Ex Parte Dern

Patent Trials and Appeals Board

Feb 25, 2019

12351948 - (D) (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/351,948 01/12/2009
69316 7590 02/27/2019
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
FIRST NAMED INVENTOR
Christopher W. Dern
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.
325656.01 9863
EXAMINER
MACASIANO, JOANNE GONZALES
ART UNIT PAPER NUMBER
2194
NOTIFICATION DATE DELIVERY MODE
02/27/2019 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):
usdocket@microsoft.com
chriochs@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER W. DERN
Appeal2018-005698
Application 12/351,948 1
Technology Center 2100
Before DAVID M. KOHUT, ERIC B. CHEN, JOSEPH P. LENTIVECH,
Administrative Patent Judges.
CHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1-20, all the claims pending in the application. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as "Microsoft Technology
Licensing, LLC." (App. Br. 3.)
Appeal2018-005698
Application 12/351,948
STATEMENT OF THE CASE
Appellant's invention relates to a software transactional memory
(STM) test generator that converts existing test code into test code that tests
the functionality of an STM system. (Abstract.)
Claim 1 is exemplary, with disputed limitations in italics:
1. A method performed by a software transactional
memory (STM) test generator in a computer system to generate
STM test code, the method comprising:
inserting first transactional semantics configured to form
a first transaction into non-STM test code, the non-STM test
code includes separate test programs that are not written to
execute with an STM system and does not include any
transactions that are configured for atomic execution prior to
the inserting;
detecting a first method in the non-STM test code that is
not supported by an STM system;
replacing the first method with a second method that is
supported by the S TM system; and
storing the non-STM test code with the first transactional
semantics and the second method as the S TM code on a
computer-readable medium accessible by the computer system,
the STM code tests the functionality of the STM system using
the non-STM test code with the first transactional semantics.
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Nussbaum (US 7,966,459 B2; June 21, 2011) and DeLong
(US 5,892,947; Apr. 6, 1999).
ANALYSIS
First, we are unpersuaded by Appellant's arguments (App. Br. 7) that
the combination of Nussbaum and DeLong would not have rendered obvious
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independent claim 1, which includes the limitation "inserting first
transactional semantics configured to form a first transaction into non-STM
test code, the non-STM test code includes separate test programs that are not
written to execute with an STM system."
The Examiner found that compiler 620 of Nussbaum, which generates
atomic transaction code 630, corresponds to the limitation "inserting first
transactional semantics configured to form a first transaction into non-STM
test code." (Final Act. 2-3; see also Ans. 3.) The Examiner further found
that the test suite programs of DeLong corresponds to the limitation "the
non-STM test code includes separate test programs that are not written to
execute with an STM system." (Final Act. 7; see also Ans. 4--5.) The
Examiner concluded that "it would have been obvious ... to have modified
the method as disclosed by Nussbaum with the separate test programs as
taught by Delong." (Final Act. 7-8.) We agree with the Examiner's
findings and conclusions.
Nussbaum relates to "implementing different transactional memory
techniques for accessing shared objects during different phases in an
execution environment." (Col. 1, 11. 10-12.) Figure 6 of Nussbaum
illustrates a block diagram of "compiler 620 configured to analyze
application source code 600, identify one or more sets of atomic source
code 610 and then generate atomic transaction code 630 as part of compiled
application 650." (Col. 23, 1. 65 to col. 24, 1. 2.) Nussbaum explains that "a
Ph TM [phased transactional memory] compiler, such as compiler 620 may
be configured to replace programmer written code, such as in atomic source
code 610, that is to be executed atomically with alternate code configured to
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implement multiple code paths." (Col. 24, 11. 2-8.) Because Nussbaum
explains that compiler 620 replaces programmer written code, such as in
atomic source code 610, Nussbaum teaches or suggests the limitation
"inserting first transactional semantics configured to form a first transaction
into non-STM test code."
DeLong relates to software test programs. (Abstract.) DeLong
explains that "software test programs are generated according to a
substantially automated process which includes the generation of a minimal
necessary set of test program specifications sufficient to demonstrate a
selected functionality for a particular software design" ( col. 1, 11. 39-46) and
"cases are produced from the decision table, and the test cases are
synthesized into a test program or suite oftest programs" (col. 1, 11. 49-50).
Because DeLong explains that software test programs include a suite of test
programs and DeLong is silent with respect to software transactional
memory, DeLong teaches or suggests the limitation "the non-STM test code
includes separate test programs that are not written to execute with an STM
system."
Appellant argues
[ t ]his DeLong et al. Patent disclosure is not in any way related to
software transactional memory (STM) test generators in a
computer system to generate STM test code and inserting first
transactional semantics configured to form a first transaction into
non-STM test code, the non-STM test code includes separate test
programs that are not written to execute with an STM system as
required by independent claim 1.
(App. Br. 7 (emphases omitted).) However, the Examiner cited to
Nussbaum for teaching the limitation "inserting first transactional semantics
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configured to form a first transaction into non-STM test code" (Final Act. 2-
3) and cited to DeLong for teaching the limitation "the non-STM test code
includes separate test programs that are not written to execute with an STM
system" (Final Act. 7).
Thus, we agree with the Examiner that the combination of Nussbaum
and DeLong would have rendered obvious independent claim 1, which
includes the limitation "inserting first transactional semantics configured to
form a first transaction into non-STM test code, the non-STM test code
includes separate test programs that are not written to execute with an STM
system."
Second, we are unpersuaded by Appellant's arguments (App. Br. 8-9)
that the combination of Nussbaum and DeLong would not have rendered
obvious independent claim 1, which includes the limitation "detecting a first
method in the non-STM test code that is not supported by an STM system."
The Examiner found that the transactional memory hardware of
Nussbaum, which attempts hardware transactions, corresponds to the
limitation "detecting a first method in the non-STM test code that is not
supported by an STM system." (Ans. 7; see also Final Act. 4.) We agree
with the Examiner's findings.
Nussbaum explains that "the system is initially in an HTM-only
mode, such as the HARDWARE mode" and "[ w ]hile the system remains in
HARDWARE mode, every transaction encountered may be attempted as a
hardware transaction." (Col. 13, 1. 65 to col. 14, 1. 3.) Moreover, Nussbaum
explains that "[ w ]hen an HTM transaction is unsuccessful for some reason,
the system may decide (using, e.g., another library function call) whether to
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retry in the transaction in hardware or to initiate a transition to SOFTWARE
mode before retrying." (Col. 14, 11. 21-24.) Because Nussbaum explains
that the HTM can determine if the HTM transaction is unsuccessful,
Nussbaum teaches or suggests the limitation "detecting a first method in the
non-STM test code that is not supported by an STM system."
Appellant argues that "[ w ]hen an HTM transaction is unsuccessful for
some reason, the system may decide whether to retry in the transaction in
hardware or to initiate a transition to SOFTWARE mode before retrying"
and "[ t ]his decision may be made based on a variety of factors, including
feedback from the HTM implementation indicating the reason for the failure,
such as whether it was caused by contention or by exceeding the best effort
HTM's resource constraints." (App. Br. 8 (emphases omitted).)
Accordingly, Appellant argues,
[i]n contrast to the Nussbaum et al. Patent disclosure of a
transaction may be encountered that cannot be committed using
best-effort HTM, and the system may need to switch to
SOFTWARE mode to complete the transaction, independent
claims 1 and 15 define detecting a first method in the non-STM
test code that is not supported by an STM system.
(Id. at 8-9 (emphases omitted).) However, other than summarizing
Nussbaum and providing a conclusory statement that Nussbaum does not
teach the limitation "detecting a first method in the non-STM test code that
is not supported by an STM system," Appellant has not provided sufficient
evidence or arguments as to why the Examiner's findings with respect to
Nussbaum are improper. See 37 CPR§ 4I.37(c)(l)(iv) ("The arguments
shall explain why the examiner erred as to each ground of rejection
contested by [ A Jppellant. . . . [ A ]ny arguments or authorities not included in
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the appeal brief will be refused consideration by the Board for purposes of
the present appeal" ( emphases added).)
Thus, we agree with the Examiner that the combination of Nussbaum
and DeLong would have rendered obvious independent claim 1, which
includes the limitation "detecting a first method in the non-STM test code
that is not supported by an STM system."
Last, we are unpersuaded by Appellant's arguments (App. Br. 9) that
the combination of Nussbaum and DeLong would not have rendered obvious
independent claim 1, which includes the limitation "the STM code tests the
functionality of the STM system using the non STM test code."
The Examiner found that the Hybrid Transactional Memory (HyTM)
of Nussbaum, which allows programmers to test programs, corresponds to
the limitation "the STM code tests the functionality of the STM system
using the non-STM test code." (Final Act. 6; see also Ans. 4.) We agree
with the Examiner's findings.
Nussbaum explains that "[t]he use of HyTM may allow programmers
to develop, test, and execute programs that include transactions using
existing systems (i.e., without hardware modification)" and as an example "a
program may be written and largely debugged even before HTM support is
available." (Col. 5, 11. 58---66.) Because Nussbaum explains that the HyTM
allows programmers to test programs, Nussbaum teaches or suggests the
limitation "the STM code tests the functionality of the STM system using
the non-STM test code."
Appellant argues that "[i]n contrast to the independent claim[] 1 ...
features of the STM code tests the functionality of the STM system using the
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non-STM test code with the first transactional semantics ... the Nussbaum
et al. Patent discloses 'a HyTM implementation minimally comprises a fully
functional STM implementation, because it must work even if there is no
HTM support available."' (App. Br. 9 (emphases omitted).) However, other
than summarizing Nussbaum and providing a conclusory statement that
Nussbaum does not teach the limitation "the STM code tests the
functionality of the STM system using the non-STM test code," Appellant
has not provided sufficient evidence or arguments as to why the Examiner's
findings with respect to Nussbaum are improper. See 37 CPR
§ 4I.37(c)(l)(iv).
Thus, we agree with the Examiner that the combination of Nussbaum
and DeLong would have rendered obvious independent claim 1, which
includes the limitation "the STM code tests the functionality of the STM
system using the non-STM test code."
Accordingly, we sustain the rejection of independent claim 1 under
35 U.S.C. § 103(a). Claims 2-8 depend from claim 1, and Appellant has not
presented substantive arguments with respect to these claims. Therefore, we
sustain the rejection of claims 2-8 under 35 U.S.C. § 103(a), for the same
reasons discussed with respect to independent claim 1.
Independent claims 9 and 15 recite limitations similar to those
discussed with respect to independent claim 1, and Appellant has not
presented substantive arguments with respect to these claims. We sustain
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the rejection of claims 9 and 15, as well as dependent claims 10-14 and 16-
20, for the same reasons discussed with respect to claim 1. 2
DECISION
The Examiner's decision rejecting claims 1-20 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
2 Appellant's arguments on pages 9-11 of the Appeal Brief have been
considered. However, such arguments neither identify the disputed claim
limitations with specificity nor articulate how such claims are
distinguishable over Nussbaum. Instead, Appellant merely block quotes a
substantial portion of independent claims 1, 9, and 15 with a summary of
Nussbaum and a conclusory statement that Nussbaum does not teach the
features of the claims.
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