Ex Parte Johnson et al

Patent Trial and Appeal Board

Oct 30, 2012

10210016 (P.T.A.B. Oct. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte TERESA L. JOHNSON and RICHARD E. HANK
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Appeal 2010-003940
Application 10/210,016
Technology Center 2100
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Before MAHSHID D. SAADAT, MICHAEL J. STRAUSS, and JUSTIN
BUSCH, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
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Application 10/210,016

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Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1, 3-9, and 11-17. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

Introduction
According to Appellants, the invention relates to a software pipeline
method and system. Abstract.

STATEMENT OF THE CASE

Exemplary Claim
Claim 1 is an exemplary claim and is reproduced below:
1. A software pipelining method comprising:
commencing pipeline operations, wherein said pipeline
operations include performing loop instructions;
performing a branch operation if a flow control condition
is valid; and
in response to performing said branch operation,
returning to said pipeline operations at a point in said pipeline
operations at which a decision to perform said branch operation
initiated.

References
Bortnikov US 5,950,009 Sep. 7, 1999
Arora US 6,629,238 B1 Sep. 30, 2003
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Rejections
Claims 1, 3-9, and 11-12 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Bortnikov.
Claims 13-17 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Arora.

ISSUES
35 U.S.C. § 102(b) (Bortnikov): claims 1, 3-9, and 11-12
Appellants argue their invention is not anticipated by Bortnikov. App.
Br. 9-10. Specifically, Appellants argue that Bortnikov does not “teach or
suggest ‘returning to said pipeline operations at a point in said pipeline
operations at which a decision to perform the branch (emphasis added)
operation initiated.’” App. Br. 9.

Issue 1: Has the Examiner erred in finding that Bortnikov discloses
“returning to said pipeline operations at a point in said pipeline operations at
which a decision to perform said branch operation initiated,” as recited in
claim 1?

35 U.S.C. § 102(e) (Arora): claims 13-17
Appellants argue their invention is not anticipated by Arora. App. Br.
11. Specifically, Appellants argue “the condition for 110 to execute is a false
condition and not a true condition, as claimed.” App. Br. 11.

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Issue 2: Has the Examiner erred in finding that Arora discloses
“executing branch operations at a conditional branch point if a condition for
a second control flow is true,” as recited in claim 13?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions that the Examiner has erred. Further, we have reviewed the
Examiner’s response to each of the arguments. We agree with the Examiner.
Issue 1: Claim 1
Appellants’ only argument with respect to independent claim 1 and
dependent claims 3-9 and 11-12 is that Bortnikov does not “teach or suggest
‘returning to said pipeline operations at a point in said pipeline operations at
which a decision to perform the branch (emphasis added) operation
initiated.’” App. Br. 9. Appellants argue that “any alleged branch decision if
made at all, appears to be made in step B” and that to meet the claimed
limitation, “a return should be made from either C or D back to B,” whereas
in Bortnikov, “the alleged return does not occur until E, which is not at a
point in said pipeline operations at which a decision to perform said branch
initiated.’” Id. at 9, 10.
The Examiner responds that Appellants have misunderstood the
rejection and that the office action did not assert “that block E is ‘at a point
in said pipeline operations at which a decision to perform said branch
operation initiated,’” but rather “that block E returns to block B, where block
B is [at the point where the branch initiated], and the decision is being
performed at the end of block B.” Ans. 10. The Examiner further points out
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that “[t]he branch instruction at the end of block E either falls-through to
block F or is a taken branch that jumps back to block B,” which “is
performed in response to the branch instruction at the end of block B
because execution inherently trickles down to the end of block E.” Id.
Moreover, the Examiner finds that any of blocks B-E may meet the claimed
limitation of “performing a branch operation if a flow control is valid.” Id. at
11. The Examiner further explains that one path taken in the control flow is
executing block B in response to a valid branch condition from block E (the
branch from block E being equated to the location where the initial branch
operation was initiated), and eventually returning or “trickling from block B
back down to block E.” Id.
Appellants respond to the Examiner’s Answer by asserting that the
control flow from “block E returns to the beginning of block B.” Reply Br.
3. Appellants further assert that because the Examiner is citing to the branch
at the end of block B as anticipating the “performing a branch operation”
claimed, and the return from E is to the beginning of block B, the return is
not to “the point at which the ‘decision to perform said branch operation’ is
performed.” Reply Br. 3.
While the Examiner refers to “the branch when taken at block E
returns pipeline operations to the end of block B,” the Examiner further
explains that “block E returns to block B, where block B is ‘at a point in said
pipeline operations at which a decision to perform said branch operation
initiated,” and the decision is being performed at the end of block B.” Ans.
10. Based on the claims as presented, we find that the broadest reasonable
interpretation of the contested limitation of claim 1 includes operations that
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return to the point where a branch operation is evaluated at some point after
the branch operation is executed (i.e., most branch instructions that are part
of a loop). Nothing in claim 1 requires that the return must occur within a
certain definite time or after executing a certain number of instructions or
operations. In every embodiment of Bortnikov, operations in figure 14 will
flow from the branch operation at the end of block B to either block C or
block E. Regardless of which branch is taken from the branch after block B,
operations will eventually flow to the branch at the end of block E. In at
least some instances, operations will then flow to block B and, eventually,
return to the branch operation at the end of block B. Therefore, in at least
some instances, we find that Bortnikov discloses “in response to performing
said branch operation, returning to said pipeline operations at a point in said
pipeline operations at which a decision to perform said branch operation
initiated.”
Therefore, we agree with the Examiner that Bortnikov discloses
“returning to said pipeline operations at a point in said pipeline operations at
which a decision to perform the branch operation initiated” as recited in
independent claim 1. Appellants do not separately argue the patentability of
independent claim 8 (which contains similar limitations to those in claim 1)
or dependent claims 3-7, 9, 11, and 12 (each of which ultimately depends
from claim 1 or claim 8) over Bortnikov. Therefore, claims 3-9, 11, and 12
fall with independent claim 1.
Issue 2: Claim 13
With respect to independent claim 13, the Examiner finds that: (1)
element 130 of figure 1A reads on the limitation of “executing branch
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operations at a conditional branch point if a condition for a second control
flow is true”; (2) Appellants’ arguments are based on a misinterpretation that
the flow from element 144 to element 110 in figure 1A are being read on the
identified limitation; and (3) when the condition in element 130 is true, the
loop in the control flow continues, whereas when the condition in element
130 is false, the loop execution stops and, thus, element 130 reads on the
identified limitation. Ans. 11-12.
Appellants initially argued that element 110 in figure 1A of Arora
does not disclose “executing branch operations at a conditional branch point
if a condition for a second control flow is true.” App. Br. 11-12. In response
to the Examiner’s discussion of which element was being relied upon for the
rejection of the identified element, Appellants presented a new argument that
previously had not been raised. Reply Br. 4. Appellants’ new argument
asserts that element 110 of figure 1A, which was relied upon by the
Examiner for disclosing “performing pipelined loop operations in
accordance with a first schedule corresponding to a first control flow,”
includes only a single operation as opposed to “operations” and that element
110 is not a pipelined operation. Reply Br. 4.
We find that Appellants’ initial argument regarding the condition for
executing the branch is a false condition as opposed to a true condition
(App. Br. 11) is no longer applicable based upon the Examiner’s discussion
that Appellants were arguing against an element not asserted to disclose the
relevant limitation. By waiting until the Reply Brief to raise the argument of
whether element 110 in figure 1A discloses “pipelined operations,”
Appellants have waived this argument. 37 C.F.R. § 41.41(g); See Ex parte
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Borden, 93 USPQ2d 1473, 1743-74 (BPAI 2010). However, even if the
argument had been raised in a timely manner, we would not find it
convincing. The entire disclosure of Arora, which is partially entitled
“Predicate Controlled Software Pipelined Loop Processing,” relates to
pipelined operations. See Arora. As understood by reviewing the portions
referenced by the Examiner, including figure 1A and the related disclosure,
element 110 is one element within the pipelined operations. Specifically,
element 110 is where the first control flow and branch of the pipelined
operations are located. It is evident from the Examiner’s stated position that
the entire context of the disclosure of Arora relates to pipelined operations
and that element 110 of figure 1A is being relied on for particular aspects of
the first limitation in claim 13. See Ans. 7-8 (“The first control flow is the
loop counter that determines how many loops are performed during the
prolog and kernel phase of the loop”).
Therefore, we agree with the Examiner that independent claim 13 is
anticipated by Arora. Dependent claims 14-17, which ultimately depend
from independent claim 13, were not argued separately from independent
claim 13, and therefore fall with the rejection of claim 13 under 35 U.S.C.
§ 102(e).

DECISION
The Examiner’s decision rejecting claims 1, 3-9, and 11-17 is
affirmed.
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2011).

AFFIRMED

ELD