Ex Parte Arndt et alDownload PDFPatent Trial and Appeal BoardApr 11, 201411759685 (P.T.A.B. Apr. 11, 2014) 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. 11/759,685 06/07/2007 Richard Louis Arndt AUS920070480US1 6710 77351 7590 04/14/2014 IBM CORP. (AUS) C/O THE LAW OFFICE OF JAMES BAUDINO, PLLC 600 SIX FLAGS DRIVE SUITE 400 ARLINGTON, TX 76011 EXAMINER DILLON, SAMUEL A ART UNIT PAPER NUMBER 2185 MAIL DATE DELIVERY MODE 04/14/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RICHARD LOUIS ARNDT and BRADLY GEORGE FREY ____________________ Appeal 2011-011277 Application 11/759,685 Technology Center 2100 ____________________ Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM, Administrative Patent Judges. FRAHM, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011277 Application 11/759,685 2 STATEMENT OF CASE Introduction Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Exemplary Claims Exemplary independent claims 1 and 14 under appeal, with emphases added to the disputed portions of the claims, read as follows: 1. A method for providing virtual real memory, comprising: receiving a request for a memory page from a requestor; wherein the requestor is a first virtual machine of a plurality of virtual machines; wherein at least one virtual machine implements a virtual memory protocol; determining whether the requested memory page is available; in the event the requested memory page is available, satisfying the request; in the event the requested memory page is not available, generating a page fault interrupt; wherein the page fault interrupt comprises a first page fault correlation number (PFCID) identifying a restorative process; wherein the restorative process is configured to restore the requested memory page to available memory; monitoring a plurality of pending processes; determining whether the restorative process is complete; and in the event the restorative process is complete, notifying the requestor that the restorative process is complete. 14. A processor comprising a computer program product for providing virtual real memory, the computer program Appeal 2011-011277 Application 11/759,685 3 product having a tangible computer-readable medium with a computer program embodied thereon, the computer program comprising: computer code for receiving a request for a memory page from a requestor; wherein the requestor is a first virtual machine of a plurality of virtual machines; wherein at least one virtual machine implements a virtual memory protocol; computer code for determining whether the requested memory page is available; computer code for, in the event the requested memory page is available, satisfying the request; computer code for, in the event the requested memory page is not available, generating a page fault interrupt; wherein the page fault interrupt comprises a first page fault correlation number (PFCID) identifying a restorative process; wherein the restorative process is configured to restore the requested memory page to available memory; computer code for monitoring a plurality of pending processes; computer code for determining whether the restorative process is complete; and computer code for, in the event the restorative process is complete, notifying the requestor that the restorative process is complete. Appeal 2011-011277 Application 11/759,685 4 Examiner’s Rejections 1 (1) The Examiner rejected claims 14-20 under 35 U.S.C. § 101 as encompassing non-statutory subject matter. Ans. 4; Final Rej. 2-3. (2) The Examiner rejected claims 1-20 as being unpatentable under 35 U.S.C. § 103(a) over the combination of Chang (US 4,718,008, Jan. 5, 1988) and Khosravi (US 2007/0005927 A1, Jan. 4, 2007). Ans. 5-13. Reply Brief No Reply Brief has been presented. Therefore, Appellants have not disputed the Examiner’s articulated reasoning and findings found at pages 14-16 of the Answer, including the citations to Chang (Ans. 15-16, citing Chang, cols. 1, 4, 5, 8, and 13). Issues on Appeal Based on Appellants’ arguments in the Appeal Brief (Br. 5-12) the following two issues are presented on appeal: (1) Did the Examiner err in rejecting claims 14-20 as being drawn to non-statutory subject matter because the “tangible computer-readable medium” recited in claim 14, and described in paragraph [0020] of the Specification, encompasses a tangible, transitory signal for propagating or transporting the computer program embodied thereon? 1 Appellants present arguments as to the non-obviousness of independent claims 1, 10, and 14, which each recite the disputed clauses of “wherein the requestor is a first virtual machine of a plurality of virtual machines” and “wherein at least one virtual machine implements a virtual memory protocol” (Br. 8-11). With regard to dependent claims 2-9, 11-13, and 15- 20, Appellants rely on the arguments presented as to claims 1, 10, and 14 from which claims 2-9, 11-13, and 15-20 respectively depend. Accordingly, we select claim 1 as representative of the group of claims (claims 1-20) rejected under 35 U.S.C. § 103(a). See 37 C.F.R. 41.37 (c)(1)(vii). Appeal 2011-011277 Application 11/759,685 5 (2) Did the Examiner err in rejecting claims 1-20 as being obvious because the combination of Chang and Khosravi fails to teach or suggest the method for providing virtual real memory, “wherein the requestor is a first virtual machine of a plurality of virtual machines; wherein at least one virtual machine implements a virtual memory protocol;” as recited in claim 1, and as similarly recited in remaining claims 2-20 grouped therewith? ANALYSIS We have reviewed the Examiner’s rejections in light of Appellants’ contentions in the Appeal Brief (Br. 5-12) that the Examiner has erred, as well as the Examiner’s response to Appellants’ arguments in the Appeal Brief (Ans. 14-16). We disagree with Appellants’ conclusions. With regard to the non-statutory subject matter rejection of claims 14- 20 and the obviousness rejection of representative claim 1, we concur with the conclusions reached by the Examiner, and we adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Ans. 4-13; Final Rej. 2-3), and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to the Appellants’ Appeal Brief (Ans. 14-16). We highlight and amplify certain teachings and suggestions of Chang, as well as certain ones of Appellants’ arguments as follows. Non-Statutory Subject Matter Rejection of Claims 14-20 Claims 14-20 stand rejected as encompassing non-statutory subject matter. Claim 14 is independent and recites a processor comprising a computer program product for providing virtual real memory, where the computer program product is embodied on a “tangible computer readable Appeal 2011-011277 Application 11/759,685 6 medium” (claim 14, preamble). Claims 15-20 depend from claim 14, and are also directed to a “tangible computer readable medium” (claim 14). Appellants’ contention (Br. 6-7) that the Examiner fails to correlate relevant claim limitations to the amended disclosure (which removed the term “propagate”) are not persuasive in light of (i) the originally filed Specification’s disclosure in paragraph [0020] that the tangible computer- readable medium can propagate or transport the program and code, and (ii) our agreement with the Examiner (Ans. 4 and 14) that a tangible computer readable medium can encompass a wireless network or signal per se and be in the form of a signal or transitory medium. Contrary to Appellants’ arguments, the asserted Specification disclosure – “computer-readable medium can be any apparatus or otherwise tangible medium that can contain, store, communicate, propagate, or transport the program for use by or in connection with the instruction execution system, apparatus, or device” (Spec. ¶ [0020]) – can be reasonably viewed as clarifying that the meaning of “computer readable medium” is broad enough to encompass tangible, transitory computer readable media (e.g., signals) that are capable of propagating or transporting the computer program including the computer code recited in independent claim 14. For the foregoing reasons, the § 101 rejection of claims 14-20 is sustained. Obviousness Rejection of Claims 1-20 Appellants’ contention (Br. 10) that Chang and Khosravi, alone or in combination, fail to disclose, teach, or suggest the features of claims 1, 10, and 14, including providing virtual real memory “wherein the requestor is a first virtual machine of a plurality of virtual machines;” and “wherein at least one virtual machine implements a virtual memory protocol;” (claim 1) Appeal 2011-011277 Application 11/759,685 7 is not persuasive in view of the Examiner’s new and reasonable findings regarding the disclosure of Chang (Ans. 15-16, citing new portions of cols. 1, 4, 5, 8, and 13). Notably, Appellants have not rebutted the Examiner’s findings and rationale at pages 15-16 of the Answer, or provided contrary evidence as to Chang’s teachings. We agree with the Examiner’s (i) findings as to the teachings of Chang and Khosravi (Ans. 5-6 and 15-16), and (ii) articulation of the motivation for making the combination (see Ans. 5-7), including “to allow memory management from a remote location and thus increase the fault-tolerance of the system” (Ans. 7). We also agree with the Examiner’s findings (Ans. 15-16) that Chang teaches or suggests a virtual memory (e.g., the Virtual Resource Manager, VRM 25 shown in Fig. 2 and described at col. 8, ll. 2-10 as supporting virtual memory and including one or more application programs 22a-c and an operating system 30) that implements a virtual memory protocol (Ans. 5 and 15-16). The VRM 25 implements protocols to update data structures (col. 4, ll. 42-45), create/delete segments (col. 5, ll. 61-68), establish a virtual machine interface 31 (col. 8, ll. 2-10), and handle page faults (col. 13, ll. 43-66). Appellants have not shown by persuasive evidence or argument on this record that Chang does not implement a virtual memory protocol as determined by the Examiner. In view of the foregoing, Appellants’ arguments in the Appeal Brief (Br. 8-12) are not persuasive, and we sustain the obviousness rejection of representative claim 1, as well as claims 2-20 grouped therewith under § 103(a) over Chang and Khosravi for the reasons provided by the Examiner (see e.g., Ans. 5-7 and 15-16). Appeal 2011-011277 Application 11/759,685 8 CONCLUSIONS (1) The Examiner has not erred in rejecting claims 14-20 under § 101 as being drawn to non-statutory subject matter. (2) The Examiner has not erred in rejecting claims 1-20 based on the determination that the combination of Chang and Khosravi teaches or suggests the method for providing virtual real memory, “wherein the requestor is a first virtual machine of a plurality of virtual machines; wherein at least one virtual machine implements a virtual memory protocol;” as recited in representative claim 1. DECISION The Examiner’s rejections of (i) claims 14-20 under 35 U.S.C. § 101, and (ii) claims 1-20 under 35 U.S.C. § 103(a) are affirmed. 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). AFFIRMED ELD Copy with citationCopy as parenthetical citation