Ex parte SALM

Board of Patent Appeals and Interferences

Feb 26, 1998

07750807 (B.P.A.I. Feb. 26, 1998)

Application for patent filed August 27, 1991.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today
(1) was not written for publication in a law journal and
(2) is not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte INGOLF SALM
__________
Appeal No. 95-2205
Application 07/750,8071
__________
ON BRIEF
__________
Before KRASS, FLEMING and LEE, Administrative Patent Judges.
FLEMING, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the final rejection of
claims 1, 4 through 7, 9, 10, 21 through 24 and 26 through 30,
all of the claims present in the application. Claims 2,3, 8, 11
through 20 and 25 have been canceled.
Appeal No. 95-2205
Application 07/750,807
2
Appellant's invention relates to a virtual storage
organization concept providing storage space for parallel program
execution in pre-allocated partitions of a virtual address
storage containing shared areas and private areas in several
address spaces.
Independent claim 1 is reproduced as follows:
1. A computer system comprising:
a virtual storage; and
means for allocating from said virtual storage (a)
a plurality of private storage areas to a
respective plurality of programs before or at a
start of execution of the respective programs, (b)
another storage area which is shared by said
pluralilty of programs, one of said programs
performing a plurality of jobs, and (c) an
additional private storage area to said one
program for one of said jobs at a start of said
one job subsequent to the start of one program;
and
means for de-allocating said additional private
storage area at an end of said job.
The reference relied on by the Examiner is as follows:
IBM VSE/Advanced Functions, System Management Guide, Version 4,
Release 1.
Claims 1, 4 through 7, 9, 10, 21 through 24 and 26 through
30 stand rejected under 35 U.S.C. § 102 as being anticipated by
the IBM Guide.
Appeal No. 95-2205
Application 07/750,807
The Examiner responded to the brief with an Examiner's2
answer, mailed February 1, 1995. We will refer to the Examiner's
answer as simply the answer. The Examiner mailed a supplemental
Examiner's answer on July 24, 1996. The supplemental Examiner's
answer withdraws the 35 U.S.C. § 101 rejection.
3
Rather than repeat the arguments of Appellant or the
Examiner, we make reference to the brief and the answers for the2
respective details thereof.
OPINION
After a careful review of the evidence before us, we agree
with the Examiner that claims 1, 4 through 7, 9, 10, 21 through
24 and 26 through 30, are anticipated under 35 U.S.C. § 102 by
the IBM Guide.
At the outset, we note that Appellant has indicated on page
3 of the brief that claims 1, 4 through 7, 9, 10, 24, 26 and 27
are grouped together. We further note that Appellant has argued
these claims as one group. Appellant also has indicated on the
same page that claims 21 through 23 and 28 through 30 are grouped
together. We further note that Appellant has argued these claims
as one group. As per 37 CFR § 1.192(c)(5) revised Oct. 22, 1993
which was controlling at the time of Appellant's filing the
brief, it will be presumed that the rejected claims stand or fall
Appeal No. 95-2205
Application 07/750,807
4
together unless there is a statement otherwise, and in the
appropriate part or parts of the arguments, Appellant presents
reasons as to why Appellant considers the rejected claims to be
separately patentable. We will, thereby, consider the
Appellant’s claims 1, 4 through 7, 9, 10, 24, 26 and 27 as
standing or falling together with claim 24 being the
representative claim. We further will consider the Appellant's
claims 21 through 23 and 28 through 30 as standing or falling
together.
It is axiomatic that anticipation of a claim under § 102 can
be found only if the prior art reference discloses every element
of the claim. See In re King, 801 F.2d 1324, 1326, 231 USPQ 136,
138 (Fed. Cir. 1986) and Lindemann Maschinenfabrik GMBH v.
American Hoist & Derrick Co., 730 F.2d 1452, 1458, 221 USPQ 481,
485 (Fed. Cir. 1984). "Anticipation is established only when a
single prior art reference discloses, expressly or under
principles of inherency, each and every element of a claimed
invention." RCA Corp. v. Applied Digital Data Systems, Inc., 730
F.2d 1440, 1444, 221 USPQ 385, 388 (Fed. Cir. 1984), cert.
dismissed, 468 U.S. 1228 (1984), citing Kalman v. Kimberly-Clark
Appeal No. 95-2205
Application 07/750,807
5
Corp., 713 F.2d 760, 772, 218 USPQ 781, 789 (Fed. Cir. 1983).
Appellant argues on page 5 of the brief that the size of the
GETVIS area can increase or decrease, but this is accomplished by
moving the partition and the total allocation remains the same in
all cases, 200 Kbytes. Appellant argues that contrary to claims
1 and 24, the GETVIS area of the IBM guide is not allocated from
virtual storage at the start of a job, but rather the GETVIS area
is merely partitioned from the fixed, pre-existing 200 Kbytes
virtual storage allocation made for the program at the start of
the program execution.
We appreciate Appellant’s argument that IBM discloses that
the virtual storage area is 200 Kbytes. However, Appellant's
claim 24 does not recite that the virtual storage space cannot be
a fixed amount of storage. We note that Appellant's claim 24
recites "allocating from a virtual storage" and does not require
that the virtual storage cannot be a fixed amount of space such
as the IBM 200 Kbytes.
Furthermore, we appreciate that IBM discloses that the
partitioned GETVIS area of 48K is a default allocation. However,
the Examiner is not relying on the default allocation for
teaching Appellant's claimed "allocating from said virtual
Appeal No. 95-2205
Application 07/750,807
6
storage an additional private storage area to said one program
for one of said jobs at a start of said one job subsequent to the
start of said one program" as recited in Appellant's claim 24.
As pointed out on pages 4 and 5 of the answer, the Examiner
argues that the IBM teaching of allocating of additional GETVIS
area reads on Appellant's claimed step of allocating additional
private storage area.
The IBM guide teaches on page 87 that Figure 28 shows
allocating from said virtual storage, an additional private
storage area to said one program, for one of said jobs at a start
of said one job, subsequent to the start of said one program. In
particular, IBM teaches that the default GETVIS area may be
increased in size by the SIZE job control or attention routine
command or the SIZE parameter of the job control EXEC command.
The IBM guide shows that the allocation of additional 12K of
private storage area to the 48K shown in Figure 27 for a total
amount of private storage of 60K shown in Figure 28. Thus, it is
this teaching of allocating an additional 12K of private storage
area to the program for one of the jobs at a start of the one job
subsequent to the start of said one program that meets
Appeal No. 95-2205
Application 07/750,807
7
Appellant's claimed step of allocating additional private storage
area recited in claim 24.
Appellant argues on page 5 of the brief that contrary to
claims 1 and 24, the IBM's GETVIS is not deallocated at the end
of the job. However, we note that it is not the GETVIS including
the default area that the Examiner is relying on for the finding
of allocating and deallocating additional private storage area.
As point out above, IBM teaches the step of allocating an
additional storage area of 12K as shown in Figure 28.
Furthermore, on page 88, IBM teaches deallocating the additional
storage area (the 12K shown in Figure 28) at the end of the job.
We appreciate that IBM teaches that the GETVIS has the 48K of
default storage space at the end of the deallocation step.
However, Appellant's claim 24 only recites that the additional
private storage space is deallocated.
On page 6 of the brief, Appellant argues that claims 21
through 23 and 28 through 30 further specify that the allocation
of storage for a job is made on a job basis at various time
throughout program execution. Appellant argues that the IBM
guide does not provide allocation on a job basis.
Appeal No. 95-2205
Application 07/750,807
8
As pointed out above, IBM teaches on page 87 an allocation
of storage for a job. This allocation is the additional 12k of
GETVIS area where the total GETVIS is increased from 48k to 60k
as shown in Figures 27 and 28. Therefore, we find that the IBM
guide does teach an allocation of additional private storage area
on a job basis.
We note that Appellant has not argued that IBM has failed to
meet any of the other limitations of the claims. Appellant has
chosen not to argue any of these specific limitations of the
claims as a basis for patentability. We are not required to
raise and/or consider such issues. As stated by our reviewing
court in In re Baxter Travenol Labs., 952 F.2d 388, 391, 21
USPQ2d 1281, 1285 (Fed. Cir. 1991), “[i]t is not the function of
this court to examine the claims in greater detail than argued by
an appellant, looking for nonobvious distinctions over the prior
art.” 37 CFR § 1.192(a) as amended at 58 F.R. 54510 Oct. 22,
1993, which was controlling at the time of Appellant’s filing the
brief, states as follows:
The brief ... must set forth the authorities and
arguments on which the appellant will rely to maintain
the appeal. Any arguments or authorities not included
in the brief will be refused consideration by the Board
of Patent Appeals and Interferences.
Appeal No. 95-2205
Application 07/750,807
9
Also, 37 CFR § 1.192(c)(8)(iii) states:
For each rejection under 35 U.S.C. 102, the argument
shall specify the errors in the rejection and why the
rejected claims are patentable under 35 U.S.C. 102,
including any specific limitations in the rejected
claims which are not described in the prior art relied
upon in the rejection.
Thus, 37 CFR § 1.192 provides that just as the court is not under
any burden to raise and/or consider such issues this board is not
under any greater burden.
In view of the foregoing, the decision of the Examner
rejecting claims 1, 4 through 7, 9, 10, 21 through 24 and 26
through 30, under 35 U.S.C. § 102 is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED
ERROL A. KRASS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
MICHAEL R. FLEMING ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
Appeal No. 95-2205
Application 07/750,807
10
)
JAMESON LEE )
Administrative Patent Judge )
Appeal No. 95-2205
Application 07/750,807
11
Arthur J. Samodovitz
IBM Corp., Intellectual Prop. Law
Dept. N50/251-2
1701 North Street
Endicott, NY 13760