Ex Parte ARNDT et al

Patent Trial and Appeal Board

Jul 18, 2018

13670009 (P.T.A.B. Jul. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/670,009 11/06/2012
124677 7590 07/20/2018
Russell Ng PLLC (IBM AUS)
8729 Shoal Creek Blvd., Suite 100
Austin, TX 78757
FIRST NAMED INVENTOR
RICHARD L. ARNDT
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
A US920 l 20227US 1 9958
EXAMINER
VILLANUEVA, LEANDRO R
ART UNIT PAPER NUMBER
2131
NOTIFICATION DATE DELIVERY MODE
07/20/2018 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
s tephanie@russellnglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD L. ARNDT, BENJAMIN HERRENSCHMIDT,
ERIC N. LAIS, and STEVEN M. THURBER
Appeal2018-003889
Application 13/670,009
Technology Center 2100
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 7-10 and 13-16. We have jurisdiction
under 35 U.S.C. § 6(b). Claims 1---6, 11, 12, 17, and 18 were cancelled.
We affirm and designate our affirmance as a new ground of rejection
under 35 U.S.C. § 41.50(b).
1 Appellants identify the real party in interest as International Business
Machines Corporation. App. Br. 2. International Business Machines
Corporation is the Applicant for the instant patent application. See Bib. Data
Sheet.
Appeal2018-003889
Application 13/670,009
CLAIMED SUBJECT MATTER
Appellants' invention employs translation control entry (TCE) tables
for translating between input/output (I/0) address spaces and real address
spaces of a data processing system. See generally Abstract; Spec. ,r 5.
Claim 7 is representative and reproduced below:
7. A data processing system, comprising:
a processor;
data storage coupled to the processor, wherein the data
storage includes a system memory including a translation control
entry (TCE) data structure, and wherein the system memory
utilizes a real address space;
an I/0 subsystem coupled to the data storage, wherein the
data storage utilizes an input/output (I/0) address space; and
program code stored within the data storage and
executable by the processor, wherein the program code, when
executed by the processor, causes the data processing system to
perform:
in response to determining to allocate additional
storage, within the real address space, for TCEs that
translate addresses from the I/0 address space to the real
address space, determining whether or not a first real
address range contiguous with the existing TCE data
structure in the system memory is currently unallocated
and available for allocation;
in response to determining that the first real address
range is currently unallocated and available for allocation,
allocating the first real address range for storage of the
TCEs and retaining a first number of levels in the existing
TCE data structure;
in response to determining that the first real address
range is not currently unallocated and available for
allocation:
determining whether or not to move a data set
from the first real address range based on at least one input
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Application 13/670,009
in a set including (1) a priority of a logical partition of a
partitionable endpoint in the I/0 subsystem for which
addresses are translated by reference to the TCE data
structure, (2) a type of workload of the logical partition,
(3) a priority of a process utilizing the partitionable
endpoint, and ( 4) a utilization percentage of the
partitionable endpoint;
in response to determining to move the data
set, moving the data set from the first real address
range to a third real address range, allocating the
first real address range for storage of the TCEs, and
retaining the first number of levels in the existing
TCE data structure; and
in response to determining not to move the
data set, allocating storage for the TCEs in a second
real address range discontiguous with the existing
TCE data structure and increasing the number of
levels in the TCE data structure from the first
number to a greater second number.
RELATED APPEAL
Appellants identify one related appeal for Application No. 14/095,738
(Appeal No. 2017-011598). App. Br. 2. 2
2 In addition to the originally-filed Appeal Brief, Appellants filed two
corrected Appeal Briefs to address notices of non-compliant claims
appendices (the Claims Appendices in both the originally-filed Appeal Brief
and the first corrected Appeal Brief included markings in at least one claim).
See Appeal Brief, filed Jan. 20, 2017; Notice of Defective Appeal Brief,
mailed Feb. 13, 2017; Appeal Brief, filed Feb. 22, 2017; Notice of Defective
Appeal Brief, mailed Sept. 29, 2017; Appeal Brief, filed Oct. 25, 2017. In
this Opinion, references and citations are to the originally-filed Appeal Brief
(i.e., the Appeal Brief filed on January 20, 2017).
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Application 13/670,009
REJECTION
Claims 7-10 and 13-16 stand rejected under 35 U.S.C. § I03(a) as
being unpatentable over Craddock (US 2011/0320644 Al, Dec. 29, 2011),
Fair (US 2008/0270706 Al, Oct. 30, 2008), and Obr (US 2010/0281233 Al,
Nov. 4, 2010). Final Act. 2-12.
FINDINGS AND CONTENTIONS
The Examiner's obviousness rejection relies principally on Craddock
for teaching many of the recited elements of independent claim 7 including
determining whether or not a first real address range is currently unallocated
and available for allocation (the "first determining"). Final Act. 3 (citing
Craddock ,r 74; Fig. 6A). The Examiner also finds that, although Craddock
teaches allocating a storage for TCEs in response to determining that the
first real address range is currently unallocated and available for allocation,
Craddock does not teach determining whether or not to move a data set from
the first real address range based on at least one input (the "second
determining") in response to determining that the first real address range is
not currently unallocated and available for allocation. Id. at 4 ( citing
Craddock Figs. 6A, 6B). The Examiner, however, finds Fair teaches the
second determining. Id. ( citing Fair ,r 41; Figs. 1, 7).
The Examiner acknowledges Fair does not teach "moving based on at
least one input in a set including" ( 1) a priority of a partitionable endpoint in
an I/0 subsystem for which addresses are translated by reference to a TCE
data structure, (2) a type of workload of the logical partition, (3) a priority of
a process utilizing the partitionable endpoint, and (4) a utilization percentage
of the partitionable endpoint. Id. at 5-6. The Examiner, however, relies on
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Application 13/670,009
Obr for teaching this feature in concluding that the claim would have been
obvious. Id. at 6 (citing Obr ,r,r 59---62). According to the Examiner, Obr's
metadata that indicates an importance of data also corresponds to an
importance of the program or operating system (OS) that generated the data,
and thus Obr teaches or suggests claimed inputs (1) and (3). Ans. 4--5
(citing Obri-fi-f 5, 36, 59). 3
Appellants contend the criteria for moving a data set taught by the
combination of Craddock, Fair, and Obr pertains to a property of the data set
itself and not to any of claimed inputs (1) through (4). App. Br. 7.
According to Appellants, there is no necessary connection between a priority
of a process and an importance of a data set the process generates.
Reply Br. 3--4.
ISSUE
Under§ 103, has the Examiner erred by finding that Craddock, Fair,
and Obr collectively would have taught or suggested:
determining whether or not to move a data set from the first real
address range based on at least one input in a set including ( 1) a
priority of a logical partition of a partitionable endpoint in the
I/0 subsystem for which addresses are translated by reference to
the TCE data structure, (2) a type of workload of the logical
partition, (3) a priority of a process utilizing the partitionable
3 The Examiner finds Obr teaches"( 4) a priority of a partitionable endpoint
in the I/0 subsystem for which addresses are translated by reference to the
TCE data structure." Ans. 5. However, in the statement of rejection, the
Examiner uses the same language to refer to claim 7' s recited input
(1). Final Act. 5---6. Accordingly, and notwithstanding Appellants'
argument in the Reply Brief that the Examiner finds Obr teaches claim 7' s
input (4), see Reply Br. 4--5, we treat the Examiner's error in identifying the
limitation as input ( 4) rather than input (1) as a harmless typographical error.
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Application 13/670,009
endpoint, and (4) a utilization percentage of the partitionable
endpoint,
(hereinafter the "disputed limitation"), as recited in claim 7.
ANALYSIS
We agree with Appellants that the Examiner's findings with respect to
Obr's teachings are problematic. Obr's application programs and OSs
generate data for storage in storage media. Obr ,r 5. Obr's data is stored in
an optimal storage media based on information provided by metadata of the
data. Id. ,r,r 5, 36, 59. Obr's metadata includes information relating to the
data's importance. Id. The Examiner has not, however, provided sufficient
evidence or technical reasoning as to how Obr' s metadata directly
corresponds to an application program's or OS's importance that generates
the data. Ans. 4--5. Thus, we agree with Appellants that Obr does not teach
or suggest the disputed limitations with respect to input (3}-i.e., Obr does
not teach basing the second determining on a priority of a process utilizing a
partitionable endpoint. Reply Br. 3-5. More specifically, we agree with
Appellants that the Examiner has not shown that there is necessarily a
relationship between the priority of a process utilizing data and the priority
of the data itself. Id.; see App. Br. 6-7. Accordingly, the Examiner has not
demonstrated sufficiently that Fair and Obr' s disclosure of moving data
based on access latency, data set importance, or data set access frequency
teaches or suggests determining whether or not to move data based on "a
priority of a process utilizing a partitionable endpoint." See App. Br. 6-7.
Nor has the Examiner provided sufficient evidence or technical
reasoning as to how Obr's metadata that indicates the data's importance
directly corresponds to the importance of other data the OS generates, such
as address translation information. Ans. 5. Even assuming Obr's OS
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Application 13/670,009
generates address translation information, we disagree with the Examiner's
interpretation that such data the OS generates reflects a priority of a
partitionable endpoint.
According to the Examiner, Appellants' Specification discloses that
each partitionable endpoint is allocated to a logical partition (LP AR), and
each LPAR includes an OS. Id. (citing Spec. ,r,r 25, 29). Although the
Specification's description of a "partitionable endpoint" as "any component
or subcomponent of an I/0 subsystem that can be allocated to an LP AR
independently of any other component or subcomponent of the I/0
subsystem" informs our understanding of the term "partitionable endpoint,"
it is not limiting in this regard. Spec. ,r 29 ( emphasis added). Thus, the
Examiner has not provided sufficient evidence or technical reasoning as to
how address translation data that Obr's OS generates corresponds to a
priority of a partitionable endpoint, let alone a priority of a partitionable
endpoint for which addresses are translated by reference to a TCE data
structure. Accordingly, Obr does not teach or suggest the disputed
limitation's input (1 }-a priority of a logical partition of a partitionable
endpoint in an I/0 subsystem for which addresses are translated by reference
to a TCE data structure.
Despite the Examiner's misplaced reliance on Obr to teach or suggest
moving data based on claimed inputs (1) and (3) discussed above, claim
construction is an issue of law that we review de nova. Cordis Corp. v.
Boston Sci. Corp., 561 F.3d 1319, 1331 (Fed. Cir. 2009). During
examination, claims are given their broadest reasonable interpretation
consistent with the Specification. See In re Am. A cad. of Sci. Tech Ctr., 3 67
F.3d 1359, 1364 (Fed. Cir. 2004). "Construing claims broadly during
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Application 13/670,009
prosecution is not unfair to the applicant ... because the applicant has the
opportunity to amend the claims to obtain more precise claim coverage." Id.
Claim 7 recites, in pertinent part, a data processing system comprising
various steps including the disputed limitation. App. Br. 3 (Claims App'x).
Claim 7' s transition term "comprising" is presumptively open-ended. See
Gillette Co. v. Energizer Holdings Inc., 405 F.3d 1367, 1371 (Fed. Cir.
2005). Furthermore, the disputed limitation's determination of whether or
not to move a data set from a first real address range based on at least one
input in a set including inputs (1) through ( 4) does not exclude the recited
determination from being based on an unspecified additional input ( 5) that is
part of the set including inputs (1) through (4). Accordingly, the disputed
limitation is open-ended, such that claim 7 does not require the recited
determination to be based on any of the explicitly-enumerated conditions
recited.
In short, given the open-ended "including" language recited in
connection with the recited set, and the open-ended "comprising" language
in the preamble, claim 7 does not exclude an additional, unspecified input
from being included in the disputed limitation's specified set of inputs.
Therefore, given that claim 7 recites the determination is "based on at least
one input in a set," and that the set may include a further unspecified input,
claim 7's disputed limitation encompasses situations where the
determination is based on some additional input (i.e., not one of the four
explicitly-recited inputs) that may be part of the recited set, which is open-
ended.
Appellants argue that, although Fair teaches a data set's access latency
for moving the data set and Obr teaches a data set's importance and access
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Application 13/670,009
frequency for moving the data set, the combination of Craddock, Fair, and
Obr does not teach or suggest any of the inputs (1) to (4). App. Br. 7. Thus,
Appellants admit the combination of Craddock, Fair, and Obr teaches
determining whether to move a data set based on various inputs.
Appellants argue only that independent claim 13 and dependent
claims 8-10 and 14--16 are patentable for the same reasons asserted with
respect to claim 7. Accordingly, we sustain the rejection of ( 1) claim 7; (2)
independent claim 13, which was rejected on substantially the same bases as
claim 7, see Final Act. 6-11; and (3) claims 8-10 and 14--16, which
variously depend from claims 7 and 13.
Because the thrust of our explanation of the basis for sustaining the
rejection of claims 7-10 and 13-16 differs from that articulated by the
Examiner, we designate the rejection as a new ground of rejection under
35 U.S.C. § 4I.50(b).
CONCLUSION
The Examiner did not err in rejecting claims 7-10 and 13-16 under
§ 103(a).
DECISION4
For the above reasons, the Examiner's decision to reject claims 7-10
and 13-16 is affirmed. We designate the affirmance as a new ground of
rejection under 35 U.S.C. § 4I.50(b).
4 In the event of further prosecution of the subject matter of these claims, the
Examiner may wish to consider whether a provisional obviousness-type
double patenting rejection would be appropriate over the claims of
Appellants' Application No. 14/095,738, filed December 3, 2013 (Appeal
No. 2017-011598).
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Application 13/670,009
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 4I.50(b). Section 4I.50(b) provides that "[a] new ground of rejection ...
shall not be considered final for judicial review."
Section 41.50(b) also provides that Appellants, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating to
the claims so rejected, or both, and have the matter reconsidered
by the examiner, in which event the prosecution will be
remanded to the examiner ....
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record.
37 C.F.R. § 4I.50(b).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 4I.50(f).
AFFIRMED
37 C.F.R. § 4I.50(b)
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