Ex Parte Bell et al

Patent Trial and Appeal Board

Jan 9, 2017

13767916 (P.T.A.B. Jan. 9, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/767,916 02/15/2013 Robert H. Bell JR. AUS920120187US2 1918
77351 7590
IBM CORP. (AUS)
C/O THE LAW OFFICE OF JAMES BAUDINO, PLLC
2313 ROOSEVELT DRIVE
SUITE A
ARLINGTON, TX 76016
EXAMINER
NAMAZI, MEHDI
ART UNIT PAPER NUMBER
2139
MAIL DATE DELIVERY MODE
01/10/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT H. JR. BELL, MEN-CHOW CHIANG, HONG L. HUA,
and MYSORE S. SRINIVAS
Appeal 2016-0032911
Application 13/767,9162
Technology Center 2100
Before KRISTEN L. DROESCH, CATHERINE SHIANG, and
SCOTT B. HOWARD, Administrative Patent Judges.
HOWARD, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1—7, which constitute all of the claims pending in this application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 We remind Appellants of their obligation to identify all appeals which
“involve an application or patent owned by the appellant or assignee, are
known to appellant, the appellant’s legal representative, or assignee, and
may be related to, directly affect or be directly affected by or have a bearing
on the Board’s decision in the pending appeal.” 37 C.F.R. § 41.37(c)(1)(h);
see also Application Serial No. 13/633,893.
2 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 2.
Appeal 2016-003291
Application 13/767,916
THE INVENTION
The disclosed and claimed invention is directed to a performance-
driven cache line memory access. Claim 1, reproduced below, is illustrative
of the claimed subject matter:
1. A method, comprising:
receiving, by a memory controller of a data processing
system, a request for a cache line;
dividing the request into a plurality of cache subline
requests, wherein at least one of the cache sub line requests
comprises a high priority data request and at least one of the
cache sub line requests comprises a low priority data request;
servicing the high priority data request; and
delaying servicing of the low priority data request until a
low priority condition has been satisfied.
REFERENCES
The prior art relied upon by the Examiner as evidence in rejecting the
claims on appeal is:
Cohen et al.
Westby
Limaye
Henriksson et al.
Yi et al.
US 5,692,152
US 2003/0198238 Al
US 2010/0228922 Al
US 2011/0131385 Al
US 2013/0155923 Al
Nov. 25, 1997
Oct. 23, 2003
Sept. 9, 2010
June 2, 2011
June 20, 2013
REJECTIONS3
Claims 1—7 stand provisionally rejected on the ground of nonstatutory
double patenting over claims 8—14 of copending Application No. 13/633893.
Final Act. 2-4.
3 The Examiner only rejected claim 5 on the grounds of double patenting.
The Examiner noted that “[Cjlaim 5 is objected to as being dependent upon
a rejected base claim, but would be allowable if rewritten in independent
form . . . .” Final Act. 9.
2
Appeal 2016-003291
Application 13/767,916
Claim 1 stands rejected under pre-AIA 35 U.S.C. § 102(b) as being
anticipated by Cohen. Final Act. 4—5.
Claim 2 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Cohen in view of Yi. Final Act. 5—6.
Claim 3 and 6 stands rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Cohen in view of Limaye. Final Act. 7—8.
Claim 4 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Cohen in view of Westby. Final Act. 8.
Claim 7 stands rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Cohen in view of Henriksson. Final Act. 9.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments that the Examiner erred. In reaching this decision, we have
considered all evidence presented and all arguments made by Appellants.
We are not persuaded by Appellants’ arguments regarding the pending
claims
Provisional Double Patenting Rejection
The Examiner provisionally rejected claim 1—7 on the ground of
nonstatutory double patenting over claims 8—14 of copending Application
No. 13/633893. Final Act. 2-4. Appellants did not address this ground of
rejection in the Appeal Brief. However, on November 17, 2016—after the
filing of the Reply Brief—Appellants filed a terminal disclaimer.
Because the circumstances have changed since institution of the
double patenting rejection, we decline to reach the rejection, and leave it to
the Examiner to determine whether the provisional obviousness-type double
3
Appeal 2016-003291
Application 13/767,916
patenting rejection is still proper in light of the terminal disclaimer. See Ex
parte Monel a, 95 USPQ2d 1884 (BPAI 2010) (precedential).
Claim 1
Appellants argue the Examiner erred in finding Cohen discloses
“dividing the request into a plurality of cache subline requests, wherein at
least one of the cache sub line requests comprises a high priority data request
and at least one of the cache sub line requests comprises a low priority data
request,” as recited in claim 1. App. Br. 4—7; Reply Br. 2-4 (emphasis
omitted).4 Particularly, Appellants argue although Cohen discloses dividing
a cache line request into four sub-lines, each of the sub-line retains its high
priority. Reply Br. 2-4. Appellants further argue that just because each sub­
line must be transferred one at a time, that does not make the later
transferred lines a lower priority:
Because Cohen appears to disclose that the four sub-lines must
be transferred one at a time, this does not make the first sub-line
to be transferred high-priority and the remaining three sub-lines
to be transferred low-priority as asserted by the Examiner. To
the contrary, each sub-line is treated as high-priority - they just
must be transferred one at a time.
Reply Br. 4.
The Examiner finds Cohen discloses “that on a line miss in a
foreground register can generate (i.e. divide the original request) 4 sub-line
requests to fetch the entire line into the slave cache.” Ans. 10 (citing Cohen
4 Because the Examiner provided more detail in the Answer, our analysis
above focuses on the findings and arguments set forth in the Answer and
Reply Brief. However, in reaching our Decision, we considered all of
Appellants’ arguments, whether set forth in the Appeal Brief or the Reply
Brief.
4
Appeal 2016-003291
Application 13/767,916
18:47-49). The Examiner further finds that the first sub-line processes is the
high priority request and the later processed sub-lines are lower priority
requests. Ans. 10 (citing Cohen 14:40-42, 10:2—3, cl. 10).
During examination of a patent application, a claim is given its
broadest reasonable construction “in light of the specification, as it would be
interpreted by one of ordinary skill in the art.” In re Am. Acad, of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (internal citations and quotations
omitted). There is a presumption that a claim term carries its ordinary and
customary meaning. In re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed.
Cir. 2007).
We agree with the Examiner that claim 1 has a broad scope. See Ans.
9—10 (“Appellant’s analysis of the Cohen reference on pages 5—7 of the
Brief doesn’t appear to appreciate the broad scope of Appellant’s claims.”).
We further agree with the Examiner that using the broadest reasonable
construction of the claim terms, a request that is handled first is a “high
priority data request” compared to the other three requests—“low priority
data request”—that are handled later in time. In other words, where there
are multiple items handled sequentially, the first is a higher priority than the
lower priority requests that are handled later. Accordingly, we are not
persuaded by Appellants’ argument that the Examiner erred.
Appellants also argue the Examiner erred in finding Cohen discloses
“delaying servicing of the low priority data request until a low priority
condition has been satisfied,” as recited in claim 1. App. Br. 7—8; Reply Br.
4—5. According to Appellants, “there does not appear to be any low priority
condition that is satisfied in Cohen before transfer of the subsequent sub­
lines.” App. Br. 5. And to the extent the Examiner is relying on waiting for
the higher priority request to be acted upon, Appellants argue that is
5
Appeal 2016-003291
Application 13/767,916
delaying until a “high-priority” condition has been satisfied, which “is
opposite than the that recited by Claim 1.” Reply Br. 5.
The Examiner concludes that claim 1 is broadly written and
determines that “[g]iven the broad scope of the claim language, in Cohen,
the Tow priority condition’ is, at the least, the performance of the high
priority sub-line access.” Ans. 10. That is, the Examiner finds that “in the
low(er) priority sub-lines accesses are not started (i.e. delayed) until at least
a portion of the high priority access has been completed.” Id.
Appellants have not persuasively argued that the Examiner erred.
There is nothing in the broad language of the claim that prohibits the low
priority condition from being the completion of the high priority requests.
Instead, we agree with the Examiner that claim 1 is written sufficiently
broad so that the broadest reasonable construction of “low priority
condition” encompasses Cohen’s disclosure of waiting for the completion of
a high priority request.
Accordingly, we sustain the Examiner’s rejection of claim 1.
Claims 2, 3, and 6
In the Appeal Brief, Appellants merely contend that because claim 1
is “clearly patentable,” dependent claims 2, 3, and 6 are also patentable.
App. Br. 8—9. Because we determine that the rejection of claim 1 is not
erroneous for the reasons discussed above, we are not persuaded by
Appellants’ argument.
In the Reply Brief, Appellants argue in light of the Examiner’s finding
in the Answer regarding the low priority condition, Cohen teaches away
from modifying it in view of the teachings of Yi (claim 2) and Limaye
(claims 3 and 6). Reply Br. 5—7. Specifically, Appellants argue because
6
Appeal 2016-003291
Application 13/767,916
Cohen teaches that “a demand miss appears to be treated as a high-priority
condition such that the quick response and transfer of all sub-lines are
needed so that the CPU can continue,” there is no reason “for delaying
transfer of the three remaining sub-lines in Cohen” based on either an
“expiration of a timer” (claim 2/Yi) or “bus utilization thresholds or the
receipt of a castout request” (claims 3 and 6/Limaye). Reply Br. 5, 6—7.
Rejections based on obviousness must be supported by “some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). Although Appellants contends that the Examiner has failed to
provide articulated reasoning as to the proposed modification at issue,
Appellants does not persuasively address the reasoning provided by the
Examiner to modify Cohen in light of the teachings of Yi (Final Act. 6) and
Limaye (Final Act. 7). Instead, we find the Examiner provided an
“articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness” Kahn, 441 F.3d at 988, and hereby adopt it as
our own. Contrary to the Appellants’ cursory argument, there is nothing in
the Examiner’s Answer that casts doubts on the reasons to combine the
references.
We also find Appellants have not established that the prior art teaches
away from the claimed invention because Appellants have not demonstrated
that “a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” In re
Gurley, 27 F.3d 551, 553 (Fed Cir. 1994). “‘A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
7
Appeal 2016-003291
Application 13/767,916
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.’” Ricoh Co., Ltd. v. Quanta Computer, Inc., 550 F.3d 1325, 1332
(Fed. Cir. 2008) (quoting Optivus Tech., Inc. v. Ion Beam Applications S.A.,
469 F.3d 978, 989 (Fed. Cir. 2006)).
The cited section of Cohen, which discusses a preferred embodiment,
“does not teach away. . . [as] it merely expresses a general preference for an
alternative invention but does not ‘criticize, discredit, or otherwise
discourage’ investigation into the invention claimed.” DePuy Spine, Inc. v.
Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009).
Cohen is merely discussing one way of determining when to start the low
priority requests. That stated preference is insufficient to teach away from
the claimed invention. See id.; In re Fulton, 391 F.3dll95, 1201 (Fed. Cir.
2004).
Accordingly, we sustain the Examiner’s rejection of claims 2, 3, and
6.
Claims 4 and 7
In the Appeal Brief, Appellants merely contend that because claim 1
is “clearly patentable,” dependent claims 4 and 7 are also patentable. App.
Br. 9. Because we determine that the rejection of claim 1 is not erroneous
for the reasons discussed above, we are not persuaded by Appellants’
argument.
DECISION
For the above reasons, we affirm the Examiner’s decisions rejecting
claims 1—4, 6, and 7 as unpatentable under 35 U.S.C. §§ 102(b), 103(a).
8
Appeal 2016-003291
Application 13/767,916
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
9