Ex Parte Oh et al

Patent Trial and Appeal Board

Aug 30, 2016

14146870 (P.T.A.B. Aug. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/146,870 01/03/2014
20987 7590 09/01/2016
VOLENTINE & WHITT PLLC
ONE FREEDOM SQUARE
11951 FREEDOM DRIVE, SUITE 1300
RESTON, VA 20190
FIRST NAMED INVENTOR
Moon-wook Oh
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.
SEC.2188D3C 2672
EXAMINER
LI, SIDNEY
ART UNIT PAPER NUMBER
2136
NOTIFICATION DATE DELIVERY MODE
09/01/2016 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):
cjohnson@volentine.com
aloomis@volentine.com
iplaw@volentine.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MOON-WOOK OH, DO-GEUN KIM, and CHAN-IK PARK
Appeal2015-005757
Application 14/146,870
Technology Center 2100
Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.
DANG, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-13 and 31-34, which are all the claims pending in the
Application. Claims 14--30, drawn to a non-elected invention, have been
cancelled. (App. Br. 5). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
A. INVENTION
According to Appellants, the invention relates to "a computer system
which includes an SSM, and a method of operating an SSM" (Spec. i-f 2).
Appeal2015-005757
Application 14/146,870
B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and is reproduced below:
1. A nonvolatile memory system comprising:
a first group of memory cells, each of the first group of
memory cells configured to store a first number of bits per cell;
a second group of memory cells, each of the second group
of memory cells configured to store a second number of bits per
cell; and
a controller configured to perform a write operation on the
first group of memory cells or on the second group of memory
cells based on .a write access frequency to a logical address in
the nonvolatile memory system,
the controller being further configured to determine, after
the write operation, whether the number of available memory
cells in the first group of memory cells is less than a threshold,
and based on a result of the determination, the controller is
further configured to move data from the first group of memory
cells to the second group of memory cells.
C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sinclair et al.
Bartley et al.
Tan et al.
Frazier et al.
US 2005/0251617 Al
US 2008/0016297 Al
US 2008/0215801 Al
US 2008/0281939 Al
Nov. 10, 2005
Jan. 17,2008
Sept. 4, 2008
Nov. 13, 2008
Claims 1-7 and 9-12 stand rejected under 35 U.S.C. § 103(a) over the
combined teachings and suggestions of Sinclair and Bartley.
Claims 8 and 31-34 stand rejected under 35 U.S.C. § 103(a) over the
combined teachings and suggestions of Sinclair, Bartley and Tan.
2
Appeal2015-005757
Application 14/146,870
Claim 13 stands rejected under 35 U.S.C. § 103(a) over the combined
teachings and suggestions of Sinclair, Bartley and Frazier.
II. ISSUE
The principal issue is whether Appellants have shown that the
Examiner erred in finding that the combined teachings of Sinclair and
Bartley teach or would have suggested "the controller being further
configured to determine, after the write operation, whether the number of
available memory cells in the first group of memory cells is less than a
threshold, and based on a result of the determination, the controller is further
configured to move data from the first group of memory cells to the second
group of memory cells" (claim 1, emphasis added).
III FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Sinclair
1. Sinclair discloses improving system performance by keeping
data in separate, fast, nonvolatile memory. (i-f 55).
Bartley
2. Bartley discloses a method of controlling computer-readable
memory that includes a plurality of memory locations, where the system
determines for each address whether the usage frequency is greater than a
"move up" threshold. If it is greater, then the corresponding data unit is
moved to an address in a faster latency class. If it is not greater, then the
system determines whether the usage frequency is less than a "move down"
threshold. If it is less that the move down threshold, then the corresponding
data unit is moved to an address in a slower latency class. (i-f 26).
3
Appeal2015-005757
Application 14/146,870
Claim 1
ANALYSIS
Appellants contend the Examiner's reliance on Sinclair is misplaced
because
... [B]y specifically listing "non-flash EEPROM", SINCLAIR
ET AL. teaches away from flash memory as the alternative non-
volatile memory 150.
In the context of independent claim 1, SINCLAIR ET AL.
does not segregate memories based on numbers of bits stored in
each cell. Rather, SINCLAIR ET AL. is focused on different
memory technologies.
(App. Br. 14).
Appellants also contend
... Bartley [ ] teaches either (a) comparing usage frequencies of
data units with each other to rearrange storage locations among
the data units as in FIGS. 3A-3D, or (b) comparing usage
frequencies of data units with thresholds to move the data units
to memory having a more \~1ell-matched latency as in FIG. 4.
BARTLEY ET AL. does not teach determining whether a number
of available memory cells in a first group of memory cells is less
than a threshold, and BARTLEY ET AL. also does not teach
moving data from the first group of memory cells to the second
group of memory cells based on a result of the determination.
(App. Br. 19).
We have considered all of Appellants' arguments and evidence
presented. However, we disagree with Appellants' contentions regarding the
Examiner's rejection of claim 1. For the reasons discussed below, we agree
with the Examiner's findings, and are unpersuaded of error with the
Examiner's conclusion that the claimed subject matter would have been
obvious over the combined teachings.
4
Appeal2015-005757
Application 14/146,870
Although Appellants argue the references (Sinclair and Bartley)
individually do not teach or suggest the disputed limitation (App.
Br. 14--19), the test for obviousness is what the combination of references
teaches or would have suggested to one of ordinary skill in the art. See In re
Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We agree with the Examiner's reliance on Sinclair's non-volatile
memories for disclosing memory cells. (FF 1, Final Act. 3--4). We also
agree with the Examiner's finding that Bartley teaches determining whether
a number of available memory cells in a first group of memory cells is less
than a threshold and moving data from the first group of memory cells to the
second group of memory cells based on a result of that determination as
Bartley's dynamic move up and move down thresholds teach "threshold," as
recited in claim 1. (FF 2, Ans. 17). In particular, we find no error in the
Examiner's finding that someone of ordinary skill in the art would have
understood Bartley to teach or at least suggest determining whether a
number of available memory cells in a first group is less than a threshold and
moving data from a first to second group of memory cells based on the result
of the determination. (Ans. 17-18).
The Supreme Court holds that the conclusion of obviousness can be
based on the background knowledge possessed by a person having ordinary
skill in the art. KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007).
The skilled artisan is "[a] person of ordinary creativity, not an automaton."
Id. at 421.
Appellants have provided no evidence that the Examiner's proffered
modification of Sinclair and Bartley would have been "uniquely challenging
or difficult for one of ordinary skill in the art" (Leapfrog Enters., Inc. v.
5
Appeal2015-005757
Application 14/146,870
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)). Rather, we agree
with the Examiner that Appellants' invention is simply a modification of
familiar prior art teachings (as taught or suggested by the cited references)
that would have realized a predictable result.
Based on the record before us, we conclude that the Appellants have
not shown that the Examiner erred in rejecting claim 1, and claims 2--4
which depend therefrom, over Sinclair and Bartley.
Claim 5
Independent claim 5 recites in pertinent part
5. A method of storing data to a memory system . . . after
storing the data, moving the data from the first group of memory
cells to the second group of memory cells when the number of
available memory cells in the first group of memory cells is less
than a threshold.
Appellants contend regarding claim 5, similar to their contentions for
claim 1, that "BARTLEY ET AL. does not teach moving the data from the
first group of memory cells to the second group of memory cells when the
number of available memory cells in the first group of memory cells is less
than a threshold." (App. Br. 20.)
For the same reasons as discussed regarding claim 1, based on the
record before us, we conclude that the Appellants have not shown that the
Examiner erred in rejecting independent claim 5, and claims 6, 7, and 10-12
which depend therefrom.
Claim 13
Appellants do not present substantive arguments regarding claim 13
which depends from claims 5 and 12, but which is rejected over the
6
Appeal2015-005757
Application 14/146,870
combined teachings of Sinclair, Bartley and Frazier. (App. Br. 24 ).
Arguments not made are waived. Furthermore, argument of counsel cannot
take the place of evidence lacking in the record. Meitzner v. Mindick, 549
F.2d 775, 782 (CCPA 1977); see also In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974). As such, Appellants' arguments are entitled to little probative
value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); In re De
Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). On this record, we find
Appellants' arguments unpersuasive, and sustain the Examiner's rejection of
claim 13.
Claim 9
Claim 9 recites "The method of claim 5, wherein the second number
is greater than the first number."
Appellants contend
[A]ccording to dependent claim 9, data is moved from first
memory cells having a lower number of bits per cell to second
memOf'f cells having a higher number of bits per cell, \'l1hen the
number of available first memory cells (having the lower number
of bits per cell) is less than a threshold. Neither SINCLAIR ET
AL. nor BARTLEY ET AL. teach or suggest the subject matter
of claim 9.
(App. Br. 20).
However, we find no error with the Examiner's finding that Sinclair
discloses and suggests the contested limitation (Ans. 7-8). Thus, we are
unconvinced the Examiner has erred in rejecting dependent claim 9 (Final
Act. 8-9).
Furthermore, we note the claim term "greater than" presents
essentially two possibilities (greater than or less then) that would be obvious
to try by someone of ordinary skill in the art. When there are a finite
7
Appeal2015-005757
Application 14/146,870
number of identified, predictable solutions, a person of ordinary skill has
good reason to pursue the known options within his or her technical grasp.
If this leads to the anticipated success, it is likely that product [was] not of
innovation but of ordinary skill and common sense. In that instance the fact
that a combination was obvious to try might show that it was obvious under
§ 103. KSR, 550 U.S. at 420.
Thus, where "the problem is known, the possible approaches to
solving the problem are known and finite, and the solution is predictable
through use of a known option," a solution that is obvious to try may indeed
be obvious. Abbott Labs. v. Sandoz, Inc., 544 F.3d 1341, 1351 (Fed. Cir.
2008), citing KSR, 550 U.S. at 398. See also Ortho-McNeil Pharm., Inc. v.
Mylan Labs., Inc., 520 F.3d 1358, 1364 (stating the number of options must
be "small or easily traversed").
This reasoning is applicable here. Because of the finite number of
identified, predictable solutions, on this record, we are unpersuaded that the
Examiner erred in rejecting dependent claim 9, and we sustain the rejection.
Claim 8
As to claim 8, Appellants contend
Second, Applicants acknowledge that TAN ET AL.
teaches a system having both single level cell (SLC) and multi-
level cell (MLC) flash memory. However, there no teaching
therein which would lead one skilled in the art to adopt SLC and
MCL cells as the different memory technologies of SINCLAIR
ET AL. and/or BARTLEY ET AL.
Third, similar to dependent claim 9 discussed above, the
subject matter of dependent claim 8 requires data being moved
from first memory cells having a lower number of bits per cell to
second memory cells having a higher number of bits per cell,
when the number of available first memory cells (having the
8
Appeal2015-005757
Application 14/146,870
lower number of bits per cell) is less than a threshold. Neither
SINCLAIR ET AL. nor BARTLEY ET AL. nor TAN ET AL.
teach or suggest the subject matter of claim 8.
(App. Br. 21).
We are unpersuaded the Examiner has erred because the Appellants
are arguing the references separately. Appellants themselves agree that Tan
teaches the single-level and multi-level memory cells. (App. Br. 20).
Furthermore, Appellants argue dependent claim 9 is similar to dependent
claim 8. However, claim 9 does not depend from claim 8 or vice versa.
Therefore, this analogy is unpersuasive in extending a similarity between the
two claims. We also note Appellants have not responded to the Examiner's
findings (Ans. 19) as Appellants have not filed a Reply Brief. Arguments
not made are waived.
Therefore, we conclude that the Appellants have not shown that the
Examiner erred in rejecting dependent claim 8 and we sustain the rejection.
Furthermore, while Appellants raise additional arguments for
patentability of independent claims 31 and 33 and dependent claim 34, these
arguments are similar to those arguments presented in reference to claim 1
(App. Br. 29-31) to which we are not persuaded the Examiner has erred.
Therefore, we sustain the Examiner's rejection of claims 31, 33 and 34.
V CONCLUSION AND DECISION
We affirm the Examiner's rejections of claims 1-13 and 31-34 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 )(iv).
AFFIRMED
9