Ex Parte Holt

Patent Trial and Appeal Board

Nov 12, 2014

11973392 (P.T.A.B. Nov. 12, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JOHN M. HOLT
____________

Appeal 2012-007857
Application 11/973,392
Technology Center 2400
____________

Before JEAN R. HOMERE, JOHN A. EVANS, and
NORMAN H. BEAMER, Administrative Patent Judges.

BEAMER, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1–29. We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We AFFIRM.

1 Appellant identifies himself as the real party in interest. (Br. 2.)
Appeal 2012-007857
Application 11/973,392

2
THE INVENTION
The claims are directed to execution of an application on a network of
multiple computers, including the broadcasting of memory updates over the
network with contention detection and resolution. (Abstract.) Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A system for broadcasting an addressed memory
updating signal or packet over a communications network
interconnecting a plurality of computers, each said computer
executing a different portion of an applications program written
to execute on a single computer, and each having an
independent local memory with at least one memory location
being replicated in each said local memory said system
comprising:
at least one replicated memory location being replicated
in each said local memory having a specific location identifier
in each said computer, each said at least one replicated memory
location being independent from any other replicated memory
location;
a plurality of sources each of which can update said
replicated memory location(s) and each of which utilizes an
updating format for the signal or packet carrying out the
updating;
said updating format comprising: (i) the specific
identifier of each replicated memory location to be updated, (ii)
the content with which said each replicated memory location is
to be updated, and (iii) at least one updating count of the
updating source, each said updating count comprising a number
indicative of the sequence of occasions on which the updating
source has been updated inclusive of the current updating, and
(iv) at least one resolution value of the updating source, each
said resolution value comprising a unique value of the updating
source; and
each said local memory in each said computer being able
to be read only by that computer and no other computer.
Appeal 2012-007857
Application 11/973,392

3
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Clouston et al. US 5,568,605 Oct. 22, 1996
Shrivastava et al. US 6,449,734 B1 Sept. 10, 2002
Willman et al. US 2002/0161848 A1 Oct. 31, 2002
Dooley et al. US 2005/0243737 A1 Nov. 3, 2005
Aguilera et al. US 2007/0288587 A1 Dec. 13, 2007
Robert Strom et al., “Concurrency Control And View Notification
Algorithms For Collaborative Replicated Objects,” IEEE Transactions on
Computers, Vol. 47, Issue 4, 458–471, April 1998 (“Strom”).
Michael Factor et al., “JavaSplit: A Runtime For Execution Of
Monolithic Java Programs On Heterogeneous Collections Of Commodity
Workstations,” Proceedings of 2003 IEEE International Conference on
Cluster Computing, 110–117, Dec. 1–4, 2003 (“Factor”).
REJECTIONS
The Examiner made the following rejections:
Claims 1, 2, 4, 6, 23, 24, 26, and 28 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Strom, Shrivastava, Willman,
and Factor. (Ans. 5–14.)
Claims 3, 5, 7, 25, 27, and 29 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Strom, Shrivastava, Willman, Factor, Aguilera, and
Clouston. (Ans. 14–24.)
Claims 8, 10, 13, 14, and 17–21 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Strom and Shrivastava. (Ans. 24–30.)
Appeal 2012-007857
Application 11/973,392

4
Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Strom and Shrivastava as applied to claim 8, and further in view of
Dooley. (Ans. 30–31.)
Claims 11 and 12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Strom and Shrivastava as applied to claim 10, and further
in view of Clouston. (Ans. 31.)
Claims 15 and 22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Strom and Shrivastava as applied to claims 14 and 21, and
further in view of Willman. (Ans. 31–32.)
Claim 16 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Strom and Shrivastava as applied to claim 8, and further in view of
Factor. (Ans. 32–33.)

ISSUES ON APPEAL
Appellant’s Appeal Brief, pages 10–31, raises the following pertinent
issues2:
First Issue: Whether the Examiner erred in finding that Strom
together with Factor teaches or suggests “an applications program written to
execute on a single computer” as recited in the preamble of claim 1, and in

2 Rather than reiterate the arguments of Appellant and the Examiner, we refer
to the Appeal Brief (filed November 23, 2011) and the Answer (mailed
January 18, 2012) for the respective details. We have considered in this
Decision only those arguments Appellant properly raised in the Brief. Any
other arguments Appellant could have made but chose not to make in the
Briefs, or which are made in a conclusory fashion, are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2012-007857
Application 11/973,392

5
identical or essentially identical language in claims 2, 4, 23, 24, and 26. (Br.
12, 16–18, 23–24.)
Second Issue: Whether the Examiner erred in finding that Strom
teaches or suggests “at least one replicated memory location being replicated
in each said local memory” as recited in claim 1, and in identical or
essentially identical language in claims 2, 4, 23, 24, and 26. (Br. 12.)
Third Issue: Whether the Examiner erred in finding that Strom teaches
or suggests “each said local memory in each said computer being able to be
read only by that computer and no other computer” as recited in the last
element of claim 1, and in identical or essentially identical language in
claims 2, 4, 23, 24, and 26. (Br. 13.)
Fourth Issue: Whether the Examiner erred in finding that Strom
together with Shrivastava teaches or suggests “at least one updating count”
as recited in the third element of claim 1, and in identical or essentially
identical language in claims 2, 4, 6, 23, 24, 26, and 28. (Br. 15–16.)
Fifth Issue: Whether the Examiner erred in finding that Strom
together with Shrivastava and Willman teaches or suggests a “resolution
value comprising a unique value of the updating source” as recited in the
third element of claim 1, and in identical or essentially identical language in
claims 2, 4, 6, 23, 24, 26, and 28. (Br. 16.)
Sixth Issue: Whether the Examiner erred in finding that Strom
together with Shrivastava and Aguilera teaches or suggests “the specific
identifier of each memory location to be updated comprises the specific
identifier of at least two replicated memory locations to be updated” as
recited in the first element of claim 3, and in identical or essentially identical
language in claims 5, 7, 25, 27, and 29. (Br. 25–26.)
Appeal 2012-007857
Application 11/973,392

6
Seventh Issue: Whether the Examiner erred in finding that Strom
together with Shrivastava, Aguilera, and Clouston teaches or suggests “the
number indicative of the sequence of occasions on which the updating
source has been updated comprises a number indicative of the highest
magnitude sequence of occasions on which all said replicated memory
locations have been updated inclusive of the current updating,” as recited in
the fourth element of claim 3, and in identical or essentially identical
language in claims 5, 7, 12, 25, 27, and 29. (Br. 27.)

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We disagree with Appellant’s
arguments. We adopt as our own (1) the findings and reasons set forth by
the Examiner in the action from which this appeal is taken (Ans. 5–33); and
(2) the reasons set forth by the Examiner in the Examiner’s Answer in
response to Appellant’s Appeal Brief (Ans. 33–51), and concur with the
conclusions reached by the Examiner.
As a threshold matter, we note that much of Appellant’s argument
consists of “attacking references individually” (see Br. 11–13, 14–18, 25–
26), a practice that is inadequate to show non-obviousness, where, as here,
“the rejections are based on combinations of references.” In re Keller, 642
F.2d 413, 426 (CCPA 1981). Moreover, “the test for combining references
is not what the individual references themselves suggest but rather what the
combination of disclosures taken as a whole would suggest to one of
Appeal 2012-007857
Application 11/973,392

7
ordinary skill in the art.” In re McLaughlin, 443 F.2d 1392, 1395 (CCPA
1971).
In addition, Appellant relies on unclaimed features disclosed in the
Specification, and purported advantages of unclaimed material over the
subject matter disclosed in various cited references. (See Br. 13–14.) Also,
Appellant’s argument in part consists of recitation of claim language
accompanied by conclusory assertions that the cited references do not teach
or suggest those aspects of the claims. (See Br. 18–23, 27–29.) Such
arguments are insufficient. In re Self, 671 F.2d 1344, 1348 (CCPA 1982)
(arguments for patentability not based on the limitations actually recited in
the claims are not persuasive); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (37 C.F.R. § 41.37(c)(vii) “require[s] more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art”).
Turning to the specific pertinent issues properly raised on appeal:
First Issue
Based on findings that “Strom teaches a system of synchronous
distributed groupware applications using a replicated architecture,” and that
Factor discloses “loading [an] application program written to operate only
on a single computer onto each different computer,” the Examiner concluded
that the references taken together taught the claim limitation, “an
applications program written to execute on a single computer.” (Ans. 9, 36.)
Appellant argues that “Strom has nothing to do with ‘normal’
application programs initially written to operate on a single computer”
(emphasis omitted), and that there would be no motivation to adopt the
Appeal 2012-007857
Application 11/973,392

8
shared memory system of Factor into the disclosed subject matter of Strom
— that Factor teaches away from the claimed invention. (Br. 12, 17–18, 24.)
However, we agree with the Examiner that, given the teaching of Factor
regarding rewriting applications for distributed systems (Factor Abstract), it
would have been obvious to one of ordinary skill in the art to adapt
applications programs originally written to operate on one computer as
“synchronous distributed groupware applications” as disclosed in Strom
(e.g., Strom 458). (See Ans. 36, 43, 46.)
Second Issue
The Examiner concluded that Strom taught or suggested the claim
limitation, “at least one replicated memory location being replicated in each
said local memory.” (Ans. 6.) Appellant argues that Figure 5 of Strom
discloses an approach that does not satisfy this limitation. (Br. 12.) The
Examiner correctly found this argument unpersuasive. (Ans. 36.) Strom
broadly discloses the concept of distributed systems, and Figure 5 of Strom
is one example of a groupware implementation. (Strom Fig. 5 caption:
“Example of update propagation.”) One of ordinary skill in the art would
have known that an obvious variation of the Figure 5 example would be to
have a system confined to the update propagations for Sites 1, 2, and 3
shown in Figure 5. This implicitly disclosed alternative example satisfies
this claim limitation. In addition, Strom discloses, “In many applications, all
the objects affected by a transaction are replicated at all the sites . . . .”
(Strom 463, right column.)
Appeal 2012-007857
Application 11/973,392

9
Third Issue
The Examiner concluded that Strom taught or suggested the claim
limitation that “each said local memory in each said computer being able to
be read only by that computer and no other computer.” (Ans. 7–8.)
Appellant argues that Strom is silent on this point, and further argues that
portions of Strom “strongly impl[y] that one computer can read from, or
access, another computer.” (Br. 13.) We agree with the Examiner that none
of the portions of Strom cited by Appellant suggests that one computer can
access another computer’s memory. The entire disclosure of Strom is
oriented to the opposite approach, in which modifications to memory are
achieved via the replication process disclosed in Strom. (Ans. 37–38; Strom
Abstract: “data objects may be atomically updated, and these objects
automatically maintain consistency with their replicas”; Strom 461, left
column, second paragraph from the bottom: “updates are propagated to
remote replicas.”)
We further note that one of ordinary skill would have known that a
straightforward implementation of the system disclosed in Strom would be
in accord with the normal implementation of networked computers, in which
each computer has its own mapped memory space. In sum, Appellant has
failed to persuade us of error as to the Examiner’s conclusion that this
element is taught or suggested by Strom.
Fourth Issue
The Examiner concluded that Strom together with Shrivastava taught
or suggested the claim limitation, “at least one updating count.” (Ans. 8.)
Strom uses a “virtual time,” a known form of time count used to order events
Appeal 2012-007857
Application 11/973,392

10
in a distributed system, to uniquely identify updates for purposes of
detecting contention for memory access. (Strom 461, Section 3; 470, title of
reference 12.) Shrivastava discloses a monotonically increasing sequence
number used to identify replicated memory transactions. (Shrivastava
col. 13, ll. 37–59.)
Appellant’s arguments are directed to arguing the differences between
his invention and the disclosure of the Shrivastava patent as a whole. (Br.
14–16.) However, Appellant fails to offer any persuasive refutation of the
Examiner’s conclusion that it would have been obvious to adopt the
monotonically increasing sequence number of Shrivastava for use in
“preserving modification order” in the system of Strom. (Ans. 41.) As to
this and the other combinations that the Examiner relied on for the
rejections, we agree that such are obvious combinations of familiar elements
according to known methods that do no more than yield predictable results,
see KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
Fifth Issue
The Examiner concluded that Strom together with Shrivastava and
Willman taught or suggested the claim limitation, “resolution value
comprising a unique value of the updating source.” (Ans. 8–9.) Strom
discloses that the “virtual time” used to identify updates includes “a site
identifier to guarantee uniqueness.” (Strom 461, left column.) In addition,
Willman discloses use of a source ID to identify the source of a message
communication between processors. (Willman, Fig. 5, ref. 2066, ¶ 200.)
Again, Appellant’s arguments are directed to arguing the differences
between his invention and the disclosure of the Willman, such as the fact
Appeal 2012-007857
Application 11/973,392

11
that the local memories disclosed in Willman are not independent. (Br. 16.)
We agree with the Examiner, that these differences are not relevant to the
issues at hand, as to whether Willman teaches or suggests the resolution
value limitation. (Ans. 42.)
Sixth and Seventh Issues
Two additional limitations added to claim 1 by dependent claim 3 are
also at issue: (i) “the specific identifier of each memory location to be
updated comprises the specific identifier of at least two replicated memory
locations to be updated”; and (ii) “the number indicative of the sequence of
occasions on which the updating source has been updated comprises a
number indicative of the highest magnitude sequence of occasions on which
all said replicated memory locations have been updated inclusive of the
current updating.” (Claims 5, 7, 25, 27, and 29 also include these
limitations.) The Examiner concluded that Aguilera taught or suggested the
first limitation regarding identification of at least two replicated memory
locations, and that Clouston taught or suggested second limitation specifying
that the updating count be indicative of the highest magnitude sequence.
(Ans. 15–16, 48–50.) As discussed above, Appellant’s arguments are
directed to arguing irrelevant differences between the invention and the
references as a whole, and therefore do not persuade us that the Examiner’s
obviousness conclusions are in error.

CONCLUSION
For the reasons discussed above we disagree with Appellant that
Strom, Shrivastava, Willman, and Factor taken together fail to teach or
Appeal 2012-007857
Application 11/973,392

12
suggest the subject matter of independent claims 1, 2, 4, 6, 23, 24, 26, and
28. Also for the reasons discussed above we disagree with Appellant that
Strom, Shrivastava, Willman, Factor, Aguilera, and Clouston taken together
fail to teach or suggest the subject matter of claims 3, 5, 7, 25, 27, and 29.
Accordingly, we sustain those rejections.
In addition, the following rejections were not separately argued with
sufficient particularity, and therefore are sustained: (i) claims 8, 10, 13, 14,
and 17–21 in light of Strom and Shrivastava; (ii) claim 9 in light of Strom,
Shrivastava, and Dooley; (iii) claims 11 and 12 in light of Strom,
Shrivastava, and Clouston; (iv) claims 15 and 22 in light of Strom,
Shrivastava, and Willman; and (v) claim 16 in light of Strom, Shrivastava,
and Factor. (See Br. 28–31.)

DECISION
The Examiner’s decision to reject claims 1–29 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) (2011).

AFFIRMED

msc