12772433 (P.T.A.B. Sep. 30, 2016)

Ex Parte Richardson et al

Patent Trial and Appeal BoardSep 30, 2016

12772433 (P.T.A.B. Sep. 30, 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. 12/772,433 05/03/2010 Raymond RICHARDSON 40101/16801 3870 30636 7590 10/03/2016 FAY KAPLUN & MARCIN, LLP 150 BROADWAY, SUITE 702 NEW YORK, NY 10038 EXAMINER MA, WING ART UNIT PAPER NUMBER 2456 MAIL DATE DELIVERY MODE 10/03/2016 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 RAYMOND RICHARDSON and MARK DAPOZ ____________ Appeal 2015-007810 Application 12/772,433 Technology Center 2400 ____________ Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and ADAM J. PYONIN, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL Appeal 2015-007810 Application 12/772,433 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–18.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. THE INVENTION Appellants’ claimed invention is directed to “receiv[ing], from a first processor, a message to be sent to a second processor” and “stor[ing], the message in a portion of a shared memory, the shared memory being shared by the first processor and the second processor” (Abstract). Independent claim 1, reproduced below, is representative of the subject matter on appeal: 1. A non-transitory computer readable storage medium storing a set of instructions executable by a processor, the set of instructions, when executed by the processor, causing the processor to perform operations comprising: receiving, from a first processor, a message to be passed to a second processor; storing the message in a portion of a shared memory, the shared memory being shared by the first processor and the second processor; storing, in an instruction list conveying instructions only from the first processor and only to the second processor and stored in a further portion of the shared memory, an instruction corresponding to the message; and 1 Claims 19 and 20 were canceled in an after-final response filed on August 6, 2014. Advisory Act. 1. Appeal 2015-007810 Application 12/772,433 3 prompting the second processor to read the instruction list. REFERENCES and REJECTIONS Claims 1, 4, 6, 10–12, and 15 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Tanaka (US 2010/0299472 A1; Nov. 25, 2010) in view of Suzuki (US 4,394,730; July 19, 1983). Final Act. 6. Claims 2, 3, 5, 9, 13, 14, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Tanaka in view of Suzuki, and Hagan (US 5,966,547; Oct. 12, 1999). Final Act. 10. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Tanaka in view of Suzuki, Hagan, and Gupta (US 2007/0271572 A1; Nov. 22, 2007). Final Act. 13. Claim 16 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Tanaka in view of Suzuki, Hagan, and Mitchell (US 5,793,994; Aug. 11, 1998). Final Act. 14. Claim 18 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Tanaka in view of Suzuki, and Meiri (US 7,870,195 B1; Jan. 11, 2011). Final Act. 15. ISSUE The pivotal issue is whether the Examiner erred in finding that the combination of Tanaka and Suzuki disclose the “receiving, from a first processor, a message to be sent to a second processor,” limitation recited in claim 1. Appeal 2015-007810 Application 12/772,433 4 ANALYSIS Appellants argue the Examiner erred in finding Suzuki teaches or suggests “receiving, from a first processor, a message to be sent to a second processor,” as recited in claim 1 (see App. Br. 3). Particularly, Appellants contend that Suzuki’s “task migration would be understood by one [of] ordinary skill in the art as moving a task from one processor to another in multiprocessor environment” and “the moving of a task is not [the] same as passing messages as recited in the claims of the present application” (App. Br. 3). Appellants additionally proffer a definition of a “message passing” from the website “webopedia.com” and contend that “the message passing recited in the claims is consistent with the definition of message passing provided by [the webopedia.com website]” (App. Br. 4–5). We are not persuaded by Appellants’ arguments. The Examiner finds, and we agree, that “communicating a task is communicating some information” (Final Act. 4; Ans. 13) and a “communicated task is communicated information, i.e., a message” (Final Act. 5). The Examiner additionally finds “[A]ppellant’s specification does not appear to specifically define the term ‘message’” (Ans. 15, citing Spec. ¶ 25), but instead “appears to describe message passing as passing data” (Ans. 15, citing Spec. ¶ 13). We agree. Our reviewing Court determined that although claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). During ex parte prosecution, claims must be interpreted as broadly as their terms reasonably allow because Applicants have the power during the administrative process to amend the claims to avoid the prior art. In re Zletz, Appeal 2015-007810 Application 12/772,433 5 893 F.2d 319, 322 (Fed. Cir. 1989).2 Here, Appellants’ Specification includes no explicit definition of a “message” or “a message to be passed.” The disclosure does state that “[t]he exemplary embodiments may be used for the transmission of any type of data, instructions, or other messages” (Spec. ¶ 25), which strongly supports an expansive definition of a message to include “any type” of “data” and “instructions,” despite Appellants’ arguments to the contrary (see Reply Br. 4–5). Thus, we find the claimed “message to be passed” encompasses Tanaka’s “migrating a task running on [one] processor to another processor” (Tanaka ¶ 7; see also ¶ 21, wherein a “task has an interrupt handler for receiving an interrupt request for stopping and resuming playing music”) as one skilled in the art would consider such a task to comprise instructions and/or data. Accordingly, we sustain the Examiner’s rejection of independent claim 1, and independent claim 10 commensurate in scope, as well as dependent claims 2–9 and 11–18 not separately argued with particularity. See App. Br. 5–10. 2 Appellants’ arguments based on the unreliability of extrinsic evidence (Reply Br. 5–6, citing Phillips v. AWH Corp., 415 F.3d 1303, 1316–1318 (Fed. Cir. 2005)) are unpersuasive as these arguments ignore the directive for the Office to “giv[e] claims their broadest reasonable interpretation ‘in light of the specification as it would be interpreted by one of ordinary skill in the art.’” Id. at 1316. Appeal 2015-007810 Application 12/772,433 6 CONCLUSION The Examiner did not err in finding that the combination of Tanaka and Suzuki disclose the “receiving, from a first processor, a message to be sent to a second processor,” as recited in claim 1. DECISION The Examiner’s decision rejecting claims 1–18 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