Ex Parte Crockett

Patent Trial and Appeal Board

Mar 20, 2018

13486806 (P.T.A.B. Mar. 20, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/486,806 06/01/2012 PAUL A. CROCKETT
134531 7590 03/22/2018
Cuenot, Forsythe & Kim, LLC
20283 State Road 7, Ste. 300
Boca Raton, FL 33498
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.
GB920110035US 1
8152-0191
CONFIRMATION NO.
6852
EXAMINER
AQUINO, WYNUEL S
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
03/22/2018 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL A. CROCKETT
Appeal2017-010913
Application 13/486,806
Technology Center 2100
Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
MICHAEL J. ENGLE, Administrative Patent Judges.
CURCURI, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-20. Final Act. 1. We have jurisdiction under
35 U.S.C. § 6(b ).
Claims 15-20 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter. Final Act. 6.
Claims 1, 2, 4-9, 11-16, and 18-20 are rejected underpre-AIA
35 U.S.C. § 102(b) as anticipated by Conti (US 8,769,491 Bl; July 1, 2014).
Final Act. 7-13.
Claims 3, 10, and 17 are rejected under 35 U.S.C. § 103(a) as obvious
over Conti and McAllister (US 2010/0205580 Al; Aug. 12, 2010). Final
Act. 13-15.
We affirm-in-part.
Appeal2017-010913
Application 13/486,806
STATEMENT OF THE CASE
Appellant's invention relates to "compiling object code for a
secondary thread in a multi-threaded runtime environment in a computing
system." Spec. ,-i 2. Claim 1 is illustrative and reproduced below, with the
key disputed limitation emphasized:
1. A method of compiling source code into object code for a
multi-threaded runtime environment, comprising:
compiling source code into object code using a
compilation engine;
identifying marshalling attributes associated with method
code intended for executing in a secondary thread; and
rewriting the marshalling attributes and the method code
as marshaled method code for executing the method code in the
secondary thread according to the identified marshalling
attributes.
ANALYSIS
THE NON-STATUTORY SUBJECT MATTER REJECTION OF CLAIMS 15-20
Contentions
The Examiner concludes claims 15-20 are directed to non-statutory
subject matter because the recited (claim 15) "computer usable storage
medium" includes signals. See Final Act. 6; see also Ans. 2.
Appellant argues the broadest reasonable interpretation of the claim
language does not include a transitory signal. See App. Br. 9-20; see also
Reply Br. 2-3.
Our Review
Appellant's Specification includes specific examples of computer
usable storage media. Appellant's Specification discloses:
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Application 13/486,806
Any combination of one or more computer readable
medium(s) may be utilized. The computer readable medium
may be a computer readable signal medium or a computer
readable storage medium. A computer readable storage
medium may be, for example, but not limited to, an electronic,
magnetic, optical, electromagnetic, infrared, or semiconductor
system, apparatus, or device, or any suitable combination of the
foregoing. More specific examples (a non-exhaustive list) of
the computer readable storage medium would include the
following: an electrical connection having one or more wires,
a portable computer diskette, a hard disk, a random access
memory (RAM), a read-only memory (ROM), an erasable
programmable read-only memory (EPROM or Flash memory),
an optical fiber, a portable compact disc read-only memory
(CD-ROM), an optical storage device, a magnetic storage
device, or any suitable combination of the foregoing. In the
context of this document, a computer readable storage medium
may be any tangible medium that can contain (or store) a
program for use by or in connection with an instruction
execution system, apparatus, or device.
Spec. ,-i 19 (emphasis added).
Generally, the term "computer usable storage medium" encompasses
transitory media and is, therefore, ineligible under § 101. See Ex parte
Mewherter, 107 USPQ2d 1857, 1862 (PTAB 2013) (precedential) (holding
recited machine-readable storage medium ineligible under § 101 because it
encompassed transitory media in the absence of a specific definition or
disclaimer). Furthermore, "physical but transitory forms of signal
transmission such as ... electrical signals through a wire, and light pulses
through a fiber-optic cable" are not statutory subject matter. In re Nuijten,
500 F.3d 1346, 1353 (Fed. Cir. 2007). Here, Appellant's Specification does
not expressly distinguish a computer usable storage medium from a
transitory medium because Appellant describes an electrical connection
having one or more wires (i.e., a medium for transitorily carrying a signal)
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Application 13/486,806
as an example of a computer usable storage medium. See Spec. iJ 19. Thus,
a computer usable storage medium may be wire, which may be a transitory
medium, for example, a transmission line carrying a transitory signal. In
light of the Specification, we conclude that the broadest reasonable
interpretation of "computer usable storage medium" includes transitory
forms.
We, therefore, sustain the Examiner's rejection of claims 15-20 under
35 U.S.C. § 101.
THE ANTICIPATION REJECTION OF CLAIMS 1, 2, 4-9, 11-16,
AND 18-20 BY CONTI
Contentions
The Examiner finds Conti describes all limitations of claim 1. Final
Act. 7-8. In particular, the Examiner finds Conti's annotations associated
with code describe the key disputed limitation. Final Act. 7-8 (citing Conti,
col. 4, 11. 15--49; Fig. 2A, elements 221, 222). More specifically, the
Examiner finds Conti's compiled byte code describes the "marshaled
method code" recited in claim 1. Final Act. 8.
Appellant presents the following principal argument: "The
Examiner's analysis, however, fails to identify the claimed 'method code'
and explain how this 'method code' and 'marshalling attributes' are
rewritten." App. Br. 21; see also App. Br. 24-25 (citing Spec. Figs. 4 and 5)
("Appellant's [S]pecification recognizes a clear and unmistakable difference
between 'rewriting' and 'compiling.').
In response, in pertinent part, the Examiner elaborates regarding the
claim term "rewriting":
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Application 13/486,806
the term "rewritten", under broadest reasonable interpretation,
will be interpreted as parsing code, during run-time, into task
portions (i.e. rewritten) executed in parallel according to
attributes specifying the designated thread. Conti clearly
teaches the equivalent of Applicant's argument above. Conti
teaches: an interpreter that interprets (rewrites) code that allows
for the determination of a particular thread to receive a task
(method code) using annotations [.]
Ans. 17 (citing Conti, col. 5, 11. 20-33, col. 7, 11. 28-51, col. 16, 11. 6-15).
In the Reply Brief, Appellant further argues "[t]he claims require that
the marshalling attributes are first identified and then rewritten." Reply Br.
4. Appellant further argues parsing is not rewriting. See Reply Br. 4-7.
Our Review
Conti discloses:
Software developers that write code, such as source code,
may add information to the code that affects the operation of
the code. For example, a software developer may add
annotations to source code in the form of comments. The
annotations may be manually added to the source code by the
developer or may be programmatically added via an annotation
module. These annotations may not affect the working of the
program but may be used to provide instructions to a user
reviewing the source code. Alternatively, these annotations may
provide instructions to an interpreter or compiler when the
source code is interpreted or compiled, respectively. For
example, in an exemplary embodiment, code that executes a
task may be annotated with threading information. The
threading information in the annotation may be examined by a
dispatcher module at runtime to identify the thread to which the
task should be dispatched. In contrast, existing mechanisms for
executing scripts may not employ threading information in
annotations of code for dispatching tasks to threads at runtime.
Exemplary embodiments allow scripts to include
references to separate code that executes a task, such as, but not
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limited to, non-scripting language code. An annotation
associated with the separate code can provide threading
information that may be accessed at runtime by a dispatcher
module to determine which thread in the computing
environment should execute the task. For example, a
MATLAB-based script that is executed may make a call to a
JAVA-based method. The class definition for the JAVA-based
method may include an annotation with threading information.
The dispatcher module at runtime may either examine the class
definition or compiled byte code to examine this threading
information. This dispatch mechanism allows a programmer
writing or debugging scripts to utilize separate libraries of
methods that are written in a different language while also
exercising control over their manner of execution.
Conti, col. 4, 11. 15-49 (emphasis added).
Conti (col. 5, 11. 20-33) describes examination of an annotation and
dispatching a task based on the annotation; the annotation may be compiled
into a byte code representation, which is examined.
Conti (col. 7, 11. 28-51) further describes specifying threading policies
in annotations; interpreting annotations may be delegated by the scripting
language interpreter.
Conti (col. 16, 11. 6-15) describes parallel programming, in particular
data parallel programs where data is parsed into multiple portions that are
executed in parallel.
We agree with Appellant that claim 1 requires "identifying
marshalling attributes associated with method code intended for executing in
a secondary thread" and claim 1 further requires "rewriting the marshalling
attributes and the method code as marshaled method code." That is, the
marshalling attributes and method code are first identified, and then
rewritten. For example, Appellant's Figure 9 depicts Stage 1 Source Code
32, Stage 2 Pre-Marshalled Object Code 212A, and Stage 3 Marshalled
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Object Code 36. Notably, the Stage 2 actual code (and source equivalent
code) includes the marshalling attributes and the method code, which are
identified. Then, the marshalling attributes and the method code are re-
written at Stage 3, as marshalled method code. The differences between
Stage 2 code and Stage 3 code illustrate re-writing.
Turning to the cited disclosures in Conti, we do not agree with the
Examiner that Conti's annotation 221 and code 222 in Figure 2A are
marshalled method code. Rather, at best, Conti reasonably describes
"marshalling attributes" (annotation 221 with threading information) and
associated "method code" (code 222). Further, these are identified when
"[t]he dispatcher module at runtime may either examine the class definition
or compiled byte code to examine this threading information." Conti, col. 4,
11. 43--46. We recognize that Conti's annotation 221 and code 222 are
similar to Appellant's Stage 2 Pre-Marshalled Object Code 212A in Figure
9. However, we do not see on the record presented by the Examiner where
Conti's annotation 221 and code 222 are rewritten as marshalled method
code.
Furthermore, if we were to accept the Examiner's finding that Conti' s
annotation 221 and code 222 in Figure 2A are marshalled method code, then
we are unable to identify where Conti discloses the pre-marshalled code
(prior to re-writing, "the marshalling attributes and the method code").
Lastly, the fact that compiled byte code may be parsed by an interpreter does
not change our decision because the record does not adequately establish
that Conti' s annotation 221 and code 222 are marshalling attributes and
method code that are rewritten as marshalled method code.
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We, therefore, do not sustain the Examiner's rejection of claim 1. We
also do not sustain the Examiner's rejection of claims 2 and 4-7, which
depend from claim 1.
Independent claims 8 and 15 recite the same key disputed limitation.
We, therefore, do not sustain the Examiner's rejection of claims 8 and 15.
We also do not sustain the Examiner's rejection of claims 9, 11-14, 16, and
18-2 0, which variously depend from claims 8 and 15.
THE OBVIOUSNESS REJECTION OF CLAIMS 3, 10, AND 17
OVER CONTI AND MCALLISTER
The Examiner's application of McAllister fails to cure the above-
discussed deficiency of Conti. See Final Act. 13-15.
We, therefore, do not sustain the Examiner's rejection of claims 3, 10,
and 17.
DECISION
The Examiner's decision rejection claims 1-14 is reversed.
Because we sustain at least one ground of rejection for each of claims
15-20, the Examiner's decision rejecting claims 15-20 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ).
AFFIRMED-IN-PART
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