Ex Parte Chen et al

Patent Trials and Appeals Board

May 25, 2016

12823244 - (D) (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/823,244 06/25/2010 Tong Chen
50170 7590 05/25/2016
IBM CORP, (WIP)
c/o WALDER INTELLECTUAL PROPERTY LAW, P.C.
17304 PRESTON ROAD
SUITE 200
DALLAS, TX 75252
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.
AUS920100107US1 7444
EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
MAILDATE DELIVERY MODE
05/25/2016 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 TONG CHEN, BRIAN FLACHS,
BRAD W. MICHAEL, MARK R. NUTTER,
JOHN K.P. O'BRIEN, KATHRYN M. O'BRIEN,
and TAO ZHANG1
Appeal2014-006944
Application 12/823,244
Technology Center 2100
Before ALLEN R. MacDONALD, HUNG H. BUI, and
MICHAEL M. BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 11 and 16-28, which constitute all the claims
pending in this application. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 3.
Appeal2014-006944
Application 12/823,244
STATEMENT OF CASE
Introduction
Appellants describe their "application relates ... to mechanisms for
arranging binary code based on call graph partitioning to reduce instruction
cache conflict misses." Spec. 1 ("Background"). Claim 11 is illustrative,
shown here with a dispositive requirement emphasized:
11. A computer program product comprising a computer
readable storage medium having a computer readable program
stored therein, wherein the computer readable program, when
executed on a data processing system, causes the data
processing system to:
generate a call graph of a portion of code;
weight nodes and edges in the call graph to generate a
weighted call graph;
partition the weighted call graph according to the
weights, affinities between nodes of the call graph, and the size
of cache lines in an instruction cache of the data processing
system, so that binary code associated with one or more subsets
of nodes in the call graph are combined into individual cache
lines based on the partitioning; and
output the binary code corresponding to the partitioned
call graph for execution in a computing device, wherein each
node in the call graph is weighted according to a size of code
associated with the node and each edge in the call graph is
weighted according to an estimate of a number of calls between
nodes of the edge, and wherein partitioning the weighted call
graph comprises performing the following operations
iteratively until an edge having a maximum weight cannot be
selected from unprocessed edges of the weighted call graph:
selecting an edge from the unprocessed edges of the
weighted can graph that has a maximum weight of the
weights of the unprocessed edges;
determining if nodes of the selected edge should be
merged into a new node or not; and
2
Appeal2014-006944
Application 12/823,244
merging the nodes of the selected edge into a new node
in response to a determination that the nodes of the selected
edge should be merged.
App. Br. 30 (Claims App'x).
Rejections2
Claims 19 and 25 stand provisionally rejected under the judicially
created doctrine of obviousness-type double patenting over claim 9 of co-
pending patent application no. 13/444,907 (the "'907 application"). Final
Act. 2--4.
Claims 11, 16-18, and 21-24 stand rejected under 35 U.S.C. § 103(a)
as obvious over:
Ju et al. ("Ju")
Ju et al. ("Ju2")
Li et al.
Archambault et al.
Delong et al.
Chilimbi et al.
Final Act. 5-16.
US 6,839,895 Bl
US 6, 175,957B1
US 2005/0155023 Al
US 2005/0246700 Al
US 2007 /0286483 Al
US 6,330,556 B 1
Jan. 4, 2005;
Jan 16, 2001;
July 14, 2005;
Nov. 3, 2005;
Dec. 13, 2007; and
Dec. 11, 2001.
Claims 19, 20, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as
obvious over Ju, Ju2, Li, Archambault, Delong, Chilimbi, and Kawaguchi et
al. (US 5,926,632; July 20, 1999). Final Act. 16-20.
Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as obvious
over Ju, Ju2, Li, Archambault, Delong, Chilimbi, and Kiriansky et al.
(US 2004/0133777 Al; July 8, 2004). Final Act. 20-21.
2 The Final Action rejects claims 11 and 16-20 under 35 U.S.C. § 101 as
directed to non-statutory subject matter (4--5), and the Examiner's Answer
withdraws that ground of rejection (Ans. 1).
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Appeal2014-006944
Application 12/823,244
ANALYSIS
The '907 application, over which the Examiner provisionally rejects
claims 19 and 25, remains pending. Because we reverse the Examiner's
rejections under 35 U.S.C. § 103(a), we accordingly do not address the
provisional rejection. See Ex parte Moncla, 95 USPQ2d 1884 (BP AI 2010)
(precedential).
The Examiner relies on either Ju3 or Delong in combination with Ju as
teaching or suggesting claim 11 's dispositive requirement of iteratively
processing of edges having the largest weight first, until all edges are
processed. 4 Appellants argue the Examiner errs in finding the cited
references teach the recited requirement. App. Br. 9-12, 14--16.
While the Examiner correctly finds that Ju teaches an iterative process
in which nodes are merged, we agree with Appellants that Ju does not teach
or suggest the dispositive requirement of "selecting an edge from the
unprocessed edges of the weighted call graph that has a maximum weight of
the weights of the unprocessed edges" as part of an iterative process "until
an edge having a maximum weight cannot be selected from unprocessed
edges of the weighted call graph," as recited in claim 11. We specifically
agree with Appellants that:
3 The Examiner and Appellants both repeatedly discuss the Ju and Ju2
references as if their disclosures differ. Ju issued from a continuation
application of Ju2. Except for differences between their claims and
abstracts, which are of no import vis-a-vis the rejections, the two references
have the same disclosure.
4 The Examiner determines "Ju either discloses selecting of weight as
in a) and iteratively performing selecting, determining, merging as in
b) OR would have rendered a) and b) obvious." Final Act. 11. The
Examiner also determines Delong, in combination with Ju, teaches or
suggests the claim 11 's dispositive requirement. Id. at 11-13.
4
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Application 12/823,244
essentially what Ju is doing is generating clusters based on a
smallest power of 2 multiple of a cache line, and then using the
clusters as nodes in a next level PEG in which the weights of
the clusters are set to 1 and the weights of the edges between
the clusters is equal to the number of edges between nodes in
one cluster and nodes in the other cluster.
It is noted that nowhere in this process, is there any
selection of any edge in the PEG based on the edge having a
maximum weight of the unprocessed edges. There simply is no
operation anywhere in Ju that performs such a selection ....
Reply Br. 9 (referring to the process described for Ju Figures 6a-b ).
The Examiner also relies on the combination of Delong and Ju as
teaching the dispositive requirement. Final Act. 12-13. Appellants
persuade us that Delong's teaching of "partitioning a graph into regions
based on a maximum amount of memory that is required to process the
region of the graph" does not cure the deficiencies of Ju vis-a-vis the
dispositive requirement. App. Br. 12-13. Because neither Ju nor Delong
teaches or suggests claim 11 's specific requirement of "selecting an edge
from the unprocessed edges of the weighted can graph that has a maximum
weight of the weights of the unprocessed edges" "iteratively until an edge
having a maximum weight cannot be selected from unprocessed edges of the
weighted call graph," the Examiner has not set forth a prim a f acie case of
obviousness under 35 U.S.C. § 103(a).
We accordingly do not sustain the rejection of claim 11, and of claim
21, which includes the same dispositive requirement. We also do not sustain
the rejection of claims 16-20 and 22-28, each of which depends, directly or
indirect! y, from claim 11 or 21.
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Appeal2014-006944
Application 12/823,244
DECISION
For the reasons above, we reverse the Examiner's rejection of claims
11 and 16-28.
REVERSED
6