Ex Parte Leinwander

Patent Trial and Appeal Board

May 31, 2017

12652666 (P.T.A.B. May. 31, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
12/652,666 01/05/2010 Mark Leinwander P233085.US.01 1550
15747 7590 06/02/2017
Dorsey & Whitney LLP-IP Dept.-MTI
Columbia Center
701 5th Avenue, suite 6100
Seattle, WA 98104-7043
EXAMINER
MERCADO, RAMON A
ART UNIT PAPER NUMBER
2132
NOTIFICATION DATE DELIVERY MODE
06/02/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ip.docket.se@dorsey.com
bingemang@dorsey.foundationip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK LEINWANDER1
Appeal 2017-003732
Application 12/652,666
Technology Center 2100
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 2, 5—7, 9, 10, and 13—20, which are all of the
claims pending in this application.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 According to Appellant, the real party in interest is Micron Technology,
Inc. App. Br. 3.
2 Claims 3,4, 8, 11, and 12 have been canceled. Final Act. 2.
Appeal 2017-003732
Application 12/652,666
INVENTION
Appellant’s application relates to “data storage in nonvolatile
memory.” Spec. 1. Claim 1 is representative of the appealed subject matter
and reads as follows:
1. A method comprising:
receiving a write command, the write command
indicative of a size of data associated with the write command;
determining whether the write command is greater than,
equal to, or less than a threshold, wherein the threshold is based
on a block erase characteristic of a FLASH memory;
if the write command is less than the threshold, writing
the data to a phase change memory;
if the write command is greater than or equal to the
threshold, writing the data to the FLASH memory.
REJECTIONS
Claims 1,5, and 7 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Chul Lee et al., A Hybrid Flash File
System Based on NOR and NAND Flash Memories for Embedded Devices
(IEEE Transactions on Computers, vol. 57, no. 7, July 2008) (“Chul”), Jin
Kyu Kim et al., A PRAM and NAND Flash Hybrid Architecture for High
Performance Embedded Storage Subsystems (Samsung Advanced Institute
of Technology, Oct. 19, 2008) (“Jin”) and Hanhimaki et al. (US
2009/0055575 Al, publ. Feb. 26, 2009) (“Hanhimaki”).
Claims 2, 6, 9, 10, 13, and 14 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over the combination of Chul, Jin, Hanhimaki, and
Sutardja (US 2008/0140918 Al, publ. June 12, 2008).
Claims 15—20 stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Chul, Hanhimaki, and Sutardja.
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Application 12/652,666
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
contentions the Examiner erred. We disagree with Appellant’s contentions.
Except as noted below, 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 reasons set forth by the Examiner in the Examiner’s Answer in response
to Appellant’s Appeal Brief. We concur with the conclusions reached by the
Examiner. We highlight the following additional points.
Claims 1, 5, and 7
In rejecting claim 1, the Examiner finds Hanhimaki’s memory erase
unit 34 teaches or at least suggests the recited limitation “the threshold is
based on a block erase characteristic of a FLASH memory.” Final Act. 4,
Ans. 4. The Examiner also concludes, under a broad but reasonable
interpretation, the limitation “the threshold is based on a block erase
characteristic” is broad enough to encompass a threshold for which any
characteristic is considered during the determination of the threshold.
Ans. 3. In particular, the Examiner finds Chul’s consideration of the size of
a NAND page when determining the threshold size of a log, where page size
is a block erase characteristic, teaches or suggests the recited limitation. Id.
at 4.
Appellant contends, “[njeither Chul nor Hanhimaki alone discloses a
threshold based on a block erase characteristic of a flash memory, as recited
in claim 1.” App. Br. 9. Appellant also contends Chul’s basis for setting the
threshold is “a life span analysis, not a block erase characteristic.” Id.
Appellant further argues Hanhimaki “makes no reference to setting any kind
of threshold . . . .” Id.
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Appeal 2017-003732
Application 12/652,666
Appellant’s arguments do not persuade us of Examiner error.
Appellant argues limitations not in the claim, as claim 1 is silent as to any
restrictions on the recited block erase characteristics. Ans. 3. Moreover,
Appellant has not persuasively shown that the Examiner’s interpretation of
the disputed limitation is overly broad, unreasonable, or inconsistent with
the Specification.3
Furthermore, Appellant attacks Hanhimaki individually (App. Br. 9),
even though the Examiner relies on the combination of Chul, Jin, and
Hanhimaki as teaching or suggesting the disputed features. Final Act. 3—5,
Ans. 3—5. In reMouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re
Keller, 642 F.2d 413, 425 (CCPA 1981)) (“[T]he test for obviousness is
what the combined teachings of the references would have suggested to
those having ordinary skill in the art.”). The Examiner finds that Chul
teaches an erase block made out of pages, that the size of a NAND page
(Spage) is considered when determining a threshold, and that the page size
may be reasonably considered a block erase characteristic. Ans. 4. The
Examiner further finds Hanhimaki teaches an erase block size. Ans. 4—5.
Because Appellant does not persuasively address what the combined
teachings of Chul, Jin, and Hanhimaki would have suggested to those having
ordinary skill in the art, Appellant has not persuasively rebutted the
Examiner’s findings.4
3 Because “applicants may amend claims to narrow their scope, a broad
construction during prosecution creates no unfairness to the applicant or
patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (citation omitted).
4 We note Appellant has not filed a Reply Brief to rebut the Examiner’s
additional findings and clarifications in the Answer. Arguments not made
are waived. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 12/652,666
Regarding Appellant’s further contentions challenging the
comb inability of the cited references and arguing improper hindsight (App.
Br. 9-11), we agree with the Examiner’s analysis and reasoning. We
how the claimed features are taught or suggested by the references’
teachings with some rational underpinning to combine Chul’s teachings with
those of Jin and Hanhirnaki. KSR Int'l v. Teleflex, Inc., 550 U.S. 398, 418
(2007). Additionally, we agree with the Examiner's findings and conclusion
that the proposed combination is based on the predictable use of prior art
elements according to their established functions and, thus, would have been
obvious to one of ordinary skill in the art. “The combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” See KSR 550 U.S. at 416.
Moreover, Appellant has not presented evidence sufficient to show that
combining Chul with Jin and Hanhirnaki would have been “uniquely
challenging or difficult for one of ordinary skill in the art” or “represented an
unobvious step over the prior art.” Leapfrog Enters., Inc. v. Fisher-Price,
Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int 7 v. Teleflex, Inc.,
550 U.S. at 418-19).
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Chul, Jin, and Hanhirnaki teaches or suggests
the limitations of claim 1.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
representative independent claim 1, as well as the Examiner's rejection of
dependent claims 5 and 7, for which Appellant makes no additional
arguments. App. Br. 12. See 37 C.F.R. § 41.37(c)(l)(iv).
/ find the Examiner has articulated (see Final Act. 3—5, Ans. 3—5)
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Appeal 2017-003732
Application 12/652,666
Claims 2, 6, 9, 10, and 13—20
Appellant contends the Examiner errs in relying on inherent teachings
of Chul as teaching or suggesting the limitation “determining whether the
write command is a single sector or a multi-sector write command based on
the size of the data,” recited in claim 10. App. Br. 12. Appellant argues the
Examiner “fails to recognize that the claimed invention includes two
separate determinations: single sector vs. multisector and write command
length vs. threshold.” App. Br. 13.
Appellant’s arguments are unpersuasive. The Examiner finds that,
although Appellant’s Specification distinguishes between single sector and
multi-sector write commands, in fact, all write commands are the same.
Ans. 7. The Examiner explains that the distinction is in the sector count, not
the write command, because a single sector command is equivalent to a
multi-sector command with a sector count of 1. Id.
We agree with the Examiner that Chul first checks the size of
appended data, and if the data size is smaller than a threshold, the data is
written to the NOR flash. Data larger than the threshold is written to the
NAND flash. Final Act. 8 (citing Chul, p. 1005). The Examiner finds that
under a broad but reasonable interpretation, Chul’s storing of smaller data
sizes in the NOR flash teaches the limitation “determining whether the write
command is a single sector or a multi-sector write command based on the
size of the data.” Final Act. 8—9. The Examiner concludes under a broad,
but reasonable, interpretation a single sector command encompasses a multi­
sector command because a “multi sector command” with a sector count of 1
is equivalent to a “single sector command,” as recited in claim 10. Ans. 7.
We are not persuaded of error in the Examiner’s interpretations because
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Application 12/652,666
Appellant has not persuasively shown that they are overly broad,
unreasonable, or inconsistent with the Specification. See n.3, supra.
We further observe the disputed claim 10 limitation recites “a single
sector or a multi-sector write command,” where the single sector write
command and multi-sector write command are expressed in the alternative.
When a claim covers several alternatives, the claim may be unpatentable if
any of the alternatives within the scope of the claim are taught by the prior
art. See Brown v. 3M, 265 F.3d 1349, 1351 (Fed. Cir. 2001). Therefore, a
prior art teaching of either a single sector or a multi-sector write command is
sufficient to teach the disputed limitation in claim 10. Because we agree
with the Examiner’s finding that Chul teaches at least a single sector write
command, we are not persuaded the Examiner erred in finding that the
combination of Chul, Hanhimaki, and Sutardja teaches or suggests the
disputed limitation of claim 10. Moreover, because the respective types of
write commands are mutually exclusive — to a single sector, or to multi­
sectors (assuming no NULL write command to zero sectors), we find
determining a “single sector” write command also determines the write
command is not a “multi-sector” write command, and vice-versa.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of
representative independent claim 10, as well as the 35 U.S.C. § 103(a)
rejection of independent claim 15, which Appellant argues is patentable for
similar reasons. App. Br. 15. We also sustain the Examiner’s rejections of
dependent claims 2, 6, 9, 13, 14, and 16—20, for which Appellant makes no
separate, substantive argument for patentability. App. Br. 14—15. See 37
C.F.R. §41.37(c)(l)(iv).
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Appeal 2017-003732
Application 12/652,666
DECISION
We affirm the decision of the Examiner rejecting claims 1, 2, 5—7, 9,
10, and 13-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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