Ex Parte Fowles

Board of Patent Appeals and Interferences

Jun 2, 2011

11145601 (B.P.A.I. Jun. 2, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte RICHARD G. FOWLES
____________________

Appeal 2009-008164
Application 11/145,6011
Technology Center 2100
____________________

Before LANCE LEONARD BARRY, HOWARD B. BLANKENSHIP AND
JAY P. LUCAS, Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals from a final rejection of claims 1 to 8, 10 and 12 to
24 under authority of 35 U.S.C. § 134(a). Claims 9 and 11 are cancelled.
(App. Br. 3). The Board of Patent Appeals and Interferences (BPAI) has
jurisdiction under 35 U.S.C. § 6(b).

1 Application filed June 6, 2005. The real party in interest is Hewlett
Packard Company.
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We affirm.

Appellant’s invention relates to monitoring events in a processor to
facilitate performance analysis. In the words of Appellant:
With software optimization as a major goal,
monitoring and improving software execution
performance on various hardware is of interest to
hardware and software developers. Some families
of processors include performance monitoring
units (PMUs) that can monitor up to several
hundred or more microarchitecture events. For
example, Intel’s® Titanium® family of processors
have anywhere from 400 to 600 low level micro-
architecture events that can be monitored by the
PMU. However, these events are so low level that
it is not possible for a normal user to gleam any
insight as to the causes of poor processor execution
performance. This is compounded by the fact that
producing any high-level performance metric
involves the simultaneous monitoring of more
events than there are counters available in the
PMU.
. . . .
Systems, methods, and device are provided
for monitoring a processor. One method
embodiment includes selectively combining micro-
architectural events into various groups of micro-
architectural events. The method includes
multiplexing the various groups of micro-
architectural events to a performance monitoring
unit (PMU) associated with the processor.
According to various embodiments data
representing counts for the various micro-
architectural events are recorded and metrics are
calculated from the recorded data by combining
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the various groups based upon particular
relationship distribution trees.
. . . .
. . . For example, the instructions can
execute to combine data from selective
combinations of PMU micro-architecture events
based upon a distribution tree relationship in order
to produce a prioritized accounting of the reasons
for processor execution stalls.
(Spec. 1, ll. 20-30; Spec. 2, ll. 19-26; Spec. 6, ll. 3-6)
The following illustrates the claims on appeal:
Claim 1:
1. A method for monitoring a processor,
comprising:

selectively combining micro-architectural
events into various groups of micro-architectural
events;

multiplexing the various groups of micro-
architectural events to a performance monitoring
unit (PMU) associated with the processor to obtain
counts associated with the various groups; and

combining the counts associated with the
various groups as partial fractions.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Flynn US 6,052,708 Apr. 18, 2000
Microsoft Computer Dictionary 561 (Microsoft Press 5th ed. 2002)
(hereinafter “MCD”).
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REJECTIONS
The Examiner rejects the claims as follows:

R1: Claims 1 to 8, 10 and 12 to 24 stand rejected under 35 U.S.C. § 112,
paragraph 2, for being indefinite in the term “partial fractions”.
R2: Claims 1 to 8, 10 and 12 to 23 stand rejected under 35 U.S.C. § 102(b)
for being anticipated by Flynn.
R3: Claim 24 stands rejected under 35 U.S.C. § 103(a) for being obvious
over Flynn in view of MCD.

We will review the rejections in the order argued and as grouped in
the Briefs. We have only considered those arguments that Appellant
actually raised in the Briefs. Arguments Appellant could have made but
chose not to make in the Briefs have not been considered and are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

ISSUE
The issue is whether Appellant has shown that the Examiner erred in
rejecting the claims under 35 U.S.C. § 112, paragraph 2; under 35 U.S.C.
§ 102(b); and under 35 U.S.C. § 103(a). The issue specifically turns on the
meaning in context of “partial fractions” and whether Flynn teaches
combining counts of events as partial fractions.
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FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Appellant has invented a method and system for monitoring the
performance of a processor in a computer. (Spec. 2, middle). Counts of
events of the processor, called micro-architectural events, are collected
into meaningful groups and sent to a performance monitoring unit
(PMU). (Spec. 2, l. 23). Group count data is processed by programs in a
distribution tree relationship to produce meaningful information related
to performance metrics. (Spec. 6, l. 6).
2. The counts for specific events are expressed a partial fractions of the full
counts sent to the PMU. (Spec. 16, l. 9). An accepted example of partial
fractions is represented by the equation: 1/3 = 1/4 + 1/12. (App. Br. 12,
bottom; Ans. 14, 15). The partial fractions on the right of the equal sign
add to the fraction on the left. (App. Br. 12 bottom; App. Br. 13, middle).
Whether these partial fractions can be “counts” is at issue. (Ans. 15).
3. The Flynn reference teaches monitoring the performance of a multi-
threaded processor where events of the separate threads are grouped (col.
2, l. 36; col. 6, l. 15) and then multiplexed (col. 8, l. 32).

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PRINCIPLES OF LAW

Appellants have the burden on appeal to the Board to demonstrate
error in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006) (“On appeal to the Board, an applicant can overcome a
rejection [under § 103] by showing insufficient evidence of prima facie
obviousness or by rebutting the prima facie case with evidence of secondary
indicia of nonobviousness.”) (quoting In re Rouffet, 149 F.3d 1350, 1355
(Fed. Cir. 1998)).
“Indefiniteness under 35 U.S.C. § 112 ¶ 2 is an issue of claim
construction and a question of law that we review de novo.” Cordis Corp. v.
Boston Scientific Corp., 561 F.3d 1319, 1331 (Fed. Cir. 2009) (citing
Praxair, Inc. v. ATMI, Inc., 543 F.3d 1306, 1319 (Fed. Cir. 2008)).

However, during prosecution before this Office, while Appellant still
has the opportunity to amend the claims, a higher standard of clarity is
required:
In particular, rather than requiring that the claims are insolubly
ambiguous, we hold that if a claim is amenable to two or more
plausible claim constructions, the USPTO is justified in requiring the
applicant to more precisely define the metes and bounds of the
claimed invention by holding the claim unpatentable under 35 U.S.C.
§ 112, second paragraph, as indefinite.

Ex parte Kenichi Miyazaki, 89 USPQ2d 1207, 1211 (precedential opinion)
(BPAI 2008).

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ANALYSIS
Arguments with respect to the rejection
of claims 1 to 8, 10 and 12 to 24
under 35 U.S.C. § 112, para. 2 [R1]

The Examiner has rejected all of the pending claims for failing to
particularly point out and distinctly claim the subject matter of the invention.
(Ans. 5, bottom). The Examiner explains: “It is unclear as to what applicant
intends a ‘partial fraction’ to be. While the specification provides some
suggestions (see FIG. 5A, partial fractions 509 and the disclosure concerning
FIG. 5A and 5B) the suggested meaning is contrary to the suggested
definition, without being explicitly redefined.” (Id.). In further explanation,
the Examiner focuses on the claim’s recitation of “counts associated with the
various groups” and points out that counts are whole numbers, while partial
fractions are fractions. (Ans. 7). The Examiner concludes his argument by
saying, “For the purpose of examination, ‘partial fractions’ shall be
interpreted to be the whole number counts, such as the counts 502 and 504,
which are to be combined and not as any fractional value.” (Id.).
Consistent with this analysis, the Examiner in his Response to
Arguments concludes that, “4) Each individual count is a fractional part of
the total count (i.e. a part of the total) and the partial fractions are really only
whole numbers (e.g. counts).” (Ans. 15).
This interpretation of the claim language seems consistent with the
Specification and the Appellant’s arguments. (Spec. 18, bottom; App. Br.
14). In regard to Figures 5A and 5B, Appellant talks of dividing the count
groups into partial fractional components (App. Br. 14 top; Spec. 18, top).
However, in each case the element is the “count”. For example: “As shown
in the embodiment of Figure 5B, the exec fraction 543 is further broken
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down into various sources based on the counts read in association with PMU
context definition set 544.” (Spec. 18, top). Thus, the Appellant is (also)
arguing that the counts for each function are partial fractions totaling to the
aggregate number of collected group counts.
The first step of any judicial analysis is to properly interpret the
claims. (See Medichem S.A. v. Rolabo S.L., 353 F.3d 928, 933 (Fed. Cir.
2003)). A rejection under 35 U.S.C. § 112, paragraph 2, properly holds if
there are two or more interpretations of the claims that can be reasonable
maintained. (Ex parte Miyazaki, cited above.)
In this case, both the Appellant and the Examiner are interpreting the
claims in the same manner and consistently with the Specification and
common usage. We thus do not find it proper to sustain a rejection under 35
U.S.C. § 112, paragraph 2.

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Arguments with respect to the rejection
of claims 1 to 8, 10 and 12 to 23
under 35 U.S.C. § 102(b) [R2]

The Examiner has rejected the noted claims for being anticipated by
Flynn. The Examiner has applied the reference to representative claim 1 as
noted in the chart on page 8 of the Examiner’s Answer and reproduced
below.

Appellant argues that “From Appellant’s review, the Flynn ‘708
reference does not appear to describe, ‘combining the counts associated with
the various groups as partial fractions,’ as recited in Appellant’s independent
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claims, 1, 7, 14, and 21.” (App. Br. 16, top) (emphasis omitted). Appellant
further argues that the reference does not use the term “partial fractions”.
(App. Br. 16, bottom).
The Examiner respectfully disagrees, indicating “that Flynn does in
fact teach the claimed limitations, specifically the limitation in question.
Flynn teaches the combination of counts in one of two ways, the first being
the combination of event counts to maintain a single event count for each
event (C.8 L.62 - C.9 L.9) or through the combination of events into tables
as shown in FIG. 2 or 3 (FIG. 2 PMCs 84, FIG. 3 PMCs 84a and 84b).”
(Ans. 16, bottom).
We have reviewed Flynn, Figures 2 and 3. Figure 3 is reproduced
below:

Flynn’s Figure 3 illustrates a representation of the performance
monitor operating in multithread mode

We note that in Flynn the various performance monitoring counters
(PMCs 1 - 4) count events, which total to the full PMC value. The specific
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sub-counts enter register counters PMC1, PMC2, etc., effectively yielding
partial fractions of the full counts. We thus find the teaching presenting
counts subtotaled into partial fractions of the whole.
The Examiner has read this teaching of Flynn on the referenced
limitation concerning partial fractions. On consideration, we find no error in
this rejection.

Arguments with respect to the rejection
of claim 24
under 35 U.S.C. § 103(a) [R3]

The Examiner has rejected the noted claims for being obvious over
Flynn and MCD. Claim 24 indicates only that the computing device is used
in a Wide Area Network. We accept and find that the use of such a device,
as indicated to be anticipated by Flynn above, in a network would have been
obvious. We will endorse and accept the Examiner’s reasoning. (Ans. 17,
18).
CONCLUSIONS OF LAW
Based on the findings of facts and analysis above, we conclude that
Appellant has shown that the Examiner erred in rejecting claims 1 to 8, 10
and 12 to 24 under 35 U.S.C. § 112, paragraph 2 [R1]. However, the
Appellant has not shown error in the rejections of all claims under 35 U.S.C.
§ 102(b) [R2] or 35 U.S.C. § 103(a) [R3].

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DECISION
We reverse the Examiner’s rejection R1 of claims 1 to 8, 10 and 12 to
24. We affirm the Examiner’s rejections R2 and R3 of claims 1 to 8, 10 and
12 to 24 respectively.

AFFIRMED

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