Ex Parte Ferren et al

Patent Trial and Appeal BoardApr 20, 2015

11292207 (P.T.A.B. Apr. 20, 2015)

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. 11/292,207 11/30/2005 Bran Ferren SE1-0003C4-US 9836 80118 7590 04/20/2015 Constellation Law Group, PLLC P.O. Box 580 Tracyton, WA 98393 EXAMINER FAHERTY, COREY S ART UNIT PAPER NUMBER 2183 MAIL DATE DELIVERY MODE 04/20/2015 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 BRAN FERREN, W. DANIEL HILLIS, WILLIAM HENRY MANGIONE-SMITH, NATHAN P. MYHRVOLD, CLARENCE T. TEGREENE, and LOWELL L. WOOD JR. ____________ Appeal 2013-000694 Application 11/292,207 Technology Center 2100 ____________ Before CARLA M. KRIVAK, CARL W. WHITEHEAD JR., and JASON J. CHUNG, Administrative Patent Judges. KRIVAK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1, 2, 4–12, and 14–44. Claims 3 and 13 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellants’ claimed invention is directed to a micro engine “operable to create a runtime-based optimization profile utilizing the gathered dynamic Appeal 2013-000694 Application 11/292,207 2 data and which is useable in a subsequent execution of the at least of a portion of the instruction set by the processor” (Abstract). Independent claim 1 is reproduced below. 1. A device comprising: a micro engine operatively coupled with a processor having an instruction set, at least one of the micro engine or the processor being at least partially implemented using hardware, the micro engine operable to: gather data at least one of output by or based on output from an execution portion of the processor in a manner transparent to software executing on the execution portion of the processor and corresponding to a runtime execution of at least a portion of the instruction set by the execution portion of the processor, the at least a portion of the instruction set including one or more instructions having a plurality of possible branch outcomes; and create a runtime-based optimization profile utilizing the gathered dynamic data and which is useable in a subsequent execution of the at least of a portion of the instruction set by the execution portion of the processor, the runtime-based optimization profile providing a storage mobility for data items that are associated together in a substantial disequilibrium based upon an entanglement to at least one of a page or a line of similarly handled data; and substitute at least one other instruction for execution by the execution portion of the processor in place of at least one instruction of the instruction set in response to the runtime-based optimization profile, the at least one other instruction being a different type of instruction from the at least one instruction of the instruction set. REFERENCES and REJECTIONS The Examiner rejected claims 1, 2, 4–7, and 26–44 under 35 U.S.C. § 112, second paragraph as being indefinite. The Examiner rejected claims 1, 2, 5–12, and 14–44 under 35 U.S.C. § 102(b) as anticipated by Patel (replay: A Hardware Framework for Dynamic Program Optimization, Sanjay J. Patel, et. al, CRHC Technical Report #CRHC-99-16, December 1999). Appeal 2013-000694 Application 11/292,207 3 The Examiner rejected claim 4 under 35 U.S.C. § 103(a) based upon the teachings of Patel and Official Notice. ANALYSIS Appellants do not address the 35 U.S.C. § 112, second paragraph argument. Thus, we pro forma affirm the Examiner’s rejection. Appellants do not provide argument for the Examiner’s findings in the Final Office Action. Rather, Appellants provide arguments for an earlier Office Action (Office action mailed Nov. 8, 2010, see Br. 15). Thus, as the Examiner notes, the arguments presented in Appellants’ Brief are not responsive to the Examiner’s findings in the (most recent action) Office Action mailed June 8, 2011 (Ans. 2). Further, Appellants have not submitted a Reply Brief to address the Examiner’s findings and assertions of non-responsiveness in a Reply Brief. We therefore conclude the Examiner did not err in finding the claims anticipated by Patel and obvious over Patel and Official Notice. DECISION The Examiner’s decision rejecting claims 1, 2, 4–7, and 26–44 under 35 U.S.C. § 112 is affirmed. The Examiner’s decision rejecting claims 1, 2, 5–12, and 14–44 under 35 U.S.C. § 102(b) is affirmed. The Examiner’s decision rejecting claim 4 under 35 U.S.C. § 103 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED