Ex Parte NaybergDownload PDFPatent Trial and Appeal BoardApr 24, 201712633865 (P.T.A.B. Apr. 24, 2017) Copy Citation 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. 12/633,865 12/09/2009 Howard Israel Nayberg C305 1010.1 6504 105987 7590 Sage Patent Group/C A P.O. Box 30789 Raleigh, NC 27622-0789 04/26/2017 EXAMINER SMITH, BRANNON W ART UNIT PAPER NUMBER 2100 NOTIFICATION DATE DELIVERY MODE 04/26/2017 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): instructions @ sagepat. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HOWARD ISRAEL NAYBERG Appeal 2016-005371 Application 12/633,8651 Technology Center 2100 Before BRUCE R. WINSOR, SHARON FENICK, and PHILLIP A. BENNETT, Administrative Patent Judges. BENNETT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1—3, 6—10, 12—14, 17—21, 23—25, 28—32, 34 and 35, which are all pending claims. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 Appellant’s Brief (“App. Br.”) identifies the real party in interest as CA, Inc. App. Br. 1. Appeal 2016-005371 Application 12/633,865 CLAIMED SUBJECT MATTER The claims are directed to a system and method for prioritizing data storage and distribution with an efficient use of system resources such as processor utilization, operating system overhead, memory, and the paging subsystem. Spec. 11. Claim 1, reproduced below with the disputed limitation in italics, is illustrative of the claimed subject matter: 1. A method of prioritizing event data storage and distribution by a data prioritizer device, the method comprising: receiving, by the data prioritizer device, a registration from a consumer, wherein the registration includes one or more event identifiers that identify one or more event records in which the consumer is interested; generating, by the data prioritizer device, a registration block based on the registration, wherein the registration block is generated when the consumer registers an interest in the one or more event records, and wherein the registration block identifies a consumer queue allocated for the consumer receiving, by the data prioritizer device, an event identifier from a producer, wherein the event identifier identifies an event record; communicating, by the data prioritizer device to the producer, information regarding whether the consumer has indicated an interest in the event record associated with the event identifier received from the producer, wherein the information indicates that the consumer has indicated an interest in the event record when the event identifier received from the producer is among the one or more event identifiers included in the registration; receiving, by the data prioritizer device, the event record that the consumer has indicated an interest in from the producer, wherein the event record is communicated by the producer when the information indicates that the consumer has indicated an interest in the event record; and 2 Appeal 2016-005371 Application 12/633,865 providing, by the data prioritizer device, the event record to the consumer via a consumer provided buffer in a consumer memory; wherein the consumer memory and a data prioritizer device memory do not share common storage resources and the consumer memory is not addressable by the data prioritizer device. App. Br. 12 (Claims Appendix) (italics added). REJECTIONS Claims 1—3, 6—10, 12—14, 17—21, 23—25, 28—32, 34, and 35 stand rejected under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement. Final Act. 3. Claims 1—3, 6—10, 12—14, 17—21, 23—25, 28—32, 34, and 35 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Sosnovsky (US 7,559,065 Bl, July 7, 2009), Radulescu (US 7,961,604 B2, June 14, 2011), and Gould (US 8,271,996 Bl, Sep. 18, 2012). Final Act. 5. ISSUES First Issue: Has the Examiner erred in finding the claims do not comply with the written description requirement? Second Issue: Has the Examiner erred in finding the combined teachings of Sosnovsky and Gould teach, suggest, or otherwise render obvious “a consumer provided buffer in a consumer memory” and “consumer memory and data prioritizer memory [which] do not share common storage resources and the consumer memory is not addressable by the data prioritizer device?” 3 Appeal 2016-005371 Application 12/633,865 ANALYSIS First Issue The Examiner rejects each of the claims under 35U.S.C. § 112, first paragraph as lacking written description, finding the limitation “wherein the consumer memory and a data prioritizer device memory do not share common storage resources and the consumer memory is not addressable by the data prioritizer,” (hereinafter “the disputed limitation”), is not supported in the Specification as originally filed.2 Final Act. 2—3; Ans. 3—5. The Examiner finds “[t]he [disputed] limitation includes two separate requirements: a) that the consumer memory and a data prioritizer device memory do not share common storage resources, and b) the consumer memory is not addressable by the data prioritizer device,” neither of which are satisfied by the Specification. Ans. 3. According to the Examiner, Figure 1 relied upon by Appellant for support “simply indicates that the producer, consumer, and prioritizer are being treated as separate functional units; they could, however, all exist as, for example, threads executing on the same machine.” Ans. 3. The Examiner further finds “the specification is completely silent as to the prioritizer device not being able to address the consumer memory or being ignorant of the location of the buffer.” Ans. 4. Appellant contends paragraph 20 of the Specification demonstrates the consumer and prioritizer are separate units because it describes them as being connected via communications links over a network. App. Br. 7; Reply Br. 2. Appellant further contends the paragraph 67 of the 2 The disputed limitation was not present in the claims as originally filed, and was added by amendment to each independent claim. 4 Appeal 2016-005371 Application 12/633,865 Specification adds further support because it “explains that the consumer 120 sends the address of the consumer buffer to the prioritizer 130 using, for example, a cross-memory program call.” Reply Br. 2. According to Appellant, a cross-memory program call “is used to allow programs in different address spaces to communicate with each other,” and it was “one skilled in the art would understand the concept of consumer memory not being addressable by the data prioritizer device when cross-memory program calls are used.” Reply Br. 2—3. To support its contention that the use of a cross-memory program call supports the disputed limitation, Appellant “has attached the definition of a cross-memory program call to [the] Reply Brief.” Reply Br. 2. Appellant does not specifically identify the source of the submitted document; it appears on its face to be a page from an electronic publication relating to the z/OS mainframe operating system. See U.S. Patent App. No. 12/633,865, Miscellaneous Incoming Document, received April 25, 2016. Under our rules, “[a] brief shall not include any . . . new or non- admitted Evidence.” 37 C.F.R. § 41.37(c)(2). Thus, under our rules new Evidence “shall” not be submitted with an appeal. Moreover, our rules further deal with the specific situation here, providing that “[a] reply brief shall not include any new or non-admitted . . . Evidence.” 37 C.F.R. § 41.41(b)(1) (2016). Because the submitted document is Evidence offered for the first time with this appeal, and more particularly with the Reply Brief, it is untimely presented, and we decline to consider the submitted document3 as Evidence in this record. Id., cf. Ex parte Borden, 93 USPQ2d 3 Appellant characterizes the submitted document as providing a “definition of a cross-memory program call.” Under our Rules, dictionaries are not 5 Appeal 2016-005371 Application 12/633,865 1473, 1477 (BPAI 2010) (informative) (“Properly interpreted, the Rules do not require the Board to take up a belated argument [or evidence] that has not been addressed by the Examiner, absent a showing of good cause.”) (discussing arguments raised for the first time in a reply brief). Were we to automatically consider such newly submitted Evidence, “[rjather than reviewing a record for error, the Board would be considering, in the first instance, findings of fact proposed by the Appellants], but not weighed by the Examiner [in the Examiner’s Answer] against the other evidence of record.” Borden, 93 USPQ2d at 1475. Because we do not consider the submitted document, Appellant’s contention that the use of a cross-memory program call provides sufficient description for the disputed limitation amounts only to attorney argument. The Specification provides no explanation of what a cross-memory program call is or how it is implemented, so we are left only with Appellant’s assertions regarding the significance of the cross-memory program calls, but no evidence supporting those assertions. Constrained by the record before us, we are not persuaded the Examiner erred in finding the independent claims lack written description under 35 U.S.C. § 112, first paragraph. Because we affirm the Examiner’s finding that each independent claim fails to meet the written description requirement, we also affirm the rejections of those claims depending therefrom. considered Evidence, and “may be cited before the Board.” 37 C.F.R. § 41.30. However, the submitted document is not from a dictionary, so the evidentiary requirements of Rule 41.41(b)(1) apply. 6 Appeal 2016-005371 Application 12/633,865 Second Issue Appellant’s argument regarding the rejection under 35 U.S.C. § 103(a) also involves the disputed limitation. In rejecting claim 1, the Examiner finds the cited references teach “wherein the consumer memory and a data prioritizer device memory do not share common storage resources and the consumer memory is not addressable by the data prioritizer.” Final Act. 5—7; Ans. 5—7. The Examiner makes similar findings with respect to independent claims 10, 12, 21, 23, and 32 which each include the disputed limitation. More specifically, the Examiner finds that while “Sosnovsky does not explicitly disclose . . . wherein the consumer memory and a data prioritizer device memory do not share common storage resources and the consumer memory is not addressable by the data prioritizer device,” Final Act. 6, Gould cures this deficiency because it teaches ring buffers can be allocated from standard memory which “cannot be addressed by either the producer or the consumer directly, but must instead make use of an RPC proxy into the kernel.” Final Act. 7 (citing Gould col. 18,11. 55—67). The Examiner further finds Gould teaches allocating a portion of memory for the consumer’s use, and not for the use of the producer, this allocated memory is neither shared nor addressable by the producer. Ans. 6 (citing Gould col. 18, 11. 13-20). Appellant contends the combination does not render claim 1 obvious because neither Sosnovsky nor Gould teach the disputed limitation. With respect to Sosnovsky, Appellant argues “in contrast with the recitations of the independent claims, the shared memory portion 34 is a shared common storage resource that is addressable by both the service 32 and the subscribers 60-n.” App. Br. 10. With respect to Gould, Appellant argues 7 Appeal 2016-005371 Application 12/633,865 producers and consumers in Gould share the same operating system kernel, which makes the kernel memory in Gould a shared common resource. App. Br. 11. The Examiner finds that although Gould’s producers and consumers share the same operating system kernel, they “do not share common storage resources and the consumer memory is not addressable by the data prioritizer device” because Gould col. 18,11. 13—20, teaches allocating memory exclusively for the use of the consumer and to the exclusion of the producer. Ans. 6—7. We disagree with this finding. The cited passage merely teaches the use of a ring buffer for storing events notifications for each consumer. Nowhere does Gould indicate that the ring buffer is not addressable by the data prioritizer device. We agree with Appellant, therefore, that Gould’s consumers are able to address the ring buffer memory via API’s in order to write events notifications for the consumer. Having that capability, Gould does not teach or suggest “consumer memory [that] is not addressable by the data prioritizer device” as recited in each of the independent claims, and we do not sustain this rejection. For the same reasons, we also do not sustain the rejection of the remaining dependent claims. DECISION The rejection of claims 1—3, 6—10, 12—14, 17—21, 23—25, 28—32, 34, and 35 under 35 U.S.C. § 112, first paragraph as failing to comply with the written description requirement is affirmed. The rejection of claims 1—3, 6—10, 12—14, 17—21, 23—25, 28—32, 34, and 35 under 35 U.S.C. § 103(a) is reversed. 8 Appeal 2016-005371 Application 12/633,865 Because we have affirmed at least one ground of rejection with respect to each claim on appeal, the Examiner's decision is affirmed. See 37 C.F.R. § 41.50(a)(1). No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation