Ex Parte Cool et al

Patent Trial and Appeal Board

Apr 5, 2018

13939481 (P.T.A.B. Apr. 5, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/939,481 07 /11/2013
31817 7590 04/09/2018
SCHWABE, WILLIAMSON & WYATT, P.C.
1211SW5th Avenue, Suite 1600
Portland, OR 97204
FIRST NAMED INVENTOR
Lyle Cool
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.
110466-204489
(P23145C3)
CONFIRMATION NO.
4043
EXAMINER
RAHMAN, FAHMIDA
ART UNIT PAPER NUMBER
2116
NOTIFICATION DATE DELIVERY MODE
04/09/2018 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):
IPDocketing@SCHWABE.com
intelparalegal@schwabe.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LYLE COOL and SAUL LEWITES
Appeal 2017-010087
Application 13/939,481
Technology Center 2100
Before JOHN A. JEFFERY, BRUCE R. WINSOR, and
JUSTIN BUSCH, Administrative Patent Judges.
WINSOR, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants 1 appeal from the
Examiner's decision to reject claims 1-20, which constitute all the claims
pending in this application. We have jurisdiction under 3 5 U.S. C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Intel Corporation. App.
Br. 3. Intel Corporation is the Applicant for the instant patent application.
See Bib Data Sheet.
Appeal 2017-010087
Application 13/939,481
STATEMENT OF THE CASE
Appellants disclosed invention relates to "the loading of separate
operating systems or software environments in different partitions of a
processing system." Spec. 1: 16-18. According to the Specification, a main
partition builds a frrst device list of all devices discovered on the processing
system's buses. Spec. 16:13-15. The main partition then builds a second
device list of all detected devices after hiding certain predetermined devices.
Spec. 16:29-17:20. The main partition then builds a list of devices to be
sequestered after comparing the frrst and second device lists, and sends the
list of devices to be sequestered to a sequestered partition. Spec. 17 :21-26.
Claim 1, which is illustrative, reads as follows:
1. A method comprising:
performing initialization of a processing system, having
multiple processing units, based on a single frrmware image,
wherein the single frrmware image is shared by a frrst partition
and a second partition in the processing system;
performing local environment initialization of the frrst
partition and the second partition based on the single frrmware
image; and
sending, from the frrst partition to the second partition, a
device list listing a plurality of devices to be hidden from the frrst
partition;
wherein a main area of memory in the processing system
is associated with the frrst partition, a sequestered area of
memory in the processing system is associated with the second
partition, and the frrst partition and the second partition operate
as independent processing environments.
2
Appeal 2017-010087
Application 13/939,481
Claims 1--4, 7-11, and 14--18 stand rejectedfornon-statutory
obviousness-type double patenting over claims 1-14 of U.S. Patent
No. 7,610,481 (hereinafter"the '481 Patent"). SeeNon-FinalAct. 3-5.
Claims 1-20 stand rejected for non-statutory obviousness-type double
patenting over claims 1-20 of the U.S. Patent No. 8,380,973 (hereinafter
"the '973 Patent") and Applicants' Admitted Prior Art (AAP A). See Non-
Final Act. 5-7.
Claims 1-5, 6-12, and 14--19 stand rejected2 for non-statutory
obviousness-type double patenting over claims 1-26 ofU. S. Patent
Application No. 13/761,413, now U.S. Patent 9, 189,246, issued November
17, 2015 (hereinafter "the '246 Patent"), having claims 1-25, and Culter (US
2006/0010450 Al; pub. Jan. 12, 2006). See Non-Final Act. 7-10.
Claims 1-20 stand rejected under 35 U.S.C. § 103(a)3 as being
unpatentable over Culter and Warrier et al. (US 2005/0289283 Al;
pub. Dec. 29, 2005) (hereinafter "Warrier"). See Non-Final Act. 10-13.
Rather than repeat the arguments here, we refer to the Briefs (Appeal
Brief, filed Feb. 3, 2017 (hereinafter "App. Br."); Reply Brief, filed July 24,
2017 (hereinafter "Reply Br.")) for Appellants' positions ; the Non-Final
Office Action, mailed Sept. 13, 2016 (hereinafter "Non-Final Act."), and
2 Although the Examiner designated the rejection as "provisional[]" (Non-
Final Act. 7), U.S. Patent Application No. 13/761,413, issued as U.S. Patent
9,189,246 on November 17, 2015, prior to the September9, 2016, mailing
date of the Non-Final Office Action. Appellants do not traverse the
rejection. See generally App. Br.; Reply Br. We treat the designation of the
rejection as provisional as harmless error.
3 All rejections are underthe provisions of35 U.S.C. in effect before the
effective date of the Leahy-Smith America Invents Act of201 l ("pre-AIA").
See, e.g., Non-Final Act. 2.
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Application 13/939,481
Examiner's Answer, mailed May 24, 2017 (hereinafter "Ans."), for the
reasoning, findings, and conclusions of the Examiner; and the Specification,
filed July 11, 2013 (hereinafter "Spec."). 4 Only those arguments actually
made by Appellants have been considered in this decision. Arguments that
Appellants did not make in the Briefs have not been considered and are
deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv) (2016).
OBVIOUSNESS-TYPE DOUBLEP ATENTING REJECTIONS
Appellants " [assert] that the Examiner has failed to properly reject
claims 1-20." Reply Br. 5. Appellants do not otherwise contest the
obviousness-type double patenting rejections. See generally App. Br.; Reply
Br. Accordingly, Appellants have waived appeal of the obviousness-type
double patenting rejections of claims 1-20. We summarily sustain the
rejections over the '481 Patent; over the '973 Patent and AAP A; and over
the '246 Patent and Culter. See Manual of Patent Examining Procedure
(MPEP) § 1205.02 (9th ed. Rev. 08.2017, Jan. 2018).
ISSUE
The issue presented by Appellants' arguments is as follows: Does the
Examiner err in finding the combination of Culter and W arrier teaches or
4 Appellants and the Examiner cite to either the version of the Specification
published as US 2014/0223156 Al ("the '156 published application") or the
corrected version of the '156 published application published as US
2017 /0046172 A9 ("the '172 published application"). When referencing the
Specification, we cite to the original disclosure filed July 11, 2013, rather
than either the '156 or the '172 published applications cited by Appellants
and the Examiner.
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Application 13/939,481
suggests "sending, from the frrst partition to the second partition, a device
list listing a plurality of devices to be hidden from the frrst partition," as
recited in claim 1?
ANALYSIS
Appellants contend that Culter's communications between a frrst hard
partition's soft partition and a second hard partition's soft partition are
i ndi re ct because the communications are through a configuration database.
App. Br. 12. Appellants assert the Examiner's claim construction is
erroneous because "sending" is a direct communication between a source
and a destination, as supported by paragraphs 52, 53, and 70 of Appellants'
Specification and the Federal Circuit's claim construction established in
Microsoft Corp. v. Multi-Tech Systems, Inc.,357F.3d 1340(Fed. Cir. 2004).
App. Br. 10-11. We are not persuaded of error.
At the outset, we note that not every statement found in an opinion
represents a precedential holding, and a precedential holding does not apply
to every set of facts. See In re Van Ornum, 686 F.2d 937, 946 (CCPA
1982). See also In re Jones, 958 F.2d 347, 350 (Fed. Cir. 1992) (finding that
"[ e ]very case, particularly those raising the issue of obviousness under
section 103, must necessarily be decided on its own facts"). The claim
construction holding in Microsoft was based on the record developed in that
litigation, including the prosecution history of the patent at issue. Microsoft,
357 F.3dat 1346-51. Specifically, the court held, on that record, thatthe
terms "sending," "transmitting," and "receiving" were limited to "requir[ing]
that the claimed data packets travel directly from a local site to a remote site
[] over a telephone line and not a packet-switched network." Id. at 1348--49
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Application 13/939,481
(emphasis added). We consider the meaning of "sending" in claim 1 based
on the record in the instant appeal.
Claim construction is an issue of law that is reviewable de nova.
Cordis Corp. v. Boston Scientific Corp., 561F.3d1319, 1331 (Fed. Cir.
2009). We give claims their broadest reasonable interpretation consistent
with the Specification. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1369 (Fed. Cir. 2004). Nothing in claim 1 precludes the existence of a
component between the frrst and second partition. Moreover, the Examiner
fmds, and we agree, that Appellants' Specification "does not clearly
establish that 'sending' requires 'direct communications between two
parties."' Ans. 6. In the context of claim 1, the plain meaning of the term
"sending" is "dispatch[ing] by a means of communication." MERRIAM-
WEBSTER's COLLEGIATE DICTIONARY 1065 (vb. def. 3) (10th ed. 1993)
("MERRIAM-WEBSTER"). Appellants' Specification discloses passing a list
of devices to be sequestered from a main partition to a sequestered partition.
Spec. 17:27-28. Although this description informs our understanding of the
recited "sending," it does not limit our interpretation because it does not alter
the plain meaning. We, therefore, conclude the broadest reasonable
interpretation of the term "sending" encompasses its plain meaning, namely
"dispatch[ ing] by a means of communication." MERRIAM-WEBSTER at 1065.
The Examiner fmds Culter' s dynamic migration of resources sends an
Advanced Configuration and Power Interface (ACPI) notification event
from a source partition to a destination partition using a "hot plug" interface.
Non-Final Act. 14 (citing Culter iii! 35, 50); Ans. 8-9 (additionally citing
Culter iii! 64---66, 68, 98, 102). We agree with the Examiner's fmdings and
adopt them as our own.
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Application 13/939,481
Culter is generally directed to soft partitioning a computer system,
referred to as "±Pars." Culter, Abstract, if 29. Culter's soft partitioning
"enables multiple instances of an [operating system (OS)] to run
simultaneously on one computer by dividing the computer into soft
partitions." Id. if 8. Culter teaches that Intel processor family (IPF)-based
systems use standard IPF firmware interfaces including hot plug frrmware
interfaces, such as an ACPI. Id. if 34. Culter's hot plug frrmware interfaces
[enable] resources to dynamically migrate (e.g., for load
balancing, etc.) between sibling soft partitions (e.g., soft
partitions configured on a common hard partition) within
an !PF-based system using standard IPF frrmware
interfaces ....
Additionally, such "hot plug" frrmware interfaces
may be utilized to migrate resources from a soft partition
of one hard partition to a soft partition of a different hard
partition.
Id. ifif 34--35.
Culter's OSs that do support ACPI-mediated hotplug of a central
processing unit (CPU) may migrate the CPU to a sibling partition by
utilizing a processor's "ACPI_EJO"method. Id. if 50. That is, "[i]f, prior to
ejection, this processor was directed to be added to a sibling ±Par, ... the
recipient OS will receive an ACPI notification event to alert it to claim the
CPU. This event appears as though a processor was 'HotPlugged' into the
hardware." Id. Thus, contrary the Appellants' contention (App. Br. 12),
Culter teaches or suggests sending(i.e., dispatching by means of
communication) an ACPI notification event from a frrst partition to a second
partition.
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Application 13/939,481
Appellants further contend that Culter's ACPI notification event is not
"a device list listing a plurality of devices," as recited in claim 1. App.
Br. 13-14; Reply Br. 3--4. We note that the Examiner and Appellants appear
to agree that details of an ACPI notification event are not provided in Culter.
App. Br. 13; Ans. 9. Appellants assert that such details can be found in
ACPI Specification, Revision 5. App. Br. 13; see Information Disclosure
Statement (IDS) (filed March 1, 2016) 2. Appellants further assert that,
according to § 5. 6. 6 of the ACPI Specification, Culter' s ACPI notification
event is accomplished using a Notify operator with a notification value from
0 through Ox7F. App. Br. 14. Appellants argue "a device list ... listing a
plurality of devices to be hidden from the frrst partition," as claimed, "would
contain 'a plurality of devices,' which would be at least two items or
values." Id. Appellants further contend "the one notification value from 0
through Ox7F in the notification event in the ACPI [S]pecification cannot be
a 'device list' that contains at least two devices." Id.
We remain unpersuaded of Examiner error because Appellants'
argument is based on a construction not commensurate with the broadest
reasonable interpretation of claim 1. Contrary to Appellants' contention
(App. Br. 13-14; Reply Br. 3--4), the Examiner fmds, and we agree, that
"how the list of devices is sent to the receiving partition is irrelevant, since
claim scope does not depend on that" (Ans. 10). Because Culter discloses
that "CPUs may be ... migrated to a sibling partition" (Culter if 50), in that
sense, then, Culter at least suggests migrating the CPUs at different times
involving multiple ACPI notification events. The Examiner fmds Culter
receiving plural notifications is a device list "since recipient partition knows,
by the received notification, what devices are to be added to the partition."
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Application 13/939,481
Ans. 9; see also id. at 11-12. We fmd the Examiner's explanation to be
reasonable, supported by the evidence of record, and un-rebutted.
Nor do we fmd availing Appellants' contention that Culter's ACPI
notification event does not list a plurality of devices "to be hidden from the
frrst partition," as recited in claim 1. App. Br. 13-14; Reply Br. 4--5. The
Examiner fmds that Culter's "OS in [a] frrst partition is not aware of the
devices in another partition (i.e., hidden to OS offrrst partition) during
normal operations," but becomes aware during the dynamic migration of
devices between the partitions. Ans. 12, 13 (citing Culter iii! 61, 101 ). We
fmd the Examiner's explanation to be reasonable, supported by the evidence
of record, un-rebutted, and consistent with Appellants' interpretation that
"[a] device 'to be hidden' means the device is currently not hidden yet, but
is to be hidden after the current operation." App. Br. 15 (citing the '156 or
the '172 published applications iii! 68 and 69). 5 That is, after the dynamic
migration of devices between the partitions as discussed above, Culter at
least suggests returning to normal operations in which the partitions are not
aware of another partition's devices. Thus, Culter at least suggests that the
devices to be added to a partition, as included in ACPI notification events
during a dynamic migration, are also to be hidden from other partitions
during normal operations after the dynamic migration.
Appellants do not persuade us of error in the rejection of claim 1.
Accordingly, we sustain the rejection of: (1) claim 1; (2) independent claims
5 Paragraphs 68 and 69 of the '156 and the '172 published applications
recite the same substance. We interpret paragraphs 68 and 69 of the '156 or
the '172 published applications as corresponding to page 17, lines 18-31 of
the Specification.
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Application 13/939,481
8 and 15, which are argued relying on the arguments made for claim 1 (see
App. Br. 16); and(3) claims 2-7, 9-14, and 16-20, which variously depend,
directly or indirectly, from claims 1, 8, and 15, and were not separately
argued with particularity (see id.).
DECISION
We summarily affrrm the obviousness type double patenting
rejections. The Examiner's decision to reject claims 1-20 under 35 U.S.C.
§ 103(a) is affrrmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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