Ex Parte Ganti et al

Patent Trial and Appeal Board

Dec 16, 2015

12644332 (P.T.A.B. Dec. 16, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/644,332 12/22/2009
45502 7590
Yudell Isidore PLLC
10601 RR2222, Ste. Rll 1
Austin, TX 78730
12/18/2015
FIRST NAMED INVENTOR
VeenaGanti
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.
AUS920090174US 1 6178
EXAMINER
SCHELL, JOSEPH 0
ART UNIT PAPER NUMBER
2114
NOTIFICATION DATE DELIVERY MODE
12/18/2015 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):
Patents@yudellisidore.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VEENA GANTI, DAVID NEVAREZ, JACOB J. ROSALES, and
MORGAN J. ROSAS 1
Appeal2013-009771
Application 12/644,332
Technology Center 2100
Before ERIC S. FRAHM, CARL L. SILVERMAN, 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. Br. 2.
Appeal2013-009771
Application 12/644,332
STATEMENT OF THE CASE
Introduction
Appellants' invention is directed to "performing a system dump in a
data processing system that implements active memory sharing, includ[ing]
assigning, via a hypervisor, a logical partition to a portion of a shared
memory." Abstract. According to the Specification, a virtualized computer
system may be comprised of a plurality of logical partitions (LP ARs ),
wherein a hypervisor manages, inter alia, access to shared resources (e.g.,
memory) by the LPARs. Spec. i-f 2. In a disclosed embodiment, a
hypervisor-aided, firmware-assisted system dump is employed to, among
other things, allow for faster recovery for a failing OS (operating system),
and decouple a failing OS from the system dump process. Spec. i-f 21.
Claim 1 is representative of the subject matter on appeal and is
reproduced below with the disputed limitation emphasized in italics:
1. A method for performing a system dump in a data processing
system that implements active memory sharing, comprising:
assigning, via a hypervisor, a logical partition to a portion of a
shared memory;
assigning, via the hypervisor, one or more virtual block storage
devices to the logical partition to facilitate active memory sharing of
the shared memory;
detecting a failure of the logical partition;
initiating, using firmware, a system dump of information from
the logical partition to the one or more virtual block storage devices
responsive to the failure of the logical partition when a hypervisor-
aided firmware-assisted system dump is indicated; and
rebooting an operating system of the logical partition when
enough of the logical partition is freed to facilitate a reboot of the
2
Appeal2013-009771
Application 12/644,332
operating system and when the hypervisor-aided firmware-assisted
system dump is indicated.
The Examiner's Rejection2
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Astigarraga et al. (US 2008/0155553 Al; June 26, 2008)
("Astigarraga") and Nevarez et al. (US 2009/0307716 Al; Dec. 10, 2009
(filed June 9, 2008)) ("Nevarez"). Final Act. 4--7.
Issues on Appeal
Did the Examiner err in finding the combination of Astigarraga and
Nevarez teaches or suggests the disputed limitation of claim 1?
Did the Examiner err in finding the combination of Astigarraga and
Nevarez teaches or suggests an active memory sharing paging device
includes "at least some of the information associated with the logical
partition prior to the detecting a failure," as recited in claim 3?
2 The Examiner also objects to claims 16-20 as being directed to non-
statutory subject matter. Final Act. 3--4. Although the Examiner has not yet
rejected these claims under 35 U.S.C. § 101, the Examiner has
recommended Appellants amend the claim language to recite a "non-
transitory" computer readable storage medium. Id.
3
Appeal2013-009771
Application 12/644,332
ANALYSIS 3
Claims 1, 2, 4-10, 12-16, and 18-20
Appellants contend the Examiner erred in finding the combination of
Astigarraga and Nevarez teaches or suggests the disputed limitation of claim
1 because: (i) Astigarraga does not teach using VBSDs (virtual block storage
devices) or performing a system dump to one or more VBSDs;
(ii) Astigarraga does not mention "active memory sharing (AMS);" (iii) the
Examiner's proposed combination of Astigarraga and Nevarez appears to be
based solely on impermissible hindsight; and (iv) "Astigarraga discloses
rebooting a failed LP AR [logical partition] to a different portion of memory,
... [whereas] Appellants' claimed subject matter is directed to rebooting an
OS [operating system] of a failed LP AR to a same portion of memory."
Br. 6-8. We address Appellants' arguments seriatim.
Appellants' assertion that Astigarraga does not teach using VBSDs is
not persuasive of Examiner error because it is not responsive to the
Examiner's rejection. See Final Act. 5. As the Examiner explains, "the
rejection relies on Nevarez as teaching that the storage devices of
Astigarraga should be virtualized VBSDs." Ans. 9.
We are not persuaded of Examiner error by Appellants' argument that
Astigarraga does not mention "active memory sharing." Br. 7. It is not
controlling that the reference does not in haec verba disclose "active
memory sharing." See Application of Neugebauer, 330 F.2d 353, 356 n.4
( CCP A 1964) ("In verb is, non verba, sed res et ratio, quaerenda est. (In the
3 Throughout this opinion we have considered the Appeal Brief filed January
2, 2013 ("Br."); the Examiner's Answer mailed on May 1, 2013 ("Ans.");
and the Final Office Action mailed on August 2, 2012, from which this
Appeal is taken ("Final Act.").
4
Appeal2013-009771
Application 12/644,332
construction of words, not the mere words, but the thing and the meaning,
are to be inquired after.)"). The Examiner finds, and we agree, Astigarraga
teaches a common memory shared by a plurality of logical partitions. Ans. 8
(referring to Astigarraga Fig. 1 ); see also Astigarraga i-f 29 ("The memory
pool 115, in one embodiment, is a pool of unused memory that is available
to each of the [logical] partitions 112, 113, 114."). We agree with the
Examiner's findings and conclusions that Astigarraga teaches active
memory sharing wherein common memory is shared by multiple logical
partitions and may be reassigned between the partitions. Ans. 8-9 (citing
Astigarraga i-fi-1 32-33).
Regarding Appellants' argument that the Examiner relied on
impermissible hindsight in making the rejection because "neither
Astigarraga nor Nevarez (alone or in combination) teach or suggest utilizing
one or more VBSDs for a system dump from an LPAR," we disagree. The
Examiner finds, and we agree,
If Astigarraga teaches utilizing storage for hypervisor-aided
firmware-assisted system dump responsive to a failure of an
LPAR (which Applicant admits, see page 6 of the appeal brief),
and Nevarez teaches interfacing and using VBSDs (which are a
kind of storage device), there appears to be no reason that
VBSDs cannot be utilized in place of the generic storage of
Astigarraga. This is exactly the modification that the rejection
proposes and Applicant has provided no arguments as to why
this modification would not render obvious any specific
limitation.
Ans. 9; see also Final Act. 5. Thus, the Examiner has provided a factual
basis and articulated reasoning with a rational underpinning to support the
conclusion of obviousness. See KSR Int 'l Co v. Teleflex Inc., 550 U.S. 398,
418 (2007). Accordingly, we determine that the Examiner did not use
5
Appeal2013-009771
Application 12/644,332
impermissible hindsight in modifying the logical partition recovery system
of Astigarraga with the virtualized block storage devices of Nevarez.
As the Examiner finds, and we agree, there is no requirement in claim
1 (or in independent claims 9 or 16) that rebooting the OS of a failed LP AR
be "to a same portion of memory." Br. 7-8; Ans. 10. See also claims 1, 9,
and 16. Therefore, Appellants' contention is not commensurate with the
scope of the claims and, thus, does not persuade us of error in the
Examiner's rejection. See In re Self, 671F.2d1344, 1348 (CCPA 1982)
(limitations not appearing in the claims cannot be relied upon for
patentability).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner's rejection of independent
claim 1 and, for similar reasons, the rejection of independent claims 9 and 16
and dependent claims 2, 4--8, 10, 12-15, and 18-20.
Claims 3, 11, and 17
Appellants contend "neither Astigarraga nor Nevarez (alone or in
combination) teach or suggest a VBSD that includes at least some
information associated with an LP AR prior to detecting a failure with the
LP AR." Br. 8. Appellants, however, do not provide any evidence in
support of this assertion. 37 C.F.R. § 41.37(c)(l)(iv) requires 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. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011 ). Nevertheless, the Examiner finds, and we agree, the "[ u] se of storage
for regular, pre-failure operation is an obvious implication" of Astigarraga's
6
Appeal2013-009771
Application 12/644,332
modified logical partition recovery system. Ans. 10 (citing Astigarraga
i-fi-126, 29 (Astigarraga's use of storage, as modified by Nevarez, to operate
as an independent computer)).
Accordingly, we sustain the Examiner's rejection of claims 3, 11, and
17.
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). See 37 C.F.R.
§ 41.50(±).
AFFIRMED
7