Creamer, Thomas E. et al.Download PDFPatent Trials and Appeals BoardApr 13, 202014181917 - (D) (P.T.A.B. Apr. 13, 2020) Copy Citation 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. 14/181,917 02/17/2014 Thomas E. Creamer BOC920060033US2_8134-0078 4640 73109 7590 04/13/2020 Cuenot, Forsythe & Kim, LLC 20283 State Road 7 Ste. 300 Boca Raton, FL 33498 EXAMINER CHU JOY, JORGE A ART UNIT PAPER NUMBER 2195 NOTIFICATION DATE DELIVERY MODE 04/13/2020 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): ibmptomail@iplawpro.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS E. CREAMER and CURTIS E. HRISCHUK Appeal 2019-000336 Application 14/181,917 Technology Center 2100 Before JAMES W. DEJMEK, SCOTT E. BAIN, and STEPHEN E. BELISLE, Administrative Patent Judges. BAIN, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 21–40, which constitute all claims pending in the application. Claims 1–20 have been cancelled. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a) (2017). Appellant identifies the real party in interest as IBM Corporation. Appeal Br. 1. Appeal 2019-000336 Application 14/181,917 2 BACKGROUND The Claimed Invention The invention relates to a multi-core processor architecture, and particularly, to more efficiently offloading functions to certain cores in a multi-core environment. Spec. ¶¶ 1–6. Claims 21, 30, and 39 are independent. Claim 21 is representative of the invention and the subject matter in dispute, and reads as follows: 21. A method of allocating a plurality of cores in a multi-core processing environment, comprising: allocating, dynamically, the plurality of cores into a plurality of different service pools, each of the plurality of service pools corresponding to a particular function; preloading, into each of the plurality of cores, a soft co- processor corresponding to a particular function associated with a particular service pool to which a particular core is assigned; receiving, from a primary processor, a request to offload a selected function; selecting, from a service pool associated with the selected function, a soft co-processor; and assigning the selected co-processor to perform the selected function. Appeal Br. 25 (Claims Appendix) (emphases added). References The references relied upon by the Examiner are: Name Reference Date Emeis et al. (“Emeis”) US 7,478,097 B2 Jan. 13, 2009 Birns et al. (“Birns”) US 6,647,440 B1 Nov. 11, 2003 Appeal 2019-000336 Application 14/181,917 3 The Rejections on Appeal2 Claims 21–40 stand rejected under pre-AIA 35 U.S.C. § 112, ¶ 2 as indefinite. Final Act. 4–5. Claims 21, 22, 24–29, 31–36, and 38–40 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Applicant Admitted Prior Art (“AAPA”) and Emeis. Final Act. 9–17. Claims 23, 30, and 37 stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over AAPA, Emeis, and Birns. Final Act. 18–19. DISCUSSION We have reviewed the Examiner’s rejections in light of Appellant’s arguments presented in this appeal. Arguments which Appellant could have made but did not make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). On the record before us, Appellant has not persuaded us of error regarding the indefiniteness and nonstatutory double patenting rejections. As to those rejections, we adopt as our own the findings and reasons set forth in the rejections and in the Examiner’s Answer, and we provide the following for highlighting and emphasis. Appellant has, however, persuaded us of error regarding the obviousness rejections. 2 In the Final Action, the Examiner also rejects Claim 21 on the ground of nonstatutory double patenting over claim 1 of U.S. Patent No. 8,713,574 B2. Final Act. 6–9. Neither Appellant nor the Examiner address this rejection in the briefs, and the record indicates that a terminal disclaimer was filed and entered February 1, 2018. Accordingly, we consider the nonstatutory double patenting rejection to be moot. Appeal 2019-000336 Application 14/181,917 4 Rejection Under 35 U.S.C. § 112, ¶ 2 The Examiner finds the limitation “a particular function” indefinite, because that precise phrase is recited twice in claim 21 in two different contexts. Ans. 4–5. Specifically, claim 21 recites both “allocating, dynamically, the plurality of cores into a plurality of different service pools, each of the plurality of service pools corresponding to a particular function” and “preloading, into each of the plurality of cores, a soft co-processor corresponding to a particular function.” Id. 4 (emphasis added). The Examiner finds it is “unclear from the context of the claim whether the same particular function is preloaded into all of the cores or each core is preloaded with functions that differ from each other.” Id. We agree. Appellant argues that the claim could have either of the meanings referenced by the Examiner, and that the Examiner is conflating claim breadth with indefiniteness. Reply Br. 2–3; see also In re Miller, 441 F.2d 689, 693 (CCPA 1971) (“breadth [of a claim] is not to be equated with indefiniteness”). Appellant, however, uses the exact same phrase “particular function” twice in claim 21, each time with the antecedent basis “a,” but in two different contexts. As the Examiner concludes, it is unclear whether both uses of “particular function” refer to the same particular function, or different. If a claim is amenable to two or more plausible claim constructions, the Office is justified in requiring an applicant to more precisely define the metes and bounds of the invention by holding the claim unpatentable under 35 U.S.C. § 112, second paragraph, as indefinite. Ex parte Miyazaki, 89 USPQ2d 1207, 1211–12 (BPAI 2008) (precedential); see also Halliburton Energy Servs., Inc. v. M-I LLC, 514 F.3d 1244, 1255 (Fed. Cir. Appeal 2019-000336 Application 14/181,917 5 2008) (“it is highly desirable that patent examiners demand that applicants” resolve any “ambiguity in the patent claims . . . during prosecution”). As the Examiner finds, Appellant’s use of the same phrase in different contexts is unclear. For the foregoing reasons, we discern no error in the Examiner’s finding that claim 21 is indefinite. We do not agree, however, with the Examiner’s apparent finding that the term “soft co-processor” itself is indefinite. Final Act. 4 (“[i]t is unclear in the context of the claim what constitutes a soft co-processor”); Ans. 5. Appellant’s Specification defines a soft co-processor as “code and/or data [i.e., software] that is preloaded into the core memory for performing the specific function(s) to be offloaded to that core.” Spec. ¶ 23. This is in contrast to the Specification’s description of a “hard-wired” co-processor. Spec. ¶ 5. For the foregoing reasons, we sustain the indefiniteness rejection of claim 21. For the same reasons, we sustain the same rejection of claims 30 and 39, which recite the same limitation, and we sustain the rejection of the remaining claims (all of which are dependent). Rejections Under 35 U.S.C. § 103(a) Appellant argues the Examiner erred in finding the prior art teaches or suggests “preloading . . . a soft co-processor corresponding to a particular function associated with a particular service pool,” as recited in claim 21. Appeal Br. 12; Reply Br. 4–5. Appellant further, and alternatively, argues that the prior art does not teach or suggest any “request to offload a selected function,” as recited in claim 21. We are persuaded by the latter argument, and do not reach the former. Appeal 2019-000336 Application 14/181,917 6 The Examiner finds the AAPA teaches or suggests a “request” to offload a selected function in its disclosure that “the functions to which the co-processor is suited can be offloaded from the main processor to the co- processor.” Final Act. 10 (emphasis added); Ans. 7. The Examiner explains that offloading a function “implies a request” was made. Final Act. 10. As Appellant argues, however, the Examiner provides no support for the latter finding. Reply Br. 6. “[A]ny communication” that offloads functions to the co-processor is not the same as a “request” to perform the action. Ans. 7. Accordingly, on this record, we are persuaded of error. In addition, we also agree with Appellant’s argument (Appeal Br. 17– 18) that the Examiner has not provided sufficient findings indicating that Emeis is analogous art and therefore may be combined with AAPA to constitute the obviousness rejection. A reference is analogous art if it is “from the same field of endeavor” or if it is “reasonably pertinent to the particular problem with which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Emeis concerns distributed computing networks, and specifically, the allocation of functions among control nodes across a distributed network. Emeis Abstract, 5:18–26. Emeis discloses software images deployed to application nodes “based on the input received from [a] system administrator.” Emeis 1:53–60, 5:5–10. Appellant’s invention, in contrast, is directed to a computer system architecture, namely, a multi-core processor architecture. The Examiner finds that Emeis’ teachings related to a distributed network are “reasonably pertinent to the problem” of Appellant’s application because both involve classifying tasks according to functionality and selecting execution of those tasks. Ans. 8. A prior art reference is Appeal 2019-000336 Application 14/181,917 7 “reasonably pertinent” if it is one which, because of the matter with which it deals, logically would have commended itself to an inventor’s attention in considering his or her invention as a whole. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379–80 (Fed. Cir. 2007). On this record, however, we are not directed to sufficient evidence that an inventor of a multi-core processor architecture reasonably would have directed his or her attention to a distributed (network) computing system such as that in Emeis, when considering the problem of allocating the cores. For each of the foregoing reasons, we are persuaded of error regarding the Examiner’s obviousness rejection of claim 21. For the same reasons, we are persuaded of error regarding the same rejection of remaining independent claims 30 and 39, which recite limitations commensurate in scope with the disputed limitation above. For the same reasons, we are also persuaded of error regarding the rejection of the remaining claims, all of which are dependent. Accordingly, we do not sustain the obviousness rejections of claims 21–40. Appeal 2019-000336 Application 14/181,917 8 SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 21–40 112 Indefiniteness 21–40 21, 22, 24– 29, 31–36, 38–40 103 AAPA, Emeis 21, 22, 24– 29, 31–36, 38–40 23, 30, 37 103 AAPA, Emeis, Birns 23, 30, 37 Overall Outcome 21–40 DECISION We affirm the Examiner’s decision rejecting claims 21–40. 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). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation