Ex Parte Melander et al

Patent Trial and Appeal Board

Dec 13, 2017

13704025 (P.T.A.B. Dec. 13, 2017)

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.
13/704,025 04/16/2013 Bob Melander 0110-534/P31303 US1 8417
113648 7590 12/15/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
DASCOMB, JACOB D
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
12/15/2017 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):
Mailroom@ppblaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BOB MELANDER and JAN-ERIK MAYNGS1
Appeal 2017-006263
Application 13/704,025
Technology Center 2100
Before CAROLYN D. THOMAS, CARL W. WHITEHEAD JR., and
BRADLEY W. BAUMEISTER, Administrative Patent Judges.
THOMAS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1—20, all the pending claims in the
present application. See Claims Appendix. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
The present invention relates generally splitting/merging virtual
machines and their operating systems. See Spec. 11.
1 Appellants name Telefonaktiebolaget L M Ericsson (publ) as the real party
in interest. App. Br. 2.
Appeal 2017-006263
Application 13/704,025
Claim 1 is illustrative:
1. A method for splitting a virtual machine that runs on a
first physical machine that includes at least a processor and a memory,
the method comprising:
receiving instructions for dividing plural processes
running on the virtual machine into at least two groups;
dividing the plural processes into the at least two groups
in the virtual machine;
splitting the virtual machine into at least two new virtual
machines based on an underlying virtualization engine running on the
first physical machine;
associating each new virtual machine with at least one of
the at least two groups of plural processes; and
maintaining active in each new virtual machine the
respective group of plural processes that are associated with each new
virtual machine.
Appellants appeal the following rejections:
Rl. Claims 1, 2, 6, 7, 10—12, 16, 17, and 19 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Clark (US 2010/0257269 Al,
Oct. 7, 2010) and Yang (US 2009/0183152 Al, July 16, 2009) (Final Act. 3-
6);
R2. Claims 3, 8, 13, 18, 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Clark, Yang, and Costa (US 2011/0264788 Al,
Oct. 27, 2011) (id. at 6—8);
R3. Claims 4 and 14 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Clark, Yang, and Kim (US 2010/0138832 Al, June 3,
2010) (id. at 8-9);
R4. Claims 5 and 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Clark, Yang, and Dittrich (US 2011/0271278 Al, Nov. 3,
2011) (id. at 9-10); and
R5. Claim 9 is rejected under 35 U.S.C. § 103(a) as being
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Application 13/704,025
unpatentable over Clark, Yang, and Chodroff (US 2009/0031307 Al,
Jan. 29, 2009) (id. at 10—11).
We review the appealed rejections for error based upon the issues
identified by Appellants, and in light of the arguments and evidence
produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential).
ANALYSIS
Issue: Did the Examiner err in finding that Clark and Yang
collectively teach or suggest dividing plural processes and splitting the
virtual machine, as set forth in representative claim 1?
Appellants contend that in Clark “the method involves ‘replicating the
first virtual machine, ’ and there is nothing in Clark that suggests the
processes are divided and the virtual machine then split into two virtual
machines. . . . Clark discloses ‘replacing’ and ‘cloning’ and Appellant’s
claims recite ‘dividing’ and ‘splitting’” (App. Br. 10), and “‘splitting’ is not
synonymous to ‘replicating’” (id. at 11). Appellants further contend that
“[t]he plain and ordinary meaning of ‘splitting’ can be defined by an English
person as ‘separating,’ ‘splintering,’ or ‘breaking up.’ As such, it is clear
that ‘splitting the virtual machine into at least two new virtual machines,’ is
not taught or suggested in Clark ... as seen in Clark’s Fig. 2B, the VM 211
is not split into two new VMs, but instead is only replicated and migrated to
be the VM 221” (App. Br. 12).
Although we agree with Appellants that Clark merely
“replicates/clones” the first virtual machine in Fig. 2B, a fact the Examiner
concedes (see Ans. 14), Appellants’ contentions fail to consider the
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Application 13/704,025
Examiner’s specific findings regarding another one of Clark’s Figures, i.e.,
Clark’s Fig. 2C. In Fig. 2C, “Clark’s disclosure of cloning/replicating a VM
as part of the splitting process does not detract from the end result, which is
one VM [is] split into two” (id.).
For example, the Examiner finds that in Clark’s Fig. 2C, “Clark
discloses the replication of VM 211 to produce VM 221, and the termination
of processes 2 and 3 in VM 211 and processes 1 and 4 to N in VM 221”
(id.). In other words, Clark replicates/clones VM 211 into host 220,
producing VM 221, and then terminates processes not needed in each
respective VM 211 and 221. The end result is a split of the original virtual
machine VM 211 (see Clark’s Fig. 2B) into two new virtual machines
VM 211 and VM 221 (see Clark’s Fig. 2C).
Thus, we agree with the Examiner that Clark’s cloning/replicating is
merely a first step in splitting one VM into two VMs, given that the end
result, after the termination of specific processes, is that all of the original
processes are split between VM 211 and VM 221. Furthermore, we note
that claim 1, as written, does not prohibit “cloning” as part of its splitting
step. As such, we find unavailing Appellants’ contention that “Clark
actually teaches away from” the claimed invention (see App. Br. 18), given
that the claimed invention does not prohibit cloning.
Although Appellants also contend that the “claims involve the steps of
‘dividing,’ ‘splitting,’ ‘associating,’ and ‘maintaining,’ which take place ‘on
a first physical machine’” (Reply Br. 1) because “both VM 16 and VM 16’
are on the first physical machine 12 and VM 16’ has not yet been moved to
the second physical machine 32” (id. at 2), we find that such an argument is
not commensurate with the scope of claim 1. For instance, claim 1 does not
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Application 13/704,025
require that the two new virtual machines are maintained on the first
physical machine, merely that the splitting is based on an underlying
virtualization engine running on the first physical machine (see claim 1).
Appellants further argue that claim 2 also evidences that the steps of
claim 1 are performed on the first physical machine prior to migrating one of
the new virtual machines to a second physical machine. See Reply Br. 2.
This argument is unpersuasive because claim 2 does not recite that the steps
of claim 1 are performed specifically on the first physical machine. In fact,
claim 2 fails to indicate from where the one of the at least two new virtual
machines is migrated. Restated, claim 2 does not necessarily require
migration from the first physical machine because claim 2 merely recites
that the new virtual machine is migrated “to a second physical machine that
is different from the first physical machine.”
Appellants further contend that “[tjhere is no ‘dividing’ of processes
into groups in Clark, because it is not required [] because Clark duplicates
the entire virtual machine first, where all of the processes are on each virtual
machine” (App. Br. 11). In response, the Examiner finds, and we agree, that
“Clark discloses [] processes of selecting processes which will be offloaded
to another VM” (Ans. 13) and that such a selection “effectively segregates
those processes from the rest of the processes executing on the VM, which
meets the Appellant’s dictionary definition of ‘dividing’” (id.).
In other words, we find that the claimed “dividing plural processes . . .
into at least two groups” reads on Clarks’ selection of processes to be
offloaded, i.e., selecting a group of processes to offload and a group of
processes to remain in the VM. For at least this reason, we find unavailing
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Appellants’ contention that there is no dividing of processes into groups in
Clark.
Claim 6
Regarding claim 6, Appellants contend that “claim 6 recites ‘splitting
an operating system ... so that each new virtual machine has its own
operating system’ . . . The claim does not disclose that each virtual machine
have the same operating system” (App. Br. 15).
In response, the Examiner finds that “Clark discloses a method of
offloading a plurality of tasks from one VM to another . . . wherein the
original VM and the new VM each have its own operating system”
(Ans. 16—17, citing Clark || 19-20). We agree with the Examiner.
For example, Clark discloses that “[u]pon completion of VM
migration, VM 221 is a clone of VM 211 such that the guest OS of VM 221
has the same processes and utilizes the same IP address and virtual MAC
address as VM 211” (| 20). In other words, Clark’s VM 211 and VM 221
each have their own operating system, albeit the same type of operating
system, which claim 6 does not prohibit.
Conclusion
For at least the reasons noted supra, we sustain the Examiner’s
rejection of claims 1 and 6. Appellants’ arguments regarding the
Examiner’s rejection of independent claims 11 and 19 rely on the same
arguments as for claim 1, and Appellants do not argue separate patentability
for the dependent claims, except for claim 6. We, therefore, also sustain the
Examiner’s rejection of claims 2—5 and 7—20.
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DECISION
We affirm the Examiner’s § 103(a) rejections Rl—R5.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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