Ex Parte Jahn

Board of Patent Appeals and Interferences

Aug 21, 2008

10243227 (B.P.A.I. Aug. 21, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THILO JAHN
____________

Appeal 2008-0115
Application 10/243,2271
Technology Center 2100
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Decided: August 21, 2008
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Before HOWARD B. BLANKENSHIP, JAY P. LUCAS, and
STEPHEN C. SIU, Administrative Patent Judges.

LUCAS, Administrative Patent Judge.

STATEMENT OF CASE
Appellant appeals from a final rejection of claims 1 to 10 under
authority of 35 U.S.C. § 134. The Board of Patent Appeals and
Interferences (BPAI) has jurisdiction under 35 U.S.C. § 6(b).

1 Application filed September 13, 2002. Appellant claims the benefit under
35 U.S.C. § 119 of German application 10145621.2, filed 09/15/2001. The
real party in interest is Robert Bosch GmbH of Stuttgart, Germany.

Appeal 2008-0115
Application 10/243,227

Appellant’s invention relates to a method and device for monitoring
the operation of random access memory (RAM) in a computer while running
programs. In the words of the Appellant:
According to a preferred embodiment of the method according to the
present invention the check sum is provided in the form of a CRC or
cyclic redundancy check, in particular a 16-bit CRC or a 32-bit CRC.
In particular 16-bit CRC’s are appendable to contiguous RAM areas
in a simple manner. By using them it is possible to check anytime
whether the stored area has retained its inherently correct form, the
execution of such a check being very quick.

(Spec. 3, bottom para.)

Claim 1 is exemplary:
1. A method of monitoring a memory coupled to an electronic control
unit, comprising:

providing a contiguous memory area assigned to a program part
corresponding to a selected individual task to be executed;

storing input data to be stored assigned to the program part in
the contiguous memory area, the input data being changeable during
operation of the electronic control unit;

upon exiting the program part, determining a check sum for the
selected individual task on the basis of the data stored in the contiguous
memory area;

appending the checksum to the contiguous memory area;

checking the check sum at least one of upon reentry into the
program part and in regular intervals between exiting from and reentry into
the program part; and

identifying a memory error on the basis of a comparison of the
check sum determined upon exiting the program part and a subsequently
determined and checked check sum.
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Appeal 2008-0115
Application 10/243,227

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Nishimura US 4,646,307 Feb. 24, 1987
Slivka US 5,493,649 Feb. 20, 1996
Hamada US 5,511,162 Apr. 23, 1996
Zuravleff US 5,737,547 Apr. 07, 1998
Garney US 2002/0199152 A1 Dec. 26, 2002
Yoshimura US 6,546,517 B1 Apr. 08, 2003

REJECTIONS
R1: Claims 1 to 5 and 8 to 10 stand rejected under 35 U.S.C. § 103(a) for
being obvious over Slivka, Nishimura, Zuravleff, and Yoshimura.
R2: Claim 6 stands rejected under 35 U.S.C. § 103(a) for being obvious
over Slivka, Nishimura, Zuravleff, Yoshimura, and Garney.
R3: Claim 7 stands rejected under 35 U.S.C. § 103(a) for being obvious
over Slivka, Nishimura, Zuravleff, Yoshimura, and Hamada.

Groups of Claims:
The claims are grouped in accordance with the rejections indicated
above.
Appellant contends that the claimed subject matter is not rendered
obvious by Slivka in combination with the secondary references for failure
of the references to teach an important claim limitation. The Examiner
contends that each of the claims is properly rejected.
Rather than repeat the arguments of Appellant or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
Only those arguments actually made by Appellant have been considered in
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Application 10/243,227

this opinion. Arguments which Appellant could have made but chose not to
make in the Briefs have not been considered and are deemed to be waived.
We affirm the rejections.
ISSUE
The issue is whether Appellant has shown that the Examiner erred in
rejecting the claims under 35 U.S.C. § 103(a). The issue turns on whether
there is a teaching in the references of the limitations “providing a
contiguous memory areas assigned to a program part corresponding to a
selected individual task to be executed” and “determining a check sum for
the selected individual task.”

PRINCIPLES OF LAW
Appellant has 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)).
“What matters is the objective reach of the claim. If the claim extends
to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex, Inc.,
127 S. Ct. 1727, 1742 (2007). To be nonobvious, an improvement must be
“more than the predictable use of prior art elements according to their
established functions.” Id. at 1740.
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Application 10/243,227

“This court has held in a number of decisions that a United States
patent speaks for all it discloses as of its filing date, even when used in
combination with other references.” In re Zenitz, 333 F.2d 924, 925 (CCPA
1964) (internal citations omitted).
“‘All of the disclosures in a reference must be evaluated for what they
fairly teach one of ordinary skill in the art.’ The use of patents as references
is not limited to what the patentees describe as their own inventions or to the
problems with which they are concerned. They are part of the literature of
the art, relevant for all they contain.” In re Lemelson, 397 F.2d 1006, 1009
(CCPA 1968) (citing In re Boe, 355 F.2d 961, 965 (CCPA 1966).
Appellants urge that the ultimate criterion of whether a
rejection is considered “new” in a decision by the board is whether
appellants have had fair opportunity to react to the thrust of the
rejection. We agree with this general proposition, for otherwise
appellants could be deprived of the administrative due process rights
established by 37 CFR 1.196(b) of the Patent and Trademark Office.
However, under the facts of this case we disagree with appellants that
the board added a new ground of rejection. The basis for the
examiner's rejection was section 103 obviousness. The evidence
considered by the examiner to demonstrate obviousness included,
principally, the Hoechst, Holzrichter et al., Yasui et al., and Swift
patents. In affirming, the board used the same basis, but, without
disagreeing with the examiner's approach, limited its discussion to the
evidence contained in Holzrichter et al., Yasui et al., and Swift.

Application of Kronig, 539 F.2d 1300, 1303 (CCPA 1976).
ANALYSIS
From our review of the administrative record, we find that Examiner
has presented a prima facie case for the rejections of Appellant’s claims
under 35 U.S.C. § 103(a). The prima facie case is presented on pages 3 to
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10 of the Examiner’s Answer. In opposition, Appellant presents the
following arguments.
Arguments with respect to the rejection
of claims 1 to 5 and 8 to 10
under 35 U.S.C. § 103(a) [R1]

Appellant contends that Examiner erred in rejecting claims 1 to 5 and
8 to 10 under 35 U.S.C. § 103(a) ) for being obvious over Slivka, Nishimura,
Zuravleff, and Yoshimura. Specifically, Appellant argues “none of [the
cited references] teaches or suggests the allocation of associated contiguous
RAM cells for each selected individual program task, let alone providing a
checksum for each selected individual program task (and therefore for the
associated cell block of RAM cells).” (App. Br., page 6, bottom). Appellant
argues more specifically that the Yoshimura reference, which the Examiner
cites as teaching the feature of “determining a check sum for the selected
individual task,” does not contain that teaching. Appellant indicates “the
actual disclosure of Yoshimura clearly does not teach or suggest providing
‘a program part corresponding to a selected individual task’ and
“determining a check sum for the selected individual task.” (App. Br., page
6, bottom, page 7, top).
We have reviewed the teachings of Yoshimura, and the Examiner’s
arguments concerning those teachings. (Ans., page 11, middle). While we
appreciate the Examiner’s argument, we feel that a clearer teaching of the
cited limitations can be found in the primary reference Slivka.
Slivka teaches, in Figure 3, memory 202 and processor 204. Memory
202 holds an operating system 304 (col. 2, ll. 47-50) which contains a file
management component 308 performing the task of file management, which
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is stored in a contiguous memory area. That file management component
contains memory for a code section and a data section. (Col. 3, ll. 21-25).
We are reading the claimed “program part” as including both the data and
code sections of the reference. Checksums are stored in locations indicated
as #306 for both the program and the data sections, which is read on
“appending the checksum to the contiguous memory area.” Checksums are
calculated “[u]pon completion of the operation” (col. 3, l. 28), which is read
on the claimed “upon exiting the program part, determining a check sum for
the selected individual task on the basis of the data stored in the contiguous
memory area.” Regular interval checking of the checksums looks for
changes in both the program and the data sections, each performing part of
the task of file management. (Col. 3, ll. 25-30). This corresponds to the
claimed “checking the check sum …in regular intervals between exiting
from and reentry into the program part.” There is also disclosed, with
respect to the data part of the program part, checking on reentry into the
program part as claimed. The claimed identification of error on the basis of
a comparison of the checksums is disclosed in column 3, lines 54-58.
With this deeper understanding of the Slivka reference, we feel that
the Appellant’s objection to the reference is overcome, as it is clear that the
primary reference determines a check sum for the individual task of file
management. See Kronig, 539 F.2d at 1303 (cited above).
We thus do not find error in the Examiner’s rejection of the claims of
[R1] under 35 U.S.C. § 103.
Arguments with respect to the rejections
of claims 6 and 7
under 35 U.S.C. § 103(a) [R2] [R3]

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Appellant has argued only that the Garney and Hamada references fail
to cure the deficiencies of the rejection discussed above with respect to [R1].
(App. Br., page 8, top and bottom). As we have not found error in that
rejection, we will not find error in the rejections of claims 6 and 7
respectively.

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
the Examiner did not err in rejecting claims 1 to 10.

DECISION
The rejections of claims 1 to 10 are 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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

tdl/ce
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