Appeal No. 1999-0353
Application No. 08/368,291
some error, the modem continues to operate according to the program stored in the Boot
ROM 22 and then proceeds to “normal” modem operation. Thus, if there is an error in
the download of the upgraded operation code, just like in the instant invention, the old
operating code (normal operation as provided by the code in Boot ROM 22) is used.
Emulation RAM 26 stores a complete replacement of the code stored in Boot ROM 22.
Thus, RAM 26 may be considered as a “temporary storage” in which new operating code
is stored until it is replaced. When a download with an upgrade operating code is
received, it may be that this overwrites what is in the Emulation RAM 26 but this still
constitutes a “storing…information in temporary storage in the modem,” as claimed. The
“normal” mode of operation is stored in Boot ROM 22 so that if the downloaded
upgraded code is invalid for some reason, the system continues to operate off of the code
in Boot ROM 22. If the downloaded upgraded code is valid, then the system is reset and
operates from the new code in Emulation RAM 26.
Moreover, while it is true that Herh does not disclose storing “packet”
information in a temporary storage, we agree with the examiner, for the reasons set forth
supra, with regard to claim 6, that it would have been obvious, within the meaning of
35 U.S.C. 103, to have provided the upgraded information in Herh in packet form.
The problem is that claim 7 not only requires a “temporary” storage but it also
requires, at a later step, “transferring the updated operating code in temporary storage to
permanent storage.” If Emulation RAM 26 of Herh is the claimed “temporary” storage,
then there is no “permanent” storage, as required by the claim. The examiner’s view is
that the Emulation RAM 26 is the “permanent” storage and the “temporary” storage is
found in the data pump 44 of Herh. The examiner points to references which are not part
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