Ex parte KELLEY

Board of Patent Appeals and Interferences

Sep 8, 1997

08003602 (B.P.A.I. Sep. 8, 1997)

Application for patent filed January 13, 1993. According to1
appellant, the application is a continuation of Application
07/424,184 filed October 19, 1989, now abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1) was
not written for publication in a law journal and (2) is not binding
precedent of the Board.
Paper No. 28
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte MICHAEL H. KELLEY
____________
Appeal No. 95-1544
Application 08/003,6021
____________
ON BRIEF
____________
Before KRASS, JERRY SMITH and BARRETT, Administrative Patent
Judges.
KRASS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-1544
Application 08/003,602
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This is a decision on appeal from the final rejection
of claims 10 through 20, constituting all the claims in the
application.
The invention is directed to a method of executing a
special section of code, in a computer operating system, that
must be completed without interruption by a page fault during
execution. The nature of the method is apparent from a review of
representative independent claim 10, reproduced as follows:
10. A method of executing a special section of code on
an operating system of a computer system having an operating
system, assigned storage, and memory references in secondary
storage, wherein the special section of code performs a series of
operations that must all be completed without interruption by a
page fault during execution, thereby requiring all memory
references to be in assigned storage at one time, comprising:
executing said special section of code on said
operating system including requesting memory references and
determining if a requested memory reference is not available in
said assigned storage;
interrupting said executing the special section of code
when it is determined that a requested memory reference is not
available in said assigned storage;
prior to retrieving the unavailable memory reference
from said secondary storage, undoing operations carried out by
the special section of code so that substantially no executed
fragments of the special section of code are in existence;
locating the unavailable memory reference in said
secondary storage, retrieving the unavailable memory reference
and writing the unavailable memory reference to said assigned
storage; and
Appeal No. 95-1544
Application 08/003,602
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executing said special section of code on said
operating system with the retrieved memory reference available in
said assigned storage.
The examiner relies on the following reference:
Yamaguchi et al. (Yamaguchi) 5,003,458 Mar. 26, 1991
(filed Oct. 23, 1987)
Claims 10 through 20 stand rejected under 35 U.S.C.
102(e) as anticipated by Yamaguchi.
Reference is made to the briefs and answer for the
respective positions of appellant and the examiner.
OPINION
At the outset, we note that this Board entered a
decision in the parent application Serial No. 07/424,184 but the
instant claims have been substantially amended vis á vis the
claims which were the subject matter of the earlier appeal and
the prior art reference here is different from the prior art
reference relied on in the earlier appeal.
Anticipation, under 35 U.S.C. 102, requires that each
element, or step, of the claim in issue be found, either
expressly described or under principles of inherency, in a single
prior art reference. Kalman v. Kimberly-Clark Corp., 713 F.2d
760, 771, 218 USPQ 781, 789 (Fed. Cir. 1983).
Appeal No. 95-1544
Application 08/003,602
Claims 14, 16 and 18 do not recite "prior to retrieving the2
unavailable memory reference from said secondary storage"
immediately preceding the "undoing operations" but these claims do
require such a limitation. This is clear, in claims 14 and 16, by
the recited first step of "modifying said page fault handling
routine prior to executing said special section of code so that
said page fault handling routine does not read a memory reference
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We have carefully considered the subject matter on
appeal, the rejection advanced by the examiner and the evidence
of anticipation relied on by the examiner as support for the
rejection. Likewise, we have reviewed and taken into
consideration appellant's arguments as set forth in the briefs
along with the examiner's rationale in support of the rejection
and arguments in rebuttal set forth in the answer.
It is our view, after consideration of the record
before us, that the instant claims are not anticipated by the
Yamaguchi reference.
Each of the independent claims requires that the
"special section of code performs a series of operations that
must be completed without interruption...requiring all memory
references to be in assigned storage at one time" and
prior to retrieving the unavailable
memory reference from said secondary
storage, undoing operations carried out
by the special section of code so that
substantially no executed fragments of
the special section of code are in
existence.2
Appeal No. 95-1544
Application 08/003,602
from said secondary storage in response to a requested memory
reference not being available in said assigned storage," and in
claim 18, at step (c) "interrupting said executing said special
section of code if it is determined in step (a) that a requested
memory reference is not available in assigned storage" followed by
the step of "undoing..."
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The examiner identifies the "undoing" portion of the
claim as being equivalent to that taught by Yamaguchi at column
5, lines 66 et seq. [answer, page 4]. In response to appellant's
arguments, the examiner stated [answer, pages 6-7] that this is
taught as the recovering of contents of
the saved internal registers to return
to a restart point. This teaches the
limitations of "substantially no
executed fragments of the special
section of code are in existence". As
Yamaguchi returns to a restart point for
execution, the steps executed after the
restart point are "erased". Yamaguchi
has a "clean slate" to the point of the
restart point in the program.
We have reviewed the portion of Yamaguchi cited by the
examiner for the "undoing" limitation of the claims and while we
agree that Yamaguchi discloses an instruction restart procedure
for restarting an instruction after a page fault process, we find
nothing in Yamaguchi which erases operations carried out by a
special section of code, so that no executed fragments are in
existence, before retrieving the unavailable memory reference
from a secondary storage, thereby assuring that the entire series
Appeal No. 95-1544
Application 08/003,602
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of operations to be performed by the special section of code will
be completed without interruption by a page fault because all
memory references are assigned storage at one time.
While Yamaguchi discloses an instruction restart
procedure for restarting an instruction after a page fault
process, in this regard, Yamaguchi appears to disclose nothing
more than the typical prior art procedure of first determining
that a fault has occurred, then retrieving the unavailable memory
reference from secondary storage and restarting the procedure at
some point. This is in contrast to the instant claims which
require that the operations carried out by the special section of
code be undone, or erased, prior to the retrieval of the
unavailable memory reference. Such a step permits the result
recited in the claim preambles that the "special section of code
performs a series of operations that must all be completed
without interruption..." In Yamaguchi, the series of operations
is interrupted and then memory reference retrieval is performed
in order to restart the operations at some point.
One may interpret Yamaguchi to teach that a series of
operations is completed prior to an interrupt and, as to those
operations, there is certainly a completion of operation "without
interruption." However, as appellant points out, at page 4 of
Appeal No. 95-1544
Application 08/003,602
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the reply brief, there is a difference between the instant
claims, which require that the series of operations must be
completed without interruption, and the teaching of Yamaguchi
that a series of operations was completed without interruption.
The former requires operation completion without interruption by
the particular recited method of executing the special section of
code while the latter may complete a series of operations without
interruption but if an interruption occurs, Yamaguchi does not
undo, or erase, all previous operations before retrieving the
necessary unavailable memory reference.
Since we do not find, in Yamaguchi, all of the method
steps of the instant claims, the examiner's decision rejecting
claims 10 through 20 under 35 U.S.C. 102(e) as anticipated by
Yamaguchi is reversed.
REVERSED

ERROL A. KRASS )
Administrative Patent Judge )
)
)
)
JERRY SMITH ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
Appeal No. 95-1544
Application 08/003,602
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) INTERFERENCES
)
)
LEE E. BARRETT )
Administrative Patent Judge )

Appeal No. 95-1544
Application 08/003,602
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Frederick S. Burkhart
Van Dyke, Gardner, Linn & Burkhart
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