Ex Parte Aguilar et al

Board of Patent Appeals and Interferences

Aug 5, 2011

10955184 (B.P.A.I. Aug. 5, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MAXIMINO AGUILAR JR., MICHAEL NORMAN DAY,
MARK RICHARD NUTTER, and JAMES XENIDIS
____________
Appeal 2009-010699
Application 10/955,184
Technology Center 2100
___________

Before ST. JOHN COURTENAY III, CAROLYN D. THOMAS, and
JAMES R. HUGHES, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s non final rejection of claims 1, 3, 6, and 7. Claims 2, 4, 5, and
8-20 were cancelled during prosecution. We have jurisdiction under 35
U.S.C. § 6(b).
We Affirm.
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Invention
Appellants’ invention relates generally to a system and method for
sharing resources between real-time and virtualizing operating systems.
More particularly, the invention on appeal is directed to a system and
method for virtualizing processor memory such that each operating system
has virtual control over particular support processors. (Spec. 1).

Independent claim 1
A computer-implemented method comprising:

initiating a first processor thread corresponding to a first
operating system that is executed on a first processor;

assigning a second processor to the first processor thread;

determining that the first processor thread should access a
physical local memory located on the second processor;

in response to determining that the first processor thread should
access the physical local memory located on the second processor,
entering a first page table entry in a page table for use by the first
processor thread to access the physical local memory located on the
second processor;

initiating a second processor thread corresponding to a second
operating system that is executed on the first processor, wherein the
first operating system and the second operating system execute
concurrently on the first processor;

assigning the second processor to the second processor thread;

determining that the second processor thread should access a
soft copy of the physical local memory located on the second
processor;
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in response to determining that the second processor thread
should access the soft copy of the physical local memory located on
the second processor, creating the soft copy of the physical local
memory in a soft copy area;

entering a second page table entry in the page table for use by
the second processor thread to access the soft copy of the physical
local memory located in the soft copy area; and

concurrently accessing the second processor using both the first
processor thread and the second processor thread, the concurrent
accessing further comprising:

using the first processor thread to retrieve the first page table
entry from the page table and access the physical local memory
located on the second processor; and

using the second processor thread to retrieve the second page
table entry from the page table and access the soft copy of the
physical local memory located in the soft copy area.
(emphasis added).

Rejection
1. The Examiner rejected claims 1, 3, 6, and 7 under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Yan
(US Pat. 6,003,065), Ronkka (US Pat. App. Pub. 2004/0088710
A1), and Greenwood (US Pat. 5,345,588).

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FINDINGS OF FACT (FF)
We adopt the Examiner’s findings in the Answer. Our discussion will
be limited to the points of emphasis discussed infra.

GROUPING OF CLAIMS
Appellants argue claims 1, 3, 6, and 7 as a group. We select
representative claim 1 to decide the appeal for this group. See 37 C.F.R. §
41.37(c)(1)(vii).

ISSUE
Based upon our review of the administrative record, we have
determined that the following issue is dispositive in this appeal regarding the
obviousness rejection of representative claim 1:
Has the Examiner erred by finding that the combination
of Yan, Ronkka, and Greenwood would have taught or
suggested: “using the first processor thread to retrieve the
first page table entry from the page table and access the
physical local memory located on the second processor,”
within the meaning of representative claim 1?

Analysis
Independent Claim 1
Appellants focus on the claim 1 limitation of “access[ing] the physical
local memory located on the second processor” and contend that
“Greenwood never teaches or suggests a thread that is created at a first
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processor to access memory within a second processor, such as Greenwood's
microprocessor 16 accessing data in microprocessor 18.” (App. Br. 6).
However, we observe that the Examiner relies on Yan in the rejection
of claim 1 to teach or suggest “using the first processor thread to access the
physical local memory located on the second processor (column 19, lines 23-
53).” (Ans. 5).
In the response to arguments section of the Answer, the Examiner
contends that Appellants are arguing the references separately. (Ans. 10). In
particular, the Examiner explains that Yan was relied on to teach or suggest
the disputed limitation of “access[ing] the physical local memory located on
the second processor” (claim 1) and Greenwood was relied on to teach or
suggest the use of page tables. (Ans. 11).
In the Reply Brief, Appellants aver that
[s]ince neither Yan nor Ronkka teach anything to do with
page table entries, they certainly don't
teach entering a page table entry that points a first
processor thread to access memory located on a second
processor. Therefore, the combination of Greenwood,
Yan, or Ronkka never teach or suggest, either alone or in
combination with each other “entering a first page table
entry in a page table for use by the first processor thread
to access the physical local memory located on the
second processor” as claimed by Appellants.
(Reply Br. 2-3).

However, we observe that Greenwood was relied on by the Examiner
as teaching or suggesting the use of page tables, as discussed above. (Ans.
11). On this record, we agree with the Examiner that Appellants are
attacking the cited references in isolation, as the Examiner relies on the
combination of Yan, Ronkka, and Greenwood to reject representative
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claim 1 under an obviousness analysis.1 Moreover, Appellants fail to
present any substantive arguments traversing the Examiner’s specific
findings regarding the teachings of Yan, as set forth in the rejection of
claim 1 (Ans. 5), and as further explained in the “Response to Arguments”
section of the Answer. (Ans. 10). Therefore, Appellants’ contention that the
tertiary Greenwood reference does not teach or suggest “access[ing] the
physical local memory located on the second processor” is ineffective in
demonstrating Examiner error. (App. Br. 6).

Reply Brief
Appellants’ present a new argument in the Reply Brief that
“[i]n addition, since Greenwood never discusses accessing memory on a
second processor, Greenwood never teaches or suggests ‘determining that a
second processor thread should access a soft copy of the physical local
memory located on the second processor,’ as claimed by Appellants.”
(Reply Br. 3).
We find this argument untimely. We note that the Reply Brief is
properly used to respond to points of argument raised by the Examiner in the
Answer and not as a means for presenting new arguments. See Ex parte
Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative) (“[T]he reply
brief [is not] an opportunity to make arguments that could have been made

1 One cannot show nonobviousness by attacking references
individually where the rejections are based on combinations of references.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).

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in the principal brief on appeal to rebut the Examiner's rejections, but were
not.”).
We decline to address any new arguments not originally presented in
the principal Brief. With respect to all claims before us on appeal,
arguments which Appellants could have made but chose not to make have
not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii). 2
For essentially the same reasons argued by the Examiner, as discussed
above, we find Appellants have not met their burden of showing reversible
error in the Examiner’s prima facie case of obviousness for representative
claim 1. 3 Therefore, we sustain the §103 rejection of claim 1, and claims 3,
6, and 7 (not argued separately) which fall therewith. See 37 C.F.R.
§41.37(c)(1)(vii).

2 See also Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)(“Filing a
Board appeal does not, unto itself, entitle an appellant to de novo review of
all aspects of a rejection. If an appellant fails to present arguments on a
particular issue − or, more broadly, on a particular rejection − the Board will
not, as a general matter, unilaterally review those uncontested aspects of the
rejection.”)(precedential).

3 See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“Jung argues that the
Board gave improper deference to the examiner’s rejection by requiring
Jung to ‘identif[y] a reversible error’ by the examiner, which improperly
shifted the burden of proving patentability onto Jung. Decision at 11. This
is a hollow argument, because, as discussed above, the examiner established
a prima facie case of anticipation and the burden was properly shifted to
Jung to rebut it. . . . ‘[R]eversible error’ means that the applicant must
identify to the Board what the examiner did wrong . . . .”).

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DECISION
We affirm the Examiner’s decision rejecting claims 1, 3, 6, and 7
under §103.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

ORDER
AFFIRMED

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