Ex Parte GschwindDownload PDFPatent Trial and Appeal BoardDec 17, 201512194145 (P.T.A.B. Dec. 17, 2015) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/194,145 08/19/2008 49267 7590 12/17/2015 TUTUNJIAN & BITETTO, P,C 425 Broadhollow Road, Suite 302 Melville, NY 11747 FIRST NAMED INVENTOR Michael Gschwind 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 ATTORNEY DOCKET NO. CONFIRMATION NO. YOR920060123US2(123CON)) 6104 EXAMINER BORROMEO, JUANITO C ART UNIT PAPER NUMBER 2184 MAILDATE DELIVERY MODE 12/17/2015 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 MICHAEL GSCHWIND Appeal2014-001455 Application 12/194,145 Technology Center 2100 Before THU A. DANG, LARRY J. HUME, and NORMAN H. BEAMER, Administrative Patent Judges. DANG, Administrative Patent Judge. DECISION ON APPEAL Appeal2014-001455 Application 12/194,145 I. STATEivIENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Final Rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. A. INVENTION According to Appellant, the invention relates generally to "processing of branch instructions in a microprocessor," and more particularly, to "implementing polymorphic branch predictors" (Spec. i-f 1 ). B. ILLUSTRATIVE CLAIM Claim 1 is exemplary: 1. A polymorphic[] branch predictor in a processor, comprising: a mechanism for dynamically selecting a mode of prediction from a set of at least two modes of prediction, said mode of prediction being dynamically selected responsive to a dynamic setting that configures the mode of prediction in accordance with task specific information, compnsmg: a first mode of prediction, formed from a first plurality of branch prediction methods, having a first selection logic to select one output from a set of outputs generated by the first plurality of branch prediction methods to perform branch prediction, to improve prediction performance during operation; and a second mode of prediction formed from a second plurality of prediction methods, having a second selection logic, different from the first selection logic, to select one output from a set of outputs generated by the second plurality of branch prediction methods to perform branch prediction, to improve prediction performance during operation; and a storage array for concurrently storing data for at least a first mode of prediction corresponding to a first one of the plurality of branch prediction methods and for a second mode of prediction corresponding to a second one of the plurality of branch prediction methods. 2 Appeal2014-001455 Application 12/194,145 C. REJECTION The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Henry US 6,550,004 B 1 Apr. 15, 2003 Claims 1-19 and 21 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Henry. 1 Claim 20 stands rejected under 35 U.S.C. § 102(b) as being anticipated by Henry, or in the alternative, under 35 U.S.C. § 103(a) as being unpatentable over Henry. II. ISSUES The principal issues before us are whether the Examiner erred in finding that Henry teaches a "mechanism for dynamically selecting a mode of prediction" comprising a ''first mode of prediction, formed from a first 1 In the event of further prosecution, we leave it to the Examiner to consider whether the claims should also be rejected under 35 U.S.C. § 112, first paragraph, for lack of an enabling disclosure. In particular, we leave it to the Examiner to determine whether the claimed "mechanism for dynamically selecting" a mode prediction is described in the Specification merely in terms of the functions it is intended/adapted to perform. That is, we leave it to the Examiner to determine whether the portions of the Specification pointed to by Appellant disclose any specific algorithm that could be implemented on a general purpose computer, and whether the claim term "mechanism for dynamically selecting" has achieved recognition as a noun phrase denoting structure. Thus, we leave it to the Examiner to determine whether Appellant's claimed "mechanism for dynamically selecting" is a definite structure, or is merely software per se, wherein if the element is not a "means" to which§ 112, sixth paragraph analysis is applicable, then it is simply an element defined solely by the function to be performed (i.e., a purely functional element unlimited by any particular structure). As such, the claim would be unpatentable under 35 U.S.C. § 112, first paragraph, for lack of an enabling disclosure commensurate with the scope of the claim. 3 Appeal2014-001455 Application 12/194,145 plurality of branch prediction methods, having a first selection logic," and "a second mode of prediction formed from a second plurality of prediction methods, having a second selection logic" (claim 1, emphasis added). III. FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Henry 1. Henry discloses a branch predictor that includes global and local Agree dynamic branch predictors, one of which is selected for correlation with a static branch prediction, wherein the selection is made by correlating a selection prediction made by the static prediction based on the test type and an Agree prediction made by a selector history table, or the selection is made directly by the selector history table without the benefit of the static prediction (Abst.). 2. The branch prediction mechanism includes a static predictor that generates a static prediction, first and second branch predictors that generate first and second agree/disagree predictions with the static prediction, a selector that selects one of the first and second agree/ disagree predictions, and a correlation logic that correlates the static prediction and the selected one of the first and second agree/disagree predictions selected (col. 5, 11. 6- 18). 3. An apparatus selects one of two predictions made by the branch prediction mechanism, wherein the apparatus includes a correlator coupled to a history table for correlating the signal generated by the branch prediction mechanism with the agree/disagree indication provided on the history table output. The apparatus may instead include a static predictor 4 Appeal2014-001455 Application 12/194,145 that selects one of the plurality of predictions as a function of a selection signal (col. 5, 11. 19--39). IV. ANALYSIS Appellant contends "each prediction in Henry is clearly only one 'method of prediction"' and thus "there is clearly nothing in the reference to support dynamic selection between multiple modes of prediction" (App. Br. 9). According to Appellant, "a single branch prediction method may be shown as, e.g., a 'global predictor' or a 'local predictor,"' whereas "a mode of prediction includes some logic for choosing between the branch prediction methods" (App. Br. 10). That is, Appellant contends, "Henry's invention lacks the ability to change the selection logic" because "Henry has only one mode of prediction" (App. Br. 11 ). We consider all of Appellant's arguments and evidence presented, and disagree with Appellant's contentions regarding the Examiner's rejections of the claims. We adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons set forth by the Examiner in the Answer in response to arguments made in Appellant's Appeal Brief. We highlight and address specific findings and arguments below: Henry discloses selecting one of global and local Agree dynamic branch predictors for correlating with a selection prediction made by the static prediction based on the test type and an Agree prediction made by a selector history table, or the selection is made directly by the selector history table without the benefit of the static prediction (FF 1 ). We agree with the Examiner's finding Henry discloses a mechanism "for dynamically selecting a mode of prediction (mode i.e. Dynamic prediction) from modes of 5 Appeal2014-001455 Application 12/194,145 prediction (Dynamic predictor consists of a plurality of mode[ s ]; Dynamic predictor includes local, global, and bimodal predictor)" (Final Act. 2). In particular, the Examiner finds, and we agree, Henry discloses a "first mode of prediction (i.e. employing local and global dynamic predictors ... )"and a "second mode of prediction (i.e. employing ... the constructive aliasing benefits of an Agree predictor. .. )"(Final Act. 2-3). Although Appellant contends Henry does not disclose "a mode of prediction" that includes some logic for "choosing between the branch prediction methods" (App. Br. 10), Henry discloses two prediction modes which include a mode comprising correlating the signal generated by the branch prediction mechanism with the agree/ disagree prediction provided on the history table output; and a mode for selecting made directly by the selector history table without the benefit of the static prediction (FF 1-3). That is, we agree with the Examiner that Henry discloses modes wherein a selection is made between branch prediction methods in each mode (id.) Although Appellant contends, "Henry's invention lacks the ability to change the selection logic" (App. Br. 11 ), we note such contention is not commensurate in scope with the recited language of the claims. That is, claim 1 does not require any ability to change the selection logic. Nevertheless, we agree with the Examiner's finding, in Henry, "the branch predictor 103 also includes a dynamic predictor selector 212 for use in selecting one of the two dynamic predictions 242 and 244 generated by dynamic predictors 202 and 204" wherein the logic used by the selector 212 "must change because the logic to choose dynamic predictor Y 204 is different than dynamic predictor X 202" (Ans. 3). Further, we also agree that the logic also changes "when Agree/Disagree prediction 282 predicts 6 Appeal2014-001455 Application 12/194,145 whether the static prediction 284 selected one of the dynamic predictors 202 and 204 correctly predicting the outcome of the conditional branch instruction" (Ans. 4). Accordingly, on this record, we find no error in the Examiner's rejection of claim I, and claims 2-19 and 21 falling therewith (App. Br. 12), as being anticipated by Henry. Regarding claim 21, although Appellant adds "Henry fails to disclose or suggest reconfiguring a mode of prediction at runtime" (App. Br. 13), we find no error with the Examiner's finding Henry's "selector 212 re-configures the mode of prediction during runtime since the update logic 214 and global history 216 gather information during the program is executing" (Ans. 4). We note the Examiner's reference to Hum (U.S. Patent No. 2003/0065912 Al, pub. Apr. 3, 2003) as clarification (but not applied in the rejection) that a "dynamic predictor ... uses [such] information gathered at run-time to predict branch direction" (Ans. 4--5). Appellant does not provide substantive arguments for claim 20 separate from those of claim 17 from which it depends (App. Br. 15-16). Accordingly, claim 20 falls with claim 17 over Henry under 35 U.S.C. § 102(b) or alternatively under 35 U.S.C. § 103(a). V. CONCLUSION AND DECISION We affirm the Examiner's rejections of claims 1-19 and 21under35 U.S.C. § 102(b); and of claim 20 under 35 U.S.C. § 102(b), or alternatively under 35 U.S.C. § 103(a).2 2 In the event of further prosecution of this application, we leave it to the Examiner to evaluate the claims for compliance with 35 U.S.C. § 101 in view of the Supreme Court decision in Bilski v. Kappas, 130 S. Ct. 3218, 7 Appeal2014-001455 Application 12/194,145 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). AFFIRMED kis 3221 (2010), MPEP revised§ 2106.01 (August 2012), and post-Bilski application under § 101, including CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371 (Fed. Cir. 2011) (holding that a method for verifying the validity of a credit card transaction over the Internet to be nonstatutory as an abstract idea capable of being performed in the human mind or by a human using a pen and paper). In particular, we leave it to the Examiner to evaluate whether claim 1 's "selecting" of the modes of prediction comprises an abstract idea capable of being performed in the human mind as mental steps or by a human using a pen and paper. \Ve further refer to Digitech, where the Federal Circuit has provided additional guidance on the issue of statutory subject matter by holding claims to a process of organizing information through mathematical correlations was not tied to a specific structure or machine, and was thus an abstract idea and ineligible under § 101. Digitech Image Tech., LLC v. Electr. for Imaging, Inc., 758 F.3d 1344 (Fed. Cir. 2014), affd. Abstract ideas have been identified by the courts by way of example, including fundamental economic practices, certain methods of organizing human activities, an idea 'of itself,' and mathematical relationships/formulas. Alice Corp. Pty. Ltd. v. CLS Bank Int'!, 134 S. Ct. 2347, 2355-56 (2014). All claims on appeal appear to be merely directed to selecting a mode of prediction, even though claim 1 nominally recites a "mechanism" for performing the selection with each prediction comprising a "logic," and a "storage array" for storing data. Although the Board is authorized to reject claims under 37 C.F.R. § 41.50(b ), no inference should be drawn when the Board elects not to do so. See Manual of Patent Examining Procedure (MPEP) 1213.02. 8 Copy with citationCopy as parenthetical citation