Ex Parte Fielden

Board of Patent Appeals and Interferences

Oct 29, 2003

09152751 (B.P.A.I. Oct. 29, 2003)

The opinion in support of the decision being entered today was not written for publication and is not binding precedent of the Board.
Paper No. 16
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KENT G. FIELDEN
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Appeal No. 2002-0490
Application No. 09/152,751
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ON BRIEF
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Before THOMAS, BARRETT, and BARRY, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
A patent examiner rejected claims 16-27. The appellant appeals therefrom
under 35 U.S.C. § 134(a). We reverse.
BACKGROUND
The invention at issue on appeal executes "load instructions." (Spec. at 1.) A
microprocessor executes a load instruction to retrieve data from a memory. Such an
instruction specifies an address at which data of interest are stored and how much data
are to be retrieved. (Id. at 2.)
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1An exception is "a problem or change in conditions that causes a computer's
microprocessor to stop what it is doing and then find and carry out . . . instructions in a
separate routine designed to handle the situation." Microsoft Press Computer
Dictionary 153 (2d. ed. 1994).
To execute a computer program more quickly, an instruction may be moved "up"
to a place earlier in the program's execution. In particular, the appellant explains, "it is
useful to move instructions to a location prior to branch instructions, the execution of
which determine whether the moved instructions would have been executed." (Id. at 1.)
Once moved, such an instruction will be executed "speculatively," i.e., before the
branch instruction is executed to determine whether the moved instruction should be
executed. (Id.)
An exception1 may arise when executing a load instruction in a computer
program. (Id. at 2.) Although executing instructions speculatively can be desirable, the
appellant cautions, "it is important not to take exceptions on such instructions where an
instruction potentially may not actually be executed." (Id. at 1-2.)
Accordingly, the appellant's invention replaces a load instruction in a computer
program with a "dismissible load instruction" and a "check instruction." The dismissible
load instruction, which, "by definition, does not generate an exception," (id. at 6), is
positioned in the program to be executed speculatively. (Appeal Br. at 3.) The check
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Application No. 09/152,751
instruction is positioned in the program at the original location of the (replaced) load
instruction. (Id.) At the location in the program where the load instruction was originally
placed, a check is made to determine whether an exception should have occurred. If
so, the exception is taken. (Spec. at 6.) A further understanding of the invention can
be achieved by reading the following claim.
16. A method of compiling a series of instructions having a load,
said method comprising:
converting the load into a dismissible load instruction;
positioning the dismissible load instruction in a stream of
executable instructions so that the load would be executed speculatively;
and
positioning a check instruction after the dismissible load instruction
in the stream of executable instructions to determine if an exception
should have occurred on the load.
Claims 16-18, 20-22, 24-25 and 27 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Todd C. Mowry, Tolerating Latency Through Software-Controlled Data
Prefetching (Mar. 1994) ("Mowry"). Claims 19 and 23 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Mowry and Anne Rogers and Kai Li, Software Support for
Speculative Loads, Proceedings of 5th Int'l. Conf. Architectural Support for
Programming Languages and Operating Syss., pp. 38-50 (Oct. 1992) ("Rogers").
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Claim 26 stands rejected under § 103(a) as obvious over Mowry and the appellant's
admitted prior art ("AAPA").
OPINION
Our opinion addresses the rejections in the following order:
• anticipation rejection of claims 16-18, 20-22, 24, 25 and 27
• obviousness rejection of claims 19, 23, and 26.
Anticipation Rejection of Claims 16-18, 20-22, 24, 25 and 27
Rather than reiterate the positions of the examiner or the appellant in toto, we
address the main point of contention therebetween. The examiner asserts, "Mowry
taught . . . placing a check instruction after the dismissible load (page 8, 3rd full para.;
page 7, figure 1.4; page 129, section titled Summary)." (Examiner's Answer at 3.) The
appellant "submits that the unmodified load instruction of Mowry does not perform the
same function as the check instruction put in place of the converted load instruction in
Appellant's claimed invention." (Appeal Br. at 6.) The examiner answers, "Appellant
arguments are directed unclaimed elements, nowhere in the claims are a separate
check instruction recited or checking the validity of the data." (Examiner's Answer at 7.)
"Analysis begins with a key legal question -- what is the invention claimed?"
Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567, 1 USPQ2d 1593, 1597 (Fed.
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Application No. 09/152,751
Cir. 1987). "In construing claims, the analytical focus must begin and remain centered
on the language of the claims themselves. . . ." Interactive Gift Express, Inc. v.
Compuserve, Inc., 256 F.3d 1323, 1331, 59 USPQ2d 1401, 1406 (Fed. Cir. 2001)
(citing 35 U.S.C. § 112, ¶2).

Here, independent claim 16 specifies in pertinent part the following limitations:
"positioning a check instruction after the dismissible load instruction in the stream of
executable instructions to determine if an exception should have occurred on the load."
Independent claims 20 and 24 specify in pertinent part similar limitations. Focussing
on the language of the claims, we join the appellant in being "puzzled at the assertion in
the Examiner's Answer that the check instruction of Appellant's invention as claimed is
actually an unclaimed element." (Reply Br. at 4.) To the contrary, the limitations
require positioning a check instruction after a dismissible load instruction in a stream of
executable instructions and using the check instruction to determine if an exception
should have occurred on an associated load.
"Having construed the claim limitations at issue, we now compare the claims to
the prior art to determine if the prior art anticipates those claims." In re Cruciferous
Sprout Litig., 301 F.3d 1343, 1349, 64 USPQ2d 1202, 1206 (Fed. Cir. 2002). "A claim
is anticipated only if each and every element as set forth in the claim is found, either
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Application No. 09/152,751
expressly or inherently described, in a single prior art reference." Verdegaal Bros., Inc.
v. Union Oil Co., 814 F.2d 628, 631, 2 USPQ2d 1051, 1053 (Fed. Cir. 1987) (citing
Structural Rubber Prods. Co. v. Park Rubber Co., 749 F.2d 707, 715, 223 USPQ 1264,
1270 (Fed. Cir. 1984); Connell v. Sears, Roebuck & Co., 722 F.2d 1542, 1548, 220
USPQ 193, 198 (Fed. Cir. 1983); Kalman v. Kimberly-Clark Corp., 713 F.2d760, 771,
218 USPQ 781, 789 (Fed. Cir. 1983)). "[A]bsence from the reference of any claimed
element negates anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565,
1571, 230 USPQ 81, 84 (Fed. Cir. 1986).
Here, we find no teaching of positioning a check instruction after a dismissible
load instruction in a stream of executable instructions let alone using the check
instruction to determine if an exception should have occurred on an associated load in
the three sections of Mowry cited by the examiner. Figure 1.4 of the reference merely
shows "how prefetching improves performance." P. 7. Its third full paragraph
discusses "how far loads can be moved ahead of their uses." P. 8. For its part, the
Summary section of Mowry recapitulates that "deciding when to drop prefetches is a
complex issue." P. 129.
The absence of positioning a check instruction after a dismissible load instruction
in a stream of executable instructions and using the check instruction to determine if an
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Application No. 09/152,751
exception should have occurred on an associated load negates anticipation. Therefore,
we reverse the anticipation rejection of claim 16; of claims 17 and 18, which depend
therefrom; of claim 20; of claims 21 and 22, which depend therefrom; of claim 24; and
of claims 25 and 27, which depend therefrom.
Obviousness Rejection of Claims 19, 23, and 26
"In rejecting claims under 35 U.S.C. Section 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness." In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992)). "'A prima facie case of obviousness is
established when the teachings from the prior art itself would . . . have suggested the
claimed subject matter to a person of ordinary skill in the art.'" In re Bell, 991 F.2d 781,
783, 26 USPQ2d 1529, 1531 (Fed. Cir. 1993) (quoting In re Rinehart, 531 F.2d 1048,
1051, 189 USPQ 143, 147 (CCPA 1976)).
Here, the examiner fails to allege, let alone show, that the addition of Rogers or
AAPA cures the aforementioned deficiency of Mowry. Absent a teaching or suggestion
of positioning a check instruction after a dismissible load instruction in a stream of
executable instructions and using the check instruction to determine if an exception
should have occurred on an associated load negates anticipation, we are unpersuaded
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of a prima facie case of obviousness. Therefore, we reverse the obviousness rejection
of claims 19, 23, and 26.
CONCLUSION
In summary, the rejection of claims 16-18, 20-22, 24-25 and 27 under § 102(b) is
reversed. The rejection of claims 19, 23, and 26 under § 103(a) is likewise reversed.
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Application No. 09/152,751
REVERSED
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
LANCE LEONARD BARRY )
Administrative Patent Judge )
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Application No. 09/152,751
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