11778054 (B.P.A.I. Jan. 10, 2012)

Ex Parte Loafman

Board of Patent Appeals and InterferencesJan 10, 2012

11778054 (B.P.A.I. Jan. 10, 2012)

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. 11/778,054 07/15/2007 Zachary Merlynn Loafman AUS920030432US2 9749 77351 7590 01/10/2012 IBM CORP. (AUS) C/O THE LAW OFFICE OF JAMES BAUDINO, PLLC 600 SIX FLAGS DRIVE SUITE 400 ARLINGTON, TX 76011 EXAMINER DOAN, DUC T ART UNIT PAPER NUMBER 2185 MAIL DATE DELIVERY MODE 01/10/2012 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 BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ZACHARY MERLYNN LOAFMAN ____________ Appeal 2010-001514 Application 11/778,054 Technology Center 2100 ____________ Before LANCE LEONARD BARRY, JOHN A. JEFFERY, and THU A. DANG, Administrative Patent Judges. JEFFERY, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1-7. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. STATEMENT OF THE CASE Appellant’s invention determines whether a slab is to be squeezed empty for de-allocation and, if so, precludes placing data in any unused slab space. See generally Spec. 3. Claim 1 is illustrative: 1. A method of squeezing slabs empty, a slab being a block of allocated memory space, the method comprising the steps of: Appeal 2010-001514 Application 11/778,054 2 determining whether a slab is to be squeezed empty; and precluding, if the slab is to be squeezed empty, data from being placed in any unused space of the slab. The Examiner relies on the following as evidence of unpatentability: Willard US 6,125,434 Sep. 26, 2000 Benayon US 6,249,852 B1 June 19, 2001 Jeff Bonwick, THE SLAB ALLOCATOR: AN OBJECT-CACHING KERNEL MEMORY ALLOCATOR, Sun Microsystems. 1 THE REJECTIONS 1. The Examiner rejected claims 1-7 over the ground of non-statutory obviousness-type double patenting as unpatentable over claims 1-6 of U.S. Patent 7,290,110. Ans. 4. 2 2. The Examiner rejected claims 1-4 under 35 U.S.C. § 103(a) as unpatentable over Bonwick and Willard. Ans. 5-6. 3. The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as unpatentable over Bonwick, Willard, and Benayon. Ans. 6. THE DOUBLE PATENTING REJECTION Appellant presents no arguments pertaining to the Examiner’s double patenting rejection of claims 1-7 (Ans. 4). See App. Br. 1-8; Reply Br. 3-5. 1 Although this reference is undated, Appellant does not dispute its qualification as prior art. Accord Spec. 1 (incorporating Bonwick by reference). 2 Throughout this opinion, we refer to (1) the Appeal Brief filed May 27, 2009; (2) the Examiner’s Answer mailed July 17, 2009; and (3) the Reply Brief filed September 17, 2009. Appeal 2010-001514 Application 11/778,054 3 Accordingly, we summarily sustain this rejection. See Manual of Patent Examining Procedure (MPEP) § 1205.02, 8th ed., Rev. 8, July 2010 (“If a ground of rejection stated by the examiner is not addressed in the appellant's brief, that ground of rejection will be summarily sustained by the Board.”). THE OBVIOUSNESS REJECTION OVER BONWICK AND WILLARD The Examiner finds that Bonwick discloses a method of squeezing slabs empty with every recited feature of independent claim 1 except for precluding placing data in any unused slab space if the slab is to be squeezed empty, but cites Willard as teaching this feature in concluding that the claim would have been obvious. Ans. 5-6. Appellant argues that Bonwick’s determining if a slab is empty via a reference count for memory reclamation does not determine whether a slab is to be squeezed empty as claimed, nor does Willard squeeze a slab empty. App. Br. 3-7; Reply Br. 4-5. The issue before us, then, is as follows: ISSUE Under § 103, has the Examiner erred in rejecting claim 1 by finding that Bonwick and Willard collectively would have taught or suggested determining whether a slab is to be squeezed empty and, if so, precluding placing data in any unused slab space? FINDINGS OF FACT (FF) 1. Bonwick notes that a slab consists of one or more pages of virtually contiguous memory divided into equal-size chunks, and that a Appeal 2010-001514 Application 11/778,054 4 reference count indicates how many of those chunks have been allocated. Bonwick, § 3.2. 2. Bonwick reclaims unused memory. When the slab reference count goes to zero, the associated pages can be returned to the VM system. Bonwick, § 3.2. ANALYSIS The obviousness issue in this appeal turns on one question: Does Bonwick teach or suggest determining whether a memory slab is to be squeezed empty? We emphasize the phrase “to be” here, for this term requires future action, namely determining whether the slab will be squeezed empty at some future time. Although we broadly construe squeezing a slab empty to mean merely emptying the slab since the term “squeeze” is undefined in the Specification, we nonetheless find that determining future squeezing is simply not taught or suggested by the cited prior art—let alone the recited preclusion of placing data in unused slab spaces responsive to this determination. As Appellant indicates (App. Br. 4-5; Reply Br. 4-5), Bonwick merely determines that a slab is empty when the reference count is zero. FF 2. Even if Bonwick’s slab is emptied via squeezing, we still cannot say—nor has the Examiner shown—that this reference count indicates whether the slab will be squeezed empty later—a key requirement of the recited “to be” language noted above. To the extent that the Examiner’s position is based on the notion that a non-zero reference count in Bonwick somehow indicates the slab will be further squeezed to an empty state (i.e., when the count is Appeal 2010-001514 Application 11/778,054 5 zero) is speculative and unsubstantiated on this record. Nor has the Examiner shown that Willard cures this deficiency. We are therefore persuaded that the Examiner erred in rejecting independent claim 1 and dependent claims 2-4 for similar reasons. THE OBVIOUSNESS REJECTION OVER BONWICK, WILLARD, AND BENAYON Since the Examiner has not shown that the cited prior art cures the deficiencies noted above regarding independent claim 1, we reverse the obviousness rejection of claim 5 (Ans. 6) for similar reasons. CONCLUSION The Examiner did not err in rejecting claims 1-7 over the ground of obviousness-type double patenting, but erred in rejecting claims 1-5 under § 103. ORDER The Examiner’s decision rejecting claims 1-7 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED kis