Ex Parte Ogasawara

Patent Trial and Appeal BoardApr 29, 2016

13406667 (P.T.A.B. Apr. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/406,667 02/28/2012 46320 7590 05/03/2016 CRGOLAW STEVEN M. GREENBERG 7900 Glades Road SUITE 520 BOCA RATON, FL 33434 FIRST NAMED INVENTOR Takeshi Ogasawara 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. JP920100018US2 (732DIV) 7104 EXAMINER SOMERS, MARC S ART UNIT PAPER NUMBER 2159 NOTIFICATION DATE DELIVERY MODE 05/03/2016 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): docketing@crgolaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte TAKE SHI OGASAWARA Appeal2014-007210 1 Application 13/406,667 Technology Center 2100 Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and SHARON PENICK, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant seeks our review under 35 U.S.C. Â§ 134(a) of the Examiner's final rejection of claims 6, 7, and 9. App. Br. 1. Claims 1-5, 10, 11-15 have been cancelled. Claims Appendix. Claim 8 has been objected to as being dependent upon a rejected base claim, but would otherwise be allowable if rewritten in independent form to incorporate the limitations of the base claim and any intervening claims. Fin. Act. 6. However, because the Examiner also rejected claim 8 under double 1 Appellant identifies the real party in interest as International Business Machines Corp. App. Br. 2. Appeal2014-007210 Application 13/406,667 patenting, the rejections of claims 6-9 are before us for review. Id. at 6-11. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. Appellant's Invention Appellant's invention is directed to a method for processing requests stored in a queue. Spec. ,-i 2. In particular, upon determining that a request at the top of a queue ( 404) has an estimated heap consumption larger than the remaining heap consumption of a computing client, a processing scheduler ( 406) finds in the queue ( 404) another request with an estimated heap consumption smaller than the remaining heap consumption of the client, and subsequently moves the found request to a position ahead of the request at the top at the top of the queue ( 404) while undertaking a garbage collection process (414) to optimize the processing power of the computing client. Id. iii! 37--49, Fig. 4. Representative Claim Independent claim 6 is representative, and reads as follows: 6. A request processing method for processing requests in a system that has a queue for storing the requests to be processed and is configured to execute garbage collection when a heap remaining amount is insufficient to process a request dequeued from the queue, the request processing method comprising the steps of: acquiring an estimated heap consumption for each of requests that are to be processed and that exit in the queue; when a request at the top of the queue has a larger estimated heap consumption than the heap remaining amount, finding, among the requests in the queue, a request whose 2 Appeal2014-007210 Application 13/406,667 estimated heap consumption is expected to be smaller than the heap remaining amount; and moving the found request in the queue to a position ahead of the request positioned at the top of the queue. Rejections on Appeal Appellant requests review of the following Examiner's rejections: Claims 6-9 stand rejected under nonstatutory obviousness type double patenting as being unpatentable over claim 1--4, and 11-14 of application No. 13/104, 170 (US 8,678,078).2 Claims 6, 7 and 9 stand rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over the combination of Clee et al. (US 200910187 614 A 1, published July 23, 2009), Challenger et al. (US 6,266,742 Bl, issued July 24, 2001), and Suzuki et al. (US 7,415,453 B2, issued Aug. 19, 2008). ANALYSIS We consider Appellant's arguments seriatim, as they are presented in the Appeal Brief 3-7. 3 2 Because Appellant has not presented any rebuttal arguments against this rejection, we summarily affirm the double patenting rejection. 3 Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Appeal Brief (filed January 13, 2014), the Reply Brief (filed June 10, 2014), and the Answer (mailed April 10, 2014) for their respective details. We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Any other arguments Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2013). 3 Appeal2014-007210 Application 13/406,667 Dispositive Issue: Under 35 U.S.C. Â§ 103, did the Examiner err in finding the combination of Clee, Challenger, and Suzuki teaches or suggests finding among the requests in the queue a request with an estimated heap consumption that is smaller than the heap remaining amount, as recited in independent claim 6? Appellant argues the proposed combination of references does not teach or suggest the disputed limitations emphasized above. Id. In particular, Appellant argues although Clee discloses starting another transaction before a garbage collection (GC) due to the busy state of the system, the other transaction is not a request found among requests in the queue, wherein the found request has an estimated heap consumption smaller than the heap remaining amount. App. Br. 6-7; Reply Br. 4-5. According to Appellant, the "another transaction" is merely the next transaction in the queue that happened to have started before the GC starts. Id. This argument is persuasive. Clee discloses a transaction server containing a queue (204) for storing a plurality of transaction requests (Trl. .. Tm) waiting to be processed serially by a Java Virtual Machine (JVM). Upon determining the state of the JVM heap consumption has reached a predetermined threshold (:S 85% full), before forwarding for processing a current transaction request at the top of the queue, a launcher issues a request to a dispatcher to schedule a garbage collection (GC) to free up memory space. Clee ,-i,-i 39, 40, 42. However, if the transaction server is busy because another request 4 Appeal2014-007210 Application 13/406,667 (user transaction) is already under way, the GC has to wait until the user transaction ends. Id. ii 42. We agree with Appellant that the Examiner misconstrues Clee's disclosure of "another processor may start before it" as selecting another request in the queue with a smaller heap consumption than that of the JVM. App. Br. 6-7 (citing Clee ii 42). The cited portion of Clee is directed to a mere explanation that when the TS is busy processing another user request, it will not start the GC until the user request processing is complete. Id. Accordingly, we agree with Appellant the Examiner's interpretation of "another user transaction may start" as finding in the queue another transaction with a smaller heap consumption than that of a request atop the queue is not supported by the evidence before us. Ans. 5 (citing Clee ii 42). Because Appellant has shown at least one reversible error in the Examiner's rejection, we need not reach Appellant's remammg arguments. DECISION We affirm the Examiner double patenting rejection of claims 6-9. However, we reverse the Examiner's obviousness rejections under 35 U.S.C. Â§ 103(a) of claims 6, 7, and 9. Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. Â§ 41.50(a)(l). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ l .136(a)(l )(iv). AFFIRMED 5