Appeal 2007-1247
Application 10/222,014
prior art teachings “has been commonplace for recent years.”). Thus, it may
be that claim 1 is unpatentable under 35 U.S.C. 103(a), even if one were to
assume its scope is limited to Appellants’ unduly narrow interpretation.3
However, we do not now decide this issue.
III. CLAIMS 6 AND 12
Appellants argue claims 6 and 12, which are subject to the same
ground of rejection, as a group. (App. Br. 7). We select claim 6 as the sole
claim on which to decide the appeal of the group.
The Examiner asserts that Shah discloses the recited features of claim
1 from which claim 6 depends. The Examiner further asserts that:
Strategies for identifying a trace are well known in the prior art,
including maintaining a plurality of values, each indicating the
number of executions of a particular instruction, and
performing a trace when one value of the plurality of values
reaches a predetermined number. (For example, Bala (US
6,351,844), col. 3, lines 2-12, 35-39.) (Ans. 6).
Appellants assert that Shah “fails to show all limitations of claims 6
and 12. For instance, claims 6 and 12 recite a hardware portion that includes
certain features and a software portion that includes other features.” (App.
3 We further note that U.S. Patent No. 6,164,841 (“Mattson”) also discloses
a method and apparatus for software optimization. Mattson explicitly
discloses that “[i]t will be understood by those skilled in that art that … an
optimization tool, may be implemented in software, firmware, hardware, or
any combination thereof.” Col. 7, ll. 37-40. Mattson further discloses that
“references are made to various functional modules of the present invention
that may be implemented either in software, hardware, firmware, or any
combination thereof.” Col. 12, ll. 4-7. Thus, it may have been obvious to
perform Shah’s method of software optimization using software, firmware,
hardware, or any combination thereof, as demonstrated by Mattson.
7
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