DETAILED ACTION
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 . Claims 1-19 have been examined and are pending. Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d).
Claim Interpretation
The following is a quotation of 35 U.S.C. 112(f):
(f) Element in Claim for a Combination. – An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The following is a quotation of pre-AIA 35 U.S.C. 112, sixth paragraph:
An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof.
The claims in this application are given their broadest reasonable interpretation using the plain meaning of the claim language in light of the specification as it would be understood by one of ordinary skill in the art. The broadest reasonable interpretation of a claim element (also commonly referred to as a claim limitation) is limited by the description in the specification when 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is invoked.
As explained in MPEP § 2181, subsection I, claim limitations that meet the following three-prong test will be interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph:
(A) the claim limitation uses the term “means” or “step” or a term used as a substitute for “means” that is a generic placeholder (also called a nonce term or a non-structural term having no specific structural meaning) for performing the claimed function;
(B) the term “means” or “step” or the generic placeholder is modified by functional language, typically, but not always linked by the transition word “for” (e.g., “means for”) or another linking word or phrase, such as “configured to” or “so that”; and
(C) the term “means” or “step” or the generic placeholder is not modified by sufficient structure, material, or acts for performing the claimed function.
Use of the word “means” (or “step”) in a claim with functional language creates a rebuttable presumption that the claim limitation is to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites sufficient structure, material, or acts to entirely perform the recited function.
Absence of the word “means” (or “step”) in a claim creates a rebuttable presumption that the claim limitation is not to be treated in accordance with 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. The presumption that the claim limitation is not interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, is rebutted when the claim limitation recites function without reciting sufficient structure, material or acts to entirely perform the recited function.
Claim limitations in this application that use the word “means” (or “step”) are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action. Conversely, claim limitations in this application that do not use the word “means” (or “step”) are not being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, except as otherwise indicated in an Office action.
This application includes one or more claim limitations that do not use the word “means,” but are nonetheless being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, because the claim limitation(s) uses a generic placeholder that is coupled with functional language without reciting sufficient structure to perform the recited function and the generic placeholder is not preceded by a structural modifier. Such claim limitations are in claim 1 of a table generation module configured to generate, an update confirmation module configured to confirm, and an update performance module configured to perform, as well as in dependent claims 2, 3, 5, 7, 8 and 9.
Because this/these claim limitation(s) is/are being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, it/they is/are being interpreted to cover the corresponding structure described in the specification as performing the claimed function, and equivalents thereof.
If applicant does not intend to have this/these limitation(s) interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph, applicant may: (1) amend the claim limitation(s) to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph (e.g., by reciting sufficient structure to perform the claimed function); or (2) present a sufficient showing that the claim limitation(s) recite(s) sufficient structure to perform the claimed function so as to avoid it/them being interpreted under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph.
Claim Rejections - 35 USC § 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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-19 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 1, 10 and 19 include “the component type” and “the content type.” There is insufficient antecedent basis for these limitations in the claims. All respective dependent claims are likewise rejected.
Claim 2 includes “each function and global variables.” There is insufficient antecedent basis for this limitation in the claim. Analogous claim 11 and all respective dependent claims are likewise rejected.
Claims 4 and 13 include “the interface.” There is insufficient antecedent basis for this limitation in the claims. All respective dependent claims are likewise rejected.
Claims 8, 9, 17 and 18 include “the thread,” “the order of priority,” and “the update and the user instruction thread.” There is insufficient antecedent basis for these limitations in the claims.
Claim limitations in independent claim 1 of a table generation module configured to generate, an update confirmation module configured to confirm, and an update performance module configured to perform, and in dependent claims 2, 3, 5, 7, 8 and 9, invoke 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph. However, the written description fails to disclose the corresponding structure, material, or acts for performing the entire claimed function and to clearly link the structure, material, or acts to the function. The specification is devoid of adequate structure to perform the claimed functions. Therefore, the claim is indefinite and is rejected under 35 U.S.C. 112(b) or pre-AIA 35 U.S.C. 112, second paragraph.
Applicant may:
(a) Amend the claim so that the claim limitation will no longer be interpreted as a limitation under 35 U.S.C. 112(f) or pre-AIA 35 U.S.C. 112, sixth paragraph;
(b) Amend the written description of the specification such that it expressly recites what structure, material, or acts perform the entire claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(c) Amend the written description of the specification such that it clearly links the structure, material, or acts disclosed therein to the function recited in the claim, without introducing any new matter (35 U.S.C. 132(a)).
If applicant is of the opinion that the written description of the specification already implicitly or inherently discloses the corresponding structure, material, or acts and clearly links them to the function so that one of ordinary skill in the art would recognize what structure, material, or acts perform the claimed function, applicant should clarify the record by either:
(a) Amending the written description of the specification such that it expressly recites the corresponding structure, material, or acts for performing the claimed function and clearly links or associates the structure, material, or acts to the claimed function, without introducing any new matter (35 U.S.C. 132(a)); or
(b) Stating on the record what the corresponding structure, material, or acts, which are implicitly or inherently set forth in the written description of the specification, perform the claimed function. For more information, see 37 CFR 1.75(d) and MPEP §§ 608.01(o) and 2181.
Claim Rejections - 35 USC § 101
35 U.S.C. 101 reads as follows:
Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.
Claim 19 is rejected under 35 U.S.C. 101 because the claimed invention is directed to non-statutory subject matter. The claim does not fall within at least one of the four categories of patent eligible subject matter because it is directed to a computer program. Examiner recommends amending the claim such that it is directed to “A non-transitory computer readable storage medium…”
Claims 1-19 are rejected under 35 U.S.C. 101 because the claimed invention is directed to an abstract idea without significantly more. Claims 1-18 are directed to one of the eligible categories of subject matter and claim 19 can be amended to be directed to an eligible category as mentioned above.
With respect to independent claims 1, 10 and 19, the generating, confirming and update performing cover performance of the limitations manually and/or in the mind (mental processes abstract idea). The claims as a whole merely describe how to generally “apply” the exception in a computer environment using generic computer functions or components. Even when viewed in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The claims are not patent eligible.
With respect to dependent claim 5, 7, 8, 9, 14, 16, 17, 18 the modify, add, set cover performance of the limitations manually and/or in the mind (mental processes abstract idea). The loading are recited at a high level of generality and do not add meaningful limitations to the abstract idea; these limitations are directed to insignificant extra solution activities. The claims as a whole merely describe how to generally “apply” the exception in a computer environment using generic computer functions or components. Even when viewed in combination, these additional elements do not integrate the abstract idea into a practical application because they do not impose any meaningful limits on practicing the abstract idea. The claims do not include additional elements that are sufficient to amount to significantly more than the judicial exception. The claims are not patent eligible.
With respect to dependent claims 2, 3, 4, 6, 11, 12, 13, 15 the extract, map, confirm, added, modified cover performance of the limitations manually and/or in the mind (mental processes abstract idea). No additional elements are recited and so the claims do not provide a practical application and are not considered to be significantly more. The claims are not eligible.
Claim Rejections - 35 USC § 102
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 (i.e., changing from AIA to pre-AIA ) 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.
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, 2, 3, 8, 9, 10, 11, 12, 17, 18, and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Mencias et al., Pub. No.: US 20090187725 A1, hereinafter Mencias.
As per claim 1, Mencias discloses Apparatus for updating software, comprising: one or more processors; a memory storing one or more programs executed by the one or more processors;
a table generation module configured to generate a reference table for software to be updated (par. 59);
an update confirmation module configured to confirm whether an update event of the software occurs, and confirms one or more of the component type of update and the content type of update when the update event occurs (pars. 72-73, 81-85); and
an update performance module configured to perform update of the software according to one or more of the component type and the content type of the confirmed update based on the reference table (pars. 82-89).
As per claim 2, Mencias discloses the apparatus for updating software according to claim 1, wherein the table generation module is configured to extract each function and global variables constituting the software, and map identification information of the extracted function and global variables with addresses where the function and global variables are stored in the memory to generate a reference table (par. 59).
As per claim 3, Mencias discloses the apparatus for updating software according to claim 2, wherein the update confirmation module is configured to confirm whether the component type of update is a function or global variable, and confirm whether the content type of update is an internal modification or external modification, when the update event occurs (pars. 82-85, disclose determining whether a symbol table entry corresponds to a procedure or static variable and determining whether the entry exists in the original symbol table or represents a new procedure or static variable; pars. 106-108 disclose determining whether an existing static variable has changed in size).
As per claim 8, Mencias discloses The apparatus for updating software according to claim 3, wherein the update performance module is configured to set the order of priority between the thread generated according to the update and the user instruction thread (par. 7, 43, 62 discloses executing work requests according to priorities and running the concurrent loader as a background task while the original program executes), while performing a thread that loads the updated function or global variable according to the component type and the content type of the confirmed update into the memory and a thread that modifies the reference table (pars. 79-83).
As per claim 9, Mencias discloses the apparatus for updating software according to claim 8, wherein the update performance module is configured to set the thread that loads the function or global variable into the memory to have a lower order of priority than the user instruction thread (par. 62 discloses running the concurrent loader as a background task during execution of the original program), and set the thread that modifies the reference table to have a higher order of priority than the user instruction thread (par. 92-93 disclose relocation affecting address information used by the executing program cannot be performed as a background task and updates references to the new addresses before continued use).
As per claims 10, 11, 12, 17, 18, 19, they are analogous to claims above and therefore likewise rejected.
Claim Rejections - 35 USC § 103
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 (i.e., changing from AIA to pre-AIA ) 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.
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.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 4, 5, 13 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Mencias in view of Buban et al., Pub. No.: 20040107416 A1, hereinafter Buban.
As per claim 4, Mencias discloses the apparatus for updating software according to claim 3. Mencias does not disclose however Buban discloses wherein the internal modification of the function is a case in which only instructions inside the function are modified (Buban, pars. 43-44), and the external modification of the function is a case in which a new function is added or the interface of the function is modified (Mencias, par. 85-89).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the cited references because Buban would have allowed Mencias to implement instruction level hot patching on existing functions to allow modification or updating of function instructions without replacing function interfaces or stopping execution.
As per claim 5, Mencias as modified discloses The apparatus for updating software according to claim 4, wherein the update performance module is configured to: load the updated function into the memory (Buban, pars. 41-46 discloses loading a new version or patch), and modify the address of the corresponding function into the address of the updated function in the reference table, when the update event is an internal modification of the function (see Buban as cited above including pars. 43-44 disclose existing routine instructions are patched and Mencias as cited above, including par. 83, discloses updating a corresponding symbol table value field to contain the memory address of the updated procedure); and load the updated function into the memory (Mencias, par. 79 discloses copying new code), and add an item for the updated function in the reference table, when the update event is an external modification of the function (Mencias, see at least pars. 85, 89).
Analogous claims 13, 14 are likewise rejected.
Claims 6, 7, 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Mencias in view of Chen et al., Patent No.: US 8468516 B1, hereinafter Chen.
As per claim 6, Mencias discloses The apparatus for updating software according to claim 3. Mencias does not disclose however Chen discloses wherein the internal modification of the global variable is a case in which only the value of the global variable is modified (Chen, see at least col. 11, lines 3-24, fig. 4a-5, and claim 6 which disclose a modified data or variable symbol wherein the patch substitutes the original data value at the symbols memory address with updated variable value), and the external modification of the global variable is a case in which a new global variable is added or the type of the global variable is modified (Mencias, pars. 85-86 disclose a symbol not found in the original table being identified as a new static data variable and added to the new data section).
Thus, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to combine the teachings of the cited references because Chen’s disclosure of updating the value of an existing variable would have allowed Mencias to apply modified variable data without unnecessarily treating the variable as a newly added data object.
As per claim 7, Mencias as modified discloses The apparatus for updating software according to claim 6, wherein the update performance module is configured to: load the updated global variable into the memory (see Chen as cited in the rejection of claim 6), and modify the address of the corresponding global variable into the address of the updated global variable in the reference table, when the update event is an internal modification of the global variable (Mencias, pars. 82-83); and load the updated global variable into the memory, and add an item for the updated global variable in the reference table, when the update event is an external modification of the global variable (Mencias, pars. 85-86).
Analogous claims 15, 16 are likewise rejected.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to SYED HASAN whose telephone number is (571)270-5008. The examiner can normally be reached M-F 8am - 5 pm.
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/SYED H HASAN/Primary Examiner, Art Unit 2154
