Ex Parte Qin

Patent Trial and Appeal Board

Jul 3, 2014

11334665 (P.T.A.B. Jul. 3, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte XIAOHAN QIN
___________

Appeal 2011-012119
Application 11/334,665
Technology Center 2100
____________

Before JEAN R. HOMERE, JEFFREY S. SMITH, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL1

1 Throughout this Decision, we refer to Appellant’s Appeal Brief (“Br.” filed
January 18, 2011), the original Specification (“Spec.” filed January 18,
2006), and the Examiner’s Answer (“Ans.” mailed May 11, 2011) for the
respective positions of Appellant and the Examiner.
Appeal 2011-012119
Application 11/334,665

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This is an appeal under 35 U.S.C. § 134(a) of finally rejected claims
21-40. Claims 1-20 are cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
STATEMENT OF THE CASE
THE INVENTION
Appellant’s invention relates generally to scheduling task execution to
provide improved reliability while maintaining acceptable runtime
performance. Spec. ¶ 0001.
Claim 21, reproduced below, is illustrative:
21. In a data processing system, a method for scheduling
applications comprising:
monitoring memory availability within said data
processing system;
recording a memory usage history for one or more
applications;
determining if an amount of available memory is less
than or equal to a global available memory threshold;
in response to determining that the amount of available
memory is less than or equal to the global available memory
threshold:
entering a memory conscious scheduling mode,
wherein during the memory conscious scheduling mode
at least one of the amount of available memory and an
amount of memory usage of the one or more applications
are dynamically monitored and are utilized as at least one
of as a plurality of prioritization criteria, and
scheduling a next application for execution in
accordance with the memory availability and the memory
usage history of the one or more monitored applications
and in accordance with the memory conscious scheduling
mode; and
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in response to determining that the amount of available
memory is greater than the global available memory threshold,
exiting the memory conscious scheduling mode.

THE REJECTIONS2
Claims 28-40 are rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 21, 22, 28, 34, and 35 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Szymanek (Radoslaw Szymanek & Krzysztof Kuchcinski,
A Constructive Algorithm for Memory-Aware Task Assignment and
Scheduling, Proc. 9th Int’l Symposium on Hardware/Software Codesign
(CODES ’01), 147-152, ACM 2001), and Benedetti (US 2005/0076043 A1).
Claims 23, 29, and 36 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Szymanek, Benedetti, Durand (US 6,338,072 B1), and
Brenner (US 6,584,488 B1).
Claims 24, 30, and 37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Szymanek, Benedetti, and Durand.
Claims 25-27, 31-33, and 38-40 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Szymanek, Benedetti, Durand, and Stewart
(Christopher Stewart et al., Profile-Driven Component Placement for
Cluster-Based Online Services, IEEE Distributed Systems Online, Vol. 5,
No. 10, Oct. 2004).

2 The rejection of claims 21-40 under 35 U.S.C. § 112, second paragraph is
withdrawn. Ans. 3.
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101 REJECTION
The Examiner indicates an amendment filed concurrently with
Appellant’s Appeal Brief was not entered but notes the amendment, if
entered would overcome the § 101 rejection. Ans. 13. Although the
amendment was not entered, Appellant’s Claim Appendix (Br. 29-33)
presents the amended claims as though the amendment was entered.
Appellant provides no remarks or argument regarding the § 101 rejection.
Therefore, we affirm pro forma the Examiner’s rejection of claims 28-40
under § 101.

103 REJECTIONS
Only those arguments actually made by Appellant have been
considered in this decision. Arguments that Appellant did not make in the
Briefs are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner erred. Br. 10-27. We disagree with
Appellant’s conclusions. We adopt as our own the findings and reasons set
forth by the Examiner in the action from which this appeal is taken and as
set forth by the Examiner in the Examiner’s Answer in response to
Appellant’s Appeal Brief (see Ans. 13-21). However, we highlight and
address specific arguments and findings for emphasis as follows.

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CLAIMS 21, 22, 28, 34, AND 35
Issue 1
Has the Examiner erred in finding Szymanek teaches or reasonably
suggests “determining if an amount of available memory is less than or
equal to a global available memory threshold” as recited in claim 21?
Analysis Issue 1
Appellant argues “Szymanek is clearly only concerned with an
amount of memory on a processor (i.e. cache memory) that is required by a
processor to execute a task being below a limit.” Br. 11 (emphasis omitted).
Appellant further contends the recited global available memory threshold is
not equivalent to Szymanek’s required memory limit of a processor “but
rather comprises a much larger global memory (i.e., a processor’s internal
memory is not global memory).” Br. 12. Appellant, therefore, concludes
Szymanek fails to disclose “determining if an amount of available memory
is less than or equal to a global available memory threshold” as recited in
claim 21. Br. 11.
We disagree. Claims are given their broadest reasonable construction
“in light of the specification as it would be interpreted by one of ordinary
skill in the art.” In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364
(Fed. Cir. 2004) (citation and internal quotation marks omitted). The
Examiner explains that the broadest reasonable interpretation of “an amount
of available memory” is equivalent to Szymanek’s disclosure of a “memory
size” on a processor. Ans. 15. The Examiner further explains “given the
broadest reasonable interpretation, ‘global available memory threshold’ can
be construed as a ‘global threshold’ of ‘available memory.’” Ans. 15.
Although a patent applicant is entitled to be his or her own lexicographer of
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patent claim terms, the applicant must do so by placing such definitions in
the specification with sufficient clarity to provide a person of ordinary skill
in the art with clear and precise notice of the meaning that is to be construed.
See In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). Appellant has
identified no clear definition of “global available memory threshold” that
contradicts the Examiner’s interpretation. We find the Examiner’s
interpretations broad but reasonable in view of the Specification’s lack of a
clear definition.
Based on the Examiner’s interpretation, the Examiner concludes:
Szymanek’s teaching of determining if a processor’s available
memory size is less than or equal to a globally-constrained
estimate of the amount of needed data memory is the same as
the recited limitation of “determining if an amount of available
memory is less than or equal to a global available memory
threshold.”
Ans. 16. We agree and Appellant has not persuasively rebutted the
Examiner’s findings or reasoning.
In view of the above discussion, we are not persuaded the Examiner
erred in finding Szymanek teaches or reasonably suggests “determining if an
amount of available memory is less than or equal to a global available
memory threshold” as recited in claim 21.

Issue 2
Has the Examiner erred in finding the combination of Szymanek and
Benedetti teaches or reasonably suggests “entering a memory conscious
scheduling mode, wherein during the memory conscious scheduling mode at
least one of the amount of available memory and an amount of memory
usage of the one or more applications are dynamically monitored and are
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utilized as at least one of as a plurality of prioritization criteria” as recited in
claim 21?

Analysis Issue 2
Appellant argues “that none of the references, individually or in
combination disclose the Appellants’ [sic] claimed ‘memory conscious
scheduling mode’ or entering any distinct scheduling mode responsive to
determining that the amount of available memory is less than or equal to a
global available memory threshold.” Br. 12. Appellant further contends,
since the prior art does not enter such a scheduling mode, the prior art also
fails to disclose scheduling a next application in accordance with the
memory conscious scheduling mode as recited. Br. 13.
We disagree. Initially, we note merely reciting the language of the
claims and asserting the cited prior art reference does not teach or suggest
each claim limitation is insufficient. See 37 C.F.R. § 41.37(c)(vii) (“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) (“[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.”).
Appellant fails to provide sufficient, persuasive argument or evidence
regarding the specific deficiency of Szymanek and Benedetti with respect to
claim 21 as interpreted by the Examiner. Rather, Appellant’s assertions
regarding this issue essentially repeat the claimed limitation, paraphrase the
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Examiner’s position, and then broadly assert the cited references do not
teach the claimed limitation. Br. 12-14.
Regardless, the Examiner responds with a detailed analysis reading
the claim features relating to the “memory conscious scheduling mode” on
teachings of the combined references (Ans. 17-19) and Appellant has not
persuasively rebutted the Examiner’s findings and reasoning.
In view of the above discussion, we are not persuaded the Examiner
erred in finding the combination of Szymanek and Benedetti teaches or
reasonably suggests “entering a memory conscious scheduling mode,
wherein during the memory conscious scheduling mode at least one of the
amount of available memory and an amount of memory usage of the one or
more applications are dynamically monitored and are utilized as at least one
of as a plurality of prioritization criteria” as recited in claim 21.

For the above reasons, we are not persuaded the Examiner erred in
rejecting claim 21. Appellant presents identical arguments for independent
claims 28 and 34 (Br. 15-23) and for the same reasons as claim 21, we are
not persuaded the Examiner erred. Appellant argues claims 22 and 35 are
allowable for the same reasons as their respective base claims, 21 and 34.
Br. 14, 23. For the same reasons as claims 21 and 34, we are not persuaded
of Examiner error in rejecting claims 22 and 35. We, therefore, sustain the
Examiner’s rejection of claims 21, 22, 28, 34, and 35.

CLAIMS 23, 29, AND 36
Appellant does not argue dependent claims 23, 29, and 36 apart from
their respective base claims 21, 28, and 34 (Br. 23) and for the reasons
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discussed supra, we are not persuaded the Examiner has erred in rejecting
these claims.

CLAIMS 24, 30, AND 37
Issue
Has the Examiner erred finding the combination of Szymanek,
Benedetti, and Durand discloses “generating a table for recording memory
usage history of each monitored application” as recited in claim 24?
Analysis
Appellant argues Durand merely discloses a display of utilized
resources for currently active processes and thus does not disclose the
recited table generation. Br. 24. We disagree. Initially, we note Appellant’s
argument improperly attacks the references separately while the rejection is
based on the combined teachings of the references. See, e.g., In re Keller,
642 F.2d 413, 426 (CCPA 1981); see also In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). Furthermore, the Examiner explains Benedetti
already discloses recording memory usage history (Ans. 21) and Durand is
relied upon merely for disclosing generation of a table that contains resource
usage—e.g., memory usage of processes (Ans. 20-21). Appellant has not
persuasively rebutted the Examiner’s findings or reasoning.
In view of the above discussion, we are not persuaded the Examiner
erred finding the combination of Szymanek, Benedetti, and Durand discloses
“generating a table for recording memory usage history of each monitored
application” as recited in claim 24. Claims 30 and 37 recite the same
limitation and Appellant presents the same arguments as claim for 24. Br.
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24-26. For the same reasons as claim 24, we are unpersuaded the Examiner
erred in rejecting claims 30 and 37.

CLAIMS 25-27, 31-33, AND 38-40
Appellant does not argue dependent claims 25-27, 31-33, and 38-40
apart from their respective base claims 21, 28, and 34 (Br. 26-27) and for the
reasons discussed supra, we are not persuaded the Examiner has erred in
rejecting these claims.

DECISION
For the above reasons, we affirm pro forma the Examiner’s decision
rejecting claims 28-40 under 35 U.S.C. § 101.
For the reasons discussed above, the Examiner’s decision to reject
claims 21-40 under 35 U.S.C. § 103(a) 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

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