Ex Parte Rhodes

Board of Patent Appeals and Interferences

Jun 23, 2004

09231041 (B.P.A.I. Jun. 23, 2004)

1
The opinion in support of the decision being entered today
was not written for publication and is not binding precedent
of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte DAVID L. RHODES
__________
Appeal No. 2003-0333
Application 09/231,041
__________
ON BRIEF
__________
Before JERRY SMITH, FLEMING, and SAADAT, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on the appeal under 35 U.S.C. § 134
from the examiner’s rejection of claims 1-3 and 5-8, which
constitute all the claims remaining in the application.
The disclosed invention pertains to an improved cache
memory system for a computer.
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Application No. 09/231,041
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Representative claim 1 is reproduced as follows:
1. In a computer system of the type wherein a processor
directs information to and retrieves information from a memory
which includes main memory and cache memory, the improvement
comprising:
a plurality of separate and independent memory branches
extend from a common bus that passes at a hierarchical level
immediately above the processor and a combination of main memory
and cache memory is included in each branch, with at least one
branch having at least one hierarchical level of multiple cache
memory units in a memory space division.
The examiner relies on the following references:
Menasce 5,193,166 Mar. 09, 1993
Mattson 5,434,992 July 18, 1995
Smith 5,696,932 Dec. 09, 1997
Handy, Jim, The Cache Memory Book (New York, Academic Press,
Inc., 1933), pages 87-91.
The following rejections are on appeal before us:
1. Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the teachings of Menasce in view of
Smith.
2. Claim 3 stands rejected under 35 U.S.C. § 103(a) as
being unpatentable over the teachings of Menasce in view of Smith
and further in view of Handy.
3. Claims 5 and 6 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the teachings of Menasce in view of
Smith and further in view of Mattson.
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4. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over the teachings of Menasce in view of
Smith and further in view of Handy and Mattson.
Rather than repeat the arguments of appellant or the
examiner, we make reference to the briefs and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the evidence
of obviousness relied upon by the examiner as support for the
rejections. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellant’s
arguments set forth in the briefs along with the examiner’s
rationale in support of the rejections and arguments in rebuttal
set forth in the examiner’s answer.
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in the
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in the
claims on appeal. Accordingly, we reverse.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
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Application No. 09/231,041
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support the legal conclusion of obviousness. See In re Fine,
837 F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to arrive
at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole
or knowledge generally available to one having ordinary skill in
the art. Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S. 825
(1988); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hosp. Sys., Inc. v. Montefiore
Hosp., 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed. Cir. 1984).
These showings by the examiner are an essential part of complying
with the burden of presenting a prima facie case of obviousness.
Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444
(Fed. Cir. 1992). If that burden is met, the burden then shifts
to the applicant to overcome the prima facie case with argument
and/or evidence. Obviousness is then determined on the basis of
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the evidence as a whole and the relative persuasiveness of the
arguments. See Id.; In re Hedges, 783 F.2d 1038, 1039, 228 USPQ
685, 686 (Fed. Cir. 1986); In re Piasecki, 745 F.2d 1468, 1472,
223 USPQ 785, 788 (Fed. Cir. 1984); and In re Rinehart, 531 F.2d
1048, 1052, 189 USPQ 143, 147 (CCPA 1976). Only those arguments
actually made by appellant have been considered in this decision.
Arguments which appellant could have made but chose not to make
in the brief have not been considered and are deemed to be waived
by appellant [see 37 CFR § 1.192(a)].
We consider first the rejection of sole independent claim
1 based on the teachings of Menasce and Smith. The examiner
indicates that Menasce teaches the invention of claim 1 except
that Menasce does not specifically disclose at least one branch
having at least one hierarchical level of multiple cache memory
units in a memory space division. The examiner asserts that the
teachings of Menasce can be extended and applied to each branch
of Menasce to arrive at the claimed invention. The examiner also
cites Smith as teaching a hierarchical level of multiple cache
memory units in a memory space division. The examiner finds that
it would have been obvious to the artisan to modify Menasce as
taught by Smith to arrive at the claimed invention [answer, pages
3-4].
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Appellant argues that the portion of Menasce relied on by
the examiner fails to support the examiner’s position that the
branches in Menasce are separate and independent as claimed.
Appellant argues that the branches in Menasce are clearly
interleaved and, therefore, not independent. Appellant also
argues that any memory space division in Menasce occurs in
separate branches rather than in an individual branch as claimed.
Appellant also argues that Smith relates only to dividing a cache
into a plurality of partitions and not to a memory space division
as claimed [brief, pages 4-8].
The examiner responds by essentially repeating the
language of the final rejection. The examiner disagrees with
appellant that the branches in Menasce are not independent. As
noted above, the examiner simply asserts that the teachings of
Menasce can be extended to arrive at the claimed invention or
that Smith teaches the memory space division as claimed [answer,
pages 8-10].
Appellant responds that the interleaving in Menasce and
the teaching that the CMMUs for each word may be paralleled
require that the branches be interdependent. Appellant complains
that the examiner failed to address this argument. Appellant
also argues that there is no support for the examiner’s position
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that the teachings in Menasce can be extended to arrive at the
claimed invention. Appellant also responds that Smith relates
only to dividing a cumulative cache memory into a plurality of
partitions and not to a memory space division as claimed [reply
brief, pages 3-8].
We will not sustain the examiner’s rejection of claim 1
based on this record. With respect to the question of whether
the branches in Menasce are separate and independent, we are not
persuaded by appellant’s arguments that these branches are
interdependent as argued by appellant. Although Menasce states
that the CMMUs are interleaved rather than the data or code
words, we understand from the drawings that it is the access of
the CMMUs that is interleaved rather than the CMMUs per se. In
other words, the data storage and retrieval within each branch
appears to be separate and independent to us. Nevertheless, we
agree with appellant that neither Menasce nor Smith teaches the
claim recitation of at least one branch having at least one
hierarchical level of multiple cache memory units in a memory
space division. The examiner’s position that Menasce can be
extended to arrive at the claimed invention is unsupported by
Menasce. Although Menasce teaches that bandwidth is improved by
going from the structure of Figure 1 to the structure of Figure
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2, the extension proposed by the examiner is not of the same type
as that structural change, and there is no suggestion that the
proposed extension would result in any benefit whatsoever. We
also agree with appellant that Smith has nothing to do with a
memory space division at one hierarchical level. As noted by
appellant, a memory space division requires a structural
separation between the memories. Smith simply partitions a
single cache memory and does not relate to a memory space
division within a hierarchical level of cache memories.
For all the reasons discussed above, we have not
sustained the examiner’s rejection of independent claim 1 based
on Menasce and Smith. Since Hardy and Mattson, either alone or
in combination, do not overcome the deficiencies of the base
combination discussed above, we also do not sustain the
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examiner’s rejection of any of the dependent claims. Therefore,
the decision of the examiner rejecting claims 1-3 and 5-8 is
reversed.
REVERSED
JERRY SMITH )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
MAHSHID D. SAADAT )
Administrative Patent Judge )
JS:svt
Appeal No. 2003-0333
Application No. 09/231,041
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