Ex Parte Ingle et al

Patent Trials and Appeals Board

Jun 27, 2019

14942827 - (D) (P.T.A.B. Jun. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/942,827 11/16/2015
45809 7590 07/01/2019
SHOOK, HARDY & BACON L.L.P.
(MICROSOFT TECHNOLOGY LICENSING, LLC)
INTELLECTUAL PROPERTY DEPARTMENT
2555 GRAND BOULEVARD
KANSAS CITY, MO 64108-2613
Anil Ingle
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.
l'v1S 5261
325478.02/l'vIFCP.237991
EXAMINER
HUDA, MOHAMMED NURUL
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
07/01/2019 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):
IPDOCKET@SHB.COM
IPRCDKT@SHB.COM
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANIL INGLE,
CHUCKLENZMEIER, and SAAD SYED 1
Appeal2018-008170
Application 14/942,827
Technology Center 2100
Before JASON V. MORGAN, IRVINE. BRANCH, and
DAVID J. CUTITTA II, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Summary of disclosure
The Specification discloses "deploying an updated image to nodes
propagated throughout a distributed computing platform." Abstract.
1 Appellant is the applicant and real party in interest, Microsoft Technology
Licensing, LLC, which is a subsidiary of Microsoft Corporation. Br. 3.
Appeal 2018-008170
Application 14/942,827
"[N]odes are configured to utilize the updated image as the operating system
without performing an individual installation of the patch." Abstract.
Representative claim (key limitations emphasized)
1. A computer system to deploy updated images to nodes in data
centers, the system comprising:
a staging service to initialize a virtual machine to update an existing
image of an operating system using a patch, the existing image having
a variant state and an invariant state of the operating system;
the virtual machine to generate an updated image of the existing
image, wherein generating the updated image comprises:
separating, at the virtual machine of the staging service, the
existing image into a variant state and an invariant state to
process the states separately;
peiforming, at the virtual machine of the staging service, an
installation of the patch on the variant state; and
recombining, at the virtual machine of the staging service, the
variant state and the invariant state to form the updated image,
wherein the updated image functions as a new operating system
of a node based on the node booting up to the update image
without installation of the updated image; and
one or more nodes to receive and run the updated image without
peiforming an installation of the updated image on the one or more
nodes, wherein the updated image is received from the staging service
that remotely stores the existing image and the updated image.
Rejections
The Examiner rejects claims 1-20 on the ground of obviousness-type
double-patenting as being unpatentable over claims 1-20 of Ingle et al. (US
2
Appeal 2018-008170
Application 14/942,827
9,189,221 B2; issued Nov. 17, 2015) ("Ingle '221 ") and Abels 2 et al. (US
2006/184937 Al; published Aug. 17, 2006) ("Abels"). Final Act. 4--13.
The Examiner rejects claims 1-20 under 35 U.S.C. § I03(a) as being
obvious over Abels and Canning et al. (US 2006/0075001 Al; published
Apr. 6, 2006) ("Canning").
OBVIOUSNESS-TYPE DOUBLE-PATENTING
Appellant does not raise any issues with respect to the Examiner's
obviousness-type double-patenting rejection, which the Examiner maintains.
See Ans. 3-13. Accordingly, we summarily affirm this rejection.
35 U.S.C. § I03(A)
In rejecting claim 1 as obvious, the Examiner finds the disclosure in
Abels of patching a common virtual disc used by several virtual machines
rather than on separate virtual discs for each virtual machine teaches or
suggests the steps directed to: (1) performing, at a virtual machine of a
staging service, an installation of a patch as part of a process of forming an
updated image and (2) receiving, by one or more nodes, the updated image.
Final Act. 16 ( citing, Abels ,r,r 14, 17).
Appellant contends the Examiner erred because "Abels discloses an
in-place installation of [a] patch to a common virtual disc" (Br. 9), and "[a]n
in-place installation of a patch is not the same as receiving an updated image
with a pre-installed patch" (id. at 8). Appellant's arguments are
unpersuasive, however, because Abels applies "the patch to the common
virtual disc" before "restarting the plural virtual machines from the updated
2 The Examiner omits Abels from the statement of the rejection. See Final
Act. 4. The Examiner relies on Abels, however, in the body of the rejection.
Id. at 10-13.
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Appeal 2018-008170
Application 14/942,827
common virtual disc so that the instances run with the patch." Abels ,r 14.
That is, in Abels the processing components that execute the virtual
machines (i.e., nodes) receive an updated image (i.e., the data on the virtual
disc) that has the patch pre-installed. These processing components do not
separately install the patch nor do the virtual machines install the patch once
restarted. See, e.g., Abels ,r 17 ("Virtual machines that include the [patched]
application boot from the read-only image to include the patch so that
applying the patch to the application a single time effectively updates all
virtual machines that include the application" ( emphasis added)).
Appellant's arguments do not show, and we cannot ascertain, how the
disputed steps are distinguishable from the teachings and suggestions of
Abels.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 1. Appellant does not argue the remaining claims separately, other
than, under a separate heading for claim 4, repeating the same unpersuasive
argument made with respect to claim 1 and making a conclusory statement
regarding the snapshot recitations of claim 4 without addressing the
Examiner's findings with respect thereto. See Br. 12-14; Final Act. 20
(citing Abels ,r 26). Accordingly, we also sustain the Examiner's
35 U.S.C. § 103(a) rejection of claims 2-20, which Appellant does not argue
separately with persuasive specificity.
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Appeal 2018-008170
Application 14/942,827
DECISION
We affirm the Examiner's decision rejecting 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
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