Ex Parte Emerson

Patent Trial and Appeal Board

Aug 26, 2016

13375190 (P.T.A.B. Aug. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/375, 190 11129/2011
22879 7590 08/30/2016
HP Inc,
3390 E. Harmony Road
Mail Stop 35
FORT COLLINS, CO 80528-9544
FIRST NAMED INVENTOR
Theodore F. Emerson
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.
82892369 2544
EXAMINER
CHEN, YU
ART UNIT PAPER NUMBER
2613
NOTIFICATION DATE DELIVERY MODE
08/30/2016 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):
ipa.mail@hp.com
barbl@hp.com
yvonne.bailey@hp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THEODORE F. EMERSON
Appeal2015-004223
Application 13/375, 190
Technology Center 2600
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
COURTENAY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-9, 11-13, 15, and 16. Claims 10 and 14 are canceled.
We have jurisdiction under 35 U.S.C. § 6(b ).
We Affirm.
The Invention
The disclosed and claimed invention relates to a "shared video
management subsystem." (Title).
Appeal2015-004223
Application 13/375, 190
Representative Claims
Claims 1 and 12 are representative of the subject matter on appeal:
1. A shared video management subsystem configured to be
coupled to and shared by a plurality of independent compute
nodes, comprising:
a plurality of graphics interfaces included within the
shared video management subsystem and configured to receive
drawing commands and data from the compute nodes and render
graphics information to a shared frame buff er;
at least one display refresh controller configured to
retrieve the graphics information rendered to the shared frame
buffer and output the graphics information to a display device for
display; and
[L 1] a multiplexer configured to selectively couple the
plurality of graphics interfaces to the at least one display refresh
controller.
12. A computer system, comprising:
a plurality of independent compute nodes; and
a shared video management subsystem configured to be
shared by the plurality of compute nodes, the subsystem
compnsmg:
a plurality of graphics interfaces configured to receive
drawing commands and data from the compute nodes and render
graphics information to a shared frame buff er;
at least one display refresh controller configured to
retrieve the graphics information rendered to the shared frame
buffer and output the graphics information to a display device for
display;
a first multiplexer configured to selectively couple
drawing commands and data from the compute nodes to selected
ones of the plurality of graphics interfaces; and
[L2] a second multiplexer configured to selectively couple
the plurality of graphics interfaces to the at least one display
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Application 13/375, 190
refresh controller and to provide video context data from a
selected graphics interface to the at least one display refresh
controller, the video context data identifYing a location in the
shared frame buffer of graphics data to be rendered by the
selected graphics interface.
(Bracketed matter and emphasis added regarding the contested limitations,
labeled as "L l" and "L2").
Rejection
Claims 1-9, 11-13, 15, and 16 are rejected under 35 U.S.C. § 103(a)
as being obvious over the combined teachings and suggestions of Emerson
et al. (US 2006/0294254 Al, pub. Dec. 28, 2006) ("Emerson"), 1 Swift et al.
(US 2008/0303833 Al, pub. Dec. 11, 2008) ("Swift"), and Anil K. Maini,
Digital Electronics: Principles, Devices and Applications, particularly
section 8.1, describing a "Multiplexer" and Figure 8.l(a), depicting a 4-to-l
multiplexer, and Figure 8.1 (b ), depicting the 4-to- l input selection truth
table for the multiplexer,© 2007 John Wiley & Sons Ltd. ("Maini").
Claim Grouping
Based on Appellant's arguments, we decide the appeal of claims 1, 2,
4--9, 11, and 16 on the basis of representative independent claim 1. We
address separately argued dependent claim 3, infra. We decide the appeal of
independent claim 12, and associated dependent claim 13, on the basis of
representative claim 12. We address the rejection of independent claim 15,
infra. See 37 C.F.R. §41.37(c)(l)(iv).
1 We note the inventor of record (Theodore F. Emerson, Tomball, TX) for
this application on appeal is one of the two inventors named on the Emerson
reference cited by the Examiner (Patent Application Publication US
2006/0294254 Al, pub. Dec. 28, 2006).
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Application 13/375, 190
ANALYSIS
We have considered all of Appellant's arguments and any evidence
presented. We disagree with Appellant's arguments, and we adopt as our
own: ( 1) the findings and reasons set forth by the Examiner in the Final
Office Action from which this appeal is taken, and (2) the reasons and
rebuttals set forth in the Answer in response to Appellant's arguments
(Ans. 2-11). However, we highlight and address specific findings and
arguments for emphasis in our analysis below.
Rejection of Representative Claim 1
Issue: Under 35 U.S.C. § 103(a), did the Examiner err in finding the
cited references would have taught or suggested contested limitation L 1: "a
multiplexer configured to selectively couple the plurality of graphics
interfaces to the at least one display refresh controller," within the meaning
of claim 1? 2 (Emphasis added).
Appellant contends Emerson does not present any need to use a
multiplexer:
2 We give the contested claim limitations the broadest reasonable
interpretation consistent with the Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997); see also, e.g., Spec. i-f 32 ("This application is
intended to cover any adaptations or variations of the specific embodiments
discussed herein. Therefore, it is intended that this invention be limited only
by the claims and the equivalents thereof"). (Emphasis added). Accord
Williamson v. Citrix Online, LLC, 792 F.3d 1339, 1346-47 (Fed. Cir. 2015)
("This court has repeatedly 'cautioned against limiting the claimed invention
to preferred embodiments or specific examples in the specification."')
(quoting Teleflex, Inc. v. Ficosa N. Am. Corp., 299 F.3d 1313, 1328 (Fed.
Cir. 2002)).
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If each video controller 36 in Emerson is both a graphics
interface and a refresh controller as the Examiner alleges, then
there is no need for a multiplexer to couple them together.
Further, there is no disclosure nor need in Emerson of one video
controller 36 being coupled to another video controller 36 and
thus again no need for a multiplexer to inter-couple Emerson's
video controllers 36. The Examiner's interpretation of Emerson's
video controllers 36 as combining both the functionality of a
graphics interface and a refresh controller results in a significant
mismatch between the limitations of claim 1 and the system of
Emerson.
(App. Br. 10).
Regarding the Examiner's reliance on the Swift reference, Appellant
contends:
[T]he Examiner's analysis is flawed because, to the extent that
the display controller 125 couples the components 1003, 1011,
and 1013 to anything, the display controller 125 couples the three
components to a display 127. The claim, however, requires a
multiplexer that is configured to "selectively couple the plurality
of graphics interfaces to the at least one display refresh
controller." At best, Figure 10 discloses coupling the components
1003, 1011, and 1013 to a display, not to a display refresh
controller as the claim recites.
(App. Br. 11 ).
The Examiner disagrees, and finds Swift's display driver module 125
(Fig. 10) teaches, or at least suggests, the claim 1 limitation "at least one
display refresh controller." (Ans. 3). The Examiner further finds there are
multiple lines which need to be combined for display driver module 125.
(Ans. 4, citing Swift, Fig. 10). The Examiner takes official notice that a
multiplexer was "well known in the art" and cites Maini (§ 8.1 ), as evidence
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describing a multiplexer as being well known in digital electronics to
perform such function. (Ans. 4--5, Final Act. 3--4). 3
We find a preponderance of the evidence supports the Examiner's
findings. We do not find Appellant's arguments persuasive (App. Br. 10-
11 ), because, as pointed out by the Examiner, and evidenced by Maini
(§ 8.1 ), the use of a multiplexer was well-known in the art at the time of
Appellant's invention. (Ans. 4). Therefore, we find the claimed use of a
multiplexer would have merely produced predictable results. (Claim 1 ).
Because multiplexers perform switching functions, we find Emerson's
video controllers (VC 36), and switch 40 (Fig. 2), would have at least
suggested the contested limitation, "a multiplexer configured to selectively
couple the plurality of graphics interfaces to the at least one display refresh
controller," within the meaning of claim 1, when combined with the
teachings of Swift and Maini. (Emphasis added). We note the Examiner's
rejection is based on the combined teachings and suggestions of the cited
references. (Final Act. 8-12). 4
3 The Examiner may take notice of facts or common knowledge in the art
which are capable of such instant and unquestionable demonstration as to
defy dispute. In re Ahlert, 424 F.2d 1088, 1091(CCPA1970). We note that
to adequately traverse the Examiner's finding, Appellant must specifically
point out the supposed errors in the Examiner's action, which would include
stating why the noticed fact is not considered to be common knowledge or
well-known in the art. See MPEP § 2144.03.
4 "[T]he question under 35 U.S.C. § 103 is not merely what the references
expressly teach but what they would have suggested to one of ordinary skill
in the art at the time the invention was made." Merck & Co., Inc. v. Biocraft
Laboratories, Inc., 874 F. 2d 804, 807-808 (Fed. Cir. 1989). (Emphasis
added).
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Moreover, Appellant has not filed a Reply Brief in response to the
Examiner's findings, explanations, and clarifications in support of the legal
conclusion of obviousness regarding claim 1. (Ans. 2---6). Thus, Appellant
has not rebutted the Examiner's findings and conclusions in the Answer
regarding claim 1. (Id.) 5
Therefore, on this record, and by a preponderance of the evidence, we
are not persuaded of error regarding the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness regarding claim 1.
Accordingly, we sustain the rejection of representative independent claim 1,
and the rejection of the associated grouped claims, which fall with claim 1.
(See Claim Grouping, supra.)
Rejection of Dependent Claim 3
Claim 3 recites, in pertinent part, "wherein a total number of the
graphics interfaces in the subsystem is different than a total number of the
display refresh controllers in the subsystem." (Emphasis added).
Appellant contends:
Appellant is at a loss to understand what having "multiple media
processors and a display device coupled with a common memory
system" has to do with the limitation of claim 3 which is that "a
total number of the graphics interfaces in the subsystem is
different than a total number of the display refresh controllers in
the subsystem." The limitation of claim 3 has nothing to do with
the memory system or a display device. The Examiner is not at
all clear as to exactly what the hypothetical modification would
be as allegedly envisioned by one of ordinary skill in the art. At
any rate, each video controller 36 of Emerson is both of a
graphics interface and refresh controller according to the
5 Arguments not made are considered waived. See 37 C.F.R.
§41.37( c )(1 )(iv).
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Examiner, and thus it is not at all clear how Emerson could be
modified to have a different number of graphics interfaces and
refresh controllers.
(App. Br. 12-13).
The Examiner disagrees:
The [E]xaminer relies on Swift to teach a shared graphic memory
and a shared display controller/driver. Thus, due to the
modification of Emerson to incorporate the features of Swift as
disclose[d] in Fig.IA and Fig. 10, a graphics interface (GPUs)
and a display refresh controller ha[ ve] to be separated
components. Therefore, once a combination of Emerson and
Swift is made to incorporate a shared graphic memory and a
shared display controller/driver, the combine[d] structure will
have graphics interfaces (GPUs) couple[d] to blade servers and
multiple graphics interfaces connect[ ed] to a single display
controller /driver (refresh controller). Thus the number of
display controllers/drivers is reduced compare[d] to the number
of graphics interfaces (GPUs).
(Ans. 7-8).
We do not find Appellant's arguments persuasive (App. Br. 12-13),
because Appellant has not specifically addressed the Examiner's proffered
motivation. (Final. Act. 13, i-f 2). See n.5, supra. The Examiner cites to the
combination of Swift and Emerson for teaching, or at least suggesting, the
contested "different" total number limitation recited in claim 3 (in addition
to relying on the tertiary Maini multiplexer reference). See n.4, supra.
Appellant has not shown how the "different" total number variation recited
in claim 3 would be "more than a combination of prior art elements
according to known methods to yield predictable results." KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007).
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Moreover, Appellant has not filed a Reply Brief in response to the
Examiner's findings, explanations, and clarifications in support of the legal
conclusion of obviousness regarding claim 3. (Ans. 7-8). See n.5, supra.
Therefore, on this record, and by a preponderance of the evidence, we
are not persuaded of error regarding the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness regarding claim 3.
Accordingly, we sustain the rejection of dependent claim 3.
Rejection of Claims 12 and 13
Representative independent apparatus claim 12 recites, in pertinent
part, limitation L2:
12. A computer system, comprising:
a second multiplexer configured to selectively couple the
plurality of graphics interfaces to the at least one display refresh
controller and to provide video context data from a selected
graphics interface to the at least one display refresh controller,
the video context data identifying a location in the shared frame
buffer of graphics data to be rendered by the selected graphics
interface.
Instead of distinguishing the structure of apparatus claim 12 from the
corresponding structure( s) found in the cited references, Appellant focuses
on the informational content of data. 6 Specifically, Appellant contends,
"[n]one of the art of record teaches or even suggests the use of such video
context data." (App. Br. 13) (Emphasis added).
6 Our reviewing court guides that the patentability of an apparatus claim
"depends on the claimed structure, not on the use or purpose of that
structure." Catalina Marketing Int'!. Inc. v. Coolsavings.com, Inc., 289 F.3d
801, 809 (Fed. Cir. 2002).
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Application I3/375, I 90
In support, Appellant urges:
[S]wift explains the display controller attempts to determine
whether a video frame is complete and ready to be displayed and
that the "swap ID" is used for that purpose. Swift does not teach
that the swap ID identifies "a location in the shared frame buffer
of graphics data to be rendered by the selected graphics
interface." Thus, the swap ID is not analogous to the claimed
context data.
(App. Br. I4).
The Examiner disagrees:
Fig. I I of Swift illustrates a process of notification commands
from API calls to graphics driver module and display driver
module. In paragraph i-f007 6 of Swift, "The plurality of
notification commands may be associated with each other
through an identifier, such as, for example, a swap ID, for
identifying a specific frame (e.g., a video frame) or a group of
related graphics components." Identifying a specific frame
(e.g., a video frame) corresponds to identifying a location in the
shared frame buff er of graphics data of claim I 2. Also in
paragraph i-f007 5 of Swift, "a synchronization signal, such as a
swap ID, is transmitted to the display controller I25 to allow the
display controller I25 to collect all of the output data of all
components of a video frame, based on the synchronization
signal such as a swap ID, from all graphics processing units
before display the video frame having all of the components
ready in a display. In this embodiment, a swap ID is used to
identify a particular video frame and each graphics
components of the video frame include certain information
linked with the swap ID." Swift discloses a share frame buffer
(Swift, Fig. IA, Graphics Memory I58). Since the plurality of
notification commands may be associated with each other
through a swap ID for identifying a specific frame (e.g., a video
frame) or a group of related graphics components, the video
frame location has to be identified in order to display the video
frame. Therefore, notification commands associated with a swap
ID are video context data. Appellant argue the swap ID is only
used for determine whether a video frame is complete and ready
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to be displayed. However, examiner points out there are
notification commands associated with the swap ID for
displaying a specific frame. In paragraph 0043 of Swift, "A swap
command may include dependency conditions on graphics
resources and graphics operations to display an associated frame
buffer. In one embodiment, a swap command may be associated
with a swap id and a plurality of associated notification ids." In
paragraph 0051 of Swift, "Separate notification ids may be
grouped together based on a swap id for displaying a graphics
buffer, where a swap ID may be associated with an image or a
frame to be displayed in a display." Thus, a swap ID is also used
for associated commands that used for displaying a specific
buffer. Therefore, notification commands associated with a swap
ID are video context data that identifying a location in the shared
frame buffer of graphics data to be rendered by the selected
graphics interface.
(Ans. 8-10, italics added for emphasis, bold in original).
We find a preponderance of the evidence supports the Examiner's
findings. (See Swift, i-fi-175, 76, 43, 51 Fig. IA). We do not find Appellant's
arguments persuasive (App. Br. 14), because we find Swift's swap ID
notification commands teach, or at least suggest, the contested limitation,
"video context data identifying a location in the shared frame buffer of
graphics data to be rendered by the selected graphics interface," within the
meaning of claim 12. (Emphasis added). See also n.4 and n.6, supra.
Moreover, Appellant has not filed a Reply Brief in response to the
Examiner's findings, explanations, and clarifications, in support of the legal
conclusion of obviousness regarding claim 12. (Ans. 8-10). See n.5, supra.
Therefore, on this record, and by a preponderance of the evidence, we
are not persuaded of error regarding the Examiner's underlying factual
findings and ultimate legal conclusion of obviousness regarding claim 12.
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Accordingly, we sustain the rejection of representative independent claim
12, and the rejection of associated grouped dependent claim 13, which falls
with claim 12. (See Claim Grouping, supra.)
Rejection of Independent Claim 15
Independent method claim 15 recites, in pertinent part:
providing video context data from the first graphics interface
through a multiplexer to display refresh controller, the video
context data including at least one of an identification of a
location in the shared frame buffer of graphics data to be
rendered by the first graphics interface, a video mode, a phase
lock loop (PLL) configuration, and the location in the shared
frame buffer of video or cursor overlays;
Appellant contends:
As explained above, the cited art does not teach or even suggest
the use of video context data, and certainly not video context data
that includes "at least one of an identification of a location in the
shared frame buffer of graphics data to be rendered by the first
graphics interface, a video mode, a phase lock loop (PLL)
configuration, and the location in the shared frame buffer of
video or cursor overlays." For at least this reason, claim 15 is in
condition for allowance.
(App. Br. 14).
We do not find Appellant's argument persuasive, because Appellant
merely recites the claim language and alleges it is not taught or suggested by
the cited prior art. (Id.). Such pattern of argument fails to comply with 37
C.F.R. § 41.37(c)(l)(iv) ("A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
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claim."). 7 Appellant does not present separate, substantive arguments
and/or evidence traversing the Examiner's specific findings regarding the
rejection of claim 15. (Final Act. 24--29). 8
Therefore, on this record, and based on a preponderance of the
evidence, we are not persuaded of error regarding the Examiner's underlying
factual findings and ultimate legal conclusion of obviousness regarding
claim 15. According! y, we sustain the rejection of independent claim 15.
Conclusion
For at least the aforementioned reasons, on this record, we are not
persuaded the Examiner erred. We find a preponderance of the evidence
supports the Examiner's underlying factual findings and ultimate legal
conclusion of obviousness for all claims on appeal.
7 See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) ("[W]e hold that the
Board reasonably interpreted Rule 41.37 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.").
8 Attorney "argument ... cannot take the place of evidence." In re Pearson,
494 F.2d 1399, 1405 (CCPA 1974). See, e.g., In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (atton1ey argurnents or conciusory statements are
insufficient to rebut a prima facie case).
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DECISION
We affirm the Examiner's decision rejecting claims 1-9, 11-13, 15,
and 16, under 35 U.S.C. § 103(a).
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). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
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