Ex Parte Kallahalla et al

Board of Patent Appeals and Interferences

Jul 5, 2011

10959536 (B.P.A.I. Jul. 5, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MAHESH KALLAHALLA, MUSTAFA UYSAL, RAM
SWAMINATHAN, and FREDERIC GITTLER
____________

Appeal 2009-006880
Application 10/959,536
Technology Center 2100
____________

Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and JAY P.
LUCAS, Administrative Patent Judges.

BARRY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
The Patent Examiner rejected claims 1-37. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).

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INVENTION
The Appellants describe the invention at issue on appeal as follows.
[A] method of forming a virtual computer cluster within a
shared computing environment begins with a step of placing
gatekeeper software on each of a plurality of particular host
computers of the shared computing environment. The method
continues with a step of assigning computing platforms located
on the particular host computers to the virtual computer cluster.
The gatekeeper software interposes between the computing
platforms and hardware resources of the particular host
computers. The method concludes with a step of isolating the
virtual computer cluster from a remainder of the shared
computing environment using the gatekeeper software. . . .
(Abstract.)

ILLUSTRATIVE CLAIM
1. A method of forming a virtual computer cluster within
a shared computing environment comprising the steps of:

placing gatekeeper software on each of a plurality of
particular host computers of the shared computing environment;

assigning computing platforms located on the particular
host computers to the virtual computer cluster such that the
gatekeeper software interposes between the computing
platforms and hardware resources of the particular host
computers;

and isolating the virtual computer cluster from a
remainder of the shared computing environment using the
gatekeeper software such that the gatekeeper software allows
communication between the computing platforms while
precluding communication with other computing platforms of
the shared computing environment and such that the gatekeeper
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software controls input and output operations for the virtual
computer cluster.

REJECTIONS
Claims 1-36 stand rejected under 35 U.S.C. § 103. (a) as being
unpatentable over U.S. Patent Application No. 2005/0289540 ("Nguyen")
and U.S. Patent No. 7,137,004 ("England").
Claims 1, 30, and 34-36 stand provisionally rejected on the ground of
non-statutory obviousness-type double patenting over claims 29 and 31 of
co-pending U.S. Patent Application Serial No. 10/959,851.

OBVIOUSNESS REJECTION
The issue before us is whether the Examiner erred in finding that the
combined teachings of Nguyen and England would have suggested using
gatekeeper software or an operating system daemon located in each of a
plurality of host computers of a shared computing environment to isolate
computing platforms or virtual machines constituting a virtual computer
cluster from a remainder of the shared environment as required by
independent claims 1, 30, and 34-37.

FINDINGS OF FACT
Nguyen describes its invention as "on-demand resource allocation in a
cluster having at least one initial virtual machine." (¶ [0006].)
England describes its invention as "[m]anifest-based trusted agent
management in a trusted operating system environment." (Col. 2, ll. 1-2.)

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.
ANALYSIS
The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001) (citations
omitted). "The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art." In re
Young, 927 F.2d 588, 591 (Fed. Cir. 1991) (citing In re Keller, 642 F.2d
413, 425 (CCPA 1981)).
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Here, Figure 1 of Nguyen follows.

"FIG. 1 illustrates a [client-server] computing environment . . . ." (¶ [0008].)
More specifically, client computers 100a-100d connect to "a single physical
server computer 120" (¶ [0014]) via virtual servers 116 and 118. Virtual
machines 122, 126, 130, and 134 "are created on server computer 120 by
virtual machine process 140" (¶ [0017]), which is located in the system
memory 121 of the server computer as shown in the Figure.
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The Examiner "appears to concede (see pages 4-5 of the Final
Office Action), Nguyen fails to disclose a gatekeeper that isolates a virtual
computer cluster from a remainder of the shared computing environment."
(App. Br. 14.) To remedy this omission the Examiner concludes that "[i]t is
completely obvious to implement the method of England in a manner to
control the virtual computer cluster of Nguyen by placing it within the
virtual machine process." (Ans. 20-21.)
Figure 1 of England follows.

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"FIG. 1 illustrates an exemplary trusted operating system environment 100.
In environment 100, multiple client computing devices 102 are coupled to
multiple server computing devices 104 via a network 106." (Col. 3, ll. 16-
19.)
We agree with the Appellants following argument.
[A]s shown in FIG. 1 of England, England appears to propose
implementing [its] trusted space environment on clients, such as
on clients 100a, 100b, 100c, and 100d of Nguyen, rather than
on a server computer, such as server computer 120 of Nguyen
on which the clustering of virtual machines is proposed. For
instance, England describes with FIG. 3 thereof that "the trusted
core is implemented by establishing two separate 'spaces' within
a client computing device 102 of FIG. 1" (emphasis added), see
col. 6, lines 60-63 of England. Thus, if the teaching of England
were to be combined with the teaching of Nguyen, it would
appear that the trusted space environment of England would
more likely be implemented on clients 100a, 100b, 100c, and
100d of Nguyen, rather than on server computer 120 of Nguyen
on which the clustering of virtual machines is proposed. In
rejecting [the] claim[s], the Examiner appears to point to Col. 8,
lines 53-65 of England . . . which again is describing the client
computing device 102 of England.
(App. Br. 16.)
The Examiner finds that "[t]he trusted spaces are not limited to a
client (See England:Col 3:Lines 26-27, computing devices can be any of a
wide variety of conventional devices)." (Ans. 21.) The part of England
cited by the Examiner does teach that "[c]omputing devices 102 and 104 can
each be any of a wide variety of conventional computing devices, including
desktop PCs [i.e., personal computers], workstations, mainframe computers,
Internet appliances, gaming consoles, handheld PCs, cellular telephones,
personal digital assistants (PDAs), etc." (Col. 3, l. 26-41.) Figure 1 of the
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same reference shows, however, that the computing devices are client
computing devices, not server computing devices.
Consequently, the combined teachings of Nguyen and England
would have suggested implementing the trusted space environment of
England on the clients of Nguyen, rather than on its server.
Therefore, we conclude that the Examiner erred in finding that the
combined teachings of Nguyen and England would have suggested
using gatekeeper software or an operating system daemon located in
each of a plurality of host computers of a shared computing
environment to isolate computing platforms or virtual machines
constituting a virtual computer cluster from a remainder of the shared
environment as required by independent claims 1, 30, and 34-37.

OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION
The issue before us is whether we should decide the provisional
rejection of claims 1, 30, and 34-36 on the ground of non-statutory
obviousness-type double patenting.
When all other rejections on appeal have been reversed, and the only
remaining rejection is a provisional non-statutory obviousness-type double
patenting rejection, it is premature to address the provisional rejection. Ex
Parte Moncla, 95 USPQ2d 1884, 1885 (BPAI 2010) (precedential).
Here, the rejection of claims 1, 30, and 34-37 and of claims 2-29 and
31-33, which depend therefrom, under 35 U.S.C. § 103(a) has been reversed.
The only remaining rejection is the provisional non-statutory obviousness-
type double patenting rejection.
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Therefore, we conclude that we should not decide the provisional
rejection of claims 1, 30, and 34-36 on the ground of non-statutory
obviousness-type double patenting.

DECISION
We reverse the rejection of claims 1, 30, and 34-37 and of claims 2-29
and 31-33, which depend therefrom.
We do not reach the provisional rejection of claims 1, 30, and 34-36
on the ground of non-statutory obviousness-type double patenting.

REVERSED

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