Ex Parte Jelinek et al

Patent Trial and Appeal Board

Feb 27, 2014

11765133 (P.T.A.B. Feb. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/765,133 06/19/2007 Gerald A. Jelinek SUNM 070398 PUS 6915
51344 7590 02/27/2014
BROOKS KUSHMAN P.C. /Oracle America/ SUN / STK
1000 TOWN CENTER, TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075-1238
EXAMINER
ROSSITER, SEAN D
ART UNIT PAPER NUMBER
2186
MAIL DATE DELIVERY MODE
02/27/2014 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GERALD A. JELINEK, DANIEL B. PRICE,
DAVID S. COMAY, and STEPHEN FRANCES LAWRENCE
____________

Appeal 2011-010626
Application 11/765,133
Technology Center 2100
____________

Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.

FRAHM, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 3, 6-9, 11, 14-17, 19, and 20. Br. 2. Claims 2, 4, 5,
10, 12, 13, and 18 are cancelled. Id. We have jurisdiction under 35 U.S.C. §
6(b).
We affirm.

Appeal 2011-010626
Application 11/765,133

2
ILLUSTRATIVE CLAIM
Illustrative claim 1 is reproduced below.
1. A method of implementing virtualization on a physical
server, the physical server including a plurality of physical
resources, a kernel, a plurality of libraries, and a virtualizing
subsystem, the virtualizing subsystem being capable of creating
separate environments on the physical server that logically
isolate applications from each other, the separate environments
sharing physical resources including physical memory, the
method comprising:
configuring a separate environment by defining properties of
the separate environment, configuring the separate environment
including specifying a physical memory cap, wherein the
separate environment is a zone that logically isolates
applications from each other to provide an application with a
dedicated namespace, the zone being a virtual operating system
that shares the kernel and the plurality of libraries;
providing a global resource capping background service for
enforcing physical memory caps; and
wherein during operation of the separate environment, the
global resource capping background service enforces the
physical memory cap specified when the separate environment
was configured.

REJECTION
The Examiner rejected claims 1, 3, 6-9, 11, 14-17, 19, and 20 under
35 U.S.C. § 103(a) as unpatentable over Appellants’ background art and
U.S. Patent No. 7,433,951 B1 (Oct. 7, 2008) to Waldspurger. Ans. 3-21.

Appeal 2011-010626
Application 11/765,133

3
ANALYSIS
Claims 1, 9, and 17 are independent. Each of the remaining claims
depends from one of claims 1, 9, and 17. Appellants address all claims
collectively. We select claim 1 as representative. 37 C.F.R. § 41.37(c)(iv).
The Examiner acknowledges that Appellants’ background art does not
teach an at-issue “physical memory cap” of claim 1, but finds the feature is
taught by Waldspurger. Ans. 4-5. According to the Examiner:
[T]he [admitted] prior art failed to disclose “configuring the
separate environment including specifying a physical memory
cap.” On the other hand[,] Waldspurger achieved the
aforementioned limitation by teaching that an Operating System
(OS) can configure Virtual Machines (VM) by allocating
memory to them in one of two ways. Either with a static
allocation scheme or a dynamic allocation scheme (See Column
3 Lines 15-50).
Id. (emphasis omitted).
Appellants argue the Examiner has not established, as found, that
Waldspurger teaches the claimed physical memory cap. Appellants
particularly contend:
Waldspurger discusses the allocation of resources among the
virtual machines by the [Virtual Machine Monitor (VMMs)].
Waldspurger mentions static memory allocation to virtual
machines, and also mentions dynamic memory allocation to
virtual machines. Column 3, lines 15-50 (cited by Examiner).
The static allocation teaching in Waldspurger is not “a
physical memory cap” as claimed. After all, if the allocation is
static or fixed, then it does not make sense to have a “cap” and
associated enforcement mechanism as claimed.
The dynamic allocation teaching in Waldspurger is not “a
physical memory cap” as claimed. Even to the extent that
dynamic memory allocation is possible, the teachings in
Waldspurger referred to by the Examiner relate to controlling
Appeal 2011-010626
Application 11/765,133

4
resource revocation – not to any “caps” or enforcement of
“caps” as claimed.
Br. 5-6.
Appellants’ above argument is not persuasive, particularly failing to
establish a required distinguishing characteristic of the claimed “physical
memory cap.” For example, Appellants state that “if [Waldspurger’s
memory] allocation is static or fixed, then it does not make sense to have a
‘cap’ and associated enforcement mechanism as claimed” (see block quote
supra). But, Appellants present no evidence or explanation of a difference
between the claimed physical memory cap and a static/fixed allocation of
memory.
In addition to identifying the above deficiency of Appellants’
arguments, the Examiner expressly and squarely states Waldspurger teaches
the claimed physical memory cap because:
[W]ithout any further definition of memory capping[,] a
reasonable interpretation for memory capping is allocating an
amount of memory to each virtual machine (VM). The
background of Waldspurger states “machine recourses must be
shared in a controlled manner that prevents and guest system
(such as a VM) from monopolizing resources to the exclusion
of other guests [Col. 3 Lines 8-11].” And “one obvious way to
ensure this is simply to allocate to each guest system a fixed
share of each resource [Col. 3 Lines 15-16].”
Ans. 21 (third & fourth brackets in original). Despite the Examiner’s above
statements, Appellants have not filed a reply brief to present a distinguishing
meaning of “physical memory cap” or to dispute the Examiner’s
interpretation. For the reasons presented by the Examiner, we find
Appellants’ above arguments unpersuasive.
Appeal 2011-010626
Application 11/765,133

5
Appellants also argue:
Further, Applicant’s [sic] believe there is no reason to
even combine the references. The Examiner states it would
have been obvious to combine the SOLARIS operating system
and the Virtual Machine Monitor as described by Waldspurger
“since this would enable the user to create both, separate
environments and a global memory monitor.” This stated
reason appears to be a conclusory statement. The virtual
machines in Waldspurger are a totally different approach than
the zones / virtual operating systems.
Br. 7. Appellants are implicitly arguing that the claimed “zone being a
virtual operating system” – as analogized to the SOLARIS “zones/virtual
operating systems” – are different than Waldspurger’s cited virtual machine
monitoring. See, e.g., Spec. 3:14-22 (“SOLARIS zones facility is for
virtualizing the operating system.”). However, Appellants merely allege that
“[t]he virtual machines in Waldspurger are a totally different approach than
the zones / virtual operating systems” (see block quote supra). Appellants
do not present evidence or an explanation of a required distinguishing
characteristic.
Appellants fail to present evidence or an explanation despite the
Examiner expressly and squarely stating the Waldspurger teaches the
claimed zones/virtual operating systems, and memory cap enforcement
thereof, because Waldspurger’s “VMM itself performs the functions of an
operating system and is responsible for managing all the physical system
resources such as CPU time, physical memory, and I/O bandwidth [Col. 2
Lines 57-63].” Ans. 22 (brackets in original) (emphasis omitted). And
again, Appellants have not filed a reply brief to present a distinguishing
meaning of the claimed zones/virtual operating systems or to dispute the
Examiner’s applied interpretations.
Appeal 2011-010626
Application 11/765,133

6
In sum, Appellants allege a difference between the claimed physical
memory caps and Waldspurger’s cited teachings, and allege a difference
between the claimed zones/virtual operating systems and Waldspurger’s
cited teachings, but fail to present evidence or an explanation of required
distinguishing characteristics. See In re Jung, 637 F.3d 1356, 1362-63 (Fed.
Cir. 2011) (addressing the burdens of production for examiners and
applicants on appeal); Ex Parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (addressing the Board’s standard of review). Absent a self-
evident difference between an asserted claim limitation and cited prior art
feature, mere presenting of the limitation (i.e., the claim recitation) and the
cited feature (i.e., the reference’s description) does not alone satisfy an
Appellant’s burden of meaningfully comparing a claimed invention against
the prior art. See Jung, 637 F.3d at 1365 (affirming partly because the
appellant “merely argued that the claims differed from [the prior art], and
chose not to proffer a serious explanation of this difference”); In re Lovin,
652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted
[37 C.F.R. § 41.37(c)(1)(vii)] to require 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.”);
In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not
the function of this court to examine the claims in greater detail than argued
by an appellant, looking for nonobvious distinctions over the prior art.”).
Accordingly, for the foregoing reasons, Appellants’ arguments are not
persuasive, and we sustain the Examiner’s obviousness rejection of
representative claim 1 and claims 3, 6-9, 11, 14-17, 19, and 20.

Appeal 2011-010626
Application 11/765,133

7
DECISION
The Examiner’s decision rejecting claims 1, 3, 6-9, 11, 14-17, 19, and
20 is affirmed.
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

bab