Ex Parte Francis

Board of Patent Appeals and Interferences

May 24, 2010

10788305 (B.P.A.I. May. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte HEDLEY JAMES FRANCIS
____________

Appeal 2008-004892
Application 10/788,305
Technology Center 2100
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Decided: May 24, 2010
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Before KENNETH W. HAIRSTON, JOHN C. MARTIN, and JOSEPH F.
RUGGIERO, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Rejection of
claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
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Rather than reiterate the arguments of Appellant and the Examiner,
reference is made to the Appeal Brief (filed May 29, 2007), the Answer
(mailed August 31, 2007) and the Reply Brief (filed October 29, 2007) for
the respective details. Only those arguments actually made by Appellant
have been considered in this decision. Arguments which 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).

Appellant’s Invention
Appellant’s invention relates to an interrupt handler including timer
logic which generates a timing indication when the interrupt is received.
Upon performance of an interrupt service routine to generate an interrupt
response, the processing unit adjusts an aspect of the interrupt response
based on the timing indication. (See generally Spec. 1:15-2:3).

Representative claim 1 is illustrative of the invention and is
reproduced as follows:

1. A data processing apparatus, comprising:
an interrupt controller operable to receive interrupts generated by a
number of interrupt sources, and to determine based on predetermined
criteria whether to output an interrupt request signal;
a processing unit operable upon receipt of said interrupt request signal
to perform an interrupt service routine for a selected one of the received
interrupts in order to generate an interrupt response for the corresponding
interrupt source;
timer logic operable upon receipt of an interrupt generated by an
associated interrupt source to produce a timing indication;
the processing unit being operable, when performing the interrupt
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service routine for the interrupt generated by that associated interrupt source,
to reference the timer logic in order to obtain the timing indication, and to
control a predetermined aspect of the interrupt response in dependence on
the timing indication.

The Examiner’s Rejections
The Examiner’s Answer cites the following prior art references:
Nunziata US 5,572,686 Nov. 5, 1996
Muller US 2002/0069233 A1 Jun. 6, 2002

Claims 1-10, 12-23, 25, and 26 stand rejected under 35 U.S.C. §
102(b) as being anticipated by Muller.
Claims 11 and 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Muller in view of Nunziata.

ISSUE
Based on Appellant’s contentions, as well as the findings and
conclusions of the Examiner, the pivotal issue before us is whether the
Examiner erred in determining that Muller discloses timer logic which is
operable upon receipt of an interrupt generated by an interrupt source to
produce a timing indication.

FINDINGS OF FACT
The record supports the following relevant findings of fact (FF) by a
preponderance of the evidence:
1. Muller discloses (Figs. 1 and 4, ¶¶ [0018] and [0031]) an
interrupt controller which is operable to receive interrupts generated by a
number of interrupt sources.
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2. Muller also discloses (¶¶ [0006] and [0032]) a processing unit
which, in response to the receipt of an interrupt signal, performs an interrupt
service routine (ISR) for a selected one of the received interrupts and
generates an interrupt response for the corresponding interrupt source.
3. Muller further discloses (¶¶ [0027] and [0028]) that, after
receipt of an interrupt from an interrupt source, an interrupt service routine is
started and produces a timing indication by reading the value from the time
stamp counter (TSC).
4. Muller also discloses (¶ [0027]) that the timing indication
produced by the reading of the time stamp counter is referenced during the
operation of the interrupt service routine by comparing it with the time of the
receipt of the interrupt signal. The lead time of the interrupt signal is
adjusted if the comparison result delay time is greater than the set value of
the lead time.

PRINCIPLES OF LAW
ANTICIPATION
It is axiomatic that anticipation of a claim under § 102 can be found if
the prior art reference discloses every element of the claim. See In re King,
801 F.2d 1324, 1326 (Fed. Cir. 1986) and Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984).
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis
Pharmaceutical Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005), citing
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Minn. Mining & Mfg. Co. v. Johnson & Johnson Orthopaedics, Inc., 976
F.2d 1559, 1565 (Fed. Cir. 1992). “Anticipation of a patent claim requires a
finding that the claim at issue ‘reads on’ a prior art reference.” Atlas Powder
Co. v. IRECO, Inc., 190 F.3d 1342, 1346 (Fed Cir. 1999) (“In other words, if
granting patent protection on the disputed claim would allow the patentee to
exclude the public from practicing the prior art, then that claim is
anticipated, regardless of whether it also covers subject matter not in the
prior art.”) (internal citations omitted).

OBVIOUSNESS
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966) (stating that 35 U.S.C.
§ 103 leads to three basic factual inquiries: the scope and content of the prior
art, the differences between the prior art and the claims at issue, and the
level of ordinary skill in the art). Furthermore,
‘there must be some articulated reasoning with some
rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek
out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person
of ordinary skill in the art would employ.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re
Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).

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ANALYSIS
35 U.S.C. § 102(b) REJECTION
With respect to representative independent claim 1, Appellant’s
arguments focus on the contention that, in contrast to the claimed invention,
Muller does not disclose timer logic which is “operable upon receipt of an
interrupt” that is generated by an interrupt source to produce a timing
indication.1 According to Appellant (App. Br. 8-10; Reply Br. 2), the timer
in Muller produces a timing indication when it is read as part of an already
operating interrupt service routine (ISR) that was started after having
received the interrupt to be serviced.
We do not find Appellant’s arguments to be convincing since we find
such arguments to be not commensurate with the scope of representative
claim 1. We agree with the Examiner that the timing indication (FF 3 and 4)
produced by the reading of the time stamp counter (TSC) in Muller,
although performed within the interrupt service routine, is nonetheless
performed upon the receipt of an interrupt from an interrupt source as
claimed since it is the receipt of the interrupt that initiates the interrupt
service routine.
To whatever extent Appellant intended to claim the disclosed feature
of producing a timing indication upon the receipt of an interrupt before an
interrupt service routine begins, and then referencing the timing indication
after the interrupt service routine starts, no such recitation appears in the

1 Appellant argues claims 1-10, 12-23, 25, and 26 together as a group. See
App. Br. 6-10. Accordingly, we select claim 1 as representative. See 37
C.F.R. § 41.37(c)(1)(vii).

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claim. Conversely, there is no claim language which precludes the
production of a timing indication within the interrupt service routine as takes
place in Muller. It is our opinion that Appellant’s arguments improperly
attempt to narrow the scope of the claim by implicitly adding disclosed
limitations which have no basis in the claim. See In re Morris, 127 F.3d
1048, 1054-55 (Fed. Cir. 1997). Furthermore, these arguments overlook
Muller’s disclosure (FF 4) of comparing the timing indication produced by
reading the time stamp counter during the operation of the interrupt service
routine with “the time of the receipt of the interrupt signal,” a time that is
necessarily determined prior to operation of the interrupt service routine.
In view of the above discussion, we find that the Examiner did not err
in concluding that all of the limitations of independent claim 1 are present in
the disclosure of Muller. Accordingly, the Examiner’s 35 U.S.C. § 102(b)
rejection of independent claim 1, as well as claims 2-10, 12-23, 25, and 26
not separately argued by Appellant, is sustained.

35 U.S.C. § 103(a) REJECTION
The Examiner’s obviousness rejection of claims 11 and 24 based on
the combination of Muller and Nunziata is sustained as well. We find no
error in the Examiner’s application of the priority arbitration teachings of
Nunziata to the interrupt processing disclosure of Muller. Appellant’s
arguments (App. Br. 10) rely on the arguments asserted previously against
the Examiner’s anticipation rejection, based on Muller, of independent claim
1, which arguments we have found to be unpersuasive for all of the
previously discussed reasons.

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CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
the Examiner did not err in rejecting claims 1-10, 12-23, 25, and 26 for
anticipation under 35 U.S.C. § 102(b) and claims 11 and 24 for obviousness
under 35 U.S.C. § 103(a).

DECISION
The Examiner’s decision rejecting claims 1-10, 12-23, 25, and 26
under 35 U.S.C. § 102(b) and claims 11 and 24 under 35 U.S.C. § 103(a) is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2007).

AFFIRMED

gvw

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