Ex Parte Parthasarathy et al

Patent Trial and Appeal Board

Feb 24, 2017

12109236 (P.T.A.B. Feb. 24, 2017)

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.
12/109,236 04/24/2008 Mohan Parthasarathy 82229348 3041
56436 7590
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
RIGOL, YAIMA
ART UNIT PAPER NUMBER
2135
NOTIFICATION DATE DELIVERY MODE
02/28/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
hpe.ip.mail@hpe.com
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MOHAN PARTHASARATHY and
KISHORE KUMAR MUPPIRALA
Appeal 2016-005180
Application 12/109,2361
Technology Center 2100
Before JOHN A. JEFFERY, LARRY J. HUME, and
LINZY T. McCARTNEY, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the Final
Rejection of claims 1—12. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellants, the real party in interest is The Hewlett-Packard
Development Company, LP. App. Br. 3.
Appeal 2016-005180
Application 12/109,236
STATEMENT OF THE CASE2
The Invention
Appellants' disclosed and claimed inventions relate to a data
processing system "comprising at least one hard partition comprising a
plurality of virtual partitions . . . [each] comprising respective virtual address
spaces accessible via a memory access means for relating virtual addresses
to real addresses of a real memory; wherein each virtual address space
comprises respective unique virtual addresses." Abstract.
Exemplary Claims
Claims 1 and 5, reproduced below, are representative of the subject
matter on appeal (emphasis added to contested limitations):
1. A data processing system, comprising:
at least one hard partition;
a partition monitor that establishes a first virtual partition
and a second virtual partition within the hard partition, wherein
the first and second virtual partitions include a respective
operating system, respective virtual address spaces accessible
via a first translation lookaside buffer (TLB) table that relates
virtual addresses to real addresses of a real memory, wherein
each of the virtual address spaces includes unique virtual
addresses based on the first and second virtual partition;
the respective virtual address spaces for the first virtual
partition is requested as multiple region ids by the first virtual
partition to the partition monitor and the respective virtual
address spaces for the second virtual partition is requested as
2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Oct. 13, 2015); Reply Brief ("Reply Br.," filed Apr. 20, 2016); Examiner's
Answer ("Ans.," mailed Feb. 25, 2016); Final Office Action ("Final Act.,"
mailed June 15, 2015); and the original Specification ("Spec.," filed
Apr. 24, 2008).
2
Appeal 2016-005180
Application 12/109,236
multiple region ids by the second virtual partition to the
partition monitor;
a determination by the partition monitor of the requested
multiple region ids by mapping, in a second TLB table, a
contiguous subset of multiple unused region ids that are
allocatable to the first and second virtual partitions, wherein
the multiple unused regions ids allocated to the first and second
virtual partitions are different;
the determined contiguous subset of multiple unused
region ids is assigned by the partition monitor on request by the
respective operating system of the first and second virtual
partitions; and
wherein a purge operation of the first TLB, performed by
a respective kernel, of the respective virtual addresses spaces
allocated to the first virtual partition is configured to not affect
the respective virtual address spaces allocated to the second
virtual partition.
5. The data processing system as claimed in claim 1,
wherein the first and second virtual partitions includes a
respective translation look aside buffer as the first table and
are different.
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Hausauer et al. ("Hausauer") US 2006/0236063 A1 Oct. 19, 2006
Prior Art
Seth et al. ("Seth")
Traut
Oney et al. ("Oney")
US 2006/0294288 Al Dec. 28, 2006
US 2007/0050764 Al Mar. 1, 2007
US 2007/0112999 Al May 17, 2007
3
Appeal 2016-005180
Application 12/109,236
Rejections on Appeal
Rl. Claims 1—12 stand rejected under 35 U.S.C. § 112(a) or 35
U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply with the
written description requirement. Ans. 2; Final Act. 3.
R2. Claims 1—12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Seth, Hausauer, Traut, and Oney.
Ans. 3; Final Act. 4.
CLAIM GROUPING
Based on Appellants' arguments (App. Br. 10-15), we decide the
appeal of obviousness Rejection R2 of claims 1—12 on the basis of
representative claim l.3 We address the written description Rejection Rl of
claims 1—12, infra.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all
arguments actually made by Appellants. We do not consider arguments that
Appellants could have made but chose not to make in the Briefs, and we
deem any such arguments waived. 37 C.F.R. § 41.37(c)(l)(iv).
We disagree with Appellants' arguments with respect to claims 1—12,
and we incorporate herein and adopt as our own: (1) the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken, and (2) the reasons and rebuttals set forth in the Examiner's Answer in
3 "Notwithstanding any other provision of this paragraph, the failure of
appellant to separately argue claims which appellant has grouped together
shall constitute a waiver of any argument that the Board must consider the
patentability of any grouped claim separately." 37 C.F.R. § 41.37(c)(l)(iv).
4
Appeal 2016-005180
Application 12/109,236
response to Appellants' arguments. We incorporate such findings, reasons,
and rebuttals herein by reference unless otherwise noted. However, we
highlight and address specific findings and arguments regarding claims 1
and 5 for emphasis as follows.
1. $ 112. 1st paragraph. Written Description Rejection Rlof Claims 1—12
Issue 1
Appellants argue (App. Br. 10-13; Reply Br. 2—6) the Examiner's
rejection of claims 1,5, and 10 under 35U.S.C. § 112, first paragraph, as
lacking written description support is in error. These contentions present us
with the following issues:
Did the Examiner err in finding Appellants' originally-filed disclosure
lacks: (a) description of a "second TLB table" with functionality as claimed
in claims 1 and 10 and (b) a "respective translation look aside buffer as the
first and are different," as recited in dependent claim 5 (emphasis added)?
Analysis
(a) — Claims 1 and 10
Appellants contend the Specification describes the use of a separate
TLB for each CPU within the system, and cites to paragraphs 8 and 13 in
support and, "[a]s As such, Appellants submit that at least [these] paragraphs
. . . support the claim language 'second TLB table' as recited in independent
claims 1 and 10." App. Br. 12—13.
Written description is a question of fact, judged from the perspective
of one of ordinary skill in the art as of the relevant filing date. See Vas-
Cath, Inc. v. Mahurkar, 935 L.2d 1555, 1563—64 (Led. Cir. 1991). The
5
Appeal 2016-005180
Application 12/109,236
written description "must ‘clearly allow persons of ordinary skill in the art to
recognize that [the inventor] invented what is claimed.’" AriadPharm., Inc.
v. EliLilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (citation
and quotations omitted). The test is whether the disclosure "conveys to
those skilled in the art that the inventor had possession of the claimed
subject matter as of the filing date." Id.
However, our reviewing court clarifies that:
[I]t is 'not a question of whether one skilled in the art
might be able to construct the patentee's device from the
teachings of the disclosure .... Rather, it is a question whether
the application necessarily discloses that particular device.' . . .
A description which renders obvious the invention for which an
earlier filing date is sought is not sufficient.
Lockwood v. American Airlines, Inc., 107 F.3d 1565, 1572 (Fed. Cir. 1997)
(quoting Jepson v. Coleman, 314 F.2d 533, 536 (CCPA 1963)) (emphasis
added). See also Ariad Pharm., 598 F.3d at 1352 ("[W]e have repeatedly
stated that actual 'possession' or reduction to practice outside of the
specification is not enough. Rather ... it is the specification itself that must
demonstrate possession.").
In response to Appellants' arguments, the Examiner finds:
[C]laims 1 and 10 require certain steps to be performed with
respect to the claimed second TLB, in addition to the
functionality attributed to the first TLB, more specifically,
claims 1 and 10 recite "a determination by the partition monitor
of the requested multiple region ids by mapping, in a second
TLB table, a contiguous subset of multiple unused region ids
that are allocatable to the first and second virtual partitions,
wherein the multiple unused regions ids allocated to the first
and second virtual partitions are different" . . . Appellant's
Specification does not provide support or description anywhere
6
Appeal 2016-005180
Application 12/109,236
for performing the claimed determination and mapping with
respect to a second TLB table in addition to the claimed first
TLB as required by claims 1 and 10.
Ans. 8—9 (emphasis added).
We agree with the Examiner's findings that the mere mention of
multiple TLBs in the Specification does not provide sufficient written
description support for the recited functional limitations associated with the
claimed "second TLB." In addition, in light of Lockwood, supra, we do not
find Appellants' argument persuasive that:
[E]ach virtual partition would be associated with a
different respective TLB and real memory such that the
'mapping' functionality would be performed by not one, but a
plurality of TLB's ... the specification supports “mapping in a
second TLB in addition to the claimed functionality associated
with a first TLB."
Reply Br. 5.
(b) — Claim 5
Appellants contend the Specification paragraphs 8 and 13 support "the
claim language 'respective translation look aside buffer' as recited in
dependent claim 5." App. Br. 12—13.
In response, the Examiner finds:
Regarding claim 5, The Specification describes TLB 236
as a single TLB for the different virtual partitions but does not
refer to a different TLB for each virtual partition. Therefore, the
Specification does not provide support for the limitations
"respective translation look aside buffer as the first and are
different." No other support has been provided by Appellants
other than stating that each CPU may have a TLB, but this
description is not sufficient to show support for "wherein the
first and second virtual partitions includes a respective
7
Appeal 2016-005180
Application 12/109,236
translation look aside buffer as the first table and are different"
as required by claim 5.
Ans. 10. In light of the holding in Lockwood, supra, we agree with the
Examiner's findings.
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's finding that claims 1, 5, and 10, and
claims depending therefrom, lack adequate written description support under
§112, first paragraph. Therefore, we sustain the Examiner's written
description rejection of independent claims 1—12.
2. §103 Rejection R2 of Claims 1—12
Issue 2
Appellants argue (App. Br. 13—15; Reply Br. 6—8) the Examiner's
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Seth, Hausauer, Traut, and Oney is in error. These
contentions present us with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a data processing system that includes, inter alia, "a partition
monitor" wherein "a determination by the partition monitor of the requested
multiple region ids by mapping, in a second TLB table, a contiguous subset
of multiple unused region ids that are allocatable to the first and second
virtual partitions," as recited in claim 1?
Analysis
Appellants contend they "do not believe that the Examiner included
the 'second TLB table' when analyzing independent claims 1 and 10." App.
8
Appeal 2016-005180
Application 12/109,236
Br. 13. Appellants further argue, Seth does not teach or suggest the
limitation:
"[A] determination by the partition monitor of the
requested multiple region ids by mapping, in a second TLB
table, a contiguous subset of multiple unused region ids,” as
recited in independent claim 1. That is, the Seth reference
describes a system that uses a single TLB (see, e.g., claim 3)."
App. Br. 13. "[W]hile the Seth reference describes that more than one CPU
may be used (see, e.g. Paragraph [0010]) and multiple virtual partitions may
be created (see, e.g. Paragraph [0015]), all virtual partitions created will
stem from the same TLB." App. Br. 14. "The Hausauer, Traut, and Oney
references, taken separately or together, do not cure this defect of the Seth
reference." Id. In particular, Appellants allege Hausauer and Traut "fail to
teach any use of TLB tables, making them clearly distinct from Appellants'
claims." Id. Further, "the Oney reference describes the use of a TLB table
but suffers from the same defect as Seth, namely, that it describes the use of
a single TLB table for all virtual partitions, rather than the use of multiple
distinct TLBs." Id.
We note Appellants' arguments quoted above focus on the alleged
deficiencies of the Seth and Oney references with respect to providing a
teaching or suggestion of a second TLB, but ignore the Examiner's finding
that Hausauer teaches or suggests the recited "contiguous subset of multiple
unused region ids that are allocatable to the first and second virtual
partitions," as recited in the contested limitation of claim 1. Final Act. 5;
and see Ans. 4.
We note the test for obviousness is what the combined teachings of
the prior art would have suggested to the hypothetical person of ordinary
9
Appeal 2016-005180
Application 12/109,236
skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Appellant has
not challenged the combinability of the teachings of Seth, Hausauer, Traut,
and Oney.
In the Reply Brief, Appellants argue:
Appellants respectfully submit that a TLB for each
processor is not analogous to 'mapping, in a second TLB table,
a contiguous subset of multiple unused region ids', as recited by
independent claim 1 and similarly in independent claim 10 . . .
[and] "a TLB for each processor, as described in Oney, is not
analogous to a different respective TLB allocatable to each of a
first and second virtual partition.
Reply Br. 7.
We are not persuaded by Appellants' arguments because Appellants
have not demonstrated that the Examiner's proffered combination of
references would have been "uniquely challenging or difficult for one of
ordinary skill in the art." See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSRInt'l Co. v. Teleflex, Inc.,
550 U.S. 398, 418 (2007). Nor have Appellants provided objective evidence
of secondary considerations which our reviewing court guides "operates as a
beneficial check on hindsight." Cheese Sys., Inc. v. Tetra Pak Cheese and
Powder Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013).
Therefore, based upon the findings above, on this record, we are not
persuaded of error in the Examiner's reliance on the combined teachings and
suggestions of the cited prior art combination to teach or suggest the
disputed limitation of claim 1, nor do we find error in the Examiner's
resulting legal conclusion of obviousness. Therefore, we sustain the
10
Appeal 2016-005180
Application 12/109,236
Examiner's obviousness rejection of independent claim 1, and grouped
claims 2—12 which fall therewith. See Claim Grouping, supra.
REPLY BRIEF
To the extent Appellants may advance new arguments in the Reply
Brief (Reply Br. 2—8) not in response to a shift in the Examiner's position in
the Answer, we note arguments raised in a Reply Brief that were not raised
in the Appeal Brief or are not responsive to arguments raised in the
Examiner’s Answer will not be considered except for good cause (see 37
C.F.R. § 41.41(b)(2)), which Appellants have not shown.
CONCLUSIONS
(1) The Examiner did not err with respect to written description
Rejection R1 of claims 1—12 under 35 U.S.C. § 112(a) or 35 U.S.C. § 112
(pre-AIA) first paragraph, and we sustain the rejection.
(2) The Examiner did not err with respect to obviousness Rejection
R2 of claims 1—12 under 35 U.S.C. § 103(a) over the cited prior art
combination of record, and we sustain the rejection.
DECISION
We affirm the Examiner's decision rejecting claims 1—12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
11