Ex Parte WilsonDownload PDFPatent Trial and Appeal BoardFeb 18, 201511968913 (P.T.A.B. Feb. 18, 2015) Copy Citation 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. 11/968,913 01/03/2008 Russell Wilson GB920060107US1 9772 58139 7590 02/18/2015 IBM CORP. (WSM) c/o WINSTEAD P.C. P.O. BOX 131851 DALLAS, TX 75313 EXAMINER JORDAN, KIMBERLY L ART UNIT PAPER NUMBER 2194 MAIL DATE DELIVERY MODE 02/18/2015 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 RUSSELL WILSON ____________________ Appeal 2012-010433 1 Application 11/968,913 Technology Center 2100 ____________________ Before JEAN R. HOMERE, JEFFREY S. SMITH, and CATHERINE SHIANG, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant identify the real party in interest as International Business Machines Corp. App. Br. 1. Appeal 2012-010433 Application 11/968,913 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1–20 and 22–26. Claim 21 has been cancelled. App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appellant’s Invention Appellant’s invention is directed to a software application being executed in a computer system containing a message queue accessible by the software application to persistently record execution information (e.g., trace, debug, and dumps data) generated by the application, and retrieve the same therefrom. Spec. ¶¶ 1, 5, 22, Figs. 2, 4. Representative Claim Independent claim 1 is representative. It reads as follows: Claim 1. A method for recording execution information for a software application executable in a computer system, the computer system including a message queue, the method comprising the steps of: generating the execution information by the software application; and recording the execution information to the message queue for subsequent retrieval, wherein the message queue is accessible by the software application and persistent with respect to the software application. Prior Art Relied Upon Zwiegincew US 6,633,968 B2 Oct. 14, 2003 Kang US 7,685,573 B2 Mar. 23, 2010 Zoltan Balaton et al., Application Monitoring in the Grid with GRM and PROVE, 1–10 (2001). (hereinafter “Balaton”). Appeal 2012-010433 Application 11/968,913 3 Rejections on Appeal The Examiner rejects the claims on appeal as follows: Claims 1, 4, 5, 8–11, 14, 15, 18–20, 22, 25, and 26 stands rejected under 35 U.S.C. § 102(b) as being anticipated by Balaton. Claims 2, 3, 12, 13, 23, and 24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Balaton and Zwiegincew. Claims 6, 7, 16, and 17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Balaton and Kang. ANALYSIS We consider Appellant’s arguments seriatim as they are presented in the Appeal Brief, pages 3–24, and the Reply Brief, pages 2–11. 2 Anticipation Rejection Dispositive Issue 1: Under 35 U.S.C. § 102, did the Examiner err in finding Balaton describes a message queue accessible by an application software to persistently record execution information therein, as recited in independent claim 1? Appellant argues Balaton does not describe the disputed limitations. App. Br. 3–6, Reply Br. 2. In, Appellant argues although Balaton’s 2 Rather than reiterate the arguments of Appellant and the Examiner, we refer to the Appeal Brief (filed January 30, 2012), the Reply Brief (filed June 28, 2012) and the Answer (mailed May 8, 2012) for the respective details. We have considered in this Decision only those arguments Appellant actually raised in the Brief. Any other arguments Appellant could have made but chose not to make in the Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2012-010433 Application 11/968,913 4 discloses a shared memory buffer for storing execution information of the Local Monitor (LM) application being executed on the host, the shared memory buffer is a temporary storage device, whereas the disputed limitations requires a message queue for persistent storage. App. Br. 4–5. Further, Appellant argues because the claimed message queue is known in the art of computer science as a queue for storing messages, Balaton’s disclosed shared memory buffer for temporarily storing data does not describe the message queue, as recited in claim 1. Id., Reply Br. 2. We agree with Appellant. First, we agree with Appellant that the Examiner’s claim construction of a message queue as simply a queue or mere data structure that stores element (Ans. 12) is unreasonable. 3 Reply Br. 2. Appellant’s Specification states in relevant part”: The Software application 230 records the execution information 220 to a message queue 210. Message queue 210 is a data structure independent of, and accessible to, the software application 230 for recording message data items and is persistent with respect to the software application 230. The persistence of the message queue 210 with respect to the 3 In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). See also In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989) (stating that “claims must be interpreted as broadly as their terms reasonably allow.”). Our reviewing court further states, “the ‘ordinary meaning’ of a claim term is its meaning to the ordinary artisan after reading the entire patent.” Phillips v. AWH Corp., 415 F.3d 1303, 1321 (Fed. Cir. 2005) (en banc). Appeal 2012-010433 Application 11/968,913 5 software application 230 provides that the message queue 210 will persist intact beyond cessation of the execution of the software application 230. Spec. ¶ 23. (Emphasis added). Therefore, consistent with Appellant’s Specification, the broadest reasonable interpretation of the message queue is a data structure for persistently recording message data items. Balaton discloses a Local Monitor (LM) running on a host executing application processes. The LM collects trace events from the processes, and stores them in shared memory buffer that it creates. Balaton 3. When the buffer on the LM becomes full, a Main Monitor (MM) transfers the content of the buffer in time order to another storage device, such as a FIFO. Id. 3– 7. We find, consistent with our claim construction above, Balaton’s disclosure of recording trace events in the shared memory buffer at best describes temporarily recording message data items in the data structure. 4 In other words, because Balaton’s data structure for temporarily recording message events falls short of describing the claimed message queue, which is a data structure for persistently recording such message events. 5 Because 4 A buffer denotes a storage device for temporarily recording data. See Microsoft Press Computer Dictionary, p. 56, 2nd Ed. 1993. 5 We note nonetheless the FIFO disclosed in Balaton more closely describes the data structure for persistent storage of message events (message queue) defined in Appellant’s Specification. We thus leave it to the Examiner to decide in the event of further prosecution whether reject the claims based on such teaching. Appeal 2012-010433 Application 11/968,913 6 Appellant has shown at least one reversible error in the Examiner’s rejection, we need not reach the merits of Appellant’s additional arguments. Because claims independent claims 11 and 22 similarly recite a message queue for persistently recording message events, Appellant has similarly shown error in the rejections of those claims for the foregoing reasons, as well as claims 2–10, 12–20, and 23–26, which depend from claims 1, 11, and 22 respectively. DECISION We reverse the Examiner’s rejections of claims 1–20 and 22–26 as set forth above. REVERSED kis Copy with citationCopy as parenthetical citation