Ex Parte Gschwind

Patent Trial and Appeal Board

Dec 17, 2015

12194145 (P.T.A.B. Dec. 17, 2015)

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.
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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.
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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
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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
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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
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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,
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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.
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