Ex Parte NUGTEREN et al

Patent Trials and Appeals BoardJun 14, 2019

14557881 - (D) (P.T.A.B. Jun. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/557,881 12/02/2014 73459 7590 06/18/2019 NIXON & V ANDERHYE, P.C. 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Cedric NUGTEREN 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. SCS-550-1805 6908 EXAMINER WEI,ZHENG ART UNIT PAPER NUMBER 2192 NOTIFICATION DATE DELIVERY MODE 06/18/2019 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CEDRIC NUGTEREN and ANTON LOKHMOTOV1 Appeal2018-007302 Application 14/557 ,881 Technology Center 2100 Before CAROLYN D. THOMAS, JOSEPH P. LENTIVECH, and SCOTT RAEVSKY, Administrative Patent Judges. RAEVSKY, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING 1 Appellants name Arm Limited as the real party in interest (App. Br. 3). Appeal2018-007302 Application 14/557,881 INTRODUCTION Appellants request rehearing of the Patent Trial and Appeal Board's ("Board") Decision mailed March 29, 2019 ("Decision"), in which we affirmed the rejection of claims 1 and 3-20 under 35 U.S.C. Â§ 103. ANALYSIS In the Request for Rehearing ("Request"), Appellants assert "the Board appears to have misunderstood Lippett's teaching" when finding "Lippett teaches or suggests multiple thread schedule configurations that each define the order in which multiple threads are to be executed, including a first-in, first-out (FIFO) thread schedule configuration and a round robin thread schedule configuration." Request 1; Decision 4. Appellants assert that in Lippett, "threads are selected in round robin from the sets on the left [ of Fig. 18], and then inserted into the queues on the right, where they are executed in FIFO order." Request 2. Accordingly, Appellants conclude "Lippett does not therefore describe multiple thread schedule configurations that each define the order in which multiple threads are to be executed. There is only a single order in which threads [are] to be executed that is defined by the two-tier scheme of paragraph [216]." Id. Appellants' contention is unpersuasive because it attempts to re-argue the arguments we already considered in our Decision rather than identify "points believed to have been misapprehended or overlooked by the Board." See 37 C.F.R. Â§ 4I.52(a)(l). As we stated in the Decision, "Lippett discloses a 'two-tier [thread] scheduling hierarchy,' including 'a FIFO scheduling algorithm' and a 'scheduler algorithm ... configured as a round robin."' Decision 4 ( citing Lippett ,r 216). "In other words," the Decision 2 Appeal2018-007302 Application 14/557,881 concluded, "Lippett teaches or suggests multiple thread schedule configurations that each define the order in which multiple threads are to be executed, including a first-in, first-out (FIFO) thread schedule configuration and a round robin thread schedule configuration." Id. Further, the Decision relied on the combination of Khatri and Lippett, stating, "[t]he Examiner finds, and we agree, that 'Khatri combined with the assignment/scheduling thread method in [the] Lippett reference define the order of the multiple threads execution."' Id. at 3--4 ( citing Final Act. 3). Appellants' arguments focusing solely on Lippett do not persuasively address the combined teachings of the references. Moreover, Appellants do not persuasively explain why Lippetts' two- tier scheme, which includes multiple thread schedule configurations, at least suggests the claimed multiple thread schedule configurations. Appellants provide only unsubstantiated attorney argument instead of evidence to support their assertions about the teachings of Lippett. See Estee Lauder Inc. v. L 'Orea!, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) ("Counsel's argument cannot take the place of evidence lacking in the record."). Appellants ask us to accept their interpretation of Lippett at face value without so much as quoting a single word of Lippett or pointing us to any teaching of Lippett we may have overlooked, other than by merely citing paragraph numbers. This attorney argument has low probative value and fails to "state with particularity the points believed to have been misapprehended or overlooked by the Board." See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); 37 C.F.R. Â§ 4I.52(a)(l). Appellants further contend "the Examiner's Answer does not state ... how [Lippett] teaches storing 'a plurality of thread schedule configurations' 3 Appeal2018-007302 Application 14/557,881 as required by the claim." Request 2. This statement criticizing the Examiner does not point out "the points believed to have been misapprehended or overlooked by the Board" and is therefore unpersuasive. See 37 C.F.R. Â§ 4I.52(a)(l) (emphasis added). Appellants next ask us to reconsider Appellants' new Reply argument addressing the Examiner's motivation to combine Lippett with Khatri. Request 3. Appellants contend they made the new Reply argument because of "the Examiner's changed use of Khatri and Lippett in the rejection as provided in the final Office Action and the Examiner's Answer gave rise to the perceived need to strengthen the argument against the combination of Khatri and Lippett." Id. "For example," Appellants contend, "the Examiner's Answer appeared to acknowledge the misunderstanding in the Office Action that Khatri's 'thread scheduling tables 152 and 154' did not disclose thread scheduling as recited in the claims, and moreover introduced a different (and unreasonable) interpretation of the claimed 'thread scheduling configuration."' Id. Appellants' new Reply argument against the combination was as follows: Even if Lippet[ t] were to arguendo describe a thread schedule that defines an order in which threads are executed ... , it is not clear how this can be combined with Khatri, which instead relies on the ordering of cores being provided. Reconciling the two different criteria for defining the order of execution, even if arguendo considered possible, would not be obvious to a person of skill in the art. Reply Br. 8-9. Contrary to the Request's assertion, the Reply argument does not appear to address or even mention the Examiner's supposed "changed use of Khatri and Lippett." See Request 3. In any event, the 4 Appeal2018-007302 Application 14/557,881 Examiner made the combination including Khatri and Lippett in the Final Action, which afforded Appellants the opportunity to address the Examiner's rationale to combine in the Appeal Brief. Final Act. 7 ( combining Khatri, Lippett, Lindholm, and Aglietti). Accordingly, Appellants do not persuade us we misapprehended or overlooked their untimely Reply argument. See Ex parte Borden, 93 USPQ2d 14 73 (BP AI 2010) (informative). Lastly, Appellants contend "[t]he Board misapprehended the incompatibility of Aglietti." Request 3--4 (emphasis omitted). Appellants assert, "the Decision [points out] that the Examiner had proposed to combine Aglietti with Lindholm, rather than Aglietti with Khatri, which the Appeal Brief referred to." Id. at 4. Appellants then contend "that regardless of the order by which Aglietti is brought into the combination, the combination fails to teach or suggest the feature 'the at least one processor is further configured to gather performance data ... ' as recited in claim 1. "' Id. Further, Appellants contend, "[i]n the Examiner's Answer, the Examiner did not dispute Appellant[s'] emphasis on Khatri while describing the deficiencies of Aglietti with respect to the combination." Id. Appellants' contentions are unpersuasive because, as we explained in our Decision, "Appellants overlook-and thus do not dispute-----that the Examiner initially provided a motivation to combine Aglietti with Lindholm. See Final Act. 10." Decision 5. Appellants continue to assert that Aglietti could not have been combined with Khatri, when the Final Action finds Aglietti can be combined with Lindholm. See Final Act. 10. That the Examiner's Answer chose to address Appellants' Aglietti-Khatri argument does not rectify Appellants' failure to dispute the Examiner's reasons to 5 Appeal2018-007302 Application 14/557,881 combine Aglietti and Lindholm. Thus, Appellants do not persuade us we misapprehended or overlooked their argument attacking Aglietti as not combinable with Khatri. DECISION Accordingly, we have granted Appellants' Request to the extent that we have reconsidered the original Decision but have DENIED it with respect to making any changes to the Decision. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). REHEARING DENIED 6