10762000 (P.T.A.B. Oct. 23, 2012)

Ex Parte Broussard et al

Patent Trial and Appeal BoardOct 23, 2012

10762000 (P.T.A.B. Oct. 23, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SCOTT J. BROUSSARD, YING LIU, and EDUARDO N. SPRING ____________________ Appeal 2010-006022 Application 10/762,000 Technology Center 2100 ____________________ Before MAHSHID D. SAADAT, ERIC S. FRAHM, and HUNG H. BUI, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants1 seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Rejection of claims 1, 5-9, 13-17 and 21-24.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Real Party in Interest is International Business Machine Corporation (IBM). Appeal Brief filed September 10, 2009 (“App. Br.”). 2 Claims 2-4, 10-12 and 18-20 are canceled as per Amendment filed March 11, 2008 and Amendment filed October 29, 2008. Appeal 2010-006022 Application 10/762,000 2 I. STATEMENT OF THE CASE Appellants’ Invention Appellants’ claimed invention is generally directed to a method and system for virtual machines with distributed management of applications. See generally Abstract, Spec. ¶0008.3 Claims on Appeal Claims 1, 9 and 17 are independent. Claim 1 is a process claim, whereas claims 9 and 17 are corresponding apparatus claims. Claim 1 is representative and is reproduced below with disputed limitations emphasized: 1. A method for operating a virtual machine within a data processing system, the method comprising the computer- implemented steps of: running a plurality of virtual machines on one or more devices within the data processing system, wherein each virtual machine in the plurality of virtual machines incorporates functionality for interoperating with other virtual machines in a the virtual machine cluster; associating the plurality of virtual machines in a virtual machine cluster, wherein each virtual machine in the virtual machine cluster acts as a node within the virtual machine cluster; and sharing information about the plurality of virtual machines within the virtual machine cluster such that a virtual machine may be added to the virtual machine cluster or such 3 See Appellants’ Publication No. 2005/0160424. Appeal 2010-006022 Application 10/762,000 3 that a virtual machine may be removed from the virtual machine cluster as the plurality of virtual machines continues to run, the sharing information further comprising sharing load values representing computer resource utilization among the virtual machines in the virtual machine cluster; performing a load-balancing operation across the virtual machine cluster; determining that a CPU load utilization on a first virtual machine exceeds a threshold value; and moving a thread from the first virtual machine to a second virtual machine during a load balancing operation in response to the first virtual machine exceeding the threshold value. Evidence Considered The prior art relied upon by the Examiner in rejecting the claims on appeal is: Van Rietschote U.S. 7,203,944 B1 Apr. 10, 2007 (“Rietschote”) Wenzyhang Zhu, Cho-Li Wang, and Francis C. M. Lau, JESSICA2: A Distributed Java Virtual Machine with Transparent Thread Migration Support, Department of Computer Science and Information Systems, The University of Hong Kong, IEEE 2002, PAGES 381-388 (“Zhu”). Appeal 2010-006022 Application 10/762,000 4 Examiner’s Rejections4 Claims 1, 5-9, 13-17 and 21-24 stand rejected as unpatentable under 35 U.S.C. §103(a) as being obvious over Rietschote and Zhu (App. Br. 3; Ans. 4). II. ISSUES The dispositive issue before us is whether the Examiner has erred in rejecting claims 1, 5-9, 13-17 and 21-24 under 35 U.S.C. §103(a) because the cited prior art, including Rietschote and Zhu, fails to teach or suggest the argued features. In particular, the issue turns on whether: (1) the Examiner’s combination of Rietschote and Zhu discloses or suggests the limitation “sharing information about the plurality of virtual machines within the virtual machine cluster such that a virtual machine may be added to the virtual machine cluster or such that a virtual machine may be removed from the virtual machine cluster as the plurality of virtual machines continues to run,” as recited in representative claim 1 and corresponding apparatus claims 9 and 17 (App. Br. 4) (emphasis added); and (2) the Examiner’s proposed combination of Rietschote and Zhu discloses or suggests the limitations “determining that a CPU load utilization on a first virtual machine exceeds a threshold value” and “moving a thread from the first virtual machine to a second virtual machine during a load balancing operation in response to the first virtual machine exceeding the threshold value,” as recited in representative claim 1 and corresponding apparatus claims 9 and 17 (App. Br. 4) (emphasis added). 4 The 35 U.S.C. § 101 rejection of claims 9 and 13-16 has been withdrawn by the Examiner (see Ans. 3). Appeal 2010-006022 Application 10/762,000 5 III. ANALYSIS We have reviewed Appellants’ arguments in the Appeal Brief (Br. 4) that the Examiner has erred, the Examiner’s rejections (Ans. 4-8) and the Examiner’s responses to Appellants’ arguments (Ans. 8-12). However, we are not persuaded by Appellants’ arguments and conclusions. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken and (2) the reasons set forth by the Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief. We concur with the conclusions reached by the Examiner and further emphasize the following. Independent Claims 1, 9 and 17 First, Appellants contend that Rietschote does not disclose or suggest the limitation “sharing information about the plurality of virtual machines within the virtual machine cluster such that a virtual machine may be added to the virtual machine cluster or such that a virtual machine may be removed from the virtual machine cluster as the plurality of virtual machines continues to run” as recited in independent claim 1, 9 and 17. Br. 4 (emphasis added). We do not agree with Appellants. The claims measure the invention. See SRI Int’l v. Matsushita Elec. Corp., 775 F.2d 1107, 1121 (Fed. Cir. 1985) (en banc). During examination, claim terms must be given their “broadest reasonable interpretation” consistent with the specification. In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000). As properly noted by the Examiner, Rietschote discloses: Appeal 2010-006022 Application 10/762,000 6 [A] system have [sic] more than one cluster of virtual machines, each group is being managed by the virtual machine kernel (col. 3, lines 1-5, cluster of virtual machine 16A and 16B, cluster of virtual machine 16C and 16 D, the last cluster only one virtual machine 16E), each of the cluster of virtual machine is belong to a computer system (fig. 1, cluster of VM 16 A and VM 16B belong to computer system 10A, cluster of VM 16C and VM 16D belong to computer system 10B, and so forth), and the load on the computer system (for example, computer system 10B of fig. 1) is calculated by the virtual machine kernel 18B or other software within the virtual machine kernel based on the sum of the loads of the virtual machines (VM 16C and VM 16D) (col. 5, lines 14-16; col. 8, lines 24-27, 34-37). Ans. 9. Rietschote further discloses that: [T]he migrating process will be activated when the computer system exceed its desire threshold (exceed the load) which cluster result in a virtual machine may be added to the virtual machine cluster or such that a virtual machine may be removed from the virtual machine cluster as the plurality of virtual machines continues to run (abstract; col. 2, lines 16-24; col. 4, line 59 through col. 5, line 21; col. 6, lines 64-66; col. 7, lines 64- 66). Ans. 10 (citing Rietschote, col. 8, ll. 9-10). In addition, we note that Rietschote further describes the communication between virtual machine (VM) kernels, via VM migration code, regarding load information, shown in FIG. 1 as reproduced below: Appeal 2010-006022 Application 10/762,000 7 FIG. 1 depicts a cluster of computer systems configured to execute virtual machines (VMs) via VM kernel 18A-18B More specifically, “[t]he VM kernels 18A-18N communicate with each other to exchange load information and to migrate virtual machines. Such communication may be performed over the network 12, the shared storage 14, or a combination thereof.” Rietschote, col. 6, ll. 64-67 (emphasis added). In view of such a disclosure, we agree with the Examiner’s interpretation that the limitation “sharing information about the plurality of virtual machines within the virtual machine cluster such that a virtual machine may be added to the virtual machine cluster or such that a virtual machine may be removed from the virtual machine cluster as the plurality of virtual machines continues to run” as recited in independent claims 1, 9 and 17 encompasses the features described by the Examiner. In particular this limitation includes the exchange of load information between the VM kernels 18A-18N in virtual machines (VMs) within a cluster and the Appeal 2010-006022 Application 10/762,000 8 migrating process between virtual machines (VMs), which is activated when a certain threshold load is reached, and allows for the possibility of a particular virtual machine from being added or removed from the cluster, as described by Rietschote. Ans. 10 (emphasis added). We also find the Examiner’s interpretation is reasonable and consistent with Appellants’ Specification. See FIG. 22, ¶¶0128-0132 of Appellants’ Specification, and also see Phillips v. AWH Corp., 415 F.3d 1303, 1313-14 (Fed. Cir. 2005) (en banc). Second, Appellants further argue that Rietschote and Zhu do not disclose or suggest the limitations “determining that a CPU load utilization on a first virtual machine exceeds a threshold value” and “moving a thread from the first virtual machine to a second virtual machine during a load balancing operation in response to the first virtual machine exceeding the threshold value,” as recited in independent claims 1, 9 and 17. Br. 4. However, we find Appellants’ arguments unpersuasive. As correctly noted by the Examiner, Rietschote discloses: [D]etermining that a CPU load utilization on the first virtual machine exceeds a threshold value (fig. 1; col. 4, line 66 through col. 5, lines 20, 38-42, based on fig. 1, the computer system 10N only have the virtual machine 16E, the load of the computer system 10N in this case is the load of virtual machine, col. 8, lines 10-38, if the computer system load exceed the desired load (exceeds a threshold value), then the migrating process is activated). Ans. 11. As also correctly found by the Examiner, Zhu discloses that “based on the load condition (it is well known in the art that the load condition Appeal 2010-006022 Application 10/762,000 9 including overload/under load) the java threads in the virtual machine can migrate from one virtual machine to another (fig. 1; section 2).” Ans. 11. In view of such a disclosure, we agree with the Examiner’s finding that Rietschote and Zhu disclose “determining that a CPU load utilization on a first virtual machine exceeds a threshold value” and “moving a thread from the first virtual machine to a second virtual machine during a load balancing operation in response to the first virtual machine exceeding the threshold value,” as recited in independent claims 1, 9 and 17. In view of these reasons, we will sustain the Examiner’s rejection of independent claims 1, 9 and 17. Dependent Claims 5-8, 13-16 and 21-24 Appellants present no arguments regarding patentability of these claims separately from independent claims 1, 9 and 17. As such, claims 5-8, 13-16 and 21-24 fall together with independent claims 1, 9 and 17. See 37 C.F.R. § 41.37(c)(1)(vii) (stating that “the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.”). Appeal 2010-006022 Application 10/762,000 10 IV. CONCLUSION5 On the record before us, we conclude that the Examiner’s obviousness rejection of claims 1, 5-9, 13-17 and 21-24 is not in error. V. DECISION As such, we affirm the Examiner’s decision to reject claims 1, 5-9, 13-17 and 21-24 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)(1)(iv). AFFIRMED msc 5 In the event of further prosecution, independent apparatus claims 9 and 17 should be evaluated for compliance with 35 U.S.C. § 112, 2nd paragraph for failure to disclose a corresponding structure for each means-plus-function limitation. “[T]he proper test for meeting the definiteness requirement [of 35 U.S.C. §112, 2nd paragraph] is that the corresponding structure (or material or acts) of a means (or step)-plus-function limitation must be disclosed in the specification itself in a way that one skilled in the art will understand what structure (or material or acts) will perform the recited function. See Atmel Corp. v. Information Storage Devices, Inc., 198 F.3d 1374, 1381 (Fed. Cir. 1999)… If there is no disclosure of structure, material or acts for performing the recited function, the claim fails to satisfy the requirements of 35 U.S.C. 112, [2nd] paragraph.” M.P.E.P. §2181. We note that the cited ¶0045, ll. 1- 10; ¶0047, ll. 1-10; and ¶0049, ll. 1-10 of Appellants’ Specification do not describe any type of structure that performs the recited functions as recited in apparatus claims 9 and 17.