Calvin Hsia

Patent Trials and Appeals Board

Sep 1, 2020

2019000590 (P.T.A.B. Sep. 1, 2020)

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.
14/514,674 10/15/2014 Calvin Hsia 333083.02 2271
69316 7590 09/01/2020
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
OTTO, ALAN
ART UNIT PAPER NUMBER
2132
NOTIFICATION DATE DELIVERY MODE
09/01/2020 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):
chriochs@microsoft.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte CALVIN HSIA
____________________

Appeal 2019-000590
Application 14/514,674
Technology Center 2100
____________________

Before ST. JOHN COURTENAY III, MARC S. HOFF, and
KEVIN F. TURNER, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134 from a final rejection of
claims 1–5, 7–15, 17–19, and 21–23.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm-in-part.
Appellant’s invention is analysis and presentation of allocated
computer system memory. Spec. ¶ 10. An analysis component can be
configured to analyze the computer memory in connection with data

1 Appellant states that the real party in interest is Microsoft Technology
Licensing, LLC. Appeal Br. 1.
2 Claims 6, 16, and 20 have been cancelled.
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included in at least one tag based upon input received. Spec. ¶ 11. Inefficient
use of computer memory can be identified, and an interface component can
be configured to present output generated in connection with the inefficient
use of computer memory. Spec. ¶ 15. Memory allocation can be tracked
from a process that issues the memory allocation or from a garbage
collection process. Spec. ¶ 39.
Claim 1 is reproduced below:
1. A method performed by a computing system having a
processor and memory, the method comprising:
detecting a memory allocation instruction to allocate a
portion of the memory, the memory
allocation instruction being issued by a process
executed by the processor;
in response to the detected memory allocation instruction for
allocating a portion of the memory,
allocating a portion of the memory;
creating a tag corresponding to the allocated portion of
the memory, the tag including information of a call stack
associated with the monitored memory allocation instruction;
and
storing the created tag in a private heap of the memory;
subsequently,
detecting a memory release instruction to release the
allocated portion of the memory;
in response to the detected memory release instruction,
deleting the stored tag corresponding to the allocated portion of
the memory from the private heap of the memory; and
tracking the allocated portion of the memory during a
garbage collection process and linking the information of the
call stack that is associated with the monitored memory
allocation instruction and is contained in the created tag with
another portion of the memory instead of the allocated portion
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of the memory when data in the allocated portion of the
memory is moved to the another portion of the memory during
the garbage collection process.
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Gold US 2002/0116573 A1 Aug. 22, 2002
Krapp US 6,889,297 B2 May 3, 2005
Kurtz US 2007/0011428 A1 Jan. 11, 2007
Patterson US 8,028,009 B1 Sept. 27, 2011

Claims 1–5, 7, 11–15, and 17 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Kurtz and Patterson. Final Act. 2.
Claims 8, 18, 19, and 21–23 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Kurtz, Patterson, and Krapp. Final Act. 6.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kurtz, Patterson, Gold, and Krapp. Final Act. 18.
Throughout this decision, we make reference to the Appeal Brief
(“Appeal Br.,” filed May 21, 2018), the Reply Brief (“Reply Br.,” filed Oct.
30, 2018) and the Examiner’s Answer (“Ans.,” mailed Aug. 31, 2018) for
their respective details.
ISSUES
1. Does the combination of Kurtz and Patterson fairly suggest tracking
the allocated portion of the memory during a garbage collection process?
2. Does Kurtz teach native code and detecting the memory allocation
instruction from the native code?
3. Does the combination of Kurtz and Patterson suggest detecting the
memory release instruction from a garbage collection process?
4. Does the combination of Kurtz and Patterson suggest tagging an
objection associated with the allocated portion of the memory with a number
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of times the object has survived or moved during garbage collection
process?
PRINCIPLES OF LAW
One cannot show nonobviousness by attacking references individually
where the rejections are based on combinations of references. In re Keller,
642 F.2d 413, 425 (CCPA 1981). The test of obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference, nor is it that the claimed invention must
be expressly suggested in any one or all of the references. Rather, the test is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art. Id. at 425.
Claim construction is an important step in a patentability
determination. “Both anticipation under § 102 and obviousness under § 103
are two-step inquiries. The first step in both analyses is a proper construction
of the claims. . . . The second step in the analyses requires a comparison of
the properly construed claim to the prior art.” See Medichem, S.A. v.
Rolabo, S.L., 353 F.3d 928, 933 (Fed. Cir. 2003) (internal citations
omitted)). Under the second step, the Board must compare the construed
claim to one or more prior art references and make factual findings
regarding the limitations contested by Appellants. See In re Crish, 393 F.3d
1253, 1256 (Fed. Cir. 2004).

ANALYSIS
Claims 1–3 and 11–13
Independent claims 1 and 12 recite, in pertinent part, “tracking the
allocated portion of the memory during a garbage collection process and
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linking that information of the call stack that is associated with the
monitored memory allocation instruction . . . with another portion of the
memory.”
The Examiner rejects the claims over Kurtz and Patterson. The
Examiner finds that Kurtz does not teach this “tracking” limitation in full,
but finds that Patterson teaches such tracking of an allocated portion of
memory during a garbage collection process. Final Act. 3–4. Appellant
argues in the Brief that Patterson does not teach this tracking limitation, but
rather “teaches tracking blocks of data contained in certain memory
locations during a garbage collection process.” Id.
In response to Appellant, the Examiner finds that “Kurtz already
teaches tracking allocated portions of memory. Kurtz is being combined
with Patterson which teaches where memory tracking is done during a
garbage collection process.” Ans. 4; Kurtz ¶¶ 44, 45. As Kurtz allocates
memory, Kurtz constructs a memory tag 200, populated with pertinent
information (activity type, allocation address and size, task identification,
stack depth, traceback stack, previous flag, next flag), that is “stored on the
memory tag list along with other memory tags 200 that may currently exist.”
Kurtz ¶¶ 46, 47. When memory is de-allocated, the corresponding memory
tag is removed from the memory tag list. Kurtz ¶¶ 49. Appellant admits that
Kurtz uses memory tag 200 to track memory allocations. Appeal Br. 10.
Appellant argues that Patterson, relied upon for disclosing tracking
allocated portions of memory during garbage collection processes, actually
teaches “tracking blocks of data contained in certain memory locations.”
Appeal Br. 9. Patterson discloses that a block of data can be identified by a
block ID, and a memory location in which the block of data is stored can be
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identified in the location table. Id.; Patterson, Fig. 3, col. 9:1–3. When a
block of data is moved, only the address column in the location table needs
to be updated. Id.; Patterson, col. 9:49–54. We do not agree with Appellant’s
argument. We agree with the Examiner’s proposed modification of Kurtz’s
tracking of allocated portions of memory with Patterson’s tracking during
garbage collection processes, “in order to only update one location in the
table when blocks are moved and copied.” Final Act. 5. As the Examiner
points out, Patterson’s location table shows a block ID and an address of the
data, which corresponds to an allocated portion of memory. Ans. 4;
Patterson, Fig. 3. We agree with the Examiner that Appellant’s claims do not
specify the range of memory that is allocated, or the number of blocks in the
range; thus, Appellant’s argument that Patterson’s data block may not
correspond to the size of the memory allocation is not persuasive of
Examiner error. Ans. 4.
Appellant argues that neither Kurtz nor Patterson teach updating
Kurtz’s memory tag 200 containing the call stack and the corresponding
allocated memory location during a garbage collection operation. Appeal Br.
10. We are not persuaded by Appellant’s argument. Appellant here argues
against the bodily incorporation of Patterson into Kurtz, but the test of
obviousness is what the combined teachings of the references would have
suggested to the person having ordinary skill in the art. In re Keller, 642
F.2d at 425. We agree with the Examiner that Kurtz teaches tracking
allocated portions of memory, and that Patterson teaches updating tracking
during garbage collection operations. Ans. 4.
Appellant’s argument that combining Kurtz and Patterson would
change Kurtz’s principle of operation is similarly unpersuasive. Appeal Br.
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11. As noted supra, we agree with the Examiner’s finding that Kurtz teaches
tracking allocated portions of memory, and that Patterson’s tracking includes
a block ID and an address of the data.
Appellant’s arguments are not persuasive to show that the Examiner
erred in rejecting the claims over Kurtz and Patterson. We sustain the
Examiner’s § 103 rejection of claims 1–3 and 11-–13.
Claims 4 and 14
Appellant argues that Kurtz teaches that the memory tool 70 allocates
memory from the memory pool 90 to the applications 80 and audits the
usage of such memory. Appeal Br. 12. Assuming that the memory tool
corresponds to claim 4’s “managed code,” Appellant urges, Kurtz would
teach detecting both the memory allocation instruction and the memory
release instruction from managed code. Id.
The Examiner finds that Kurtz teaches a memory allocation
instruction, “malloc,” in native code (C). Ans. 5; Kurtz, Fig. 6. As a result,
the Examiner then finds that Kurtz teaches a process including native code,
as claimed, and detecting the memory allocation instruction from the native
code, as claimed.
We do not agree with the Examiner. In our review of the record, we
find that the Examiner has not done a proper construction of the claim term
“native code,” which is a prerequisite to comparing a properly construed
claim to the prior art. Medichem, 353 F.3d at 933. On this record, we cannot
agree with the Examiner that the “C” language memory allocation
instruction “malloc” corresponds to “native code,” which generally
corresponds to the native instruction set of a particular microprocessor, as is
known in the art. Thus, we find that the Examiner erred in determining that
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Kurtz and Patterson teach or suggest all the elements of claims 4 and 14. We
do not sustain the Examiner’s § 103 rejection of these claims.
Claims 5 and 15
Appellant argues that Patterson describes how a mark and sweep
process operates, not “detecting the memory release instruction from a
garbage collection process” as claimed. Appeal Br. 12–13.
We are not persuaded by Appellant’s argument. We agree with the
Examiner that Patterson teaches that after data are copied to a different
location during a sweep, “[t]he range of the address space of the data that
has been swept is then marked as unallocated, thereby allowing the backup
system to overwrite this range of the address space with new data.”
Patterson, col. 1:53–56. We agree with the Examiner that Patterson teaches
detecting the memory release instruction from a garbage collection process,
as claimed. We sustain the Examiner’s § 103 rejection of claims 5 and 15
over Kurtz and Patterson.
Claims 7 and 17
Claim 7 recites, in pertinent part, “tagging an objection associated
with the allocated portion of the memory with a number of times the object
has survived or moved during garbage collection processes.” The Examiner
cites to Kurtz as teaching “where any event can be counted or tracked. The
event of moving a memory object would be a memory event.” Final Act. 6;
Kurtz ¶¶ 40, 49. Claim 17, dependent from claim 12, recites similar
limitations.
Kurtz teaches a portion of a listing derived from a memory tag, with
portion 310 representing “the number of times a similar event occurred.”
Kurtz ¶ 40. Kurtz further teaches, during memory de-allocation, that in
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removing a memory tag 200 from the memory tag list, a variety of counters
may still be maintained, “for example, to account for the number of times
certain events have occurred.” Kurtz ¶ 49.
We do not agree with the Examiner that these general disclosures of
counting “the number of times certain events have occurred” may fairly be
characterized as teaching the claimed “tagging an objection associated with
the allocated portion of the memory with a number of times the object has
survived or moved during garbage collection processes.”
Appellant has demonstrated that the Examiner erred in rejecting
claims 7 and 17. We do not sustain the Examiner’s § 103 rejection.
Rejection of claims 8, 18, 19, and 21–23
With respect to independent claim 19, Appellant argues only that
Krapp does not cure the deficiencies of Kurtz and Patterson. Appeal Br. 16.
Since, as discussed supra, we conclude that the Examiner did not err in
rejecting claims 1 and 12, we sustain the Examiner’s rejection of claim 19
over Kurtz, Patterson, and Krapp, for the same reasons given with respect to
the rejection of claims 1 and 12 over Kurtz and Patterson, supra.
Appellant does not argue dependent claims 8, 18, and 21–23
separately, remarking only that these claims are allowable for the reasons
given with respect to parent claims 1 and 12. Appeal Br. 16. We therefore
sustain the rejection of claims 8, 18, and 21–23 over Kurtz, Patterson, and
Krapp, for the same reasons given with respect to the rejection of claims 1
and 12 over Kurtz and Patterson, supra.
Rejection of claims 9 and 10
Appellant does not respond to the § 103 rejection of claims 9 and 10
over Kurtz, Patterson, Gold, and Krapp in the principal Appeal Brief or in
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the Reply Brief. Accordingly, we sustain pro forma the Examiner’s § 103
rejection of claims 9 and 10.
CONCLUSIONS
1. The combination of Kurtz and Patterson fairly suggests tracking the
allocated portion of the memory during a garbage collection process.
2. Kurtz does not teach native code and detecting the memory
allocation instruction from the native code.
3. The combination of Kurtz and Patterson suggests detecting the
memory release instruction from a garbage collection process.
4. The combination of Kurtz and Patterson does not suggest tagging
an objection associated with the allocated portion of the memory with a
number of times the object has survived or moved during garbage collection
process.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reversed
1–5, 7, 11–
15, 17
103 Kurtz, Patterson 1-3, 5,
11-13, 15
4, 7, 14, 17
8, 18, 19, 21–
23
103 Kurtz, Patterson,
Krapp
8, 18, 19,
21–23

9, 10 103 Kurtz, Patterson,
Gold, Krapp
9, 10
Overall
Outcome

1–5, 8–
15, 18,
19, 21–23
4, 7, 14, 17

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ORDER
The Examiner’s decision to reject claims 1-3, 5, 8-13, 15, 18, 19, and
21-23 is affirmed. The Examiner’s decision to reject claims 4, 7, 14, and 17
is reversed.

TIME PERIOD FOR RESPONSE
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.
§ 1.136(a)(1)(iv).

AFFIRMED-IN-PART