Ex Parte Brahmavar

Patent Trial and Appeal Board

Oct 27, 2014

11884790 (P.T.A.B. Oct. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DEEPAK BRAHMAVAR
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Appeal 2012-004499
Application 11/884,790
Technology Center 2100
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Before CARL W. WHITEHEAD JR., JOHNNY A. KUMAR, and
DANIEL N. FISHMAN, Administrative Patent Judges.

KUMAR, Administrative Patent Judge

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1–13, which are all the claims pending in this application. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

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STATEMENT OF THE CASE
Introduction
Appellant’s invention relates to a method for acquiring and releasing a
lock over a common resource in a computing system. See Spec. ¶ 6.
Claim 1 is illustrative of the invention and reads as follows:
1. A method for acquiring and releasing locks to manage a
common resource in a computing system, comprising the steps
of:
after a lock has been acquired over a common resource
based on a first come, first served order, determining whether
other requests for the common resource has been made;
in response to no requests for the common resource,
retaining said lock; and
if the other requests have been made, releasing the lock
over the common resource so that the common resource
becomes available for use by the other requests.

Rejections on Appeal
The Examiner rejected claim 13 under 35 U.S.C. § 101 as being
directed to non-statutory subject matter. Ans. 5.
The Examiner rejected claims 1–13 under 35 U.S.C. § 103(a) as being
unpatentable over E. (US 2004/0019892 A1, Jan. 29, 2004) and Clark (US
6,598,068 B1, July 22, 2003). Ans. 5–12.

Issues on Appeal
Appellant’s arguments in the Appeal Brief present us with the
following issues:
1. Did the Examiner err in rejecting claim 13 under 35 U.S.C.
§ 101 as being directed to non-statutory subject matter?
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2. Did the Examiner err in rejecting claims 1–13 as being obvious
over E. and Clark, because the combination of references is improper?
ANALYSIS
Rejection under 35 U.S.C. § 101
With respect to the 35 U.S.C. § 101 rejection, Appellant contends:
Appellant respectfully notes that 0011 of the instant
Application refers to RAM, ROM, disk drives, floppy disk
drives, hard disk drives, CD ROM drives and magnetic tape
drives. Appellant respectfully submits that RAM, ROM, disk
drives, floppy disk drives, hard disk drives, CD ROM drives
and magnetic tape drives are all tangible storage mediums.
App. Br. 9.
Paragraph 11 of the Specification discloses, “Disk drive 108 may
include any suitable storage media, such as, for example, floppy disk drives,
hard disk drives, CD ROM drives or magnetic tape drives” (emphasis ours).
The Examiner finds, “Although examples of the storage media are
statutory, they are merely examples and not limiting.” Ans. 12. We agree
with the Examiner that the claimed method is ineligible for patent protection
because the broad scope of the claim extends to both statutory and non-
statutory subject matter (Ans. 12–13). Here, the recited “computer readable
medium” is not claimed as non-transitory, and Appellant’s disclosure does
not expressly and unambiguously limit that medium to solely non-transitory
forms via a definition or similar limiting language. The broadest reasonable
interpretation of “computer readable medium” generally includes transitory
propagating signals, especially where, as here, Appellant’s written
description and claims do not preclude this interpretation. See David J.
Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off.
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Gaz. Pat. Office 212 (Feb. 23, 2010). When the broadest reasonable
interpretation of a claim includes transitory propagating signals, the claim
encompasses non-statutory subject matter. See In re Nuijten, 500 F.3d 1346,
1356–57 (Fed. Cir. 2007). Therefore, the claimed computer readable
medium encompasses transitory forms, which are ineligible under § 101.
Accordingly, we sustain the 35 U.S.C. § 101 rejection of claim 13 as
being directed to non-statutory subject matter.
Rejections under 35 U.S.C. § 103(a)1
Appellant argues the combination of the references is not based on
any proper rationale because “Clark and E teach away from each other.”
App. Br. 13–15; Reply Br. 1–3. The Examiner provides a comprehensive
response to Appellant’s arguments by describing the features of Clark the
ordinary skilled artisan would have combined with E., consistent with the
guidelines stated in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) (Ans.
10–12). The Examiner finds that E. teaches all claimed features of
independent claim 1, except “first come, first served order” (hereinafter
“FCFS”). Ans. 6. The Examiner relies upon Clark for this feature. Id. at 6–
7. The Examiner specifically identifies portions of Clark in column 3 and
Figure 1 where a lock is acquired over a common resource based on a first
come, first served order [FCFS]. Id. at 13. In particular, the Examiner finds
Clark teaches “a conventional lock assignment in order of FCFS”:
[T]here are three threads; Main thread, Worker Thread 1,
Worker Thread 2. When there is a first request for the lock at
Tl from the Worker thread2, the Worker thread2 acquires the

1 Independent claim 7 stands or falls with claim 1. App. Br. 15. Dependent
claims 2–6 and 8–13 have not been argued separately and, thus, stand or fall
with their independent base claims. Id.
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lock at T2, and when Worker thread 1 requests the lock at T2, it
acquires the lock at T5, and when the Worker thread 2 requests
the lock at T6, the Worker thread 2 acquires the lock at T8, and
when the Main thread requests the lock at T8, the Main thread
acquires the lock at T11.
Id. at 13, 15.
The Examiner further finds:
E. and Clark’s background are analogues art because they are
directed to share a common resource by utilizing a lock in a
multithreaded process system (E.; see paragraph 2, Clark; see
col. 1, line 42, col. 2, lines 42-46). Given the teaching of
Clark’s background, the system of E. can be modified by using
the well-known technique of lock assignment mechanism
including FCFS, thereby a thread holds the lock after finishing
a job until another lock request is received from other thread by
using known lazy lock release mechanism, then the lock is
released and assigned to the other thread in order of FCFS
manner after receiving the lock request from the other thread.
Using the FCFS lock assignment technique would provide a
conventional, well-known lock assignment technique that
enables simple and efficient assignment of locks that is fair to
the plurality of threads.
Id. at 15.
The Supreme Court has indicated that:
[It is error to] assum[e] that a person of ordinary skill
attempting to solve a problem will be led only to those elements
of prior art designed to solve the same problem. . . . Common
sense teaches . . . that familiar items may have obvious uses
beyond their primary purposes, and in many cases a person of
ordinary skill will be able to fit the teachings of multiple patents
together like pieces of a puzzle.
KSR, 550 U.S. at 420 (citation omitted).
Therefore, we are unpersuaded by Appellant’s “teaching away”
argument (App. Br. 13–15; Reply Br. 1–3), because FCFS enables simple
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and efficient assignment of locks. “The test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
structure of the primary reference . . . . Rather, the test is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.” See In re Keller, 642 F.2d 413, 425 (CCPA 1981).
As discussed above, Appellant’s arguments have not persuaded us the
Examiner erred. Therefore, we sustain the Examiner’s § 103(a) rejection of
claims 1–13.

DECISION
The Examiner’s rejections of claims 1–13 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

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