Ex Parte McKenneyDownload PDFBoard of Patent Appeals and InterferencesJun 21, 201011129803 (B.P.A.I. Jun. 21, 2010) Copy Citation 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 Appeal 2010-003385 Application 11/129,803 2 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.”). Appeal 2010-003385 Application 11/129,803 3 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 Appeal 2010-003385 Application 11/129,803 4 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 Appeal 2010-003385 Application 11/129,803 5 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. Appeal 2010-003385 Application 11/129,803 6 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 cc: LAW OFFICES (San Jose) 1230 E Baseline Rd #103-248 Mesa, AZ 85204 Copy with citationCopy as parenthetical citation