Ex Parte Mazzitelli

Board of Patent Appeals and Interferences

Jan 27, 2011

10057135 (B.P.A.I. Jan. 27, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN JOSEPH MAZZITELLI
____________

Appeal 2009-009238
Application 10/057,135
Technology Center 2400
____________

Before LANCE LEONARD BARRY, HOWARD B. BLANKENSHIP, and
JEAN R. HOMERE, Administrative Patent Judges.

BLANKENSHIP, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-009238
Application 10/057,135

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-6, 8-16, 18-26, and 28-30, which are all the claims
remaining in the application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

Invention
Appellant’s invention relates to a multi-threaded server accept system.

Representative Claim
1. A multi-threaded server accept method,
comprising:

creating a socket accept thread by a control thread of a
server process;

receiving a service request from a client by the socket
accept thread;

transferring the request to a data structure;

retrieving the request, by the control thread, from the data
structure; and

transferring the request to a client thread dynamically
created by the control thread to process request data associated
with the request.

Examiner’s Rejections
Although the Examiner leaves it as an exercise for the reader to
determine which ground(s) of rejection should apply to claims 12-16, 18-26,
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Application 10/057,135

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and 28-30, Appellant concludes (App. Br. 4) that the claims are rejected as
follows:
Claims 1, 2, 4-6, 8-13, 15, 16, 18-23, 25, 26, and 28-30 stand
rejected under 35 U.S.C. § 102(e) as being anticipated by Guedalia (US
2003/0088609 A1); and
Claims 3, 14, and 24 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Guedalia and Srikantan (US 2001/0029548 A1).

FINDINGS OF FACT
We rely on the findings set forth by the Examiner in the Answer.

PRINCIPLES OF LAW
During examination, claims are to be given their broadest reasonable
interpretation consistent with the specification, and the language should be
read in light of the specification as it would be interpreted by one of ordinary
skill in the art. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (citations omitted). The Office must apply the broadest
reasonable meaning to the claim language, taking into account any
definitions presented in the specification. Id. (citing In re Bass, 314 F.3d
575, 577 (Fed. Cir. 2002)).

ANALYSIS
Although the Argument section of Appellant’s Appeal Brief contains
multiple headings, we will decide the appeal on the basis of claim 1 alone
because the claim contains the feature that Appellant submits is absent from
the applied prior art. See 37 C.F.R. § 41.37(c)(1)(vii).
Appeal 2009-009238
Application 10/057,135

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Guedalia is applied in a § 102 rejection against claim 1. The claim
recites “transferring the request to the client thread dynamically created by
the control thread to process request data associated with the request”
(emphasis added). Appellant argues that Guedalia discloses a multi-thread
management system that uses a “watchdog” timer and tick counter.
According to Appellant, however, the reference discloses processing request
data from already existing threads in a thread pool, not having threads
“dynamically created” by the control thread to process request data
associated with the request. Guedalia indicates, in Appellant’s view,
“waiting” before any new threads are created in order to prevent a
“proliferation” of threads which could affect system performance.
The Examiner, in response, points to paragraphs [0108] and [0245] of
Guedalia, which expressly describe creating new threads. Ans. 7-8.
Guedalia at paragraph [0108] states that the invention provides a
dynamic functionality for thread management, whereby additional threads
are created and destroyed during processing.
When a request queues up, the system of the present
invention does not immediately create a new thread. Rather,
the watchdog manages the threads. Whenever the watchdog
discovers, during its regular check, that the tick counter of a
thread has reached 3, it then lowers the priority of this thread
and removes it from the thread pool, and creates a new thread
to replace it. The old thread that was removed from the thread
pool completes its task and dies. The new thread, immediately
upon its creation, is free to process a request in the queue if a
queued request exists. Otherwise the thread waits for a request.
Thus the total number of threads in the thread pool remains a
constant.

Guedalia ¶ [0245] (emphasis added).
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We agree with the Examiner that claim 1, as broadly drafted, does not
require that a client thread be “dynamically created” by the control thread to
process request data associated with the request immediately and in every
instance that a service request is made. We thus agree with the Examiner
that claim 1 fails to distinguish over the multi-threading method described
by Guedalia.
Appellant’s Reply Brief, apparently prepared by a different counsel,
contains new arguments that could have been presented earlier. In
particular, Appellant could have presented the new arguments in the Appeal
Brief, such that we would have had benefit of the Examiner’s evaluation of
the arguments in the responsive Answer. Appellant does not explain what
good cause there might be to consider the belated arguments. Appellant’s
new arguments are thus untimely and have, accordingly, not been
considered. See Ex parte Borden, 93 USPQ2d 1473 (BPAI 2010)
(informative).
For the foregoing reasons, we sustain the Examiner’s rejections under
35 U.S.C. §§ 102 and 103(a).

DECISION
The rejection of claims 1, 2, 4-6, 8-13, 15, 16, 18-23, 25, 26, and 28-
30 under 35 U.S.C. § 102(e) as being anticipated by Guedalia is affirmed.
The rejection of claims 3, 14, and 24 under 35 U.S.C. § 103(a) as
being unpatentable over Guedalia and Srikantan 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). See 37 C.F.R.
§ 41.50(f).
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AFFIRMED

msc

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