DETAILED ACTION
1. The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
2. This communication is in response to the communication filed on 09/10/2024.
3. Acknowledgement is made of Continuing Data: This application is a CON of 18/138,120 filed 04/23/2023, now PAT 12,106,080; which is a CON of 17/491,409 filed 09/30/2021, now PAT 11,669,313; which is a CON of 16/912,517 filed 06/25/2020, now PAT 11,200,038.
4. Claims filed 12/13/2024 (Preliminary Amendment) have been acknowledged. Claim 1 have been cancelled, claims 2-21 have been newly added and are pending in the application.
Information Disclosure Statement
5. The information disclosure statement (IDS) submitted are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Double Patenting
6. The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the "right to exclude" granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory obviousness-type double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Omum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); and In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321 (c) or 1.321(d) may be used to overcome an actual or provisional rejection based on a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
Effective January 1, 1994, a registered attorney or agent of record may sign a terminal disclaimer. A terminal disclaimer signed by the assignee must fully comply with 37 CFR 3.73(b).
The USPTO internet Web site contains terminal disclaimer forms which may be used. Please visit http://www.uspto.gov/forms/. The filing date of the application will determine what form should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to: http://www.uspto.gov/patents/process/file/efs/guidance/eTD-info-I.jsp.
7. Claim(s) 2-21 of the instant application are rejected on the ground of non-statutory obviousness type double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,314,496; and claims 1-20 of 11,748,084. Although the claims at issue are not identical, they are not patentably distinct from each other because they are substantially similar in scope and they use the same limitations. This is a non-provisional non-statutory obviousness type double patenting rejection.
Instant Application 18/829,837
Patent No. 11,314,496
2. A method related to a rapid update of existing software, the method comprising: providing a list of a plurality of files associated with the existing software executing on a computing device and locations for the plurality of files in at least one memory storage; providing the plurality of files in the list to an operating system of the computing device, wherein the providing causes the operating system to: move each file in the plurality of files to the locations in the at least one memory storage independently and in parallel of other files in the plurality of files; after each file in the plurality of files is moved, transition each file in the plurality of files from an uninstalled state to an installed state independently from completion of moving the other files to the locations in the at least one memory storage; transition the existing software from a previous state to an updated state once each of the plurality of files have transitioned to installed states; and cause the existing software for the computing device to be initiated after the existing software is transitioned to the updated state.
1. A method for installing a new operating system, the method comprising: receiving, at an operating system executing on a computing device, a definition that includes a list of a plurality of files associated with the new operating system and locations for the plurality of files in at least one memory storage; accessing, using the operating system, a container that includes the plurality of files; moving each file in the plurality of files from the container to the locations in the at least one memory storage specified in the definition independently and in parallel of remaining files in the plurality of files; after the each file is moved, transitioning the each file from a file uninstalled state to a file installed state independently from when the remaining files in the plurality of files that are being moved in parallel with the each file have completed the moving; transitioning the new operating system from an uninstalled state to an installed state once the plurality of files transitioned to file installed states; and initiating the new operating system using the plurality of files once the new operating system transitioned to the installed state.
Patent No. 11,748,084
1. A method related to a rapid update of software, the method comprising: accessing, using an operating system executing on a computing device, a definition that includes a list of a plurality of files associated with existing software for the computing device and locations for the plurality of files in at least one memory storage; accessing, using the operating system, a container that includes the plurality of files; moving each file in the plurality of files from the container to the locations in the at least one memory storage as specified in the definition, wherein moving each file is performed independently and in parallel of other files in the plurality of files; after each file in the plurality of files is moved, transitioning each file in the plurality of files from an uninstalled state to an installed state, wherein the transitioning each file is performed independently from completion of moving the other files in the plurality of files to the locations in the at least one memory storage; transitioning the existing software from a previous state to an updated state once each of the plurality of files have transitioned to installed states; and causing the existing software for the computing device to be initiated after the existing software is transitioned to the updated state.
Same interpretation for the other set of claims.
The examiner recognizes that the instant application discloses a broader version for a faster operating system updating process. The related US Patent No. 11,314,496 – 11,748,084 performs a similar updating process, with the inclusion of utilizing a container. However, one of ordinary skill in the art would recognize that they are functionally similar and not patentably distinct from each other; the claims as presented can be instrumented individually, or in combination without limitations, or without departing from the spirit and scope of the inventions as specified in Applicant’s Specifications. Thus, one of ordinary skill in the art would recognize that the limitations and their differences are obvious variations of the invention defined in the claim of instant application: 18/829,837.
Claim Rejections – 35 USC § 103
8. In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
9. 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 of this title, 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.
10. Claims 2-15, 17-21 are rejected under the first inventor to file provisions of the AIA , 35 U.S.C. 103 as being unpatentable over the combination of Muench-Casanova et al. (Patent No. US 9,910,660 B2; hereinafter referred to as Muench), in view of Becker (Pub. No. US 20140372999 A1; hereinafter referred to as Becker), and in further view of Mall et al. (Patent No. US 9,747,291 B1; hereinafter referred to as Mall).
Claim 1 (Cancelled).
As per claim 2, Muench discloses a method related to a rapid update of existing software, the method comprising:
providing a list of a plurality of files associated with the existing software executing on a computing device and locations for the plurality of files in at least one memory storage; providing the plurality of files in the list to an operating system of the computing device (See column 1, lines 50-65 – plurality of files and locations in memory), wherein the providing causes the operating system to: move each file in the plurality of files to the locations in the at least one memory storage independently of other files in the plurality of files (See column 16, line 35, also Fig. 7 – move to locations of memory); after each file in the plurality of files is moved, transition each file in the plurality of files from an uninstalled state to an installed state independently from completion of moving the other files to the locations in the at least one memory storage (See column 16, lines 50-65, and column 17, lines 1-10 – after moving state is changed).
However, Muench does not explicitly states – moving in parallel; and transition the existing software from a previous state to an updated state once each of the plurality of files have transitioned to installed states; and cause the existing software for the computing device to be initiated after the existing software is transitioned to the updated state.
Becker discloses - moving in parallel (See p. [0029] – in parallel).
Mall discloses - transition the existing software from a previous state to an updated state once each of the plurality of files have transitioned to installed states; and cause the existing software for the computing device to be initiated after the existing software is transitioned to the updated state (See Fig. 1 – change in state).
Muench, Becker and Mall are directed to software program development, which are analogous prior art.
It would have been obvious to one ordinary skill in the art before the effective filing date of the claimed invention (first inventor to file provisions of the AIA ) to incorporate and combine Muench’s method for selectively replacing a board operating system; and combine it with Becker’s OS parallel updating process while utilizing multiple memory areas; and further combine it with Mall’s non-disruptive system upgrade and version management; thus, the combination allows for a non-sequential updating process, while keeping the ability to continue execution of the updating components (See Muench’s, Becker’s and Mall’s abstracts and backgrounds).
As per claim 3, Muench, Becker and Mall disclose the method of claim 2, (See claim 2 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103) wherein the list of the plurality of files corresponds to an update patch for the existing software (See Malls’ abstract).
As per claim 4, Muench, Becker and Mall disclose the method of claim 3 (See claim 3 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the existing software comprises the operating system (See Malls’ abstract).
As per claim 5, Muench, Becker and Mall disclose the method of claim 4 (See claim 4 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the providing further causes the operating system to assign the uninstalled state to each file (See Mall’s column 5, lines 45-60 – state assignment).
As per claim 6, Muench, Becker and Mall disclose the method of claim 2 (See claim 2 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the list of the plurality of files and the locations define the installed states of the plurality of files in the at least one memory storage (See Muench’s Fig. 7; also see Mall’s column 5, lines 45-60 – state assignment).
As per claim 7, Muench, Becker and Mall disclose the method of claim 6 (See claim 6 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein a file in the list of the plurality of files and a location in the locations are provided as a key-value pair (See Mall’s abstract – key-value pair).
As per claim 8, Muench, Becker and Mall disclose the method of claim 2 (See claim 2 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), further comprises: receiving a request to provide the plurality of files in response to receiving the list of the plurality of files (See Muench’s column 1, lines 50-65).
As per claim 9, Muench, Becker and Mall disclose the method of claim 2 (See claim 2 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the existing software continues to execute on the computing device during the rapid update of the existing software (See Muench’s column 2, lines 20-40 – continuing execution).
Claim 10 is essentially the same as claim 1 except that it is set forth the claimed invention as a system, with the inclusion of transitioning to installed states instead of an updated state (See Muench’s Fig. 7, also Mall’s column 5, lines 45-60), and it is are rejected with the same reasoning as applied hereinabove.
As per claim 11, Muench, Becker and Mall disclose the computing device of claim 10 (See claim 10 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the list of the plurality of files corresponds to an update patch for the existing software (See Malls’ abstract).
As per claim 12, Muench, Becker and Mall disclose the computing device of claim 10 (See claim 10 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the existing software comprises an operating system (See Malls’ abstract, and Muench’s abstract).
As per claim 13, Muench, Becker and Mall disclose the computing device of claim 12 (See claim 12 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the operating system is a mobile communication device operating system (See Mall’s column 12, line 14 – mobile device).
As per claim 14, Muench, Becker and Mall disclose the computing device of claim 10 (See claim 10 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the existing software continues to execute on the computing device during a rapid update of the existing software (See Muench’s column 2, lines 20-40 – continuing execution).
As per claim 15, Muench, Becker and Mall disclose the computing device of claim 10 (See claim 10 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the existing software comprises a transaction application (See Muench’s column 16, lines 5-35; also see Becker’s p. [0013] – “transactional” apps).
Claim 17 is essentially the same as claim 1 except that it is set forth the claimed invention as a non-transitory computer-readable medium, and it is are rejected with the same reasoning as applied hereinabove.
As per claim 18, Muench, Becker and Mall disclose the non-transitory computer-readable medium of claim 17 (See claim 17 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the list of the plurality of files corresponds to an update patch for the existing software (See Malls’ abstract).
As per claim 19, Muench, Becker and Mall disclose the non-transitory computer-readable medium of claim 17 (See claim 17 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the application comprises a mobile communication device operating system (See Mall’s column 12, line 14 – mobile device).
As per claim 20, Muench, Becker and Mall disclose the non-transitory computer-readable medium of claim 17 (See claim 17 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the list of the plurality of files and the locations define the installed states of the plurality of files in the at least one memory storage (See Muench’s Fig. 7; also see Mall’s column 5, lines 45-60 – state assignment).
As per claim 21, Muench, Becker and Mall disclose the non-transitory computer-readable medium of claim 17 (See claim 17 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103), wherein the operations further comprise: receiving a request to provide the plurality of files in response to providing the list of the plurality of files (See Muench’s Fig. 7).
11. Claim 16 is rejected under the first inventor to file provisions of the AIA , 35 U.S.C. 103 as being unpatentable over the combination of Muench-Casanova et al. (Patent No. US 9,910,660 B2; hereinafter referred to as Muench), in view of Becker (Pub. No. US 20140372999 A1; hereinafter referred to as Becker), and in further view of Mall et al. (Patent No. US 9,747,291 B1; hereinafter referred to as Mall), and in view of Rajagopalan et al. (Pub. No. US 2021/0081188 A1; hereinafter referred to as Rajagopalan).
As per claim 16, Muench, Becker and Mall disclose the computing device of claim 10 (See claim 10 rejection above, under the first inventor to file provisions of the AIA , 35 USC § 103).
However, neither Muench, Becker, nor Mall explicitly state - wherein the list of the plurality of files and the locations are in a JavaScript Object Notation (JSON) format.
Rajagopalan discloses - wherein the list of the plurality of files and the locations are in a JavaScript Object Notation (JSON) format (See p. [0036] – JSON format).
Muench, Becker, Mall and Rajagopalan are directed to software program development, which are analogous prior art.
It would have been obvious to one ordinary skill in the art before the effective filing date of the claimed invention (first inventor to file provisions of the AIA ) to incorporate and combine Muench’s method for selectively replacing a board operating system; and combine it with Becker’s OS parallel updating process while utilizing multiple memory areas; and further combine it with Mall’s non-disruptive system upgrade and version management; and combine them with Rajagopalan’s dynamic update determination and installation; thus, the combination allows for a non-sequential updating process, while keeping the ability to continue execution of the updating components and optimizing speed by utilizing smaller size files (See Muench’s, Becker’s and Mall’s abstracts and backgrounds).
12. Please see M.P.E.P. 2111 Claim Interpretation; Broadest Reasonable Interpretation [R-9]; 2111.01 Plain Meaning [R-9]: III. “Plain Meaning” Refers to the ordinary and customary meaning given to the term by those of ordinary skill in the art”
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. Claims must be given the broadest reasonable interpretation during examination, and limitations appearing in the specification but not recited in the claim are not read into the claims (See M.P.E.P. 2111 [R-I]).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to FRANCISCO JAVIER APONTE whose telephone number is (571)270-7164. The examiner can normally be reached M-F: 8-4.
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/FRANCISCO J APONTE/Primary Examiner, Art Unit 2151
09/01/2026.
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