Ex Parte HughesDownload PDFPatent Trial and Appeal BoardJun 19, 201311669806 (P.T.A.B. Jun. 19, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NATHAN J. HUGHES ____________ Appeal 2011-000354 Application 11/669,806 Technology Center 2100 ____________ Before MAHSHID D. SAADAT, ROBERT E. NAPPI, and HUNG H. BUI, Administrative Patent Judges. SAADAT, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-000354 Application 11/669,806 2 Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-20, which are all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Introduction Appellant’s invention relates to a method and system for relocating the system firmware from one area to another if the memory area containing the system firmware becomes corrupted or cannot be accessed (see Spec. ¶¶ [0001] – [0002]). Exemplary Claim Claim 1 is illustrative of the invention and reads as follows: 1. A method, comprising: determining, by logic, a second area of volatile memory into which system firmware is to be relocated; copying, by a control method, the system firmware from a first area of volatile memory to said second area; wherein said logic determines said second area while being unable to access said first area. The Examiner’s Rejections Claims 1-13 stand rejected under 35 U.S.C. § 102(b) as anticipated by Zimmer (US 2005/0188278 A1). Claims 14- 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Zimmer and Marisetty (US 2007/0061634 A1). Appeal 2011-000354 Application 11/669,806 3 Appellant’s Contentions 1. With respect to claims 1-6, Appellant contends that the Examiner erred in rejecting the claims as anticipated by Zimmer because the cited portions of the reference and steps 162 and 164 of Figure 1B do not teach the claimed logic “determines the second area while being unable to access said first area” (App. Br. 12). Appellant specifically asserts that Zimmer marks faulty portion as unusable in step 164 after the relocation has occurred in step 162 (id.). 2. Regarding claims 7-13, Appellant argues that Zimmer does not disclose that “[t]he second area is determined by the operating [system] ‘while being unable to access said first area’” (App. Br. 12). Appellant points out that the operating system of Zimmer “cannot determine a new region of memory for the software migration because in Zimmer the system is in SMM during which the operating system is interrupted and not executing” (id.). 3. Appellant relies on arguments similar to those raised for claim 1 in support of the patentability of claims 14-20 (App. Br. 13), allowing these claims to fall with claim 1. Issue on Appeal Has the Examiner erred in rejecting the claims as being anticipated by Zimmer because the reference does not teach all the recited features of claims 1 and 7? Appeal 2011-000354 Application 11/669,806 4 ANALYSIS We have reviewed the Examiner’s rejections in light of Appellant’s arguments that the Examiner has erred. We disagree with Appellant’s conclusion. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the rebuttals to arguments expressed by the Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief (see Ans. 10-14). However, we highlight and address specific findings and arguments for emphasis as follows. Claim 1 We specifically agree with the Examiner’s broadest reasonable interpretation, consistent with paragraph 18 of Appellant’s Specification, of the claimed term “logic” for performing the “determining” step while being unable to access said first area (Ans. 10-11). We further agree with the Examiner’s finding that the cited portion in paragraph 43 of Zimmer discloses logic or system software including instructions for performing the function of using SSMM 403 to find available memory (Ans. 10-11). Contrary to Appellant’s argument (Reply Br. 2), that Zimmer’s software 102 is able to access the first area while determining the second area, it is the system software instructions other than those in the System Management Mode (SMM) that provides the access (see Zimmer, ¶ [0026]). As such, the Examiner properly concludes that Zimmer’s SSMM 403 provides the logic for determining the second area of the memory while being unable to access the first area because “other instructions or software programs are written for those functions” (Ans. 11). Appeal 2011-000354 Application 11/669,806 5 Claim 7 We similarly agree with the Examiner that the claimed “operating system” is met by utilizing the System Management Mode (SMM) of Zimmer (Ans. 12). As further found by the Examiner (Ans. 12-13), paragraphs 28, 32, and 43 of Zimmer describe using SSMM 403 included in the SMM core for mapping System Management Random Access Memory (SMRAM) space, as well as for determining available memory and relocating firmware. We further find the Examiner’s interpretation of claim 7 as merely requiring “the operating system lacks the programmed functionality for accessing the first area while determining the second area” to be reasonable (Ans. 13). In that regard, Appellant’s argument (Reply Br. 3), that Zimmer’s SMM is just a mode, is focused on the environment wherein the processor executes software for allocation and usage of memory. As further stated by the Examiner (Ans. 13), the system software uses the SSMM 403 in SMM core to determine the second memory area for reallocation from the first area while the function of accessing the memory areas is not included in the programming functionality used for the determining step. As such, we see no correspondence between Appellant’s discussion of Zimmer’s SMM core with reference to Zimmer’s Figure 1B and the appealed claims. CONCLUSION On the record before us, we conclude that, because Zimmer teaches all the claim limitations, the Examiner has not erred in rejecting claims 1 and 7 as being anticipated by Zimmer. Therefore, we sustain the rejection of claims 1 and 7, as well as of claims 2-6 and 8-20 falling therewith. Appeal 2011-000354 Application 11/669,806 6 DECISION The Examiner’s decision rejecting claims 1-20 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). AFFIRMED ELD Copy with citationCopy as parenthetical citation