Ex Parte O et al

Patent Trial and Appeal Board

Jun 26, 2014

11339592 (P.T.A.B. Jun. 26, 2014)

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.
11/339,592 01/25/2006 John Kevin O'Brien AUS920050820US1 9147
50170 7590 06/26/2014
IBM CORP. (WIP)
c/o WALDER INTELLECTUAL PROPERTY LAW, P.C.
17304 PRESTON ROAD
SUITE 200
DALLAS, TX 75252
EXAMINER
BULLOCK JR, LEWIS ALEXANDER
ART UNIT PAPER NUMBER
2199
MAIL DATE DELIVERY MODE
06/26/2014 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 JOHN KEVIN O’BRIEN, KATHRYN M. O’BRIEN, and
DANIEL A. PRENER
____________

Appeal 2012-001884
Application 11/339,592
Technology Center 2100
____________

Before ALLEN R. MacDONALD, ELENI MANTIS MERCADER, and
ROBERT J. WEINSCHENK, Administrative Patent Judges.

WEINSCHENK, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1 and 36-67. Claims 2-35 are canceled (App. Br. 2). We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

STATEMENT OF THE CASE
Introduction
Appellants’ invention relates to partitioning a program into sub-
programs for execution on a plurality of heterogeneous processors (Spec.
3:4-7).
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Claim 1, which is illustrative, reads as follows:
1. A method, in a data processing system, for
optimizing code to be run in a heterogeneous data processing
environment, comprising:
generating a call graph for program code;
identifying characteristics of procedures in the call graph;
comparing the characteristics of the procedures to
characteristics of processing units in the heterogeneous data
processing environment, wherein comparing characteristics of
the procedures to characteristics of processing units in the
heterogeneous data processing environment comprises:
identifying, for each characteristic of a procedure,
a comparison rule for that characteristic, wherein the
comparison rule identifies a characteristic of a processing
unit that may offer a required feature for satisfying the
characteristic of the procedure;
determining a degree of matching of each
processing unit of the heterogeneous data processing
environment to the characteristics of the procedure; and
selecting a processing unit based on the degree of
matching of each processing unit of the heterogeneous
data processing environment;
selecting, for each of the procedures, a processing unit to
execute the procedure based on results of the comparison;
partitioning the program code in accordance with the
selection of processing units for each procedure; and
generating executable program code based on the
partitioned program code.
Rejections on Appeal
Claims 46-56 stand rejected under 35 U.S.C. § 101 as being directed
to non-statutory subject matter (see Ans. 5).
Claims 1 and 36-67 stand rejected under 35 U.S.C. § 102(e) as being
anticipated by Stone (US 7,103,881 B2; Sept. 5, 2006) (see Ans. 6-11).
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Issues on Appeal
Do claims 46-56 encompass transitory signals?
Does Stone teach or suggest “identifying, for each characteristic of a
procedure, a comparison rule for that characteristic, wherein the comparison
rule identifies a characteristic of a processing unit that may offer a required
feature for satisfying the characteristic of the procedure,” as recited in claims
1, 46, and 57?

ANALYSIS
We review the Examiner’s rejections in light of Appellants’
contentions the Examiner erred. We refer herein to Appellants’ Appeal
Brief filed May 4, 2011 (“App. Br.”), the Examiner’s Answer mailed July
22, 2011 (“Ans.”), and Appellants’ Reply Brief filed September 22, 2011
(“Reply Br.”).
Rejections under 35 U.S.C. § 101
Appellants argue the computer usable medium recited in claims 46-56
does not include transitory signals (App. Br. 6-7; Reply Br. 2-4).
Appellants’ argument is not persuasive. As the Examiner explains (Ans.
12), Appellants’ Specification indicates the computer usable medium
includes “transmission-type media, such as digital and analog
communications links, wired or wireless communications links using
transmission forms, such as, for example, radio frequency and light wave
transmissions” (Spec. 26:15-21). As such, we conclude the computer usable
medium in claims 46-56 encompasses transitory signals. See Ex parte
Mewherter, 107 USPQ2d 1857, 1859-62 (PTAB 2013) (precedential)
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(expanded panel). Therefore, we sustain the Examiner’s rejections of claims
46-56 under 35 U.S.C. § 101.
We note we do not consider Appellants’ attempt to disavow portions
of the scope of claims 46-56 on page 3 of the Reply Brief. See Tempo
Lighting, Inc. v. Tivoli, LLC, 742 F.3d 973, 978 (Fed. Cir. 2014) (“This court
also observes that the PTO is under no obligation to accept a claim
construction proffered as a prosecution history disclaimer, which generally
only binds the patent owner.”). We also do not consider Appellants’
argument regarding the meaning of the term “non-transitory” (Reply Br. 3-
4), as the term “non-transitory” does not appear in Appellants’ claims.
Rejections under 35 U.S.C. § 102(e)
With respect to claims 1, 46, and 57, Appellants argue Stone does not
teach identifying, for each characteristic of a procedure, a comparison rule
for that characteristic, wherein the comparison rule identifies a characteristic
of a processing unit that may offer a require feature for satisfying the
characteristic of the procedure (App. Br. 9-12; Reply Br. 4-8). Appellants’
argument is not persuasive. As the Examiner explains (Ans. 6, 13-15),
Stone teaches identifying characteristics of a procedure, such as desired
timing and priorities and whether the procedure can be processed in parallel
or sequentially (Stone 7:46-53). The Examiner also explains Stone teaches a
comparison rule that identifies a characteristic of a processing unit (e.g.,
whether the processing unit can provide parallel or only sequential
processing) that may offer a required feature for satisfying the characteristic
of the procedure (e.g., whether the procedure requires parallel or sequential
processing) (Stone 7:25-28, 7:46-56). Appellants argue, according to the
Specification, a comparison rule must be established in a program partition
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engine (App. Br. 13; Reply Br. 7). We agree, however, with the Examiner
that Appellants’ claims do not require the comparison rule to be established
in a program partition engine (Ans. 15).
Appellants also argue Stone does not teach determining a degree of
matching of each processing unit of the heterogeneous data processing
environment to the characteristics of the procedure, or selecting a processing
unit based on the degree of matching of each processing unit of the
heterogeneous data processing environment (App. Br. 12-14; Reply Br. 8-
10). Specifically, Appellants again argue Stone fails to teach a comparison
rule (App. Br. 12-14). For the reasons discussed above, Appellants’
argument is not persuasive. Further, we agree with the Examiner’s finding
(Ans. 6, 16) Stone teaches determining the recited degree of matching,
including based on Stone’s fitness score that indicates the ability to
successfully process tasks based on the mapping of the tasks to processing
units (Stone 8:16-21). We also agree with the Examiner’s finding (Ans. 7)
Stone teaches selecting a processing unit based on the degree of matching, at
least because Stone teaches altering the mapping of tasks to processing units
based on the fitness score (Stone 8:34-37).
With respect to dependent claims 38, 49, and 60, Appellants argue
Stone does not teach the limitations of those claims because Stone does not
teach the comparison rule recited in the independent claims from which
those claims depend (App. Br. 14-15; Reply Br. 10-11). For the reasons
discussed above, Appellants’ argument is not persuasive.
Because Appellants’ arguments regarding claims 1, 38, 46, 49, 57,
and 60 are not persuasive, we sustain the Examiner’s rejections of those
claims under 35 U.S.C. § 102(e). Appellants present no separate arguments
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for claims 36, 37, 39-45, 47, 48, 50-56, 58, 59, and 61-67, and rely on the
same reasons for patentability stated for claims 1, 38, 46, 49, 57, and 60
(App. Br. 16). As a result, we also sustain the Examiner’s rejections of
those claims under 35 U.S.C. § 102(e).

DECISION
The decision of the Examiner rejecting claims 46-56 under 35 U.S.C.
§ 101 is affirmed.
The decision of the Examiner rejecting claims 1 and 36-67 under
35 U.S.C. § 102(e) 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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