Ex Parte Mei et al

Patent Trial and Appeal Board

Jan 14, 2016

13091511 (P.T.A.B. Jan. 14, 2016)

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.
13/091,511 04/21/2011 Xiaolu Mei CN920100051US1 4767
64002 7590 01/15/2016
J.B. KRAFT ATTORNEY
710 COLORADO
# 5-C
AUSTIN, TX 78701
EXAMINER
CLEARY, THOMAS J
ART UNIT PAPER NUMBER
2185
MAIL DATE DELIVERY MODE
01/15/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte XIAOLU MEI, DONG XIE, JUN ZHENG,
XIAOTAO CHANG, and KUAN FENG
___________

Appeal 2014-000402
Application 13/091,511
Technology Center 2100
____________

Before CARLA M. KRIVAK, DANIEL N. FISHMAN, and
AMBER L. HAGY, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from a rejection of claims
1–3 and 5–11, all remaining claims of the application.1 We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 In this Opinion, we refer to the Appeal Brief (“App. Br.,” filed July 1,
2013), the Reply Brief (“Reply Br.,” filed September 30, 2013), the
Examiner’s Answer (“Ans.,” mailed July 29, 2013), the Final Office Action
(“Final Act.,” mailed February 1, 2013), and the original Specification
(“Spec.,” filed April 21, 2011).
Appeal 2014-000402
Application 13/091,511

2

THE INVENTION
Appellants’ invention relates to “reordering the request queue of a
hardware accelerator.” Spec. 1.
Independent claim 1, reproduced below, is illustrative:
1. A system for reordering a request queue for a
hardware accelerator comprising:
a processor; and
a computer memory holding computer program
instructions which when executed by the processor perform a
method comprising:
storing a plurality of coprocessor request blocks (CRBs)
to be input into the hardware accelerator in a request queue;
receiving a state pointer from a new CRB joining the
request queue;
determining the physical location of an already stored
CRB in said request queue, said already stored CRB having a
state pointer which is the same as the state pointer of the new
CRB; and
inputting the new CRB in the request queue so that said
already stored CRB and the new CRB are adjacent to each in
the request queue in the order of entry of the already stored
CRB and the new CRB into the request queue, wherein the
already stored CRB and the new CRB are input to the
##hardware accelerator in said order.

Appeal 2014-000402
Application 13/091,511

3

THE REJECTIONS2
Claims 1 and 11 are provisionally rejected under non-statutory,
obviousness-type, double patenting over claims 9–17 of co-pending U.S.
Patent Application Serial Number 13/108,263. Final Act. 16.3
Claims 1–3 and 5–10 are provisionally rejected under non-statutory,
obviousness-type, double patenting over claims 12–21 of co-pending U.S.
Patent Application Serial Number 13/453,138. Final Act. 14–15.
Claim 11 is provisionally rejected under non-statutory, obviousness-
type, double patenting over claim 12 of co-pending U.S. Patent Application
Serial Number 13/453,138 and Official Notice. Final Act. 15–16.
Claims 2, 3, and 5–10 are rejected under 35 U.S.C. § 112(a) as failing
to comply with the enablement requirement. Final Act. 9.
Claims 1–3 and 5–11 are rejected under 35 U.S.C. § 112(b) as
indefinite. Final Act. 10–12.
Claims 1 and 11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Bass (US 2010/0020825 A1; Jan. 28, 2010) and Official Notice. Final
Act. 2–4.

2 The Examiner objects to claims 1 and 2 due to certain identified
informalities. Final Act. 13. We decline to address these objections. See,
e.g., MPEP § 706.01 (“[T]he Board will not hear or decide issues pertaining
to objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”).
3 The Examiner’s Answer apparently modifies this double patenting
rejection to reject only claim 1 over claims 26 and 33 of the co-pending
application 13/108,263. Ans. 15. Appellants do not respond substantively
to any of the double patenting rejections. Thus, this Decision summarily
sustains all the double patenting rejections.
Appeal 2014-000402
Application 13/091,511

4

Claims 2, 3, 5, and 7–9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bass, Official Notice, and Gray (US 6,484,271 B1; Nov.
19, 2002). Final Act. 4–7.
Claims 6 and 10 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Bass, Official Notice, Gray, and Pudipeddi (US 2005/0165820 A1; July
28, 2005). Final Act. 7–8.

ANALYSIS
Only those arguments actually made by Appellants in the Briefs are
considered in this Decision. Arguments that Appellants did not make in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
We are not persuaded by Appellants’ arguments that the Examiner has
erred. App. Br. 6–12; Reply Br. 1–4. We agree with, and adopt as our own,
the Examiner’s findings and reasons as set forth in the Examiner’s rejections
(Final Act. 2–20) and the Examiner’s findings and reasons set forth in the
Answer (Ans. 16–23). We highlight specific arguments and findings for
emphasis as follows.

OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTIONS
Appellants present no substantive arguments pertaining to the
Examiner’s non-statutory, obviousness-type double patenting rejections. See
App. Br. 12. Accordingly, we summarily sustain these rejections.

SECTION 112(a) REJECTION
The Examiner finds the recitation “the data representing the new CRB
has less digits than the data representing the already stored CRB” of claim 2
Appeal 2014-000402
Application 13/091,511

5

is not described sufficiently to enable the ordinary skilled artisan. Final Act.
9. Instead, the Examiner finds Appellants’ Specification “supports only that
both the already stored CRB and the new CRB are mapped into a data entry
having less digits (See Figure 13 and Page 14 Paragraph 2).” Id.
Appellants quote a portion of the Specification reading:
According to Fig. 11, the system of reordering the request
queue of the hardware accelerator has added a mapping module
1105 for mapping the state pointer of the CRB in the request
queue and the CRB requesting to join the request queue in the
data entry having fewer digits and inputting the data entry into
CAM.
App. Br. 10. Appellants argue this disclosure supports the disputed
limitation. Id. Appellants further contend the Specification is an English
translation from the original Chinese application. Id. Appellants then
acknowledge, “Appellants cannot change the original translated content in
order not to raise issues of new matter with respect to the original
Application.” App. Br. 11.
We agree with the Examiner and are not persuaded by Appellants’
arguments. Appellants’ above-quoted portion of the Specification supports
the Examiner’s findings that the Specification does not support the claimed
feature but, instead, supports only both the new and already stored CRBs
mapped to the same entry having fewer digits — i.e., both CRBs have the
same number of digits.
In view of the above discussion, we are not persuaded the Examiner
erred by finding the Specification fails to provide enabling disclosure of the
disputed feature of claim 2. Thus, we sustain the section 112(a) rejection of
claim 2 as well as claims 3 and 5–10 dependent therefrom.

Appeal 2014-000402
Application 13/091,511

6

SECTION 112(b) REJECTIONS
The Examiner finds various claims fail to comply with the clarity
requirements of 35 U.S.C. § 112(b) due to certain identified recitations of
claims 1, 2, 5, 7–9 (and dependent claims therefrom). Final Act. 10–12.
Appellants argue the Examiner erred by finding recitation of “the state” in
claim 9 lacks antecedent basis. App. Br. 11. The Examiner responds further
explaining the lack of clarity. Ans. 22–23. We agree with the Examiner and
are not persuaded of error by Appellants’ argument. Appellants present no
other arguments regarding the Examiner’s 112(b) rejection and, thus, we
sustain the rejection of all claims under § 112(b).

SECTION 103(a) REJECTIONS
Bass and Official Notice
Regarding independent claim 1, the Examiner finds Bass discloses all
features except storing a new CRB adjacent an old CRB in the queue when
the state pointer of the old and new CRBs match. Final Act. 3. The
Examiner takes Official Notice “that it is notoriously old and well known in
the art to organize data accesses so as to exploit a locality of reference” and
refers to the Denning article4 as evidence that such reordering is well-
known. Id. The Examiner further finds the noticed fact is admitted (id.)
because Appellants failed to properly traverse the Official Notice (Ans. 17).
Appellants argue they do not traverse the Official Notice but, instead,
traverse the rejection because the Denning article is not “sufficiently specific

4 Peter J. Denning, The Locality Principle, Communications of the ACM,
Vol. 48, No. 7, 19–24 (July 2005).
Appeal 2014-000402
Application 13/091,511

7

to provide to one skilled in the art with any suggestion as to how make up
the deficiencies of the [sic] Bass in disclosing the present invention.” Reply
Br. 3.
At the outset, we agree with the Examiner that Appellants failed to
properly traverse the Official Notice. MPEP § 2144.03(C) requires, “To
adequately traverse such a finding, an applicant must specifically point out
the supposed errors in the examiner’s action, which would include stating
why the noticed fact is not considered to be common knowledge or well-
known in the art.” Appellants’ challenge to the sufficiency of the detail of
the Denning article fails to state why the noticed fact is not well-known.
Furthermore, regardless whether Appellants properly traversed the
Official Notice, Appellants argue “that one skilled in the art with the general
awareness of the benefits of localization, would not find it obvious to change
the conventional order of entry queuing to hardware accelerators system of
Bass in order to implement the present invention.” App. Br. 8; Reply Br. 4.
We are not persuaded by Appellants’ argument. Appellants provide no
evidence of error in the Examiner’s findings but merely repeat the claim
language and provide conclusory attorney commentary that the claimed
features are not obvious. Merely reciting language of the claims and
asserting the cited prior art reference does not teach or suggest the claim
limitation is insufficient. See 37 C.F.R. § 41.37(c)(1)(iv); see also In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Still further, it is well settled
that mere attorney’s arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997). Attorney argument is not
evidence. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). Nor can such
Appeal 2014-000402
Application 13/091,511

8

argument take the place of evidence lacking in the record. Meitzner v.
Mindick, 549 F.2d 775, 782 (CCPA 1977).
In view of the above discussion, we are not persuaded by Appellants’
arguments that the combination of Bass with the noticed fact fails to teach or
suggest the features of claim 1. Thus, we sustain the rejection of claim 1 and
claim 11 argued together with claim 1 (App. Br. 8).

Bass, Official Notice, and Gray
Regarding dependent claim 2, the Examiner finds Gray (in
combination with Bass and Official Notice) discloses encoding the new
CRB with fewer digits. Final Act. 4. Appellants argue “reducing the bits
indicators to redundant units in Gray’s system would not suggest
Applicants’ reduction of bits in pointers of adjacent CRBs in input queues to
hardware accelerators.” App. Br. 9. As above, we are not persuaded of
Examiner error by Appellants’ conclusory remarks devoid of factual
evidence.
Thus, we sustain the rejection of claim 2 as well as claims 3, 5, and 7–
9 not separately argued.

Bass, Official Notice, Gray, and PudiPeddi
Regarding dependent claim 6, the Examiner finds Pudipeddi (in
combination with Bass, Official Notice, and Gray) discloses locking and
unlocking of the queue when inserting a new element. Final Act. 7.
Appellants argue “At best, Pudipeddi is a very general teaching of locking
elements in queues. In fact, Pudipeddi’s queues are for physical media
which is a technology quite remote from CRB queues to hardware
Appeal 2014-000402
Application 13/091,511

9

accelerators.” App. Br. 9. As above, we are not persuaded of Examiner
error by Appellants’ conclusory remarks devoid of factual evidence.
Thus, we sustain the rejection of claim 6 and claim 10 not separately
argued.

DECISION
For the above reasons, the Examiner’s decision rejecting claims 1–3
and 5–11 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)(1)(iv).

AFFIRMED

msc