Ex Parte Mulcahy et al

Patent Trial and Appeal Board

May 4, 2017

13253519 (P.T.A.B. May. 4, 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.
13/253,519 10/05/2011 James Mulcahy GB920110015US1 6530
45502 7590
Yudell Isidore PLLC
10601 FM 2222, Ste. Rill
Austin, TX 78730
05/08/2017 EXAMINER
GEBRIL, MOHAMED M
ART UNIT PAPER NUMBER
2135
NOTIFICATION DATE DELIVERY MODE
05/08/2017 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):
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 JAMES MULCAHY and GERAINT NORTH
Appeal 2017-000653
Application 13/253,5191
Technology Center 2100
Before: ALLEN R. MACDONALD, BETH Z. SHAW, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s Final
Rejection of claims 8—18, 20—22, 24, 25, and 28—31. We have jurisdiction
under 35 U.S.C. § 6(b).
We reverse.
1 Appellants’ Brief (“App. Br.”) identifies the real party in interest as
International Business Machines Corporation. App. Br. 2.
Appeal 2017-000653
Application 13/253,519
CLAIMED SUBJECT MATTER
According to Appellants, the claimed invention can be summarized as
follows:
[A] data processing system that supports high availability of an
application executed in a host virtual machine by forwarding at
checkpoints changes in the host virtual machine to a secondary
virtual machine. An amount of data required to be forwarded for
failing over to the secondary virtual machine is reduced by not
forwarding portions of memory of the first virtual machine that
are deemed to be “not essential” (or purgeable) by the
application. In particular, the application deems the portions of
memory which the application can reconstruct as not essential
and/or purgeable.
Spec. 1 6.
Claim 8, reproduced below with the disputed limitation in italics, is
illustrative of the claimed subject matter:
8. A computer program product for resource recovery,
comprising:
a non-transitory computer readable storage device; and
program code on the non-transitory computer readable
storage device that when executed by a processor within a
primary host machine comprising a first virtual machine with the
processor, a memory, and an application executing on the
processor that accesses the memory, the program code performs
a series of functions comprising:
receiving, from the application, a memory mapping
of the application within the memory that comprises a
plurality of regions including at least one first region and
at least one second region;
marking, via a mark purgeable function, the at least
one second region as a purgeable memory that will not be
tracked, wherein the purgeable memory can be
reconstructed by the application at a second virtual
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Appeal 2017-000653
Application 13/253,519
machine of a secondary host machine when the purgeable
memory is unavailable;
in response to marking the purgeable memory,
tracking the at least one first region within the memory
mapping for changes; in response to stopping execution of
the first virtual machine:
forwarding only the changes to the at least
one first region to the second virtual machine,
wherein any changes to the purgeable memory are
not forwarded to the secondary host machine; and
in response to completing the forwarding of
the changes, resuming execution of the first virtual
machine; and
in response to an occurrence of a failure
condition on the first virtual machine:
reconstructing the purgeable memory by the
application at the second virtual machine; and
signaling the secondary host machine to
continue execution of the application using the
forwarded changes to the at least one first region.
App. Br. 14 (Claims Appendix).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Cully, Brendan et al., “Remus: High Availability via Asynchronous
Virtual Machine Replication,” NSDI ’08: 5T" USENIX Symposium on
Networked Systems Design and Implementation, 2008.
Czezatke
Kandasamy
Prahlad
Bulusu
US 8,443,166 B2 May 14, 2013
US 2010/0106926 Al Apr. 29, 2010
US 2010/0332479 Al Dec. 30,2010
US 2011/0154103 Al Jun. 23,2011
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Appeal 2017-000653
Application 13/253,519
REJECTIONS
Claims 8, 13—15, 20, 21, 24, 28, and 30 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Cully, Prahlad, Czezatke, and Bulusu.
Final Act. 5.
Claims 9—12, 16—18, 22, and 25 stand rejected under 35 U.S.C.
§ 103(a) as being unpatenable over Cully, Prahlad, Czezatke, Bulusu, and
Kandasamy.
ISSUE
Is the Examiner’s finding that Bulusu teaches “marking, via a mark
purgeable function, the at least one second region as a purgeable memory
that will not be tracked” supported by a preponderance of evidence?
ANALYSIS
In rejecting independent claim 8, the Examiner finds Bulusu discloses
“marking, via a mark purgeable function, the at least one second region as a
purgeable memory that will not be tracked.” Final Act. 9 (citing Bulusu
12—16 and 21). More specifically, the Examiner finds Bulusu teaches that
“the OS [operating system] configured] memory regions via a set resource
setting (_SRS) ACPI method to migrate critical application code where the
critical VMs [virtual machines] are tracked an allocated to mirrored memory
regions.” Final Act. 9 (bracketed material added for context and clarity).
According to the Examiner, “the OS accesses] the resource setting that
indicates the current regions of memory that are mirrored (Paragraph 0019,
lines 19—23) to correspond to the marking in the claim.” Ans. 21.
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Application 13/253,519
Appellants contend the Examiner has erred because the “sections of
Bulusu (in combination with other references) only provide identifying
entire applications/Virtual Machines (VMs) as critical or non-critical and
subsequently allocating/migrating those critical VMs to memory regions that
are mirrored.” App. Br. 6. According to Appellants, “the claimed invention
marks a subset region(s) within the application’s memory as purgeable,
instead of marking the entire memory of the application as critical/non-
critical. . . App. Br. 7. Appellants further argue “Bulusu and the
combinations of references as a whole are completely devoid of any teaching
or suggestion of specifically marking non-critical VMs so that they are not
tracked.” Reply Br. 2—3.
We are persuaded by Appellants’ arguments. Bulusu relates to a
memory mirroring system which utilizes redundant memory hopping.
Bulusu 19. Belusu describes identifying a currently mirrored region of
memory (115, 125) as well as a potential mirrored region (118, 128).
Belusu, H12—15, Fig. 1. If an uncorrectable error is detected in the
currently mirrored region, a “memory hop” may take place by which the OS
can re-configure the potential memory range as mirrored using a set resource
setting (_SRS)ACPI method, and then migrate the currently mirrored region
to the potential mirrored region with original mirrored region reclaimed for
use by the OS. Belusu 115.
As we noted above, the Examiner finds accessing a resource setting
that indicates the currently mirrored memory regions corresponds to
“marking, via a mark purgeable function, the at least one second region as a
purgeable memory that will not be tracked,” and cites the following
sentences in paragraph 19:
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Application 13/253,519
In one embodiment, the OS may access a current resource setting
that indicates the current regions of memory that are mirrored
and potential resource settings, and based on this information
determine how many regions can be mirrored, and where the
mirrored regions are to be located.
Belusu 119,11. 19—23. In our view, this paragraph merely indicates that
current and/or potential mirrored regions of memory can be identified using
current resource settings. It does not describe marking any “second region
as a purgeable memory that will not be tracked,” as recited in claim 8. Nor
do we find any such disclosure in the remaining cited portions of Belusu.
Consequently, we do not sustain the rejection of claim 8. We also do not
sustain the rejection of claim 15, which recites the substantially the same
limitation, and for which Appellants present the same arguments discussed
above.
Remaining Claims
Because we have found one of Appellants’ arguments persuasive with
respect to the independent claims, we do not consider Appellants’ separate
arguments made in connection with dependent claims 13, 14, 28, and 30, as
they stand with their respective independent claims. For the same reasons,
we also do not sustain the rejections of dependent claims 9—12, 16—18, 20-
22, 24, 25,29, and 31.
DECISION
The Examiner’s rejection of claims 8—18, 20—22, 24, 25, and 28—31 is
reversed.
REVERSED
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