Ex Parte McKenney

Board of Patent Appeals and Interferences

Jun 21, 2010

11129803 (B.P.A.I. Jun. 21, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PAUL E. MCKENNEY
____________

Appeal 2010-003385
Application 11/129,803
Technology Center 2100
____________

Decided: June 21, 2010
____________

Before ROBERT E. NAPPI, JOSEPH F. RUGGIERO, and KARL D.
EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the final rejection of
claims 1-15. No other claims are pending. (App. Br. 1.)1 We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appellant’s Invention
Appellant’s disclosed invention updates data values without
employing data locks, but rather, employing flags and a wait period. (Spec.
5:9-14; 11:20-23.) According to Appellant, “[l]ocks can inflict an
unacceptable degradation in performance.” (Spec. 4:4-5).
Claim 1 is illustrative of the invention and reads as follows:

1. A method performed in software comprising:
updating a first data value upon which a second data value is
dependent such that the first data value and the second data value are
required to be updated in that order such that the first data value is updated
before the second data value is updated, when the first data value and the
second data value are both to be updated, where updating the first data value
comprises changing or modifying contents of the first data value;
setting a flag associated with the first data value, such that the flag
effectively prevents further updating of the first data value until the flag has
been cleared;
waiting for a length of time, such that any reading of the first data
value and the second data value is guaranteed to not see the second data
value as updated unless the first data value is also seen as updated, where the
length of time is waited for without employing locking;
clearing the flag after the length of time has elapsed, to permit further

1 This opinion employs the following abbreviations: Appeal Brief (filed
May 23, 2009) (“App. Br.”); Revised Appeal Brief (filed July 19, 2009)
(“Rev. App. Br.”); Reply Brief (filed November 24, 2009) (“Reply Br.”);
Examiner’s Answer (mailed Oct .2, 2009) (“Ans.”); and Final Rejection
(mailed Oct. 6, 2008) (“Fin. Rej.”).
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updating of the first data value; and,
updating the second data value dependent upon the first data value,
where updating the second data value comprises changing or modifying
contents of the second data value,
wherein the method is performed without employing locking.

The Examiner’s Rejections
The Examiner’s Answer cites the following prior art references:
Garg US 6,625,603 Sept. 23, 2003
Putzolu US 7,107,270 Sept. 26, 2006
(effectively filed Dec. 28, 1998)

Claims 1-14 stand rejected under 35 U.S.C. § 102(e) based on
Putzolu.
Claim 15 stands rejected under 35 U.S.C. § 103(a) based on Putzolu
and Garg.
ISSUE
Appellant contests the Examiner’s finding that Potzolu discloses a
method of updating software data values without employing locking.
Appellant’s contention raises the following issue: Did the Examiner err in
finding that Potzolu discloses a method of updating software data values
without employing locking, as set forth in independent claims 1 and 13?
PRINCIPLES OF LAW
Anticipation of a claim under § 102 can be found only if the prior art
reference discloses every element of the claim. See In re King, 801 F.2d
1324, 1326 (Fed. Cir. 1986).
FINDINGS OF FACT (FF)
1. Appellant’s Specification describes locking as follows: “First,
locking is not employed by the invention when updating the ACL or when
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updating the permission bits, providing embodiments of the invention with
performance advantages over the prior art approaches that do employ
locking.” (Spec. 8: 6-8.)
2. Putzolu discloses data locks which disable access to the data for
certain user/owners during data transitions. (Col. 11, ll. 3-17.) Putzolu also
discloses similar shared data locks which apparently disable access to some
user/owners while allowing access to a specified group of transitioning
owners. (See col. 14, ll. 4-27.)
ANALYSIS
Independent claims 1 and 13 each recite “wherein the method is
performed without locking.” Appellant argues that Putzolu does not disclose
these steps, which according to Appellant, completely preclude locking at
any time during the method. (Reply Br. 1-4.)
The Examiner, for the first time in the Answer, takes the position that
claims 1 and 13 only preclude locking briefly as opposed to totally
precluding it: (Compare Ans. 10 with Fin. Rej. 4, 9-11.) The Examiner
relies on the passage quoted supra (FF 1) from Appellant’s Specification to
show that the claims only require locking not to occur during updating:
“Thus, it is understood that “locking” is not employed by the invention only
when the updating is occurring.” (Ans. 10.)
In response to the Examiner’s updated claim interpretation, Appellant
argues that the method claims of 1 and 13 correspond to a disclosed method
which “is described without ever employing locking.” (Reply Br. 3, 4.)
“Both independent claims 1 and 13 explicitly recite that their methods are
performed without employing locking – and nothing in the specification
indicates otherwise.” (Reply Br. 3.) Appellant also stresses that “no part of
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the invention is described in the specification as employing locking.” (Reply
Br. 4.)
Appellant’s arguments are more persuasive than the Examiner’s. The
Examiner’s reliance on the passage quoted supra (FF 1) does not support the
broad reading of the claims in which locking is only precluded during less
than all the steps recited therein. Claims 1 and 13 each plainly recite
“wherein the method is performed without locking.” In light of the
Specification, as Appellant argues, these claims preclude locking from ever
occurring during the method. Because the Examiner’s Answer does not rely
on Putzolu to teach this complete absence of locking (see Ans. 4, 10),2 it
follows that the Examiner has failed to demonstrate that Putzolu discloses
“wherein the method is performed without employing locking” as required
by claims 1 and 13.
Therefore, the Examiner’s anticipation rejection of independent
claims 1 and 13 and dependent claims 2-12 and 14 is not sustained. With
respect to claim 15 rejected for obviousness based on Putzolu and Garg in

2 The Examiner initially found that Putzolu discloses the absence of data
locks. (See Fin. Rej. 9 (citing Putzolu (col. 14, ll. 4-6) and reasoning data is
available to owners during a data transition).) Appellant responded by
arguing that the Examiner’s reliance on the Putzolu column 14 passage does
not account for Putzolu’s full discussion of shared data locks. (App. Br. 4-
5.) The record supports Appellant’s argument. Putzolu’s full discussion at
column 14 expands upon the passage relied upon by the Examiner and
indicates that shared data locks grant access to a limited group of
transitioning owners (locking out others). (See FF 2). Moreover, as
indicated supra, the Examiner’s Answer exhibits a claim interpretation shift
from the Final Rejection’s factual reliance on Putzolu as teaching a method
without locking. Absent a counter argument by the Examiner, this shift
indicates the Examiner’s acquiescence to Appellant’s argument that
Putzolu’s shared data locks constitute data locks.
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combination, the Examiner does not rely on Garg to teach the required
absence of locking. (Ans. 9.) Appellant relies on the asserted patentability
of independent claim 13. (Rev. App. Br. 4.) Accordingly, based on the
foregoing discussion of claims 1 and 13, the Examiner’s obviousness
rejection of dependent claim 15 also is not sustained.
CONCLUSION
The Examiner erred in finding that Potzolu discloses a method of
updating software data values without employing locking, as set forth in
independent claims 1 and 13.
DECISION
The Examiner’s decision to reject claims 1-15 reversed.

ack

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