DETAILED ACTION
This Office action is in response to the amendment filed on May 29, 2026.
Claims 1-15 are pending.
Claims 1, 3-6, 9, and 10 are currently amended.
Claims 11-15 are added.
The objection to the title of the invention is withdrawn in view of the Applicant’s amendments to the title of the invention.
The objections to Claims 1, 3-5, and 9 are withdrawn in view of the Applicant’s amendments to the claims.
The 35 U.S.C. § 112(b) rejections of Claims 9 and 10 are withdrawn in view of the Applicant’s amendments to the claims.
The 35 U.S.C. § 101 rejection of Claim 10 is withdrawn in view of the Applicant’s amendments to the claim.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Internet Communications
Without a written authorization for Internet communications by the Applicant in place, the USPTO cannot communicate with the Applicant via email and will not respond via email to any Internet correspondence which contains information subject to the confidentiality requirement as set forth in 35 U.S.C. § 122, such as claimed subject matter in an interview agenda or proposed claim amendments for an Examiner’s Amendment.
Therefore, in the interest of facilitating compact prosecution, the Examiner kindly asks the Applicant to authorize Internet communications with the USPTO by using Form PTO/SB/439 (available at https://www.uspto.gov/patents/apply/forms). The form may be submitted via the USPTO patent electronic filing system (Patent Center) using the document description “Internet Communications Authorized” to facilitate processing. The written authorization for Internet communications must be submitted on a separate paper to be entitled to acceptance in accordance with 37 CFR § 1.4(c). The separate paper will facilitate processing and avoid confusion. The written authorization for Internet communications may not be submitted via an email. See MPEP § 502.03(II).
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Response to Amendment
Claim Objections
Claim 15 is objected to because of the following informalities:
Claim 15 recites “the another device.” It should read -- wherein the another device --.
Appropriate correction is required.
Claim Rejections - 35 U.S.C. § 112
The following is a quotation of 35 U.S.C. § 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
Claim 14 is rejected under 35 U.S.C. § 112(b) as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor regards as the invention.
Claim 14 recites the limitation “the plurality of first control devices” at line 4. There is insufficient antecedent basis for this limitation in the claim. In the interest of compact prosecution, the Examiner subsequently interprets this limitation as reading “a plurality of second control devices” for the purpose of further examination.
Claim Rejections - 35 U.S.C. § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. § 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1, 3, 4, 6, 7, and 9-11 are rejected under 35 U.S.C. § 102(a)(1) as being anticipated by US 2020/0174779 (hereinafter “David”).
As per Claim 1, David discloses:
A second control device (Figure 1: 108, paragraph [0025], “The OTA updater device 108 performs actions for updating software within the vehicle 106.”) comprising a storage unit (Figure 2: 224) and a control unit (Figure 2: 222), and connected to a first control device (Figure 1: 110; paragraph [0031], “As an example, the updatable electronic component 110 may be an ECU.”) via a first communication network (Figure 1: 114),
the control unit (Figure 2: 222) includes:
an update processing unit configured to update software of the first control device (paragraph [0045], “At block 306, the OTA updater device 108 initiates installation of the software update in the updatable electronic component. This step may involve, for example, determining whether the updatable electronic component is ready to be updated, transmitting the software update from the OTA updater device 108 to the updatable electronic component (e.g., via a communication bus, such as a CAN bus), and executing the installation process on the updatable electronic component (emphasis added).”); and
a software acquisition processing unit configured to acquire the software of the first control device from the first control device before the update of the software of the first control device starts, and store the acquired software of the first control device to the storage unit (paragraph [0043], “Referring again to FIG. 3, at block 304, the OTA updater device 108 checks for a valid backup software version for the updatable electronic component in a storage medium in the on-board vehicle computer system, and updates the backup software version if necessary. An update of the backup software version at this stage may be necessary or desirable in several situations. For example, if the OTA updater device detects that there is no backup software version present, or if the backup software version is not compatible with a current vehicle configuration, the OTA updater device 108 may obtain and store an updated backup software version in the storage medium before initiating installation of the software update to facilitate reversion to a prior software version in the event of an error during installation of the new software update (emphasis added).”).
As per Claim 3, the rejection of Claim 1 is incorporated; and David further discloses:
wherein the control unit further includes an update data acquisition processing unit configured to, when another device has update data for the software of the first control device, acquire the update data and stores the acquired update data to the storage unit (paragraph [0029], “In some embodiments, the OTA updater device 108 also includes […] storage media 224 on which backup software 226 for the updatable electronic component(s) 110 may be stored. In some embodiments, the backup software 226 is a copy of software currently installed on the updatable electronic component(s) 110.”; paragraph [0040], “At block 302, the OTA updater device 108 of a vehicle 106 receives a software update package from a remote computer system (e.g., server computing system 104) via a wireless communication network according to a particular wireless communication protocol. The software update package includes a software update for an updatable electronic component (e.g., an ECU) of the vehicle.”),
when the update data acquisition processing unit acquires the update data, the software acquisition processing unit acquires the software of the first control device from the first control device, and stores the acquired software of the first control device to the storage unit (paragraph [0026], “[…] the OTA updater device 108 stores backup software versions for the updatable electronic component(s) 110.”; paragraph [0029], “In some embodiments, the OTA updater device 108 also includes […] storage media 224 on which backup software 226 for the updatable electronic component(s) 110 may be stored. In some embodiments, the backup software 226 is a copy of software currently installed on the updatable electronic component(s) 110.”),
when the software of the first control device is stored to the storage unit, the update processing unit uses the update data acquired by the update data acquisition processing unit to start updating the software of the first control device (paragraph [0045], “At block 306, the OTA updater device 108 initiates installation of the software update in the updatable electronic component. This step may involve, for example, determining whether the updatable electronic component is ready to be updated, transmitting the software update from the OTA updater device 108 to the updatable electronic component (e.g., via a communication bus, such as a CAN bus), and executing the installation process on the updatable electronic component.”).
As per Claim 4, the rejection of Claim 1 is incorporated; and David further discloses:
wherein when the software of the first control device has not been successfully updated, the update processing unit installs the acquired software stored in the storage unit to the first control device (paragraph [0058], “At block 406, the OTA updater device 108 determines whether any errors or interruptions have occurred during the installation process. For example, the OTA updater device 108 may determine that a vehicle state condition has changed such that the installation must be interrupted (e.g., the key has been turned off or the battery level has dropped below a threshold voltage), or that a user has interrupted the update manually.”; paragraph [0059], “At block 410, the OTA updater device 108 retrieves a backup software version from a storage medium in the on-board computer system. At block 412, the OTA updater device 108 installs the backup software version on the updatable electronic component.”).
As per Claim 6, the rejection of Claim 3 is incorporated; and David further discloses:
wherein the first control device and the second control device are provided in a vehicle (Figure 1: 106, 108, and 110), and
the another device is provided outside the vehicle (Figure 1: 104 and 106).
As per Claim 7, David discloses:
A control system (Figure 1) comprising:
a plurality of first control devices (paragraph [0002], “Electronic control units (ECUs) and other devices associated with the vehicles may store or access updatable software, which may include computer-executable instructions, settings data, torque maps, or other software. ECUs are embedded devices that control electronic systems or subsystems in vehicles. ECUs provide many types of functionality for vehicle operation, including but not limited to engine control, auxiliary equipment control, presentation of information via an instrument panel, and infotainment services. ECUs can be implemented in a variety of hardware configurations.”); and
a second control device according to claim 1 connected to the plurality of first control devices via the first communication network (see 35 U.S.C. § 102(a)(1) rejection of Claim 1 hereinabove).
Claim 9 is a control method claim corresponding to the second control device claim hereinabove (Claim 1). Therefore, Claim 9 is rejected for the same reason set forth in the rejection of Claim 1.
As per Claim 10, the rejection of Claim 9 is incorporated; and David further discloses:
[a] non-transitory computer-readable recording medium (Figure 5: 508) recorded with a control program (paragraph [0073], “In general, the word ‘module,’ as used herein, refers to logic embodied in hardware or software instructions, which can be written in a programming language, such as C, C++, COBOL, JAVA™, PHP, Perl, HTML, CSS, JavaScript, VBScript, ASPX, Microsoft .NET™, Swift, Go, and/or the like. A module may be compiled into executable programs or written in interpreted programming languages.”) for causing a computer to execute the control method of claim 9 (see 35 U.S.C. § 102(a)(1) rejection of Claim 9 hereinabove).
As per Claim 11, the rejection of Claim 1 is incorporated; and David further discloses:
wherein the software acquisition processing unit is further configured to acquire the software of the first control device from the first control device based on determining that the update of the software of the first control device is available to update the software of the first control device before the update of the software of the first control device starts (paragraph [0041], “The OTA updater device 108 may obtain the software update in any suitable manner. For example, the OTA updater device 108 may transmit a request for available updates to the server computing system 104 (or another computing system), and may receive the software update in response, or the OTA updater device 108 may receive an indication that a software update is available.”).
Claim Rejections - 35 U.S.C. § 103
The following is a quotation of 35 U.S.C. § 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 2, 5, and 13 are rejected under 35 U.S.C. § 103 as being unpatentable over David in view of US 6,154,878 (hereinafter “Saboff”).
Examiner’s Remarks: In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. § 103, the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See MPEP § 2141.01(a)(I).
Note that the claimed invention is generally directed to updating software of a control device at a low cost (specification, paragraph [0005]). As for the “same field of endeavor” test, David is generally directed to employing a local backup approach in which a backup software version, which has been previously stored on the vehicle and checked for validity, is automatically reinstalled in the event that errors or interruptions occur during over-the-air software updates (specification, paragraph [0018]). As for the “reasonably pertinent” test, Saboff is generally directed to automatic dynamic updating of software (specification, col. 1 lines 9-11). Thus, David and Saboff are both analogous art to the claimed invention (even if they address different problems or are not in the same field of endeavor as the claimed invention).
As per Claim 2, the rejection of Claim 1 is incorporated; and David does not explicitly disclose:
wherein the control unit includes a substitution processing unit that uses the software of the first control device stored in the storage unit to substitute for a function of the first control device while the software of the first control device is updated.
However, Saboff discloses:
wherein the control unit includes a substitution processing unit that uses the software of the first control device stored in the storage unit to substitute for a function of the first control device while the software of the first control device is updated (col. 1 lines 31-34, “Several systems have been developed to update software while the system is running. This ability is known by several names such as ‘on-line replacement’ of software, updating software ‘on the fly’, or ‘hot patching’ software.” and lines 42-46, “Current methods for on-the-fly replacement of software replace the software component at various levels of granularity. Some require the entire software program be replaced while others allow for much smaller units such a procedure or a module.”).
As pointed out hereinabove, David and Saboff are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Saboff into the teaching of David to include “wherein the control unit includes a substitution processing unit that uses the software of the first control device stored in the storage unit to substitute for a function of the first control device while the software of the first control device is updated.” The modification would be obvious because one of ordinary skill in the art would be motivated to update software while a system is running (Saboff, col. 1 lines 31-34).
As per Claim 5, the rejection of Claim 2 is incorporated; and David further discloses:
wherein the control unit further includes an update data acquisition processing unit configured to, when another device has update data for the software of the first control device, acquire the update data (paragraph [0029], “In some embodiments, the OTA updater device 108 also includes […] storage media 224 on which backup software 226 for the updatable electronic component(s) 110 may be stored. In some embodiments, the backup software 226 is a copy of software currently installed on the updatable electronic component(s) 110.”; paragraph [0040], “At block 302, the OTA updater device 108 of a vehicle 106 receives a software update package from a remote computer system (e.g., server computing system 104) via a wireless communication network according to a particular wireless communication protocol. The software update package includes a software update for an updatable electronic component (e.g., an ECU) of the vehicle.”),
when the update data acquisition processing unit acquires the update data, the software acquisition processing unit acquires the software of the first control device from the first control device, and stores the acquired software of the first control device to the storage unit (paragraph [0026], “[…] the OTA updater device 108 stores backup software versions for the updatable electronic component(s) 110.”; paragraph [0029], “In some embodiments, the OTA updater device 108 also includes […] storage media 224 on which backup software 226 for the updatable electronic component(s) 110 may be stored. In some embodiments, the backup software 226 is a copy of software currently installed on the updatable electronic component(s) 110.”),
when the software of the first control device is stored to the storage unit […] (paragraph [0029], “In some embodiments, the OTA updater device 108 also includes […] storage media 224 on which backup software 226 for the updatable electronic component(s) 110 may be stored. In some embodiments, the backup software 226 is a copy of software currently installed on the updatable electronic component(s) 110.”), and
[…] the update processing unit uses the update data acquired by the update data acquisition processing unit to start updating the software of the first control device (paragraph [0045], “At block 306, the OTA updater device 108 initiates installation of the software update in the updatable electronic component. This step may involve, for example, determining whether the updatable electronic component is ready to be updated, transmitting the software update from the OTA updater device 108 to the updatable electronic component (e.g., via a communication bus, such as a CAN bus), and executing the installation process on the updatable electronic component.”).
David does not explicitly disclose:
[…] the substitution processing unit uses the software of the first control device stored in the storage unit to substitute for the function of the first control device, and
when the substitution processing unit starts substitution for the function of the first control device […].
However, Saboff discloses:
[…] the substitution processing unit uses the software of the first control device stored in the storage unit to substitute for the function of the first control device (col. 1 lines 31-34, “Several systems have been developed to update software while the system is running. This ability is known by several names such as ‘on-line replacement’ of software, updating software ‘on the fly’, or ‘hot patching’ software.” and lines 42-46, “Current methods for on-the-fly replacement of software replace the software component at various levels of granularity. Some require the entire software program be replaced while others allow for much smaller units such a procedure or a module.”); and
when the substitution processing unit starts substitution for the function of the first control device […] (col. 1 lines 31-34, “Several systems have been developed to update software while the system is running. This ability is known by several names such as ‘on-line replacement’ of software, updating software ‘on the fly’, or ‘hot patching’ software.” and lines 42-46, “Current methods for on-the-fly replacement of software replace the software component at various levels of granularity. Some require the entire software program be replaced while others allow for much smaller units such a procedure or a module.”).
As pointed out hereinabove, David and Saboff are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Saboff into the teaching of David to include “[…] the substitution processing unit uses the software of the first control device stored in the storage unit to substitute for the function of the first control device, and when the substitution processing unit starts substitution for the function of the first control device […].” The modification would be obvious because one of ordinary skill in the art would be motivated to update software while a system is running (Saboff, col. 1 lines 31-34).
As per Claim 13, the rejection of Claim 2 is incorporated; and David does not explicitly disclose:
wherein the function of the first control device is unavailable from the first control device while the software of the first control device is updated.
However, Saboff discloses:
wherein the function of the first control device is unavailable from the first control device while the software of the first control device is updated (col. 16 lines 26-50, “FIG. 10 is a block diagram of the operation of the invention when a request to update the implementation library is pending. FIG. 10 uses the same key used in FIG. 2. The application code 30 makes a call to a function found in the implementation library 220. Control goes first to the proxy of the function found in the interface library 32, as indicated by line 211. The interface library reads 40 the registry 38, as indicated by line 212, and finds that the latest version of the implementation library is different than the version last used by the application. This indicates that there is a newer version of the implementation library on the system. Thus the call to the old version of the implementation library 220, as indicated by line 213, is obsolete. Instead, execute the new version of the implementation library 222, as indicated by line 215. To do this, the interface library proxy calls the management services to change the implementation library used by the application, as indicated by line 214. The management services waits until the implementation library is no longer being accessed and then updates it to the new library. The management services also ensures that the state of the implementation library is preserved from the old implementation library to the new implementation library. Once the new implementation library 222 is updated, the interface library calls the new implementation library, as indicated by line 215.”).
As pointed out hereinabove, David and Saboff are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Saboff into the teaching of David to include “wherein the function of the first control device is unavailable from the first control device while the software of the first control device is updated.” The modification would be obvious because one of ordinary skill in the art would be motivated to update software while a system is running (Saboff, col. 1 lines 31-34).
Claims 8, 14, and 15 are rejected under 35 U.S.C. 103 as being unpatentable over David in view of US 2021/0258186 (hereinafter “Tokunaga”).
Examiner’s Remarks: In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. § 103, the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See MPEP § 2141.01(a)(I).
Note that the claimed invention is generally directed to updating software of a control device at a low cost (specification, paragraph [0005]). As for the “same field of endeavor” test, David is generally directed to employing a local backup approach in which a backup software version, which has been previously stored on the vehicle and checked for validity, is automatically reinstalled in the event that errors or interruptions occur during over-the-air software updates (specification, paragraph [0018]). As for the “reasonably pertinent” test, Tokunaga is generally directed to providing a communication system in which start condition(s) can be easily changed (specification, paragraph [0004]). Thus, David and Tokunaga are both analogous art to the claimed invention (even if they address different problems or are not in the same field of endeavor as the claimed invention).
As per Claim 8, the rejection of Claim 1 is incorporated; and David further discloses:
A control system (Figure 1) comprising:
a […] second control device[] according to claim 1 (see 35 U.S.C. § 102(a)(1) rejection of Claim 1 hereinabove).
David does not explicitly disclose:
a plurality of second control devices; and
a third control device connected to the plurality of second control devices via a second communication network.
However, Tokunaga discloses:
a plurality of second control devices (paragraph [0017], “A communication system 10 shown in FIG. 1 includes a plurality of electronic control devices (hereinafter referred to as “ECUs”) 1a, 1b, 1c, 1d (hereinafter, also referred to collectively as ECU 1 when individual ECUs are not distinguished) mounted on a vehicle. The plurality of ECUs 1 are connected to a communication bus 9 to constitute an in-vehicle network, and perform mutual communication according to a CAN protocol via the communication bus 9.”; paragraph [0025], “Of the ECUs 1, a configuration of the ECU 1a, which is a master ECU, is described with reference to FIG. 1.”; paragraph [0114], “[…] the communication system 10 may be configured to include a plurality of master ECUs or may be configured to include one slave ECU.”); and
a third control device connected to the plurality of second control devices via a second communication network (Figure 9: 1, 1z, and 9).
As pointed out hereinabove, David and Tokunaga are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Tokunaga into the teaching of David to include “a plurality of second control devices; and a third control device connected to the plurality of second control devices via a second communication network.” The modification would be obvious because one of ordinary skill in the art would be motivated to utilize a master ECU to control the operations of a plurality of slave ECUs.
As per Claim 14, the rejection of Claim 8 is incorporated; and David further discloses:
wherein the [first] control device is configured to obtain, over a network, the update of the software of the first control device (paragraph [0040], “At block 302, the OTA updater device 108 of a vehicle 106 receives a software update package from a remote computer system (e.g., server computing system 104) via a wireless communication network according to a particular wireless communication protocol. The software update package includes a software update for an updatable electronic component (e.g., an ECU) of the vehicle.”), and
wherein the second control device is configured to […] control the plurality of first control devices (paragraph [0027], “[…] the OTA updater device 108 applies the software update(s) to the updatable electronic component 110 […].”).
David does not explicitly disclose:
the third control device; and
[…] controlled by the third control device […].
However, Tokunaga discloses:
the third control device (Figure 9: 1z); and
[…] controlled by the third control device […] (paragraph [0109], “The gateway ECU 1z connects a plurality of communication buses 9 to each other in order to relay transmission/reception of communication frames between the plurality of ECUs 1, that is, between the plurality of nodes 1.”).
As pointed out hereinabove, David and Tokunaga are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Tokunaga into the teaching of David to include “the third control device; and […] controlled by the third control device […].” The modification would be obvious because one of ordinary skill in the art would be motivated to utilize a master ECU to control the operations of a plurality of slave ECUs.
As per Claim 15, the rejection of Claim 8 is incorporated; and David further discloses:
wherein the first control device (Figure 1: 110) and the second control device (Figure 1: 108) are provided in a vehicle (Figure 1: 106), and
the another device (Figure 1: 104) is provided outside the vehicle (Figure 1: 106).
Claim 12 is rejected under 35 U.S.C. 103 as being unpatentable over David in view of US 2022/0024472 (hereinafter “Hachisuwa”).
Examiner’s Remarks: In order for a reference to be proper for use in an obviousness rejection under 35 U.S.C. § 103, the reference must be analogous art to the claimed invention. In re Bigio, 381 F.3d 1320, 1325, 72 USPQ2d 1209, 1212 (Fed. Cir. 2004). A reference is analogous art to the claimed invention if: (1) the reference is from the same field of endeavor as the claimed invention (even if it addresses a different problem); or (2) the reference is reasonably pertinent to the problem faced by the inventor (even if it is not in the same field of endeavor as the claimed invention). See MPEP § 2141.01(a)(I).
Note that the claimed invention is generally directed to updating software of a control device at a low cost (specification, paragraph [0005]). As for the “same field of endeavor” test, David is generally directed to employing a local backup approach in which a backup software version, which has been previously stored on the vehicle and checked for validity, is automatically reinstalled in the event that errors or interruptions occur during over-the-air software updates (specification, paragraph [0018]). And Hachisuwa is generally directed to update processing for updating a vehicle control software that is to be used for the vehicle control (Abstract). Thus, David and Hachisuwa are both analogous art to the claimed invention (even if they address different problems or are not in the same field of endeavor as the claimed invention).
As per Claim 12, the rejection of Claim 1 is incorporated; and David does not explicitly disclose:
wherein the control unit is further configured to erase, from the control unit, the acquired software of the first control device based on determining that the update of the software of the first control device has completed successfully.
However, Hachisuwa discloses:
wherein the control unit is further configured to erase, from the control unit, the acquired software of the first control device based on determining that the update of the software of the first control device has completed successfully (paragraph [0123], “[…] when the update processing of the current software 92 stored in the first storage device 91 has been successfully executed, the current software 92 subjected to the update processing and written into the second storage device 124 prior to execution of the update processing, is erased from the second storage device 124. Thus, after the update processing of the current software 92 has been successfully executed, the backed-up current software 92 is not kept stored in the second storage device 124, so that it is possible to appropriately ensure the free space of the second storage device 124.”).
As pointed out hereinabove, David and Hachisuwa are both analogous art to the claimed invention. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the teaching of Hachisuwa into the teaching of David to include “wherein the control unit is further configured to erase, from the control unit, the acquired software of the first control device based on determining that the update of the software of the first control device has completed successfully.” The modification would be obvious because one of ordinary skill in the art would be motivated to ensure that there is free space available in a storage device when a software of a control device is no longer needed (Hachisuwa, paragraph [0123]).
Response to Arguments
Applicant’s arguments filed on May 29, 2026 with respect to the 35 U.S.C. § 103 rejections of the claims have been fully considered, but they are not persuasive.
In the Remarks, the Applicant argues:
Even if David may suggest storing a backup software version (rejection’s alleged “software of the first control device”), arguendo such as at David paragraph [0043] cited at page 7 of the Office Action, David does not set forth or suggest acquiring “from the first control device”, in contrast to the claimed “… acquire … from the first control device …” features. And viewing David overall does not remedy that deficiency.
(See Remarks – page 9, emphasis in original.)
Examiner’s response:
Examiner respectfully disagrees. With respect to the Applicant’s assertion that “[…] David does not set forth or suggest acquiring ‘from the first control device’, in contrast to the claimed ‘… acquire … from the first control device …’ features,” the Applicant’s arguments are not persuasive for at least the following reasons:
First, the Examiner respectfully submits the relevant portions of MPEP § 714.02 and 37 CFR § 1.111(b) with emphasis added for purposes of convenience in discussion and illustration:
MPEP § 714.02 Must Be Fully Responsive
The claims may be amended by canceling particular claims, by presenting new claims, or by rewriting particular claims as indicated in 37 CFR 1.121(c). The requirements of 37 CFR 1.111(b) must be complied with by pointing out the specific distinctions believed to render the claims patentable over the references in presenting arguments in support of new claims and amendments.
37 CFR § 1.111(b) Reply by applicant or patent owner to a non-final Office action.
(b) In order to be entitled to reconsideration or further examination, the applicant or patent owner must reply to the Office action. The reply by the applicant or patent owner must be reduced to a writing which distinctly and specifically points out the supposed errors in the examiner’s action and must reply to every ground of objection and rejection in the prior Office action. The reply must present arguments pointing out the specific distinctions believed to render the claims, including any newly presented claims, patentable over any applied references. If the reply is with respect to an application, a request may be made that objections or requirements as to form not necessary to further consideration of the claims be held in abeyance until allowable subject matter is indicated. The applicant’s or patent owner’s reply must appear throughout to be a bona fide attempt to advance the application or the reexamination proceeding to final action. A general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references does not comply with the requirements of this section.
According to the portions of the MPEP and the patent rule provided hereinabove, the Examiner would like to point out that the Applicant’s arguments do not provide any specific reasons as to why either the findings of fact or the legal conclusion of obviousness is allegedly in error. Rather, the Applicant’s arguments are only conclusory generalizations not tied to the specific facts of the references based on a reasoned explanation. Thus, the Applicant’s arguments in response to the obviousness rejection do not comply with MPEP § 714.02 and 37 CFR § 1.111(b) because they amount to a general allegation that the claims define a patentable invention without specifically pointing out how the language of the claims patentably distinguishes them from the references. However, the Applicant’s reply is considered to be a bona fide attempt at a response and is being accepted as a complete response.
Second, the Examiner respectfully submits that David discloses “a software acquisition processing unit configured to acquire the software of the first control device from the first control device before the update of the software of the first control device starts, and store the acquired software of the first control device to the storage unit” (paragraph [0043], “Referring again to FIG. 3, at block 304, the OTA updater device 108 checks for a valid backup software version for the updatable electronic component in a storage medium in the on-board vehicle computer system, and updates the backup software version if necessary. An update of the backup software version at this stage may be necessary or desirable in several situations. For example, if the OTA updater device detects that there is no backup software version present, or if the backup software version is not compatible with a current vehicle configuration, the OTA updater device 108 may obtain and store an updated backup software version in the storage medium before initiating installation of the software update to facilitate reversion to a prior software version in the event of an error during installation of the new software update (emphasis added).”).
Note that David discloses, that prior to initiating installation of the software update in the ECU of the vehicle, a copy of a prior software version of the software is obtained and stored as an updated backup software version of the software in the storage medium. Thus, one of ordinary skill in the art would readily comprehend that the copy of the prior software version of the software is acquired from the ECU of the vehicle before the update of the software starts because the prior software version of the software is already stored in the ECU of the vehicle.
Therefore, for at least the reasons set forth above, the rejection made under 35 U.S.C. § 102 with respect to Claim 1 is proper and therefore, maintained.
As the 35 U.S.C. § 102 rejection of independent Claim 1 is maintained for at least the reasons stated hereinabove, the rejections with respect to the remaining independent claims are also maintained for at least the identical reasons set forth hereinabove, and the rejections with respect to their dependent claims are also maintained since the Applicant has not pointed out any further deficiencies of the 35 U.S.C. § 102/103 rejections with respect to their dependent claims.
In the Remarks, the Applicant argues:
But even if Saboff suggests continuing to use some of a software while other parts of the software are updated, neither Saboff nor David suggests using “the software of the first control device stored in the storage unit”. From Saboff, even with David, it does not seem clear that there would be any use of what would be in the alleged “storage unit” if, like in claim 1, the relevant software were already in the alleged “first control device”.
That is, according to Saboff, its “on-the-fly” or “hot patching”, does not involve such additional “storage unit” in addition to software already in a “first control device”. And so, the combination of David and Saboff does not reasonably suggest the features of claim 2.
(See Remarks – pages 9 and 10.)
Examiner’s response:
Examiner respectfully disagrees. With respect to the Applicant’s assertion that “[…] neither Saboff nor David suggests using ‘the software of the first control device stored in the storage unit’,” the Applicant’s arguments are not persuasive for at least the following reason:
Examiner respectfully submits that Saboff discloses “wherein the control unit includes a substitution processing unit that uses the software of the first control device stored in the storage unit to substitute for a function of the first control device while the software of the first control device is updated” (col. 1 lines 31-34, “Several systems have been developed to update software while the system is running. This ability is known by several names such as ‘on-line replacement’ of software, updating software ‘on the fly’, or ‘hot patching’ software.” and lines 42-46, “Current methods for on-the-fly replacement of software replace the software component at various levels of granularity. Some require the entire software program be replaced while others allow for much smaller units such a procedure or a module.” and 51-53, “The software components used by software applications are often found in software libraries, a group of software routines collected together, usually for a related purpose (emphasis added).”; col. 14 lines 27-30, “Routines indicated as external are expected to be used by external loading software to explicitly load and unload implementation libraries to and from memory (emphasis added).”).
Note that Saboff discloses that the software components used by software applications are often found in software libraries. And that the software libraries are loaded and unloaded from memory. Thus, one of ordinary skill in the art would readily comprehend that the software libraries are stored in memory in ordered to be loaded and unloaded.
Therefore, for at least the reason set forth above, the rejection made under 35 U.S.C. § 103 with respect to Claim 2 is proper and therefore, maintained.
As the 35 U.S.C. § 103 rejection of dependent Claim 2 is maintained for at least the reason stated hereinabove, the rejections with respect to its dependent claims are also maintained since the Applicant has not pointed out any further deficiencies of the 35 U.S.C. § 103 rejections with respect to its dependent claims.
In the Remarks, the Applicant argues:
Further, the “on the fly” and “hot patching” disclosed in Saboff are intended to enable updates without stopping the system by employing a configuration in which access is made to an implementation library via a proxy interface, rather than by “substitution” performed by another device as in the present application. See the rejection’s cited portions and related descriptions of the reference. In those “on the fly” and “hot patching” techniques, switching from the old-version implementation library to the new-version implementation library is performed instantaneously by the proxy changing the call destination, and therefore there is no necessity or obvious suggestion for substitution of the function during the update process. Accordingly, Saboff, even with David, does not reasonably suggest the features of claim 2 of the present application. Viewing the references overall does not remedy that deficiency.
(See Remarks – page 10.)
Examiner’s response:
Examiner respectfully disagrees. With respect to the Applicant’s assertion that “[…] the ‘on the fly’ and ‘hot patching’ disclosed in Saboff are intended to enable updates without stopping the system by employing a configuration in which access is made to an implementation library via a proxy interface, rather than by ‘substitution’ performed by another device as in the present application,” the Applicant’s arguments are not persuasive for at least the following reason:
Examiner respectfully submits that Saboff discloses “wherein the control unit includes a substitution processing unit that uses the software of the first control device stored in the storage unit to substitute for a function of the first control device while the software of the first control device is updated” (col. 1 lines 31-34, “Several systems have been developed to update software while the system is running. This ability is known by several names such as ‘on-line replacement’ of software, updating software ‘on the fly’, or ‘hot patching’ software.” and lines 42-46, “Current methods for on-the-fly replacement of software replace the software component at various levels of granularity. Some require the entire software program be replaced while others allow for much smaller units such a procedure or a module.”).
Note that, as acknowledged by the Applicant, Saboff discloses updating software while the system is running. This ability is known by several names such as “on-line replacement” of software, updating software “on the fly”, or “hot patching” software. Thus, one of ordinary skill in the art would readily comprehend that “hot patching” software involves substituting/replacing a function of the software with another function while the software is updated. Documentary evidence to support the Examiner’s position can be found, for example, in US 2006/0191014 (hereinafter “Zvi”), which discloses “Hotpatching is in-memory patching mechanism that enables the installation of software updates without requiring users to restart their computers by automatically inserting code from a software update into a running process. This means that system files can be updated while they are in use” (paragraph [0002]) and “[f]or example, Hotpatching may bypass a vulnerable function in a running process by injecting a JMP instruction at the beginning of the vulnerable function. When the function is called, it jumps to a new function that is also loaded into the process space by the Hotpatching mechanism” (paragraph [0003], emphasis added). Zvi is provided only as directly corresponding evidence to support the common knowledge finding, and it does not result in a new issue or constitute a new ground of rejection.
Therefore, for at least the reason set forth above, the rejection made under 35 U.S.C. § 103 with respect to Claim 2 is proper and therefore, maintained.
As the 35 U.S.C. § 103 rejection of dependent Claim 2 is maintained for at least the reason stated hereinabove, the rejections with respect to its dependent claims are also maintained since the Applicant has not pointed out any further deficiencies of the 35 U.S.C. § 103 rejections with respect to its dependent claims.
In the Remarks, the Applicant argues:
Further, for dependent claim 8, the rejection asserted that Tokunaga would have been obvious to combine with David “to utilize a master ECU to control the operations of a plurality of slave ECUs” as noted at pages 16 and 17 of the Office Action [sic]
But claim 8 depends on claim 7 which therefore regards not only a “third control device” and a “second control device”, but also a “first control device” in relation to that “second control device” (at least with the features of claim 1 from which those claims 8 and 7 depend). And so, the rejection’s reasoning, to add a “third control device” to David does not provide a convincing line of reasoning why there would be each of first, second, and third control devices as claimed.
(See Remarks – page 10, emphasis in original.)
Examiner’s response:
Examiner respectfully disagrees. With respect to the Applicant’s assertion that “[…] claim 8 depends on claim 7 which therefore regards not only a ‘third control device’ and a ‘second control device’, but also a ‘first control device’ in relation to that ‘second control device’ (at least with the features of claim 1 from which those claims 8 and 7 depend),” the Applicant’s arguments are not persuasive for at least the following reasons:
First, the Examiner respectfully submits that Claim 8 depends on Claim 1, not Claim 7. Thus, the Applicant’s arguments are not commensurate in scope with the claim language. The limitations on which the Applicant relies (i.e., the limitations of Claim 7) are not explicitly recited in Claim 8. Applicant is reminded that in order for such limitations to be considered, Claim 8 is required to explicitly recite such limitations, otherwise broadest reasonable interpretations of the broadly claimed limitations are deemed to be proper.
Second, the Examiner respectfully submits that Tokunaga discloses “a plurality of second control devices” (paragraph [0017], “A communication system 10 shown in FIG. 1 includes a plurality of electronic control devices (hereinafter referred to as “ECUs”) 1a, 1b, 1c, 1d (hereinafter, also referred to collectively as ECU 1 when individual ECUs are not distinguished) mounted on a vehicle. The plurality of ECUs 1 are connected to a communication bus 9 to constitute an in-vehicle network, and perform mutual communication according to a CAN protocol via the communication bus 9.”; paragraph [0025], “Of the ECUs 1, a configuration of the ECU 1a, which is a master ECU, is described with reference to FIG. 1.”; paragraph [0114], “[…] the communication system 10 may be configured to include a plurality of master ECUs or may be configured to include one slave ECU.”) and “a third control device connected to the plurality of second control devices via a second communication network” (Figure 9: 1, 1z, and 9).
Therefore, for at least the reasons set forth above, the rejection made under 35 U.S.C. § 103 with respect to Claim 8 is proper and therefore, maintained.
As the 35 U.S.C. § 103 rejection of dependent Claim 8 is maintained for at least the reason stated hereinabove, the rejections with respect to its dependent claims are also maintained since the Applicant has not pointed out any further deficiencies of the 35 U.S.C. § 103 rejections with respect to its dependent claims.
Conclusion
Applicant’s amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the date of this final action.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to Qing Chen whose telephone number is 571-270-1071. The Examiner can normally be reached on Monday through Friday from 9:00 AM to 5:00 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, the Applicant is encouraged to use the USPTO Automated Interview Request (AIR) at https://www.uspto.gov/ interviewpractice.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s supervisor, Wei Mui, can be reached at 571-272-3708. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for more information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO customer service representative, call 800-786-9199 (in USA or Canada) or 571-272-1000.
/Qing Chen/
Primary Examiner, Art Unit 2191
Prosecution Insights