Ex Parte Abercrombie et al

Patent Trial and Appeal Board

Aug 22, 2016

12058907 (P.T.A.B. Aug. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/058,907 03/3112008
70748 7590
IBM Corp, (AUS/RCR)
c/o Rolnik Law Firm, P.C.
24 N. Main St.
Kingwood, TX 77339
08/24/2016
FIRST NAMED INVENTOR
David K. Abercrombie
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.
A US9200707l4US1 4060
EXAMINER
LINDLOF,JOHNM
ART UNIT PAPER NUMBER
2183
NOTIFICATION DATE DELIVERY MODE
08/24/2016 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):
notices@rolnikiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID K. ABERCROMBIE, AARON C. BROWN,
ROBERT G. KOVACS, and RENATO J. RECI0 1
Appeal2014-008535
Application 12/058,907
Technology Center 2100
Before JEFFREY A. STEPHENS, NORMAN H. BEAMER, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-20. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellants identify International Business Machines Corporation as the
real party in interest. App. Br. 2.
Appeal2014-008535
Application 12/058,907
STATEMENT OF THE CASE
Introduction
Appellants' invention is directed "to maintaining the security and
integrity of a data processing system." Spec. i-f 1. In particular, in a
virtualized environment, a hypervisor is used to logically partition hardware
into logical partitions. Spec. i-f 5. In a disclosed embodiment, an I/O adapter
acts as an interface between physical signals of a network and the logical
values used by the various logical partitions. Spec. i-f 5. According to the
Specification, resources associated with the I/O adapter are assigned by the
hypervisor. Spec. ,-r 7.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics:
1. A computer implemented method for regulating received data
in a multiple operating system environment on an I/O adapter, the
method comprising:
a hypervisor allocating hardware among at least two software
components among a plurality of software components, wherein the 110
adapter is allocated to at least one of the at least two software
components;
the hypervisor determining that the I/O adapter indicated a
receive completion;
the hypervisor responsive to a determination that the 110 adapter
indicated the receive completion, retrieving the receive completion;
responsive to retrieving the receive completion, the hypervisor
determining that the receive completion is associated with a successful
status and in response,
the hypervisor determining in hypervisor space of a data
processing system whether an at least one data packet satisfies a
security criterion;
the hypervisor determining that the data processing system is
configured as a router; and
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Application 12/058,907
responsive to a determination that the data processing system is
configured as a router, the hypervisor routing the data packet to a
network address on a local area network.
The Examiner's Rejection
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Morgan et al. (US 2009/0073895 Al; Mar. 19, 2009)
("Morgan"); Lucovsky et al. (US 5,758,184; May 26, 1998) ("Lucovsky");
and Manel Zapata et al., Securing Ad hoc Routing Protocols, WiSe '02,
ACM (2002) ("Zapata"). Final Act. 2---6.
Issues on Appeal
1. Did the Examiner err in finding the combination of Morgan,
Lucovsky, and Zapata teaches or suggests "a hypervisor allocating hardware
among at least two software components among a plurality of software
components; wherein the I/O adapter is allocated to at least one of the at
least two software components," as recited in claim 1?
2. Did the Examiner err in finding the combination of Morgan,
Lucovsky, and Zapata teaches or suggests "the hypervisor determining that
the data processing system is configured as a router; and responsive to a
determination that the data processing system is configured as a router, the
hypervisor routing the data packet to a network address on a local area
network," as recited in claim 1?
3. Did the Examiner err in finding the combination of Morgan,
Lucovsky, and Zapata teaches or suggests "the hypervisor responsive to a
determination that the I/O adapter indicated the receive completion,
retrieving the receive completion," as recited in claim 1?
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Application 12/058,907
ANALYSIS 2
Appellants contend the Examiner erred in finding Morgan teaches or
suggests a hypervisor or that the hypervisor performs the claimed allocating.
App. Br. 9--11. In particular, Appellants argue the Examiner relies on the
unnumbered box of Figure 1 from Morgan (aggregating the VMM (virtual
machine manager) (101), Security Virtual Appliance (103), and IAMT
(Intel® Active Management Technology) (105)) as the claimed hypervisor.
Id. Appellants contend the various numbered boxes in Figure 1 of Morgan
fail to suggest a hypervisor and that Morgan fails to teach or suggest a
claimed step of allocating. App. Br. 11. Appellants argue
the Examiner and/or Morgan entirely fail to suggest to one of
ordinary skill in the art, in what manner the Morgan "virtual
systems" are being allocated, or by which instrumentality. Claim
1 is explicit in its limitations, "a hypervisor allocating software
components".
App. Br. 11.
As an initial matter, we note, contrary to Appellants; assertion, claim
1 recites the hypervisor allocates "hardware among at least two software
components ... wherein the I/O adapter is allocated to at least one of the at
least two software components." (Emphasis added). Additionally, the
Examiner finds, and we agree, Morgan's VMM corresponds to the claimed
hypervisor. Ans. 7 (citing Morgan i-f 12 (describing a hypervisor virtual
machine manager)). Further, the Examiner finds, and we agree, Morgan
2 Throughout this Decision, we have considered the Appeal Brief, filed
January 27, 2014 ("App. Br."); the Reply Brief, filed August 5, 2014
("Reply Br."); the Examiner's Answer, mailed on July 31, 2014 ("Ans.");
and the Final Office Action ("Final Act."), mailed on December 26, 2013,
from which this Appeal is taken.
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Application 12/058,907
teaches the VMM dynamically changes routing. Ans. 7 (citing Morgan, Fig.
2). In other words, the VMM (i.e., hypervisor) determines which virtual
system (i.e., software component) communicates with the NIC (network
interface card) (i.e., the I/O adapter). Ans. 7. Thus, the NIC is allocated to a
virtual system by the VMM.
Additionally, Appellants assert Morgan merely shows "the VMM to
be in contact with virtual systems ... without explaining how, the NIC is
'routed' to one, two or even three of the Morgan virtual systems." Reply
Br. 3. Appellants argue that just because the NIC is in contact with a VMM,
it does not mean that the NIC is allocated to any of the virtual systems.
Reply Br. 3.
We find Appellants' arguments unpersuasive of Examiner error.
Morgan discloses the route for data is between the network and a virtual
system (items 110, 120, and 130 in Figure 1). Morgan i-f 16. Further,
Morgan discloses "[ w ]hen there is no breach, or rather when the filter
criteria is not met, the iAMT passes the traffic through to the VMM which
then routes the traffic to the correct virtual system." Morgan i-f 20. Thus, we
agree with the Examiner's findings that Morgan teaches, inter alia, "a
hypervisor allocating hardware among at least two software components
among a plurality of software components, wherein the I/O adapter is
allocated to at least one of the at least two software components," as recited
in claim 1. See Final Act. 2-3; Ans. 7.
Appellants contend the Examiner erred in finding Zapata teaches
"routing the data packet to a network address on a local area network," as
recited in claim 1. App. Br. 14. Rather, Appellants assert Zapata merely
suggests that routing is an interesting security problem but does not teach or
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suggest the claimed limitation or "that such routing be done by a
hypervisor." App. Br. 14. Further, Appellants argue Zapata does not teach a
determination that the node (i.e., data processing system) is configured to act
as a router or that the routing of a data packet to a network address on a local
area network is responsive to the determination that the node (i.e., system) is
configured to act as a router. App. Br. 14--16; Reply Br. 3-5.
In response, the Examiner explains Morgan was relied upon to teach
routing a data packet to a network address on a local area network. Ans. 7
(citing Morgan i-f 32, Fig. 3, item 335b (routing data to a wireless LAN)). As
discussed supra, the routing of data packets is performed by the VMM (i.e.,
hypervisor). The Examiner relies on Zapata to teach the determination of a
node (i.e., data processing system) as a router. Final Act. 4 (citing Zapata
1 ); Ans. 8-9.
Zapata teaches various protocols and techniques for determining and
authenticating the router configuration of a node. See, e.g., Zapata 2 (ARAN
(authenticated routing for ad hoc networks), SRP (server routing protocol),
DRP (directional routing protocol), and SEAD (secure efficient distance
vector routing)). Additionally, Zapata teaches route information is only
authorized in a routing table if the route information concerns the node
sending the information. Zapata 2.
The Examiner finds, and we agree, "one of ordinary skill in the art
would have found obvious using a hypervisor of Morgan to determine that a
node is configured as a router such as in Zapata." Ans. 8. The Examiner
notes adding functionality as simple as making a determination could be
readily added to the hypervisor of Morgan. Ans. 8. Additionally, the
Examiner finds, and we agree, "one of ordinary skill in the art would have
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found obvious using a hypervisor of Morgan to route a data packet in
response to a determination that a node is configured as a router such as in
Zapata." Ans. 9. The Examiner explains the proffered combination would
have provided "a clearly predictable result of configuring a node as a router
in order to enable the routing of data." Ans. 9.
The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.
KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). An obviousness
analysis "need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ."
Id. at 418. "A person of ordinary skill is also a person of ordinary creativity,
not an automaton." Id. at 421. The test for obviousness is whether the
combination of references, taken as a whole, would have suggested the
patentee's invention to a person having ordinary skill in the art. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellants do not persuasively rebut the Examiner's findings. See
Reply Br. 3-5. We agree with the Examiner that the proposed combination
teaches or suggests "the hypervisor determining that the data processing
system is configured as a router; and responsive to a determination that the
data processing system is configured as a router, the hypervisor routing the
data packet to a network address on a local area network," as recited in claim
1. A person of ordinary skill in the art would appreciate a hypervisor would
not route data packets to a network address on a local area network if it were
not known (i.e., determined) that the node (i.e., data processing system) was
configured as a router. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962)
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(an artisan must be presumed to know something about the art apart from
what the references disclose).
Appellants also contend the Examiner erred in finding the
combination of references teaches or suggests "the hypervisor responsive to
a determination that the I/O adapter indicated the receive completion,
retrieving the receive completion," as recited in claim 1. App. Br. 16-18;
Reply Br. 6-7.
We are unpersuaded of Examiner error. The Examiner finds, and we
agree, Morgan teaches receiving completed packets and communicating
between a hypervisor and an I/O adapter. Final Act. 3 (citing Morgan i-f 16).
Further, the Examiner finds, and we agree, "Lucovsky teaches a process
checking whether an I/O port has successfully indicated a receive
completion." Final Act. 3 (citing Lucovsky, Abstract); Ans. 9 (citing
Lucovsky, col. 4, 11. 21-31 ). The Examiner reasons the combination of
Morgan and Lucovsky "would have provided a single synchronization point
and controllable concurrency for multiple simultaneous asynchronous I/O
operations." Ans. 9; see also Final Act. 3--4 (finding it would have been
obvious to a person of ordinary skill in the art to combine the teachings of
Morgan and Lucovsky to teach the disputed limitations).
Appellants do not persuasively rebut the Examiner's findings that the
combined teachings of Morgan and Lucovsky teach or suggest the disputed
limitation. See Reply Br. 6-7. Additionally, Appellants' arguments are not
responsive to the Examiner's rejection, which relies on the combined
teachings of Morgan and Lucovsky. Compare Final Act. 3--4 (relying on the
combined teachings of Morgan and Lucovsky), with Reply Br. 7 (arguments
directed to Lucovsky and stating Morgan was not relied on to teach or
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suggest the disputed limitation). Non-obviousness cannot be established by
attacking references individually where, as here, the ground of
unpatentability is based upon the teachings of a combination of references.
In re Keller, 642 F.2d 413, 426 (CCPA 1981).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection of independent
claim 1. For similar reasons, we also sustain the Examiner's rejection of
independent claims 8 and 15, which recite similar limitations and which are
not argued separately. Additionally, we sustain the Examiner's rejection of
dependent claims 2-7, 9-14, and 16-20, which are not argued separately.
See App. Br. 12.
DECISION
We affirm the Examiner's decision to reject claims 1-20.
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
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