—13. In light of these collective teachings, the
Examiner concludes that the claim would have been obvious. Id.
Appellants argue that the cited prior art does not teach or suggest
tracking changes to topological inter-product responsibility options
associated with plural software program instances installed on at least one
computing device as claimed. App. Br. 41—46; Reply Br. 4—8. According to
Appellants, merely adding an application, installing a patch, or having
fingerprint information of a specific computing device as in Moshir are
different from a responsibility to another product as claimed. App. Br. 41—
43. Appellants add that Allen likewise does not disclose product
responsibility changes, let alone track them. App. Br. 43—45. According to
Appellants, Allen’s independent operation teaches away from inter-product
responsibility changes, and the Examiner’s articulated reason to combine
Moshir and Allen is based on impermissible hindsight. App. Br. 45 46.
Appellants add that the cited prior art likewise fails to teach or suggest
the recited software update identification. App. Br. 46—50. According to
Appellants, the Examiner’s reliance on Kothandaraman is misplaced because
Kothandaraman is said to disclose rules to update content—not software
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updates. App. Br. 49-50. Lastly, Appellants contend that the cited prior art
does not teach or suggest the recited determination and notification
functions. App. Br. 50—54.
ISSUES
I. Under § 103, has the Examiner erred by finding that Moshir, Allen,
Kothandaraman, and Cain collectively would have taught or suggested a
processor programmed to:
(1) (a) track changes to topological inter-product responsibility
options associated with plural software program instances installed on at
least one computing device; (b) identify an available software update for at
least one of plural software instances and at least one software update
suggestion rule that targets the update to an installation-specific set of
available topological inter-product responsibility options; (c) using that rule,
determine whether the update is targeted to the tracked changes to the
topological inter-product responsibility options; and (d) provide a
notification of the available update responsive to determining that the update
is targeted to the tracked changes to the recited options as recited in claim 9?
(2) determine whether the targeted installation-specific set of available
topological inter-product responsibility options matches the tracked changes
to the topological inter-product responsibility options as recited in claim 15?
II. Is the Examiner’s proposed combination of the cited references
supported by articulated reasoning with some rational underpinning to
justify the Examiner’s obviousness conclusion?
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ANALYSIS
Claims 9, 17, and 25
On this record, we see no error in the Examiner’s obviousness
rejection of independent claim 9. First, given the scope and breadth of the
term “responsibility options” noted previously, we see no error in the
Examiner’s finding that Moshir at least suggests tracking changes to
responsibility options, namely (1) configuration dependencies, (2)
configurable options for software, or (3) dependency information related to
versioned or maintained software products or versions, where these options
are associated with software program instances installed on at least one
computing device. Ans. 7—8 (citing Moshir || 53, 95—96, 101).
As noted in the Abstract, Moshir’s system (1) discovers software
updates; (2) discovers if a computer can use the update; and (3) updates
computers with software as needed automatically across a network.
Although Appellants contend that merely adding an application, installing a
patch, or having fingerprint information of a specific computing device as in
Moshir are different from a responsibility to another product as claimed
(App. Br. 42-43), Appellants’ arguments are not commensurate with the
scope of the claim, which does not preclude the Examiner’s findings from
Moshir that at least suggest tracking responsibility options as claimed given
the term’s scope and breadth. Ans. 7—8.
Nor do we find error in the Examiner’s reliance on Allen for at least
suggesting that responsibility options, such as those tracked in Moshir, can
be topological inter-product responsibility options. Ans. 9-10, 35, 44-45
(finding that Allen teaches topological inter-product relationships and/or
configurations). As shown in Figure 4, Allen discloses a software
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development project distributed geographically among a local site 63 in the
United States, and two remote sites 65 and 67 in France and Australia,
respectively. Allen, col. 7,11. 56—60. Each site’s compilers use a common
code generator, and all groups share and modify the same code generator
source file. Allen, col. 8,11. 18—20. To this end, each site has a version
control system 64, 66, 68 with an associated versioned object base (VOB)
replica 76, 78, 80 containing the code generator source file. Allen, col. 7,11.
60—62; col. 8,11. 20—22. Notably, each site can exchange update version
information and metadata with VOB replicas at other sites. Allen, col. 9,11.
9-11.
Given Allen’s functionality that involves sharing and exchanging data
between software products at different sites as emphasized above, we see no
error in the Examiner’s conclusion that tracking topological inter-product
responsibility options in Moshir would have been obvious. Ans. 9-10, 34—
35, 44-45. Appellants’ arguments regarding Allen’s individual
shortcomings in this regard (App. Br. 43 46) do not show nonobviousness
where, as here, the rejection is based on the cited references’ collective
teachings. See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir.
1986).
Nor do we find that Allen teaches away from Appellants’ claimed
invention as Appellants contend. App. Br. 45. Even assuming, without
deciding, that each site in Allen operates independently as Appellants
contend, these sites’ products nevertheless share and exchange data—inter­
product functionality that at least suggests topological inter-product
responsibility options. Nor is there any persuasive evidence on this record
proving that Allen criticizes, discredits, or otherwise discourages
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investigation into the invention claimed as required for teaching away. See
Norgren Inc. v. Int’l Trade Comm’n, 699 F.3d 1317, 1326 (Fed. Cir. 2012);
see also In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006).
We also see no error in the Examiner’s reliance on Kothandaraman
for at least suggesting the recited suggestion rule, and that providing such a
rule in connection with Moshir’s available software update identification and
associated target-based determination would have been obvious. Ans. 8, 10—
12, 36, 46-47. Although Appellants contend that Kothandaraman’s rules for
deploying content differ from rules for updating software (App. Br. 49-50),
Kothandaraman is not limited to solely content deployments as Appellants
seem to suggest, but rather also deploys code and configurations as well.
See Kothandaraman 145 (noting that the disclosed system transfers code,
content, and configurations to multiple machines); see also id. Abstract
(noting that the disclosed invention allows controlled provisioning and
synchronizing code and content updates to live applications). In short,
Appellants’ arguments regarding Kothandaraman’s individual shortcomings
regarding the recited available software update identification (App. Br. 48—
50) do not show nonobviousness where, as here, the rejection is based on the
cited references’ collective teachings. See Merck, 800 F.2d at 1097.
Nor do we find error in the Examiner’s reliance on Cain for at least
suggesting the recited available software update notification responsive to
the recited determination, particularly in light of Cain’s various notifications
regarding software updates in paragraphs 47, 53, and 64, including via
email, as well as similar notifications in Moshir’s paragraph 101. Ans. 12—
13. Appellants’ arguments pertaining to Moshir’s and Cain’s individual
shortcomings regarding the recited available software update notification
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(App. Br. 50-54) do not show nonobviousness where, as here, the rejection
is based on the cited references’ collective teachings. See Merck, 800 F.2d
at 1097.
In short, we find that the Examiner’s proposed enhancements to
Moshir merely use prior art elements predictably according to their
established functions—an obvious improvement. See KSR Int 7 Co. v.
Teleflex, Inc., 550 U.S. 398, 417 (2007). Accordingly, the Examiner’s
proposed combination of the cited references is supported by articulated
reasoning with some rational underpinning to justify the Examiner’s
obviousness conclusion.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 9, and claims 17 and 25 not argued separately with particularity.
Claims 15, 23, and 31
We also sustain the Examiner’s rejection of claim 15 reciting, in
pertinent part, determining whether the targeted installation-specific set of
available topological inter-product responsibility options matches the
tracked changes to the topological inter-product responsibility options.
Despite Appellants’ arguments to the contrary (App. Br. 55—59), Appellants
do not persuasively rebut the Examiner’s reliance on Moshir for at least
suggesting the recited comparison and match determination. See Ans. 14
(citing Moshir || 80, 99, 126). Appellants’ arguments regarding Moshir’s
alleged shortcomings pertaining to the recited (1) tracked topological inter­
product responsibility options; (2) targeted installation-specific set of
available target topological inter-product responsibility options; (3) update
suggestion rule; (4) available software update identification; and (5)
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available software update notification responsive to the recited target-based
determination (App. Br. 55—57) are unavailing given the Examiner’s reliance
on the cited references’ collective teachings as noted previously. See Merck,
800 F.2d at 1097. Nor do Appellants squarely address—let alone
persuasively rebut—the Examiner’s particular findings and conclusions from
Moshir (Ans. 14—15) for at least suggesting the recited comparison and
match determination in claim 15.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 15, and claims 23 and 31 not argued separately with particularity.
THE OBVIOUSNESS REJECTION OVER MOSHIR, ALLEN,
KOTHANDARAMAN, CAIN, AND CANNING AND/OR RATHI
Claims 10, 18, and 26
We also sustain the Examiner’s rejection of claim 10 reciting that the
processor is programmed to postpone the notification of the available
software update responsive to determining that the update is not targeted to
the tracked changes to the topological inter-product responsibility options.
Ans. 16—18, 49-50. Despite Appellants’ arguments to the contrary (App.
Br. 59-62), Appellants do not persuasively rebut the Examiner’s reliance on
(1) Canning for teaching providing notifications of available software
updates, and (2) Rathi for at least suggesting the recited postponement, the
latter of which tolls or postpones update notifications under certain
circumstances in paragraphs 44 and 66. See Ans. 17 (citing Canning || 3,
55; Rathi || 44, 66). Appellants’ arguments regarding Canning’s and
Rathi’s alleged shortcomings pertaining to the recited postponement
responsive to determining the update is not targeted to the tracked changes
to the topological inter-product responsibility options (App. Br. 61—62) are
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unavailing given the Examiner’s reliance on the cited references’ collective
teachings as noted previously. See Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 10, and claims 18 and 26 not argued separately with particularity.
Claims 14, 22, and 30
We also sustain the Examiner’s rejection of claim 14 reciting, in
pertinent part, the processor is programmed to receive a notification
identifying the available software update from a software update server.
Despite Appellants’ arguments to the contrary (App. Br. 63—66), Appellants
do not persuasively rebut the Examiner’s reliance on Canning and Rathi for
at least suggesting the recited server-based update notification, particularly
when considered in light of the other cited references, including Moshir. See
Ans. 16—18, 50—51. Appellants’ arguments regarding Cain’s and Canning’s
alleged shortcomings pertaining to the recited server-based update
notification (App. Br. 61—62) are unavailing given the Examiner’s reliance
on the cited references’ collective teachings. See Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 14, and claims 22 and 30 not argued separately with particularity.
THE REJECTION OVER MOSHIR, ALLEN, KOTHANDARAMAN,
CAIN, AND SEO AND/OR BANGA AND/OR LIPSKY
Claims 11, 19, and 27
We also sustain the Examiner’s rejection of claim 11 reciting a
processor programmed to (1) instruct each computing device to send
changes to the topological inter-product responsibility options responsive to
any such change, and (2) receive the changed topological inter-product
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responsibility options from at least one computing device. Despite
Appellants’ arguments to the contrary (App. Br. 67—71), Appellants do not
persuasively rebut the Examiner’s reliance on Seo, Banga, and Lipsky for at
least suggesting the recited sending and receiving changed topological inter­
product responsibility options, particularly when considered in light of the
other cited references, including Moshir. See Ans. 18—22, 51—53 (citing Seo
1138, 45, 93-97; Fig. 3; Banga H 28, 30, 32-33, 41, 43, 47, 66; Figs. 1-2;
Fipsky 1112—13, 17—18; Figs. 2-4, 6). Appellants’ arguments regarding the
alleged shortcomings of Seo, Banga, and Fipsky pertaining to the recited
sending and receiving changed topological inter-product responsibility
options (App. Br. 67—71) are unavailing given the Examiner’s reliance on
the cited references’ collective teachings. See Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 11, and claims 19 and 27 not argued separately with particularity.
Claims 12, 20, and 28
We also sustain the Examiner’s rejection of claim 12 reciting, in
pertinent part, a processor programmed to (1) query each computing device
for changes to the topological inter-product responsibility options associated
with at least one installed software program instance, and (2) receive the
changed topological inter-product responsibility options from at least one
computing device responsive to the query.
Despite Appellants’ arguments to the contrary (App. Br. 71—76),
Appellants do not persuasively rebut the Examiner’s reliance on Seo, Banga,
and Lipsky for at least suggesting the recited querying for, and receiving,
changed topological inter-product responsibility options, particularly when
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considered in light of the other cited references, including Moshir. See Ans.
18-22, 53 (citing Seo H 38, 45, 93-97; Fig. 3; Banga H 28, 30, 32-33, 41,
43, 47, 66; Figs. 1—2; Lipsky || 12—13, 17—18; Figs. 2-4, 6). Appellants’
arguments regarding the alleged shortcomings of Seo, Banga, and Lipsky
pertaining to the recited querying for, and receiving, changed topological
inter-product responsibility options (App. Br. 71—76) are unavailing given
the Examiner’s reliance on the cited references’ collective teachings. See
Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 12, and claims 20 and 28 not argued separately with particularity.
Claims 13, 21, and 29
We also sustain the Examiner’s rejection of claim 13 reciting, in
pertinent part, a processor programmed to query each computing device
responsive to each expiration of a pre-configured time interval.
Despite Appellants’ arguments to the contrary (App. Br. 76—80),
Appellants do not persuasively rebut the Examiner’s reliance on Moshir,
Cain, and Lipsky for at least suggesting the recited querying each computing
device responsive to each expiration of a pre-configured time interval,
particularly when considered in light of the temporal factors noted by the
Examiner in the cited references, including Moshir and Cain. See Ans. 22—
23, 53—54 (citing Moshir || 12, 25, 312; Cain 1542; Lipsky Fig. 6).
Appellants’ arguments regarding the alleged shortcomings of Moshir and
Cain pertaining to the recited querying each computing device responsive to
each expiration of a pre-configured time interval (App. Br. 76—80) are
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unavailing given the Examiner’s reliance on the cited references’ collective
teachings. See Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 13, and claims 21 and 29 not argued separately with particularity.
THE OBVIOUSNESS REJECTION OVER MOSHIR, ALLEN,
KOTHANDARAMAN, CAIN, AND LIPSKY
We also sustain the Examiner’s rejection of claim 16 reciting, in
pertinent part, a processor programmed to provide the available software
update notification responsive to determining that the update is targeted to
(1) tracked software configuration information; (2) topological inter-product
responsibility options; and (3) user software usage information.
Despite Appellants’ arguments to the contrary (App. Br. 81—85),
Appellants do not persuasively rebut the Examiner’s reliance on Moshir and
Lipsky collectively for at least suggesting the claimed notification
responsive to the three recited determinations. See Ans. 23—25, 54—55
(referring to previous findings from Moshir, and citing Lipsky || 12—13, 17—
18; Figs. 2-4, 6). Appellants’ arguments regarding Moshir’s and Lipsky’s
alleged shortcomings pertaining to the claimed notification responsive to the
three recited determinations (App. Br. 81—85) are unavailing given the
Examiner’s reliance on the cited references’ collective teachings. See
Merck, 800 F.2d at 1097.
Therefore, we are not persuaded that the Examiner erred in rejecting
claim 16, and claims 24 and 32 not argued separately with particularity.
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THE DOUBLE PATENTING REJECTION
We also sustain the Examiner’s obviousness-type double patenting
rejection of claims 9, 12, 16, 17, 20, 24, 25, 28, and 32. Ans. 26—27. Apart
from merely asserting that issues regarding the double patenting rejection
are allegedly not ripe for consideration because the present application has
not been indicated as allowable, Appellants do not squarely address—let
alone persuasively rebut—the Examiner’s findings and conclusions
articulated in the rejection. See App. Br. 27. Therefore, we are not
persuaded that the Examiner’s double patenting rejection is erroneous.
CONCLUSION
The Examiner erred in rejecting claims 9—32 under § 112, first
paragraph. The Examiner, however did not err in rejecting those claims
under § 112, second paragraph, and § 103. Nor did the Examiner err in
rejecting claims 9, 12, 16, 17, 20, 24, 25, 28, and 32 under the doctrine of
obviousness-type double patenting.
DECISION
The Examiner’s decision rejecting claims 9—32 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)(l)(iv).
AFFIRMED
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