Ex Parte Sohm et alDownload PDFPatent Trial and Appeal BoardApr 24, 201411383469 (P.T.A.B. Apr. 24, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte OLIVER P. SOHM, BRIAN CRUICKSHANK, MANISHA AGARWALA, and GARY L. SWOBODA ____________ Appeal 2011-010735 Application 11/383,469 Technology Center 2100 ____________ Before ROBERT E. NAPPI, BRUCE R. WINSOR, and J. JOHN LEE, Administrative Patent Judges. LEE, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-010735 Application 11/383,469 2 STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134 from the final rejections of claims 1-21. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We affirm-in-part and institute a new ground of rejection within the provisions of 37 C.F.R. § 41.50(b) (2011). CLAIMED SUBJECT MATTER Appellants’ claims relate to “a method and system of inserting marker values used to correlate trace data as between processor cores.” (Spec. ¶ 4.) Independent claims 1 and 18 are exemplary of the claims on appeal. Claim 1 recites: 1. An integrated circuit device comprising: a first processor core; a first data collection portion coupled to the first processor core and configured to gather data comprising addresses of instructions executed by the first processor core; a second processor core communicatively coupled to the first processor core; and a second data collection portion coupled to the second processor core and configured to gather data comprising addresses of instructions executed by the second processor core; wherein the integrated circuit device is configured to insert marker values into the data of the first and second processor cores which allow correlation of the data of the first processor core with the data of the second processor core such that contemporaneously executed instructions are identifiable. 1 Appellants identify Texas Instruments Inc. as the real party in interest. (App. Br. 3.) Appeal 2011-010735 Application 11/383,469 3 Claim 18 recites: 18. A computer-readable medium storing a program that, when executed by a first processor core, causes the first processor core to: execute a series of instructions that rely in part on instructions executed in a second processor core; and write stall information to a predetermined location when the first processor core stalls waiting for the second processor core. REJECTIONS Claims 1-7 and 9-11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough (US 7,058,859 B2), Swaine (US 7,080,289 B2), and Seroff (US 7,565,576 B2). Claim 8 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough, Swaine, Seroff, and Edwards (US 6,567,932 B2). Claims 12-16 and 18 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough, Swaine, Seroff, and admitted prior art. Claims 19 and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough, Swaine, Seroff, Galbraith (US 2005/0198422 A1), and admitted prior art. Claims 17 and 21 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over McCullough, Swaine, Seroff, Nasuti (US 2005/0229043 A1), and admitted prior art. Appeal 2011-010735 Application 11/383,469 4 ANALYSIS Claims 1-17 Appellants argue the Examiner erred in finding that McCullough, Swaine, and Seroff disclose configuration of an integrated circuit device to “insert marker values into the data of the first and second processor cores which allow correlation of the data of the first processor core with the data of the second processor core such that contemporaneously executed instructions are identifiable,” as recited in claim 1. (App. Br. 10-13.) We do not agree the Examiner erred. According to the Examiner (Ans. 4, 20-23), McCullough discloses an “embedded trace macrocell” (ETM) that outputs trace data from an ARM processor via signals, including inserted “pipeline status signals,” a “trace sync signal,” and “trace packet signals.” (McCullough, col. 5 ll. 50-64, col. 6 ll. 9-36.) The resulting trace stream may include records for “instruction executed” (IE), a “trigger” (TR), or a “wait” (WT) message. (Id.) Further, each record bears a “timestamp.” (Id. fig. 3.) Additionally, the Examiner cited McCullough’s disclosure that the described processor circuit “may include two or more processors.” (Id., col. 4 ll. 10-14.) Swaine also discloses a system using ARM processor ETMs, as the Examiner noted. (Ans. 25 (citing Swaine, col. 9 l. 44-col. 10 l. 2).) The Examiner relied on Swaine for its disclosure of “watch points,” which are described as triggers for trace controls where, for example, an instruction when executed triggers a trace control if its address matches the address set as the watch point. (Swaine, col. 6 ll. 22-66; see Ans. 6-7.) As Appellants note (App. Br. 11), the Examiner also referred to Swaine’s disclosure of synchronizing trace streams through inserted indicators (e.g., Ans. 29-30). Appeal 2011-010735 Application 11/383,469 5 Swaine describes inserting “synchronising data” into trace streams to match a record in an instruction trace stream with the associated record in a data trace stream. (Swaine, col. 5 ll. 47-64, fig. 5.) Finally, the Examiner cited Seroff for its disclosure of a system-on- chip with two processors coupled to an embedded trace module (Ans. 5 (citing Seroff, fig. 5).) Seroff discloses that these may be ARM processors each coupled to an ETM. (Seroff, col. 6 l. 59-col. 7 l. 8 (describing the structures of fig. 5).) The Examiner found that McCullough teaches or suggests inserting the claimed “marker values” where it describes an ETM inserting signals into the trace data of the processor that identify executed instructions. (Ans. 21-23.) Additionally, the Examiner found that Swaine likewise teaches or suggests inserting “marker values” in the form of watch points inserted into the trace stream. (Ans. 25-26.) Further, the Examiner found that McCullough teaches or suggests the claimed “correlation” of the trace data between two processor cores because a person of ordinary skill would understand that the ETM trace data from multiple processors may be correlated using, for example, timestamps or certain pipeline status signals, and McCullough discloses two or more processors. (Ans. 7-8, 21-23, 30-31.) The Examiner also found that Swaine similarly teaches or suggests “correlation” of trace data to identify contemporaneously executed instructions, such as through watch points on addresses of executed instructions and synchronization of trace streams. (Ans. 6, 25-27, 29-30.) Moreover, the Examiner found that a person of ordinary skill would understand the teachings of McCullough and Swaine could be applied to Appeal 2011-010735 Application 11/383,469 6 multiple processor cores because of Seroff’s disclosure of an ETM-based trace system with two processors. (Ans. 5-6, 23, 27, 30-31.) According to the Examiner, a person of ordinary skill would be motivated to combine these references because each relates to aspects of ETM-based trace systems on ARM processors. (See, e.g., Ans. 5-6.) We agree with these findings of the Examiner and are not persuaded they are erroneous. Appellants assert that neither McCullough nor Swaine disclose correlating data from two processors to identify contemporaneously executed instructions.2 (App. Br. 10-13; Reply Br. 2-3.) Specifically, Appellants contend the cited portions of McCullough relate to only a single processor core and do not relate specifically to correlating contemporaneously executed instructions. (App. Br. 10.) As to Swaine, Appellants argue Swaine’s watch points and synchronizing data elements relate to data miss events and correlating data items and instructions, not correlating data between two processors. (Id. 11-12; Reply Br. 2.) However, “one cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). Moreover, express disclosure of the exact claimed feature is not required for obviousness. “Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Id. at 2 Appellants also rely on alleged inconsistencies in the Examiner’s rejection. (App. Br. 10-11.) However, the Examiner’s citation of the relevant portions of the prior art and explanation of the reasoning behind the rejection were sufficient to put Appellants on notice of the rejection. See In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011). Moreover, Appellants’ understanding of the rejection is apparent in their arguments responding to the rejection, which address the relevant aspects of the rejection. See id. at 1362-63. Appeal 2011-010735 Application 11/383,469 7 425. We agree with the Examiner’s findings and conclusion that a person of ordinary skill in the art would have found the disputed limitations obvious in light of the teachings of the cited prior art. Thus, the Examiner’s rejection of claim 1 as obvious over McCullough, Swaine, and Seroff is sustained. Appellants do not separately argue the patentability of dependent claims 2-7, 9, and 10. In addition, Appellants rely on the same arguments for claim 11 as for claim 1. (App. Br. 14.) Consequently, the Examiner’s rejection of claims 2-7 and 9-11 as being obvious over McCullough, Swaine, and Seroff is sustained as well. Further, Appellants also rely on the same arguments for claims 8 and 12-16 as for claim 1. (App. Br. 14-15.) As a result, the Examiner’s rejection of claim 8 as being obvious over McCullough, Swaine, Seroff, and Edwards is sustained, as is the Examiner’s rejection of claims 12-16 as being obvious over McCullough, Swaine, Seroff, and admitted prior art. Finally, Appellants do not separately argue the patentability of claim 17. Therefore, the Examiner’s rejection of claim 17 as being obvious over McCullough, Swaine, Seroff, and Nasuti is sustained. Claims 18-21 Appellants argue the Examiner erred in finding that McCullough, Swaine, Seroff, and admitted prior art disclose “writ[ing] stall information to a predetermined location when the first processor core stalls waiting for the second processor core,” as recited in claim 18. We agree. The Examiner found (Ans. 17) that the “stall information” limitation would have been obvious to a person of ordinary skill in light of the disclosures of Swaine, McCullough, and the Specification’s description of Appeal 2011-010735 Application 11/383,469 8 the prior art. (Ans. 17-18.) However, none of the evidence cited by the Examiner pertains to a scenario where a first processor core stalls waiting for a second processor core, as required by the claim. As discussed supra, the Examiner correctly noted that McCullough discloses a system with ETM tracing of two or more processors. The Examiner, however, did not identify any portions of McCullough or Swaine that address a processor stalling while waiting for a second processor. While McCullough describes wait (WT) messages, there is no indication that such messages relate particularly to a processor stalling while waiting for another; in fact, the disclosure contemplates the use of WT messages with a single processor. (See McCullough, col. 6 ll. 9-36.) Likewise, Swaine only refers to a “load or store multiple [LSM] instruction” that “does not stall the core.” (Swaine, col. 12 ll. 51-67.) The Examiner did not sufficiently explain how the prior art, even in combination, teaches or suggests the writing of stall information when a first processor stalls while waiting for a second processor, as recited in claim 18. Thus, based on the record before us, we do not sustain the rejection of independent claim 18 as being obvious over McCullough, Swaine, Seroff, and admitted prior art. Since claims 19-21 depend on claim 18, we further do not sustain the Examiner’s rejections of claims 19-21. Appeal 2011-010735 Application 11/383,469 9 NEW GROUND OF REJECTION WITHIN 37 C.F.R. § 41.50(b) Claims 11-21 are rejected on a new ground of rejection under 35 U.S.C. § 101 as directed to non-statutory subject matter.3 “A transitory propagating signal . . . is not a ‘process, machine, manufacture, or composition of matter.’ [These] four categories define the explicit scope and reach of subject matter patentable under 35 U.S.C. § 101; thus, such a signal cannot be patentable subject matter.” In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). According to U.S. Patent & Trademark Office (USPTO) guidelines: The broadest reasonable interpretation of a claim drawn to a computer read[able] medium . . . typically covers forms of non- transitory tangible media and transitory propagating signals per se in view of the ordinary and customary meaning of computer readable media . . . . When the broadest reasonable interpretation of a claim covers a signal per se, the claim must be rejected under 35 U.S.C. § 101 as covering non-statutory subject matter. David J. Kappos, Subject Matter Eligibility of Computer Readable Media, 1351 Off. Gaz. Pat. Office 212 (Feb. 23, 2010) (“OG Notice”) (citation omitted); see also Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential). Moreover, “[a] claim that covers both statutory and non- statutory embodiments . . . embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.” MPEP § 2106(I) (8th ed. 2001, rev. 2012) (emphasis added); cf. In re Lintner, 458 F.2d 1013, 1015 (CCPA 1972) (“Claims which are broad enough to read on obvious subject matter are unpatentable even though they also read on nonobvious subject matter.”). 3 As explained supra, we also sustain the Examiner’s rejections of claims 11-17 under 35 U.S.C. § 103(a). Appeal 2011-010735 Application 11/383,469 10 Claims 11-21 each recite a “computer-readable medium” without limitation to a non-transitory medium. We give the term its broadest reasonable interpretation in light of the Specification. In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The Specification only provides a non-exclusive list of “example[s]” of computer-readable media (Spec. ¶ 51), and limitations from an embodiment should not be imported into the claims absent clear disclaimer in the Specification. Id. at 1369. Accordingly, we construe claims 11-21 to encompass transitory signals and conclude they are directed to non-statutory subject matter. DECISION We affirm the Examiner’s rejections of claims 1-17 as being unpatentable under 35 U.S.C. § 103(a). We reverse the Examiner’s rejections of claims 18-21 as being unpatentable under 35 U.S.C. § 103(a). We enter a new ground of rejection for claims 11-21 under 35 U.S.C. § 101. This decision contains new grounds of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides that “[a] new ground of rejection . . . shall not be considered final for judicial review.” Section 41.50(b) also provides that Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter Appeal 2011-010735 Application 11/383,469 11 reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. 37 C.F.R. § 41.50(b). 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED-IN-PART 37 C.F.R. § 41.50(b) tj Copy with citationCopy as parenthetical citation