Ex Parte Chalemin et alDownload PDFPatent Trial and Appeal BoardMay 23, 201612643784 (P.T.A.B. May. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/643,784 12/21/2009 32329 7590 05/25/2016 IBM CORPORATION INTELLECTUAL PROPERTY LAW 11501 BURNET ROAD AUSTIN, TX 78758 FIRST NAMED INVENTOR Glen Edmond Chalemin 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 ATTORNEY DOCKET NO. CONFIRMATION NO. A US920090240US 1 5143 EXAMINER SAVLA,ARPANP ART UNIT PAPER NUMBER 2138 NOTIFICATION DATE DELIVERY MODE 05/25/2016 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): attm@us.ibm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GLEN EDMOND CHALEMIN, SREENIV AS MAKINEEDI and VANDANAMALLEMPATI Appeal2014-001723 Application 12/643,784 Technology Center 2100 Before DAVID M. KOHUT, JOHN A. EVANS, and MATTHEW J. McNEILL, Administrative Patent Judges. EV ANS, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 seek our review under 35 U.S.C. § 134(a) of the Examiner's final rejection of Claims 1, 2, 4--8, 10-14, and 16-18. App. Br. 1. Claims 3, 9 and 15 are canceled. App. Br. 2; Final Act 2. We have jurisdiction under 35 U.S.C. § 6(b).2 We AFFIRM. 1 The Appeal Brief identifies International Business Machines Corporation as the real party in interest. App. Br. 2. 2 The drawings (Final Act. 2) and Specification (Final Act. 3--4) are objected to as informal. Because the Board lacks jurisdiction over objections, we do not reach their merits. See MPEP 706.01 ("the Board will not hear or decide issues pertaining to objections and formal matters which are not properly before the Board"). Appeal2014-001723 Application 12/643,784 STATEMENT OF THE CASE The claims relate to a virtual memory method for allocating physical memory space required by an application. See Abstract. Claims 1, 7 and 13 are independent. An understanding of the invention can be derived from a reading of exemplary Claim 1, which is reproduced below with some formatting added: 1. A virtual memory method for allocating page space required by an application stored in a computer RAM divided into pages of different sizes comprising: tracking the page space used in each of a sequence of invocations by said application requesting memory space; counting the number of said invocations; determining the average page space used for each of said invocations from said count and total space used by said number of said invocations; reserving said average page space as a predicted allocation for the next invocation; using said reserved memory space for said next invocation; accessing any additional page space required by said next invocation through a default memory space allocation; tracking the page space used in said next invocation to update said average page space used predetermining a threshold wherein the RAM to be used by said application will require a conversion of pages of one different size to another; and commencing said conversion of the pages in said RAM when said determined average memory space reaches said threshold. 2 Appeal2014-001723 Application 12/643,784 REFERENCES AND REJECTION The Examiner relies upon the prior art as follows: Cannon US 6,230,247 Bl May 8, 2001 Hep kin US 2008/0288742 Al Nov. 20, 2008 Claims 1, 2, 4--8, 10-14, and 16-18 stand rejected under 35 U.S.C. § 103(a) as obvious over Applicant's admitted prior art (AAPA), Cannon, and Hepkin. Final Act. 4--8. ANALYSIS Rather than reiterate the arguments of Appellants and the Examiner, we refer to the Specification (filed December 21, 2009, "Spec."), the Final Action (mailed December 6, 2012, "Final Act."), the Appeal Brief (filed May 6, 2013 "App. Br."), the Examiner's Answer (mailed September 10, 2013, "Ans."), and the Reply Brief (filed November 12, 2013, Reply Br.") for their respective details. We have reviewed the rejections of the Claims in light of Appellant's arguments that the Examiner erred. We have considered in this decision only those arguments Appellants actually raised in the Briefs. Any other arguments which Appellants could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv). Upon consideration of the arguments presented in the Appeal and Reply Briefs, we are not persuaded that Appellant identifies reversible error. We provide the following explanation to highlight and address specific arguments and findings primarily for emphasis. 3 Appeal2014-001723 Application 12/643,784 We consider Appellants' arguments seriatim, as they are presented in the Appeal Brief, pages 9-12. CLAIMS 1, 2, 4--8, 10-14, AND 16-18 Appellants argue the claims as a group and specifically argue Claim 1. App. Br. 9-12. We therefore limit our discussion to Claim 1. See 37 C.F.R. § 41.37(c) (l)(vii) (2007). The Examiner finds Appellants' disclosure constitutes Applicants' admitted prior art ( AAP A). Final Act. 4 (citing Spec., 1-3 ). Appellants contend their accused disclosure is not admitted to be prior art, but was included only to describe the background of the invention. App. Br. 11. We find Appellants' accused disclosure to be admitted prior art. "Admissions in the specification regarding the prior art are binding on the patentee for pu1 voses of a later inquiry into obviousness." PharmaStemTherapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1340 (Fed. Cir. 2007).3 However, if the material referenced in the admission is the work of the applicants, then it cannot be used as prior art against them. Riverwood Int'! Corp. v. R.A. Jones & Co., 324 F.3d 1346 (Fed. Cir. 2003). The accused language is found in the section labeled "Background of Related Art." Spec., 1. Appellants disclose "[r]epresentative paged memory systems are described in U.S. Patent 5,706,461 and in the IBM Journal of Research and Development article: Multiple Page Sizing and Modeling and 3 See also Constant v. Advanced Micro Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988); In re Fout, 675 F.2d 297, 300 (CCPA 1982); In re Nomiya, 509 F.2d 566, 571(CCPA1975). 4 Appeal2014-001723 Application 12/643,784 Optimization." Spec., 2. Appellants further disclose"[ o ]ver the years, many schemes have been tried and used for such allocations." Id. Appellants proceed to describe these systems. Id. Although Appellants disclose the "present invention improves upon the prior art," Appellants' disclosure does not suggest the prior recitations represent their own work. Spec., 4. In view of the foregoing, we find the accused disclosure represents AAPA. Appellants further contend the primary reference in the rejection is actually Cannon rather than AAP A. App. Br. 11. This argument was not addressed by the Examiner, who finds the primary reference to be AAP A. See Final Act. 5; Reply Br. 3. However, the point is moot because, "where the relevant factual inquiries underlying an obviousness determination are otherwise clear, characterization by the examiner of prior art as 'primary' and 'secondary' is merely a matter of presentation with no legal significance." In re Mouttet, 103 USPQ2d 1219 (Fed. Cir. 2012). Appellants contend the Examiner relies upon Cannon as the primary reference, but that Cannon fails to disclose virtual memory systems. App. Br. 11. As discussed above, designation of a reference as "primary" or "secondary" is legally irrelevant. Whereas Cannon arguably fails to teach or suggest virtual memory systems, contrary to Appellants' arguments, such is disclosed by AAPA, e.g., "[i]t is a goal of virtual memory management to permit several running application programs to run seamlessly with respect to the operating system." Spec., 2. Appellants contend that there is no suggestion in Hepkin to modify Cannon to deal with different page sizes. App. Br. 12. We find that this 5 Appeal2014-001723 Application 12/643,784 argument is not germane. It is not necessary that a teaching, suggestion or motivation to modify or combine the references be found within the references themselves. See KSR International Co. v. Teleflex Inc., 550 U.S. 398 (2007). The Examiner finds "AAP A discloses a virtual memory method for allocating page space required by an application stored in computer RAM divided into pages of different sizes ... comprising: allocating the page space to each of a sequence of invocations by [the] application requesting memory space." Final Act. 5. The Examiner finds Cannon and Hepkin teach those elements missing from AAP A. Final Act. 6-7. The Examiner finds that one of ordinary skill in the art would be motivated to combine Hepkin's dynamic page adjustment with the average storage space taught by the combination of AAP A and Cannon, so that an average storage space exceeding a threshold would trigger dynamic page size adjustment to allow a virtual memory to adapt to system conditions. Final Act. 7-8. Appellants argue that the three references, in combination, fail to teach a method for allocating page space related to virtual memory or storage of pages of different sizes. App. Br. 11. In Appellants' view, Cannon does not relate to, at least, the virtual memory systems or allocations of space for virtual memory pages App. Br. 11; Reply Br. 2. Appellants maintain AAP A does not make up for the deficiencies of Cannon. App. Br. 12. The Examiner finds that Appellants improperly argue the prior art references individually rather than the Examiner's proposed combination. Final Act. 8-9; Ans. 3. Appellants traverse this finding. Reply Br. 1-2. 6 Appeal2014-001723 Application 12/643,784 We disagree with the Appellants' assertion that the Examiner's combination fails to teach all the elements of Claim 1. Appellants argue deficiencies of individual references, but ignore the fact that the Examiner finds the allegedly missing teachings in the remaining references. See App. Br. 11. Thus, Appellants attack the individual references, and in effect, argue against a rejection that was not made. One cannot show nonobviousness by attacking references individually where the rejections are based on a combination of references. In re Keller, 642 F.2d 413, 425 (CCPA 1981). In view of the foregoing discussion, we sustain the rejection of Claims 1, 2, 4--8, 10-14, and 16-18. DECISION The rejection of Claims 1, 2, 4--8, 10-14, and 16-18 under 35 U.S.C. § 103 is 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)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation