Ex Parte DiFloraDownload PDFPatent Trial and Appeal BoardNov 26, 201311769867 (P.T.A.B. Nov. 26, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/769,867 06/28/2007 CRISTIANO DiFlora 54073-P007US 5528 7590 11/27/2013 Winstead PC 5000 Wnstead Building, 2728 N. Harwood Street Dallas, TX 75201 EXAMINER DWIVEDI, MAHESH H ART UNIT PAPER NUMBER 2168 MAIL DATE DELIVERY MODE 11/27/2013 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 CRISTIANO DIFLORA ____________ Appeal 2011-007201 Application 11/769,867 Technology Center 2100 ____________ Before ST. JOHN COURTENAY III, THU A. DANG, and CARL W. WHITEHEAD, JR., Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-007201 Application 11/769,867 2 STATEMENT OF THE CASE The Examiner finally rejected claims 1-27. Appellant appeals therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We affirm. INVENTION This invention relates to mixed-code components running on platforms with garbage collectors. (Spec. 1). Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method comprising: [a] receiving a request to create an object in a native heap, the object associated with a managed component; [b] creating the object in the native heap; [c] maintaining an identifier for the object along with a priority indication; and [d] based on the priority indication, [d1] determining whether to scan the managed component for an indication that the managed component may be garbage collected. (Disputed limitation emphasized, steps lettered). REJECTIONS R1. Claims 1-8, 10-19, and 21-27 stand rejected under 35 U.S.C. 102(b) as being anticipated by Betancourt (U.S. PGPUB 2005/0081190 A1; Apr. 14, 2005). R2. Claims 9 and 20 stand rejected under 35 U.S.C. 103(a) as being unpatentable over the combined teachings and suggestions of Betancourt as Appeal 2011-007201 Application 11/769,867 3 applied to claims above 1-8, 10-19, and 21-27, and Lee (U.S. PGPUB 2004/0248612 A1; Dec. 9, 2004). GROUPING OF CLAIMS Based on Appellant's arguments, we decide the appeal of the anticipation rejection of claims 1-8, 10-19, and 21-27 on the basis of representative claim 1. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).1 Based on Appellant's arguments, we decide the appeal of the obviousness rejection of claims 9 and 20 on the basis of claim 9. (Id.). ANALYSIS We disagree with Appellant's contentions regarding the Examiner’s rejections of the claims. We adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons set forth by the Examiner in the Answer in response to arguments made in Appellant's Appeal Brief. (Ans. 21-30). We highlight and address specific findings and arguments below. R1. CLAIM 1 UNDER §102 Regarding the claim 1 limitations [d] and [d1] Appellant contends: 1 Appellant filed a Notice of Appeal on June 01, 2010. The date of filing the Notice of Appeal determines which set of rules applies to an Ex Parte appeal. If a notice of appeal is filed prior to January 23, 2012, then the 2004 version of the Board Rules last published in the 2011 edition of Title 37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies to the appeal. See also MPEP Rev. 8, July 2010. Appeal 2011-007201 Application 11/769,867 4 As neither the aging value nor the remedial actions described in Betancourt at paragraphs [0012] and [0022] serve as a basis for determining whether to engage in a garbage collection pass, Betancourt fails to disclose, based on a priority indication, determining whether to scan a managed component for an indication that the managed component may be garbage collected as recited in claim 1. (App. Br. 8). Appellant's contentions are not persuasive. The Examiner finds, and we agree, Betancourt discloses, based on the aging value, determining whether to scan for the object class. (¶[0012], ¶[0022]; Ans. 22-23). Specifically, Betancourt discloses "[d] based on the priority indication" (aging value exceeds a threshold value, the object is deemed a loiterer (¶[0012])),"[d1] determining whether to scan the managed component for an indication that the managed component may be garbage collected" (if loiterer, then determine whether to scan the object class of the object to compare the object class with the tracing policy for an indication that the object may be remediated (¶[0022])). (Emphasis added; Ans. 22-23). For these reasons, on this record, we are not persuaded of Examiner error. Accordingly, we sustain the rejection of claim 1, and of claims 2-8, 10-19, and 21-27, that fall therewith. R2. CLAIM 9 UNDER §103 A. Regarding the claim 9 limitation "wherein determining whether to scan the managed component is also based on a size of the object," Appellant contends "[d]etermining that a garbage size is greater than a threshold fails to teach or suggest determining whether to scan a managed Appeal 2011-007201 Application 11/769,867 5 component based on a size of an object as recited in claim 9, as a garbage size is different from the size of an object." (Emphasis added; Ans. 11). Appellant's contention is not persuasive. Lee's garbage size is the total of the object sizes of the garbage. (Ans. 26; Lee ¶[0022], ¶[0024]). We find Lee's determining whether to garbage collect based on garbage size, which is the total of the object sizes of the garbage, would have taught or suggested determining whether to garbage collect based on the size of the object. (Ans. 27). Specifically Lee determines whether the object may be garbage collected, based on object size where the object size exceeds the threshold garbage size. (Id.). Furthermore, we find both Lee and Betancourt would have taught or suggested, based on indicators ((claim 1[d] and claim 9) object size and aging value), determining whether selected objects may be garbage collected. (Betancourt ¶[0012], Lee ¶[0024]); Ans. 22, 26). In addition, as discussed above in section R1, Betancourt describes, before garbage collecting the selected objects, the scanning verification step of "[d1] determining whether to scan the managed component for an indication that the managed component may be garbage collected." Therefore the combination of Lee and Betancourt would have taught or suggested [d] "based on the priority indication" (Betancourt's aging value, Betancourt ¶[0012]) and [claim 9] based on the size of the object (Lee's object size in relation to the garbage size; Lee ¶[0024]), [d1] "determining whether to scan the managed component for an indication that the managed component may be garbage collected" (determine whether to scan the object class of the object to compare the object class Appeal 2011-007201 Application 11/769,867 6 with the tracing policy for an indication that the object may be remediated (¶[0022])). (Ans. 20). For emphasis only, we note that the test of non-obviousness is not whether one reference can be bodily incorporated into another, but, rather, what the references, when considered together, would suggest to one of ordinary skill in the art, In re Keller, 642 F.2d 413, 425 (CCPA 1981), who is a person of ordinary creativity and not an automaton, KSR Int’l Co. v. Teleflex Inc. 550 U.S. 398, 421 (2007), and whose inferences and creative steps we consider, id. at 418. Here, we find Lee would have taught or suggested considering the size of an object when determining which objects to garbage collect, because rapid garbage collecting of large objects keeps the garbage below the Lee's garbage threshold and frees up more memory. (Lee ¶[0005], ¶[0022]). It would have been obvious to combine Lee and Betancourt's teachings to [d] determine whether to scan . . . , [d1 and claim 9] based on both Betancourt's aging value and Lee's object size, as required by claim 9, because the larger objects should be garbage collected sooner to free up more memory as taught or suggested by Lee. (See Lee ¶[0005], ¶[0022]; Ans. 26). B. Regarding the combination of Betancourt and Lee, Appellant contends: [T]he principle of the memory leak detection and remediation system described in Betancourt is based on an examination of aging value 340 and alive value 350, as those values are compared against respective thresholds. See Betancourt at paragraphs [0020]-[0024]. To modify Betancourt to include features related to determining whether to scan the managed Appeal 2011-007201 Application 11/769,867 7 component based on a size of the object would impermissibly modify the principle of operation in Betancourt. (App. Br. 12). We are not persuaded by Appellant’s argument because the combination of Betancourt and Lee operates using the same principle of operation of Betancourt, i.e., determining whether to scan based on the aging value. (Ans. 30). The addition of Lee's teaching of determining whether to scan by considering the object size does not change Betancourt's principle of operation of determining whether to scan based on the aging factor. (Id.). For these reasons, on this record, we are not persuaded of Examiner error. Accordingly, we sustain the rejection of claim 9 and of claim 20, which falls therewith. DECISION We affirm the Examiner's rejection R1 of claims 1-8, 10-19, and 21- 27 under § 102. We affirm the Examiner's rejection R2 of claims 9 and 20 under § 103. No time for taking any action connected with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED ke Copy with citationCopy as parenthetical citation