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 21-40 are pending.
Claims 1-20 are cancelled.
Double Patenting
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 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 Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); 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 nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) 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 www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 21 and 33 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 14 of U.S. Patent No. 12,147208. Although the claims at issue are not identical, they are not patentably distinct from each other because they have similar limitations.
Claim Rejections - 35 USC § 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.
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.
Claim(s) 21-40 is/are rejected under 35 U.S.C. 103 as being unpatentable over Herle USPGPUB 2007/0042766 (hereinafter "Herle") in view of .
As to claim 21, Herle teaches a non-transitory computer-readable medium including instructions that, when executed by at least one processor, cause the at least one processor to perform operations for efficiently providing controller data as part of a maintenance or update process (paragraph 0042-0052 and FIG. 2), the operations comprising: identifying one or more deltas from the delta file (paragraph 0017-0023, 0055 and claim 23-24); constructing a second software image based on the identified one or more deltas (paragraph 0055-0057 and claim 1).
Herle does not explicitly teach receiving a delta file generated based on a first software image; wherein the second software image is installable by one or more controllers; and prompting the one or more controllers to install the second software image.
However, McCurdy teaches receiving a delta file generated based on a first software image (paragraph 0005-0008); wherein the second software image is installable by one or more controllers; and prompting the one or more controllers to install the second software image (paragraph 0041-0048 and FIG. 2-3).
Herle and McCurdy are analogous art because they are from the same field of endeavor and contain overlapping structural and functional similarities. They both relate to data controller and update process.
Therefore at the time of effective filing date, it would have been obvious to a person of ordinary skill in the art to modify the above data controller and update process, as taught by Herle, and incorporating prompting the one or more controllers to install the second software image, as taught by McCurdy.
One of ordinary skill in the art would have been motivated to provide a useful service to the customers, there is a significant burden imposed on the service provider to maintain and upgrade the SSFTDs, as suggested by McCurdy (paragraph 0002).
As to claim 22, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein prompting the one or more controllers to install the second software image comprises flashing the second software image to the one or more controllers (paragraph 0047-0051 and FIG. 3-6).
As to claim 23, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein prompting the one or more controllers to install the second software image comprises sending the second software image to the one or more controllers (paragraph 0100-0101).
As to claim 24, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the prompting of the one or more controllers is performed using a wired communication channel (paragraph 0053).
As to claim 25, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the delta file is received using an Internet communication channel (paragraph 0053-0054 and 0198).
As to claim 26, Herle and McCurdy teach all the limitations of the base claims as outlined above.
Herle further teaches wherein the delta file is received in response to a message transmitted from a first device to a second device that is remote from the first device (paragraph 0018-0020).
As to claim 27, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the message is based on a software provider device scanning the one or more controllers (paragraph 0117-0118).
As to claim 28, Herle and McCurdy teach all the limitations of the base claims as outlined above.
Herle further teaches wherein the one or more controllers are part of a controller system (paragraph 0034-0038 and Fig. 1).
As to claim 29, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the one or more controllers are replacement controllers (paragraph 0056-0057).
As to claim 30, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the second software image is constructed based on the identified one or more deltas and a local software image (paragraph 0009-0010).
As to claim 31, Herle and McCurdy teach all the limitations of the base claims as outlined above.
McCurdy further teaches wherein the local software image is accessed from a controller across a local communication channel (paragraph 0053-0058).
As to claim 33, is related to claim 21 with similar limitations also rejected by same rational.
As to claim 34, is related to claim 22 with similar limitations also rejected by same rational.
As to claim 35, is related to claim 23 with similar limitations also rejected by same rational.
As to claim 36, is related to claim 24 with similar limitations also rejected by same rational.
As to claim 37, is related to claim 26 with similar limitations also rejected by same rational.
As to claim 38, is related to claim 27 with similar limitations also rejected by same rational.
As to claim 39, is related to claim 28 with similar limitations also rejected by same rational.
Allowable Subject Matter
Claims 32 and 40 objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
It is noted that any citations to specific, pages, columns, lines, or figures in the prior art references and any interpretation of the reference should not be considered to be limiting in any way. A reference is relevant for all it contains and may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art. See MPEP 2123.
Continuation of 12# new language in the claims does not support by the specifications.
Conclusion
The prior art made of record and listed on the attached PTO Form 892 but not relied upon is considered pertinent to applicant's disclosure.
Ewington et al USPGPUB 20110113422 A1 a methods, apparatuses, and systems are described for receiving, by a computer, data representing a plurality of manifests, each manifest identifying a different subset of a plurality of software components; generating, by the computer, and based on the manifests, a task sequence that indicates an order in which the plurality of software components are to be installed; and recording, by the computer, data representing the task sequence to a computer-readable medium.
Devagupthapu et al. USPGPUB 20180136920 A1 teaches a tool that decreases the size of a software installation file by segregating and/or allowing customization of the original software installation file. The resulting install file permits multiple configurations to be created using the same install file by using custom configuration settings. The optimized software installation file permits the automated (or semi-automated) installation of software and/or software updates/upgrades on a remotely located electronic device. Moreover, aspects of the tool may also regulate compliance with possible reboot/restart requirements of the software/upgrade installation that may be useful for electronic devices which are remotely located..
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ZIAUL KARIM whose telephone number is (571)270-3279. The examiner can normally be reached on Monday-Thursday 8:00-4:00 PM EST.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Mohammad Ali can be reached on 571 272 4105. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/ZIAUL KARIM/Primary Examiner, Art Unit 2119
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