Ex Parte Mosberger

Board of Patent Appeals and Interferences

Apr 28, 2011

10886705 (B.P.A.I. Apr. 28, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID MOSBERGER
_____________

Appeal 2009-011282
Application 10/886,705
Technology Center 2100
____________

Before CARLA M. KRIVAK, THOMAS S. HAHN, and
ELENI MANTIS MERCADER, Administrative Patent Judges.

MANTIS MERCADER, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the non-final
rejection of claims 1-33. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

INVENTION
Appellant’s Figure 2 is reproduced below:

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Appellant’s Figure 2 and claimed invention is directed to a system
used as an analysis tool operable to analyze call counts for functions called
in the program being monitored. At step 201, a first software layer 120 and
a second software layer 130 determine a sampling interval for sampling
function calls for a program. The first software layer 120 may randomly
select a sampling interval within a range received from the second software
layer 130. At step 201, the first software layer 120 samples function calls
based on the sampling interval. At step, 203 the second software layer 130
sums the sampled function calls collected during a predetermined period of
time. Finally, at step 204, the second software layer 130 determines call
counts for the program based at least on the sampled function calls collected
during the predetermined period of time. See Spec. 6:9-11, 11:15–12:17;
Figs.1, 2.
Claims 1 and 26, reproduced below, are representative of the subject
matter on appeal:
1. A method of determining call counts in a program, the method
comprising:
determining a sampling interval;
sampling function calls based on the sampling interval; and
determining the call counts based on the sampled function calls.

26. An apparatus comprising:
a branch trace buffer operable to store entries for function calls
executed in a program; and
a processor operable to sample the branch trace buffer during a
predetermined period of time to determine call counts of the function calls
executed in the program.

THE REJECTIONS
The Examiner relies upon the following as evidence of unpatentability:
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Agrawal US 5,768,500 Jun. 16, 1998
Bates US 6,360,360 B1 Mar. 19, 2002
The following rejections are before us for review:
1. The Examiner rejected claim 26 under 35 U.S.C. § 102(b) as being
anticipated by Bates.
2. The Examiner rejected claims 1-25 and 27-33 under 35 U.S.C.
§ 103(a) as being unpatentable over Bates in view of Agrawal.

ISSUE
The pivotal issue is whether Appellant has shown error in the
Examiner’s finding that Bates teaches sampling function calls as required by
claims 1 and 26.

PRINCIPLES OF LAW
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006).
“[O]ne cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).

ANALYSIS
I. Analysis with respect to the rejection of claim 26 under 35 U.S.C.
§ 102(b) as being anticipated by Bates
Appellant argues that Bates does not teach that a count vector 500 is
sampled to determine count calls (Br. 9). Appellant argues that sampling as
described in the Specification and as defined in Merriam-Webster’s Online
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Dictionary can be described as the act, process, or technique of selecting a
representative part of a population for the purpose of determining parameters
or characteristics of the whole population (Br. 10). Appellant asserts that at
best, Bates may read the count vector 500 to determine the estimated call
counts (Br. 10). However, the count vector 500 is not sampled to determine
call counts, but rather, the final call counts (Br. 10). Appellant further
argues that Bates fails to teach sampling a branch buffer at a predetermined
period of time to determine count calls because the count vector 500 of
Bates is an integer list of call counts—it is not a buffer and it is not sampled
(Br. 11).
We are not persuaded by Appellant’s arguments. We agree with the
Examiner’s finding (Ans. 22-23) that Bates does not teach “the final call
counts” but rather “an estimation of the number of times the corresponding
function is called within the computer system” (col. 8, ll. 1-3 (emphasis
added)). Furthermore, we agree with the Examiner’s reasoning that because
the count vector 500 comprises an integer list for each function of the object
(e.g., functions A-N in Fig. 5), each function is sampled from the population
of all functions (i.e., function D is called 8 times whereas function C is
called once) (see col. 7, l. 64–col. 8, l. 11) to determine how many times
each function is called within the program (i.e., determining characteristics
of the whole population).
We are also not persuaded by Appellant’s assertion that the vector 500
is not a buffer because Appellant has not explained why it does not
constitute a buffer, and thus, has not shown error in the Examiner’s
rationale. Nonetheless, we agree with the Examiner’s reasoning (Ans. 23)
that “buffer” can be a link list, an array, or a vector stored in a memory. We
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also agree with the Examiner (Ans. 23-24) that Bates (col. 8, ll. 43-48)
additionally teaches that the function call profile is represented in count
vector 500 of main memory 120, and thereby, even if vector 500 is not a
buffer, the main memory 120 in Bates does constitute a buffer because it
contains all the functions represented in count vector 500 and stores them
until a compiler accesses it.
For the foregoing reasons, we will affirm the Examiner’s rejection of
claim 26.
II. Analysis with respect to the rejection of claims 1-25 and 27-33
under 35 U.S.C. § 103(a)
Appellant argues (Br. 12) that Agrawal fails to cure Bates’s deficiency
of sampling function calls and sampling a branch trace buffer storing
function calls to determine call counts. We are not persuaded for the reasons
articulated supra under section I.
Furthermore, one cannot show non-obviousness by attacking
references individually (i.e., Agrawal not teaching sampling function calls
and determining the call counts based on the sampled function calls) where
the rejections are based on a combination of references (i.e., Bates teaches
sampling function calls and determining the call counts based on the
sampled function calls). See Keller, 642 F.2d at 426. Agrawal was
introduced by the Examiner (Ans. 24) for teaching the limitation of
“determining a sampling interval” as recited in representative claim 1, by
teaching randomizing sampling by varying the inter-sample interval (col. 12,
ll. 22-29).
Thus, we will also affirm the Examiner’s rejection of representative
claim 1, and for similar reasons the rejections of claims 2-25 and 27-33,
which are not separately argued.
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CONCLUSION
Appellant has not shown error in the Examiner’s finding that Bates
teaches sampling function calls as required by claims 1 and 26.

ORDER
The decision of the Examiner to reject claims 1-33 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

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