10214646 (B.P.A.I. Jul. 26, 2011)

Ex Parte Forman

Board of Patent Appeals and InterferencesJul 26, 2011

10214646 (B.P.A.I. Jul. 26, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte GEORGE HENRY FORMAN ____________ Appeal 2009-009742 Application 10/214,646 Technology Center 2100 ____________ Before HOWARD B. BLANKENSHIP, ST. JOHN COURTENAY III, and DEBRA K. STEPHENS, Administrative Patent Judges. BLANKENSHIP, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-009742 Application 10/214,646 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1-8, 10-15, 17-19, 24, 25, 27, and 31-46, which are all the claims remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm-in-part. Invention Appellant’s invention relates to an operating system feature for a computing device that provides the ability to perform pre-launch subroutines of application programs on the device. Abstract. Representative Claims 1. A computer system comprising a processing unit, programs, and an operating system executable in the computer system, the operating system comprising: an operating system mechanism for selecting, in response to detecting that the processing unit is otherwise idle, at least one of said programs for putting said at least one of said programs into a pre-launch condition using a portion of a full launch routine of said at least one of said programs. 27. A computer memory for use in a computer system, the computer memory comprising program code which when executed causes the computer system to: monitor usage patterns of application programs; pre-start selected ones of the application programs into a pre-started state based on the monitored usage patterns; in response to a request to start a particular application program, determine whether a pre-started instance of the particular application is present, and in response to determining Appeal 2009-009742 Application 10/214,646 3 that that pre-started instance is present, launch the particular application using the pre-started instance; monitor computing resources available for currently active application programs in the computer system; and in response to detecting the computing resources becoming low, selectively removing pre-started instances of corresponding pre-started application programs. Prior Art Woodfield US 5,905,523 May 18, 1999 Kampe US 5,953,010 Sept. 14, 1999 Preining US 5,958,003 Sept. 28,1999 Matt Lake, PC Workout, PC World, http://www.pcworld.com/article/18393/pc_workout.html (last visited March 10, 2006) (“Lake”). Microsoft Computer Dictionary 378, 541 (5th ed. 2002). Examiner’s Rejections Claims 1-8, 10-14, 24, 25, 27, 31-37, 39, and 46 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Preining. Claims 15, 17-19, and 38 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Preining. Claims 40 and 45 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Preining and Lake. Claims 41 and 43 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Preining, Lake, and Kampe. Claims 42 and 44 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Preining and Woodfield. Appeal 2009-009742 Application 10/214,646 4 ANALYSIS Independent Claims 1, 11, 13, and 37 Each of claims 1, 11, 13, and 37 is rejected under § 102(b) as being anticipated by Preining. Each requires that an operating system performs recited functions. We agree with Appellant (App. Br. 5-7; Reply Br. 1-2) to the extent that there is insufficient evidence in the record for the Examiner’s interpreting the “Services Supercharger” layer as described by Preining as an operating system, or as part of an operating system. We therefore cannot sustain the § 102(b) rejection of claims 1, 11, 13, and 37, nor that of dependent claims 2-8, 10, 12, 14, 24, 25, 31-35, 39, and 46. Because the § 103(a) rejections applied against dependent claims do not remedy the basic deficiency of Preining, we cannot sustain the § 103(a) rejections of claims 15, 17-19, 38, and 40-45. Independent Claim 27 Claim 27 recites “in response to detecting the computing resources becoming low, selectively removing pre-started instances of corresponding pre-started application programs.” The Examiner and Appellant discuss the feature as it relates to claim 24, which depends from claim 13. However, we have not sustained the § 102(b) rejection of claim 24 because it incorporates the limitations of base claim 13. The Examiner finds that Preining describes the selective removal of pre-started instances as claimed. Appellant alleges that the “cleanup” tasks described by the reference is “not the same as” selectively removing pre- launched instances (App. Br. 8), but does not tell why the belief is held. Appellant adds that a portion of Preining teaches that execution of the Appeal 2009-009742 Application 10/214,646 5 epilogues is to be postponed until idle time of a processor is available, thus not teaching selective removal of pre-launched instances. Id. However, the Examiner provides a persuasive response to Appellant’s arguments, pointing to specific portions of Preining that disclose selective removal of pre-started instances in response to detecting that computing resources become low. Ans. 15-17. In fact, Preining expressly states that a service function (NMTTI) executes epilogues for mini-tasks which have to be executed in order to free system resources needed for the execution of mini-tasks with high probability for execution (col. 7, ll. 43-49), based in part on an administrator (NMTTA) that continuously monitors the amount of currently bound system resources (col. 6, ll. 53-61). We are therefore not persuaded that the Examiner erred in finding that Preining describes the argued feature of claim 27. We sustain the § 102(b) rejection of claim 27, and that of dependent claim 36, not separately argued. See 37 C.F.R. § 41.37(c)(1)(vii). DECISION The rejection of claims 1-8, 10-14, 24, 25, 27, 31-37, 39, and 46 under 35 U.S.C. § 102(b) as being anticipated by Preining is affirmed with respect to claims 27 and 36 but reversed with respect to claims 1-8, 10-14, 24, 25, 31-35, 37, 39, and 46. The rejection of claims 15, 17-19, and 38 under 35 U.S.C. § 103(a) as being unpatentable over Preining is reversed. The rejection of claims 40 and 45 under 35 U.S.C. § 103(a) as being unpatentable over Preining and Lake is reversed. Appeal 2009-009742 Application 10/214,646 6 The rejection of claims 41 and 43 under 35 U.S.C. § 103(a) as being unpatentable over Preining, Lake, and Kampe is reversed. The rejection of claims 42 and 44 under 35 U.S.C. § 103(a) as being unpatentable over Preining and Woodfield is reversed. 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(f). AFFIRMED-IN-PART llw