Ex Parte BAKER et al

Patent Trial and Appeal Board

Oct 18, 2018

14922565 (P.T.A.B. Oct. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/922,565 10/26/2015
23125 7590 10/22/2018
NXP USA, Inc.
LAW DEPARTMENT
6501 William Cannon Drive West TX30/0E62
AUSTIN, TX 78735
FIRST NAMED INVENTOR
FRANK KELLY BAKER JR.
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.
AM21382MC 9386
EXAMINER
PADMANABHAN, MANO
ART UNIT PAPER NUMBER
2138
NOTIFICATION DATE DELIVERY MODE
10/22/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ip.department.us@nxp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANK KELLY BAKER JR., DAVID B. KRAMER,
and ANIRBAN ROY
Appeal2018-003472
Application 14/922,565 1
Technology Center 2100
Before JOSEPH L. DIXON, JENNIFER L. McKEOWN, and
CATHERINE SHIANG, Administrative Patent Judges.
SHIANG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-16 and 18-20, which are all the claims pending in the
application. 2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 Appellants identify NXP USA, Inc. as the real party in interest. App. Br. 2.
2 Claim 17 has been cancelled. App. Br. 21 (Claims App'x).
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Application 14/922,565
STATEMENT OF THE CASE
Introduction
According to the Specification, the present invention relates generally
to integrated circuits, and more particularly to memories that have
characteristics of random access memories (RAMs) and non-volatile
memories (NVMs ). See Spec. ,r 1. Claim 1 is exemplary:
1. A data processing system comprising:
a backup nonvolatile memory (NVM);
a random access memory (RAM) having a plurality of
partitions, each partition having a different corresponding
backup frequency that is greater than zero; and
a controller, wherein the controller is configured to back
up the contents of each partition of the RAM to the backup
NVM in accordance with the corresponding backup frequency.
References and Rejections3
Claims 1-3, 7, and 14 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sartore (US 2009/0031098 Al; Jan. 29, 2009) and
Nakanishi et al. (US 2003/0229653 Al; Dec. 11, 2003) ("Nakanishi"). Final
Act. 3---6.
Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Sartore, Nakanishi, and Carpenter et al. (US 2014/0337589 Al; Nov.
13, 2014) ("Carpenter"). Final Act. 6-7.
3 Throughout this Decision, we refer to (1) the Final Rejection dated April 4,
2017 ("Final Act."); (2) the Appeal Brief dated October 11, 2017 ("App.
Br."); (3) the Examiner's Answer dated December 20, 2017 ("Ans."); and
(4) the Reply Brief dated February 13, 2017 ("Reply Br.").
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Application 14/922,565
Claims 5 and 6 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sartore, Nakanishi, Carpenter, and Levy (US 5,438,549;
Aug. 1, 1995). Final Act. 8-9.
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Sartore, Nakanishi, and Butler et al. (US 2012/0206243Al; Aug. 16,
2012) ("Butler"). Final Act. 9-10.
Claims 9-13 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sartore, Nakanishi, and Levy. Final Act. 11-15.
Claims 15 and 16 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sartore, Levy, and Carpenter. Final Act. 15-18.
Claim 18 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Sartore, Nakanishi, and Levy. Final Act. 19-21.
Claims 19 and 20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Sartore, Nakanishi, Levy, and Carpenter. Final Act. 21-
24.
ANALYSIS 4
Claims 1-145
We have reviewed the Examiner's rejection in light of Appellants'
contentions and the evidence of record. We concur with Appellants'
contention that the Examiner erred in determining the cited portions of
4 To the extent Appellants advance new arguments in the Reply Brief
without showing good cause, Appellants have waived such arguments. See
37 C.F.R. § 41.41(b)(2).
5 Appellants raise additional arguments about this group of claims. Because
the identified issue is dispositive of the appeal for this group of claims, we
do not need to reach the additional arguments.
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Application 14/922,565
Sartore and Nakanishi collectively teach "a random access memory (RAM)
having a plurality of partitions, each partition having a different
corresponding backup frequency that is greater than zero," as recited in
independent claim 1 (emphasis added). See App. Br. 11-12; Reply Br. 3--4.
The Examiner cites Nakanishi' s Figures 3 and 4 and paragraphs 31,
34, 74, 75, and 78 for teaching the italicized claim limitation. See Final Act.
4; Ans. 20. We have reviewed the cited Nakanishi portions, and they do not
describe "each partition having a different corresponding backup frequency
that is greater than zero," as required by claim 1. To the contrary, the cited
Nakanishi's portions describe different frequencies of services that are not
backups. See Nakanishi, Figs. 3--4, ,r 20 ("The backup definition creating
unit 102 defines a schedule for performing backup operations from file
information associated with the execution of a service and a service
execution time, such that the backup operations will not fall within a time
zone in which the service is executed.").
Because the Examiner fails to provide sufficient evidence or
explanation to support the rejection, we are constrained by the record to
reverse the Examiner's rejection of claim 1.
We also reverse the Examiner's rejection of corresponding dependent
claims 2-14. Although the Examiner cites additional references for rejecting
some dependent claims, the Examiner has not shown the additional
references overcome the deficiency discussed above in the rejection of claim
1. See Final Act. 6-15.
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Claims 15 and 16
We disagree with Appellants' arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
appeal is taken (Final Act. 15-18) and (ii) the Answer (Ans. 22) to the extent
they are consistent with our analysis below.
I
Appellants argue the cited references do not collectively teach
a random access memory (RAM) having a plurality of
partitions ... configured to store a memory function indicator
corresponding to each partition of the RAM, wherein the
memory function corresponding to a first partition of the
plurality of partitions is backing up data from the RAM to the
NVM in response to a power down event, and the memory
function corresponding to a second partition of the plurality of
partitions is backing up data from the RAM to the NVM
continuously,
as recited in claim 15. See App. Br. 14--16; see also Reply Br. 7.
In particular, Appellants contend:
... neither Sartore, Levy, or Carpenter, alone or in
combination, teach a different memory function with respect to
backing-up for different partitions of a same RAM as claimed.
For example, Sartore teaches different RAM partitions but only
one is backed up. None of the cited references teach or suggest
a RAM with a first and a second partition in which the memory
function for the first partition of the RAM is backing up data
from the RAM to the NVM in response to a power down event
and the memory function for the second partition of the RAM is
backing up data from the RAM to the NVM continuously.
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... While Carpenter may include continuous back up, again,
Carpenter does not teach or suggest continuous backing up of
data for a second partition in which a first partition backs up
data in response to a power down event.
App. Br. 15-16.
We disagree. Because the Examiner relies on the combination of
Sartore, Levy, and Carpenter to teach the disputed limitations, Appellants
cannot establish nonobviousness by attacking the references individually.
See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner finds: (i) Sartore teaches "a random access memory
(RAM) ... having a plurality of partitions ... wherein the memory function
corresponding to a first partition of the plurality of partitions is backing up
data from the RAM to the NVM in response to a power down event"; and
(ii) Carpenter teaches "the memory function corresponding to a second
partition of the plurality of partitions is backing up data from the RAM to
the NVM continuously." See Final Act. 15-18. Appellants do not dispute
those findings.
The Examiner finds-and Appellants do not persuasively dispute-
Levy teaches "a RAM ... configured to store a memory function indicator
corresponding to each partition of the RAM." See Final Act. 16-17. 6
Appellants do not contend the Examiner erred in the rationale for
combining the teachings of the references. Therefore, we agree with the
Examiner that Sartore, Levy, and Carpenter collectively teach
6 Cumulatively, the Examiner cites Sartore and Carpenter in the Answer.
See Ans. 22. As to the cumulative findings, Appellants' argument about
claim interpretation (Reply Br. 7) is unpersuasive, because Appellants have
not shown why the broadest interpretation of the limitations requires their
interpretation.
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a random access memory (RAM) having a plurality of
partitions ... configured to store a memory function indicator
corresponding to each partition of the RAM, wherein the
memory function corresponding to a first partition of the
plurality of partitions is backing up data from the RAM to the
NVM in response to a power down event, and the memory
function corresponding to a second partition of the plurality of
partitions is backing up data from the RAM to the NVM
continuously,
as required by claim 15. See Final Act. 15-18.
II
Appellants cite all the limitations of claim 15, and generally assert
"[a]t least these elements are not taught or suggested by Sartore, Levy, or
Carpenter, alone or in combination." App. Br. 15. Appellants' general
assertion is unpersuasive of error. See 37 C.F.R. § 4I.37(c)(l)(iv) ("A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim."); see also In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that "the Board
reasonably interpreted Rule 41.3 7 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art").
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 15.
We also sustain the Examiner's rejection of corresponding dependent
claim 16, as Appellants do not advance separate substantive arguments about
that claim.
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Claims 18-20
We disagree with Appellants' arguments, and agree with and adopt
the Examiner's findings and conclusions in (i) the action from which this
appeal is taken (Final Act. 19-24) and (ii) the Answer (Ans. 23-24) to the
extent they are consistent with our analysis below.
On this record, we find the Examiner did not err in rejecting claim 18.
Appellants contend the cited references do not collectively teach
accessing, by the controller, RAM configuration circuity to
determine a backup frequency corresponding to each of a
plurality of partitions of the RAM, wherein each backup
frequency is greater than zero,
performing, by the controller, a backup operation in each
partition by copying data from the partition of the RAM to the
backup NVM in accordance with the backup frequency
indicated by the RAM configuration circuitry,
as recited in claim 1. See App. Br. 16-17; Reply Br. 7-8.
As discussed below, Appellants have not persuaded us of error.
First, Appellants contend:
paragraph [0034] of [Nakanishi] refers to the table in FIG. 5
which provides backup information for each service file code,
including backup start time and backup end time. For example,
this backup information includes when an instruction is to be
issued to start backing up the corresponding file. However,
knowing when a backup will start or end indicates when backup
operations occur, but not a frequency of backups.
App. Br. 16-17.
We disagree. Nakanishi teaches backup start and end times for the
files identified by different service file codes. See Nakanishi ,r 34 ("For
example, for a file identified by a service file code 'F0000004' in FIG. 5, an
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instruction is issued at '22:00:00' for starting a backup which is scheduled to
be ended at '22:30:00. "'); Fig. 5 (showing multiple backup start and end
times for the files identified by different service file codes). Because
Nakanishi teaches backup start and end times for each file, a backup
frequency for each file that is greater than zero is taught by or obvious in
light ofNakanishi's teachings. Therefore, we agree with the Examiner that
"a backup frequency corresponding to each of a plurality of ... wherein
each backup frequency is greater than zero" is taught by or obvious in light
ofNakanishi's teachings. See Final Act. 19-20; Ans. 23.
Second, Appellants argue:
... [in Nakanishi,] simply having two different service codes
with different backup schedules (with different backup start
times and end times, as in paragraphs 75 and 78) does not teach
or suggest different, greater than zero, backup frequencies of
different RAM partitions.
App. Br. 17 (emphasis added).
Appellants' argument is not commensurate with the scope of claim
18, as claim 18 does not recite "different" backup frequencies of different
RAM partitions.
Further, Appellants' argument is not directed to the Examiner's
specific findings, because the Examiner cites Sartore-not Nakanishi-for
teaching "each of a plurality of partitions of the RAM." See Ans. 23. In
addition, as discussed above, "a backup frequency corresponding to each of
a plurality of ... wherein each backup frequency is greater than zero" is
taught by or obvious in light ofNakanishi's teachings.
Appellants do not contend the Examiner erred in the rationale for
combining the teachings of Sartore and Nakanishi. Therefore, "a backup
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frequency corresponding to each of a plurality of partitions of the RAM,
wherein each backup frequency is greater than zero," is taught by or obvious
in light of the collectively teachings of Sartore and Nakanishi.
Third, Appellants argue:
While the control circuitry of Levy may rely on indicators, in
general, Levy does not teach or suggest indicators which
indicate a backup frequency corresponding to each of a
plurality of partitions of the RAM. For example, whether a
page is full or not is an "indicator" or the PWDDET signal is an
"indicator" relied on by the control circuitry 22 of Levy to
trigger a backup. However, these "indicators" do not indicate a
backup frequency, but indicate when a backup is to be
performed. Also, these indicators are both for SRAM buffers
23 of Levy, but these indicators are not provided per partition
of a RAM to indicate backup frequencies for multiple
partitions.
App. Br. 17; see also Reply Br. 7-8.
Appellants' argument is not directed to the Examiner's specific
findings. As discussed above, the Examiner cites Sartore and Nakanishi-
not Levy-for teaching "a backup frequency corresponding to each of a
plurality of partitions of the RAM."
The Examiner finds-and Appellants do not dispute-Levy teaches
"indicated by the RAM configuration circuitry." See Final Act. 21. As
discussed above, the "backup frequency" is taught by or obvious in light of
Nakanishi' s teachings. 7
7 Cumulatively, "backup frequency" is also taught by or obvious in light of
Levy's teachings. Appellants acknowledge Levy teaches when to backup
(App. Br. 17). Therefore, "backup frequency" is taught by or obvious in
light of Levy's teachings.
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Appellants do not contend the Examiner erred in the rationale for
combining the teachings of the references. Therefore, "a backup frequency
corresponding to each of a plurality of partitions of the RAM ... the backup
frequency indicated by the RAM configuration circuitry" is taught by or
obvious in light of the collective teachings of Sartore, Nakanishi, and Levy.
Because Appellants have not persuaded us the Examiner erred, we
sustain the Examiner's rejection of independent claim 18.
We also sustain the Examiner's rejection of corresponding dependent
claim 20, as Appellants do not advance separate substantive arguments about
that claim.
Separately Argued Dependent Claim 19
Dependent claim 19 depends on claim 18. Appellants contend the
cited references do not collectively teach
the controller performs a first backup operation in a first
partition of the RAM in response to a scheduled power down
event, a second backup operation in a second partition of the
RAM in response to an unscheduled power down event, and
continuous backups in a third partition of the RAM,
as recited in claim 19. See App. Br. 17-18. In particular, Appellants argue
none of the references teaches claim 19, and "Carpenter also does not
address multiple partitions of a RAM." App. Br. 18.
We disagree. Because the Examiner relies on the combination of
Sartore, Nakanishi, Levy, and Carpenter to teach claim 19, Appellants
cannot establish nonobviousness by attacking the references individually.
See Merck & Co., 800 F.2d at 1097.
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The Examiner finds: (i) Levy teaches "the controller performs a first
backup operation in a first partition of the RAM in response to a scheduled
power down event"; (ii) Sartore teaches "a second backup operation in a
second partition of the RAM in response to an unscheduled power down
event, and continuous backups in a third partition of the RAM"; and (iii)
Carpenter teaches "continuous backups in a third partition of the RAM."
See Final Act. 22-23. Appellants do not dispute those findings.
The Examiner cites Sartore for teaching "a plurality of partitions of
the RAM." See Ans. 23; Sartore ,r 115 ("the volatile memory 102 may be
partitioned into three logical memory regions"). Therefore, Sartore teaches
"in a first partition of the RAM," "in a second partition of the RAM," and
"in a third partition of the RAM."
Appellants do not contend the Examiner erred in the rationale for
combining the teachings of the cited references. As a result, we agree with
the Examiner that Sartore, Nakanishi, Levy, and Carpenter collectively teach
the controller performs a first backup operation in a first
partition of the RAM in response to a scheduled power down
event, a second backup operation in a second partition of the
RAM in response to an unscheduled power down event, and
continuous backups in a third partition of the RAM,
as required by claim 19. See Final Act. 22-23.
Accordingly, and for similar reasons discussed above for claim 18, we
sustain the Examiner's rejection of claim 19.
DECISION
We reverse the Examiner's decision rejecting claims 1-14.
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We affirm the Examiner's decision rejecting claims 15, 16, and 18-
20.
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). See
37 C.F.R. § 4I.50(f).
AFFIRMED-IN-PART
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