Ex Parte Uthe

Patent Trial and Appeal Board

Mar 21, 2013

10890022 (P.T.A.B. Mar. 21, 2013)

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.
10/890,022 07/13/2004 INV001Robert Thomas Uthe RSW920040045US1 (156) 6810
46320 7590 03/22/2013
CAREY, RODRIGUEZ, GREENBERG & O''''KEEFE, LLP
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, FL 33434
EXAMINER
MIRZA, ADNAN M
ART UNIT PAPER NUMBER
2443
MAIL DATE DELIVERY MODE
03/22/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT THOMAS UTHE

___________

Appeal 2010-010532
Application 10/890,022
Technology Center 2400
____________

Before JAMESON LEE, BRIAN J. McNAMARA, and
GEORGIANNA W. BRADEN, Administrative Patent Judges.

BRADEN, Administrative Patent Judge

DECISION ON APPEAL

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Application 10/890,022

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This is an appeal1 under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Appellants’ Invention
Appellant’s invention relates to an application component distribution
system for the prioritized distribution of specific application
components. (Spec. paragraph [001], [0010], and Figure 1; App. Br. 2.)

Exemplary Claim
Independent claim 1 is representative of the invention, and is
reproduced below with disputed limitations in italics:
1. An application component distribution system comprising:

a resource management system configured to manage
communicatively coupled client computing devices over a
computer communications network;

a data store arranged to store prioritization data specifying
which of said client computing devices are to first receive
distributions of specified application components; and,

a selective deployment processor programmed to selectively
deploy application components to said client computing devices
based upon said prioritization data.

1 The Real Party in Interest is IBM Corp.
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Examiner’s Rejections
Claims 1-21 were rejected under 35 U.S.C. § 102(e) as being
anticipated by Epstein et al. (U.S. 2002/0124064 A1, Sep. 5, 2002)
(hereinafter “Epstein”). (Ans. 4.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We are unpersuaded by Appellant.
Appellant first contends (App. Br. 7; Reply Br. 4) that Epstein fails to
disclose the claim element “client computer devices” (i.e., a plurality of
client computer devices). Appellant states that the number of client
computer devices being disclosed is relevant to the claimed “prioritization
data,” because the prioritization data specifies the client computer devices
that are to first receive distributions of specified application
components. (App. Br. 7.)
Appellant specifically contends that the Examiner fails to address the
issue, and although the Examiner’s cited passage refers to “a scheduler 310,”
that scheduler is not used for scheduling the distribution of specified
application components to a plurality of client computer devices. (App. Br.
7) Instead, according to Appellant, the scheduler 310 schedules various
interactions with control points and schedules maintenance windows for
various devices. (Id.) Therefore, Appellant surmises that “the concept of
multiple client computer devices is absent from the Examiner’s cited
teachings.” (Id.)
We disagree with Appellant. First, the Examiner appears to find that
the use of more than one client computer device is readily apparent from
reading Epstein, which discloses “[u]sers and service modules can insert
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information into the data store to control the various devices on the
network.” (Ans. 4, citing Epstein paragraph [0028], emphasis added.)
Second, Epstein explicitly discloses the use of more than one client
computing device in Figure 1, and at paragraphs [0021] and [0030]. Third,
we note the claims do not specifically recite “a plurality of client computer
devices,” and Appellant’s Specification states that the claim term “client
computer devices” can be one or more client computing devices
(Specification, paragraph [0014]). Thus, we agree with the Examiner and
find that Epstein discloses “client computer devices.”
Appellant next contends that Epstein does not disclose “specified
application components” that are to be distributed to the client computer
devices. (App. Br. 7.) According to Appellant, although the scheduler 310
describes scheduling “various interactions” with control points, there is no
apparent indication from the cited teachings of Epstein that these various
interactions include the distribution of specified application
components. (Id.)
However, the Examiner finds that Epstein discloses “specified
application components,” because the control server 110 in Epstein
generates a job for the change and sends the job to the control point at the
next scheduled communication. The job includes a JobScript, data files, lists
of supporting files, and a time to execute the job. (Ans. 8, citing Epstein
paragraph [0121].) The Examiner also notes Epstein’s disclosure that “[f]or
one embodiment, if the control point determines if the identified supporting
files are in the control point’s cache. If the supporting files are not in the
cache, the control pint determines which supporting documents, firmware
copies, or other items are needed. The control point 120 then requests the
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needed files, shown as message 923.” (Ans. 9, citing Epstein paragraph
[0122].) Appellant’s Specification does not specifically define “specified
application components,” but does provide examples of application
component updates, enhancements, patches, upgrades, and modifications.
(Specification, paragraph [0004].) Thus, under the broadest reasonable
interpretation of the disputed claim element, the Examiner finds that the
supporting files associated with a job in Epstein fall within the scope of the
claim language. We agree with the Examiner’s findings.
Appellant further contends that it is “unclear” as to how Epstein
discloses “a selective deployment processor programmed to selectively
deploy application components to said client computing devices based upon
said prioritization data” because Appellant is unable to identify teachings
that correspond to the “application components” (i.e., a plurality of
application components), the client computer devices (i.e., a plurality of
client computing devices), or the prioritization data. (App. Br. 8.)
We disagree that Epstein is unclear as asserted by Appellant. The
“application components” and “client computer devices” claim elements are
addressed above. The Examiner explained that Epstein discloses the
prioritization and selective deployment of data, where 310 is the scheduler,
360 is the data storage and 315 is the control point server (Ans. 7, citing
Epstein Figure 3), and the scheduler maintains the scheduling of different
actions/job execution according to a particular rule or criteria (Ans. 8, citing
Epstein paragraph [0057]). Epstein specifically discloses that the scheduler
logic 460 maintains the maintenance windows for each device that is sent a
job from the control point 130. (Id., citing Epstein paragraph [0057].)
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Appellant fails to address a sequence that is implied by the scheduler
310 or the scheduler logic 460. Appellant also fails to address Epstein’s
disclosure that the data store triggers an automatic job generation to update
devices (Epstein, paragraph [0024]) and the timing for job execution is based
on a preset maintenance window that determines when the control point
contacts a devices for the update (Epstein, paragraph [0026]). In that
connection, the Examiner finds that Epstein discloses determining the
priority sequence of which computing devices would receive the first
distribution of the specified application components. We agree. For
example, based on the disclosure in Epstein, the scheduler determines that
device A receives a distribution of a specified application component at time
1, then device B receives the next distribution of a component at time 2,
followed by devices C and D at time 3 and 4. Therefore, devices A and B
are a plurality of devices that received first distributions of a specified
application component, while devices C and D received a subsequent
distribution of the application component. Such an example falls squarely
within the scope of the recited claim language. Therefore, we agree with the
Examiner’s findings.
In the Reply Brief, Appellant contends for the first time that
“scheduling and prioritization are not one in [sic] the same.” (Reply Br. 5.)
According to Appellant, “[s]cheduling refers to when certain actions are to
take place,” while prioritizing “determines when and which actions are to
take place for certain entities (i.e., ‘said client computing devices’) relative
to actions to take place for other entities.” (Id.) Appellant argues that
Epstein’s scheduler does not teach prioritizing, because in order “to establish
prioritizing (with prioritization data) the Examiner must show that the
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priorities of two different entities are being evaluated/compared relative to
one another.” (Id.) However, the claims as currently written do not require
such an evaluation or comparison. Further, Appellant’s Specification does
not define prioritization as to include evaluations and comparisons. (See
Specification paragraphs [0016] – [0017]). Thus, we are unpersuaded by
Appellant’s contentions regarding this issue.
Appellant further contends in the Reply Brief that the deployment of
application components must be based upon prioritization data, which is not
taught by Epstein. (Reply Br. 6.) However, Epstein discloses that certain
jobs can be done in different orders, especially if the correct order is
critical.2 (Epstein, paragraph [0048].) Epstein discloses as an example that
the order of activation and/or initialization of devices can be scheduled (i.e.,
determined). Thus, it is readily apparent that the order for sending out a
program patch or update (i.e., a specified application component) can be
scheduled and can be sent to different devices in a specified order (i.e., the
order of devices can be prioritized). Therefore, we agree with the
Examiner’s findings that Epstein discloses the deployment of application
components based upon prioritization data.
Finally, Appellant contends in the Reply Brief that the limitations at
issue are associated with the data store (i.e., “a data store arranged to store
prioritization data….”), and argues that in Epstein, “the scheduler 310 and

2 In arguments relating to claim 2, Appellant addresses Epstein’s disclosure
at paragraph [0048], but contends that what is being prioritized by Epstein is
the configuring of various initial elements in a device. (App. Br. 9.)
However, Epstein is not so limited and specifically denotes that the
configuration of devices is merely an example of an action that can be
scheduled and controlled. (Epstein, paragraph [0048].)
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the control point server 315 are separate from the data store 360.” (Reply
Br. 4, emphasis in original.) However, Epstein discloses that it is the data
store that triggers an automatic job generation to update devices (Epstein,
paragraph [0024]), and that the job is also pushed back to the data store to
keep the data store up-to-date, shown as message 940 (Epstein, paragraph
[0121]).3 Appellant has failed to address the disclosure in Epstein at
paragraphs [0024] and [0121], and have failed to explain why such
disclosures do not fall within the scope of the recited claim language.
The Examiner has established a prima facia case of anticipation.
Appellant has failed to rebut the prima facia case by providing sufficient
evidence that Epstein does not disclose one or more elements of the claimed
invention. Accordingly, we affirm the rejection of claim 1.
Appellant has not presented any substantially different arguments for
claims 2-21, which require the same disputed claim limitations as
representative claim 1, thus, these claims fall together. Accordingly, we
affirm the rejection of claims 1-21under 35 U.S.C. § 102(e).

DECISION
The Examiner’s decision to reject claims 1-21 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

3 The disclosure in Epstein at paragraphs [0024] and [0121] also read on the
disputed claim language recited in claim 3.
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