Ex Parte Richek

Board of Patent Appeals and Interferences

May 14, 2008

10079928 (B.P.A.I. May. 14, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MARTIN D. RICHEK
____________

Appeal 2008-0564
Application 10/079,928
Technology Center 2100
____________

Decided: May 14, 2008
____________

Before JAMES D. THOMAS, HOWARD B. BLANKENDSHIP
and JAY P. LUCAS, Administrative Patent Judges.

THOMAS, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 3 through 10, 12, 13, 15 through 23, 25 through 28, and
30 through 35. We have jurisdiction under 35 U.S.C. § 6(b).
As best representative of the disclosed and claimed invention,
independent claim 3 is reproduced below:
3. A computer-implemented method of memory management,
comprising the steps of:
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providing a smart pointer for association with a memory-resident
element, the smart pointer including a next pointer;

providing an assignment means for assigning the next pointer to point
to the smart pointer thereby creating a linked list comprising the smart
pointer;

providing a comparison means for comparing the value of the next
pointer to the value of the memory location of the smart pointer in which the
next pointer is included, whereby a determination can be made if the linked
list contains more than one smart pointer; and

deleting the memory-resident element associated with the smart
pointer if the value of the next pointer of the smart pointer is equal to the
value of the memory location of the smart pointer in which the next pointer
is included and not deleting the memory-resident element if the value of the
next pointer of the smart pointer is not equal to the value of the memory
location of the smart pointer in which the next pointer is included.

The following reference is relied on by the Examiner:
Oliver US 6,144,965 Nov. 7, 2000
Claims 3 through 10, 12, 13, 15 through 23, 25 through 28, and 30
through 35 stand rejected under 35 U.S.C. § 102(e) as being anticipated by
Oliver.
Rather that repeat verbatim the positions of the Appellant and the
Examiner, reference is made to the Brief (no Reply Brief has been filed) for
Appellant’s positions, and to the Answer for the Examiner’s positions.
OPINION
For the reasons set forth by the Examiner in the Answer, as expanded
upon here, we sustain the rejection under 35 U.S.C. § 102 of all claims on
appeal. Beginning at page 4 of the Answer, the Examiner has set forth a
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detailed correlation of the corresponding teachings and figures of Oliver as
to each independent claim 3, 13, 23, and 35 on appeal, as well as all
dependent claims. Correspondingly, Appellant’s arguments beginning at
page 12 of the Brief details Appellant’s alleged distinctions of each
independent claim, 3, 13, 23, and 35. The positions with respect to each of
these independent claims appear to be the same since each recites
corresponding features. Pages 20 and 21 of the Brief present separate
arguments as to dependent claim 34, but no arguments are presented as to
any other dependent claims.
As to each independent claim, Appellant generally urges that Oliver
does not teach the claimed comparison means where Appellant’s claims are
said to recite a comparison of memory values whereas Oliver is alleged not
to compare address values but to compare the values of the next and
pervious pointers per se. We do not agree with these assertions which are
made for each independent claim. The Examiner correctly points out at the
top of page 20 of the Answer that pointers, by definition, indicate memory
locations or addresses rather than the data itself at that location. Since no
Reply Brief has been filed, this is not contested. Therefore, from an
artisan’s perspective, the artisan would well understand that the comparison
of values of the various pointers in Oliver is inclusive of the determination
of comparing the address values associated with those respective pointers.
From our own review of Oliver, the concept of smart pointers in the
computer programming arts is known as a prior art concept associated with
the object-oriented programming language C++ discussed throughout
Oliver. Although many arguments in the Brief relative to each independent
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claim, such as to those at pages 14 and 15 of the Brief, appear to invite us to
read the disclosed features of the Specification into the subject matter of the
claims on appeal, it appears to us that the subject matter of Oliver is
consistent with the prior art problems Appellant appears to allege to have
overcome. The discussion “garbage collection” beginning at column 1 of
Oliver relates to various approaches in the art of destroying or otherwise
removing an object in object oriented programming constructs that are no
longer used or necessary. Such a situation is stated to exist when no pointers
to an object continue to exist. Corresponding prior art removal approaches
are shown in figures 1C, 2C, 4C, and 5D as relied upon by the Examiner.
The Examiner in fact appears to rely upon the entire data constructs of the
pointers among the various portions of figure 5 of Oliver including the next
pointer indicia as well as previous pointer indicia (the latter of which is
recited specifically in independent claim 35). A linked list of three pointers
is shown in figure 5C to comprise a ring. Remarkably, the showing of the
comparison and optional deletion capabilities or non-deletion capabilities of
the last two clauses of each independent claim on appeal are shown in figure
5D of Oliver and appear to correspond to Appellant’s disclosed figure 4.
Therefore, the Examiner’s reliance on the substance of column 5 for each of
the respective portions of figure 5 is well taken.
The Examiner’s responsive arguments beginning at page 19 of the
Brief address each of the arguments for each independent claim set forth in
the Brief. Even though the Examiner appears not to address the particulars
of dependent claim 34 among these responsive arguments, the Examiner has
addressed the rejection of claim 34 at pages 18 and 19 of the Answer. From
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our understanding of the disclosed invention, the automatic conversion
feature of claim 34 is said to exist between smart pointers of different classes
in the same class hierarchy. On the other hand, this is not claimed. In fact,
the claimed first class may in fact be the same as the recited second class
since they are not recited to be different. As such, the automatic conversion
feature that is claimed between a first smart pointer and second smart pointer
may occur in that claim within the same class structure which is implicit
within the nature of the disclosed invention in Oliver anyway. Moreover,
the various class structures and the class inheritance requirements within a
normal class hierarchy within object-oriented programming are generally
discussed among the related arts beginning at column 1 of Oliver. All of this
relates to well known design features within object oriented programming
anyway. We therefore sustain the rejection of separately argued dependent
claim 34.
Overriding all these consideration, the rule that anticipation requires
that every element of a claim appears in a single reference accommodates
situations where the common knowledge of “technologists” is not recorded
in a reference, i.e., where technical facts are known to those in the field of
the invention. Continental Can Co. v. Monsanto Co., 948 F.2d 1264, 1269
(Fed. Cir. 1991). Similarly, In re Graves, 69 F.3d 1147, 1152 (Fed. Cir.
1995), confirms the longstanding interpretation that the teachings of a
reference may be taken in combination with knowledge of the skilled artisan
to put the artisan in possession of the claimed invention within 35 U.S.C. §
102 even though the patent does not specifically disclose certain features.
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In view of the foregoing, the decision of the Examiner rejecting all
claims on appeal under 35 U.S.C. § 102 is affirmed since Appellant has not
convincingly shown any error in the Examiner’s reasoning and application
of Oliver to the claims on appeal.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. §1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

pgc

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