Ex Parte Fortin et alDownload PDFPatent Trial and Appeal BoardMay 11, 201714076576 (P.T.A.B. May. 11, 2017) 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. 14/076,576 11/11/2013 Michael Fortin 320469.02 3865 69316 7590 05/15/2017 MICROSOFT CORPORATION ONE MICROSOFT WAY REDMOND, WA 98052 EXAMINER KROFCHECK, MICHAEL C ART UNIT PAPER NUMBER 2138 NOTIFICATION DATE DELIVERY MODE 05/15/2017 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): u sdocket @ micro soft .com chriochs @microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL FORTIN, CENK ERGAN, MEHMET IYIGUN, YEVGENIY BAK, BEN MICKLE, AARON DIETRICH, and ALEXANDER KIRSHENBAUM Appeal 2016-007225 Application 14/076,576 Technology Center 2100 Before ERIC B. CHEN, MICHAEL J. STRAUSS, and DAVID J. CUTITTAII, Administrative Patent Judges. STRAUSS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-007225 Application 14/076,576 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION The claims are directed to management of memory functioning as virtual cache. Spec., Title. Claim 1, reproduced below, is representative of the claimed subject matter: 1. A method performed on a computing device, the method comprising caching data on a memory device, the caching the data performed on a virtual level as opposed to a physical level, where the data is cached on the memory device and retrieved from the memory device based on a key identifying the data according to a file identifier and a file offset of the data, and further based on the key identifying the data according to a process identifier and a virtual address of the data. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Wu Krolak et al. Ballard et al. Birrell et al. Peled et al. US 5,668,968 US 5,751,990 US 5,991,847 US 2006/0155931 Al US 2007/0266199 Al Sept. 16, 1997 May 12, 1998 Nov. 23, 1999 July 13, 2006 Nov. 15,2007 CDRInfo.COM “Microsoft Explains Vista ReadyBoosf’. November 2006. Accessed May 04, 2017. http://www.cdrinfo.com/Sections/news/ Details.aspx?NewsId= 19077 (“ReadyBoosf”). REJECTIONS The Examiner made the following rejections: 2 Appeal 2016-007225 Application 14/076,576 Claims 1,3,7, 8, 10, 14, 15, 17, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Peled and Ballard. Final Act. 3^4. Claims 2, 9, and 16 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Peled, Ballard, and Wu. Final Act. 5. Claims 4, 11, and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Peled, Ballard, and Birrell. Final Act. 5—6. Claims 5, 12, 13, and 19 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Peled, Ballard, and ReadyBoost. Final Act. 6. Claims 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable over Peled, Ballard, and Krolak. Final Act. 6—7. APPELLANTS’ CONTENTIONS 1. Appellants contend “[i]t is unclear what aspect of Peled the Examiner equates to the key encompassed by claim 1.” App. Br. 8 (emphasis omitted). 2. Appellants contend the combination of Peled and Ballad is improper because: a. Peled’s virtual address is generated by a hardware processor and translated into a physical address by a memory manager such that “such virtual and physical memory addresses are completely unrelated to file IDs and file offsets” as taught by Ballad. App. Br. 7—8. b. Peled would be rendered incapable of functioning as intended using a file identifier and a file offset as taught by Ballad. App. Br. 9-10. 3 Appeal 2016-007225 Application 14/076,576 c. “[T]he Examiner’s proposed combination would not be received by those of ordinary skill in the art with any reasonable expectation of successful operation based on a file identifier and file offset [as taught by Ballad]” App. Br. 12. ANALYSIS Appellants’ arguments are unpersuasive. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2—11) and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief (Ans. 2—8) and concur with the conclusions reached by the Examiner. We highlight the following for emphasis. In response to Appellants’ contention 1, the Examiner makes explicit the mapping of Peled’s virtual address and task ID to the claimed virtual address and process identifier of the independent claims. Ans. 3^4. We agree with the Examiner the mapping as originally applied was “abundantly clear” even absent the Examiner’s further elaboration. Accordingly, contention 1 is unpersuasive of Examiner error. In connection with contention 2(a), Appellants argue there is no relationship between (i) the virtual and physical memory addresses and (ii) the file IDs and offsets of Ballard. App. Br. 7—8. The Examiner responds, finding Appellants fail to provide evidence in support of their allegation. The Examiner further finds “Ballard explicitly discloses that the file identifier portion and the file offset portion of the key are based on a logical/virtual address” and “[t]he file identifier and offset together operate 4 Appeal 2016-007225 Application 14/076,576 as a virtual address by identifying a location of the data specified in the access request.” Ans. 3 citing Ballard col. 7,11. 15—24. Appellants’ contention 2(a) is unpersuasive for the reasons found by the Examiner. In particular, Appellants (i) fail to provide sufficient evidence in support of their argument1 and, contrary to Appellants’ argument, (ii) Ballard discloses a relationship between logical (i.e., virtual) and physical addresses and Ballard’s file identifier and offset portions (see Ans. 3). In connection with contention 2(b), Appellants argue Ballard’s file identifier and offset cannot be substituted for Peled’s virtual address and task ID without rendering the combination inoperative; “there is no teaching or suggestion in Peled that his virtual address cache can understand or operate with a file identifier and a file offset [of Ballard].” App. Br. 9. The Examiner responds, finding Appellants’ argument is an improper attack on the references individually where the rejection is based on their combination. Ans. 2—3 citing In re Keller, 642 F.2d 413 (CCPA 1981) and In re Merck & Co., 800 F.2d 1091 (Fed. Cir. 1986). The Examiner explains Peled’s intended function is to share data stored in a virtual address cache among multiple tasks. The principle of operation that Peled uses to carry this out is through a shared data indicator that is used to signify if a task-ID match is needed in addition to the virtual address match. In the combination set forth by the [EJxaminer, the virtual addressing of Peled would include the additional virtual addressing layer disclosed by Ballard . . . The inclusion of this additional layer would have Ballard’s file identifier and offset being used together as the virtual address that Peled uses to determine a match. Including Ballard’s file 1 Mere attorney argument is “not the kind of factual evidence that is required to rebut a prima facie case of obviousness.” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (explaining arguments of counsel cannot take the place of factually supported objective evidence). 5 Appeal 2016-007225 Application 14/076,576 identifier and offset as a virtual address layer [] in Peled, does not affect the use of Peled’s shared data indicator or task. The indicator would still operate by requiring a match of Peled’s task id when the indicator is not provided as described [by Peled]. As [such] the combination of Peled and Ballard would still perform the intended function of Peled using the principle mode of operation disclosed by Peled. Ans. 4 (parenthetical citations to Peled omitted). Appellants’ contention 2(b) is unpersuasive because it erroneously presumes substitution of Peled’s addressing scheme using a virtual address and task ID by Ballard’s key including a file identifier and offset rather than the combination of addressing techniques taught by the references. For example, as explained by the Examiner, Ballard’s file identifier and offset could be used in those situations specifically disclosed by Peled when a shared data indicator is not used. See Ans. 4. Furthermore, we are unpersuaded by Appellants’ contention in the absence of sufficient evidence the combination of Peled and Ballard would result in an inoperative cache system. Notably, arguments of counsel cannot take the place of factually supported objective evidence. See cases cited infra, fn. 1. Furthermore, not only are the specific features argued to be incompatible absent from the disputed claims (e.g., there is no requirement for all data to be accessed by the simultaneous, parallel and combined use of a file ID, offset, process ID and virtual address), but Appellants’ argument improperly relies on wholesale incorporation/combination of methodologies rather than what the combination of Peled and Ballard teaches and suggests. The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference; nor is it that the claimed invention must be expressly suggested in any one or all of the 6 Appeal 2016-007225 Application 14/076,576 references. Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). The artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). Furthermore the skilled artisan would “be able to fit the teachings of multiple patents together like pieces of a puzzle” because the skilled artisan is “a person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420-421 (2007). Here, Appellants have not demonstrated the Examiner’s proffered combination in support of the conclusion of obviousness would have been “uniquely challenging or difficult for one of ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Appellants’ contention 2(c) is unpersuasive for reasons similar to those discussed in connection with contention 2(b) including, inter alia, a lack of sufficient evidence in support of Appellants’ argument there would be no reasonable expectation of success in combining the addressing schemes of Peled and Ballard. For the reasons discussed supra, we are unpersuaded of Examiner error. Accordingly, we sustain the rejection of independent claim 1 and, for the same reasons, independent claims 8 and 15 under 35 U.S.C. § 103(a) over Peled and Ballard together with the rejection of dependent claims 3, 7, 10, 14, 17, and 20 which are not argued separately. We further sustain the rejection of dependent claims 2, 4—6, 9, 11—13, 16, 18, and 19 under 35 U.S.C. § 103(a), as these dependent claims are also not argued separately. 7 Appeal 2016-007225 Application 14/076,576 DECISION We affirm the Examiner’s decision to reject claim 1—20. 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 8 Copy with citationCopy as parenthetical citation