13865119 (P.T.A.B. Dec. 21, 2016)

Ex Parte Princen et al

Patent Trial and Appeal BoardDec 21, 2016

13865119 (P.T.A.B. Dec. 21, 2016)

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. 13/865,119 04/17/2013 John Princen 25NP-177607 8928 69849 7590 12/23/2016 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 379 Lytton Avenue Palo Alto, CA 94301 EXAMINER CHOUDHURY, ZAHID ART UNIT PAPER NUMBER 2116 NOTIFICATION DATE DELIVERY MODE 12/23/2016 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): svpatents @ sheppardmullin.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN PRINCEN, SANDRA BERNDT, MIAO CUI, NIGEL GAMBLE, and WILSON HO Appeal 2015-006485 Application 13/865,119 Technology Center 2100 Before JOHN A. EVANS, TERRENCE W. McMILLIN, and STEVEN M. AMUNDSON, Administrative Patent Judges. AMUNDSON, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING Under 37 C.F.R. § 41.52, Appellants request rehearing of our September 13, 2016 Decision affirming the rejection of claims 1—20 under 35 U.S.C. § 103(a) as unpatentable over Guo (US 7,409,536 B2, issued August 5, 2008) and Powell (US 2007/0220246 Al, published September 20, 2007). We have reconsidered our Decision in light of Appellants’ arguments. Because Appellants’ arguments do not persuade us that we misapprehended or overlooked any points that would justify a different outcome, we deny Appellants’ request to modify our Decision. Appeal 2015-006485 Application 13/865,119 ANALYSIS A request for rehearing “must state with particularity the points believed to have been misapprehended or overlooked by the Board.” 37 C.F.R. § 41.52(a)(1); see Ex parte Quist, 95 USPQ2d 1140, 1141 (BPAI 2010) (precedential). Appellants assert that the Board misapprehended or overlooked two points: (1) the combination of Guo and Powell does not teach or suggest “a context switching layer” located “between a first OS and a hardware layer” and “adapted to virtualize resources of a second OS” as required by the independent claims; and (2) the independent claims require context switching layer insertion before memory allocation and data loading. Req. Reh’g 2—6. “A Context Switching Layer” Located “Between a First OS and a Hardware Layer ” and “Adapted to Virtualize Resources of a Second OS” The independent claims require “a context switching layer” located “between a first OS and a hardware layer” and “adapted to virtualize resources of a second OS.” The Examiner finds that Powell teaches “a context switching layer” according to the claims because Powell discloses a hypervisor that virtualizes physical resources and permits sharing of those resources by any “concurrently loaded operating systems” that need those resources. Final Act. 11; Adv. Act. 2; Ans. 6, 13; Powell 145. In particular, the Examiner relies on the “hypervisor virtual machine manager” identified by reference numeral 202. See, e.g., Final Act. 11; see also Powell 145, Fig. 3. Appellants argue that the “Examiner has not cited how the virtual machine manager 202 virtualizes the resources of the general purpose operating system 210” and that the “Board’s affirmation of the Examiner’s 2 Appeal 2015-006485 Application 13/865,119 reasoning therefore misapprehends and overlooks the Examiner’s reasoning.” Req. Reh’g 5. We disagree. Appellants admit that hypervisor virtual machine manager 202 “virtualizes devices, at best for the benefit of the special purpose operating system 309.” Req. Reh’g 5. Appellants seek to distinguish the claims from Powell by asserting that “the Board, like the Examiner, has not established how the virtual machine manager 202 virtualizes the resources of the general purpose operating system 210 . . . .” Id. at 5—6. That assertion fails, however, because the claims do not differentiate between a “general purpose” operating system and a “special purpose” operating system. “[DJuring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification.” In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000); see Req. Reh’g 6 (citing In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). Here, the claims refer to virtualizing the “resources of a second OS” (operating system). That second operating system may correspond to a “general purpose” operating system or a “special purpose” operating system. Inventors can act as their own lexicographers if they clearly set forth a definition of a claim term or phrase other than its plain and ordinary meaning. Vasudevan Software, Inc. v. MicroStrategy, Inc., 782 F.3d 671, 677 (Fed. Cir. 2015). Here, however, Appellants do not contend that the Specification sets forth a definition for the term “second OS.” Req. Reh’g 2—6. Further, Powell Figures 3, 4, 5A, 5B, 6, and 7 each show hypervisor virtual machine manager 202 located between hardware 204 and both general purpose operating system 210 and special purpose operating system 3 Appeal 2015-006485 Application 13/865,119 309. Powell Figs. 3—7. In addition, Figures 6 and 7 depict hypervisor virtual machine manager 202 operationally connected to both general purpose operating system 210 and special purpose operating system 309. Figure 6 is reproduced below: Powell Fig. 6. Figure 6 shows a block diagram representing an example system architecture. Powell 115. Powell explains that hypervisor virtual machine manager 202 interacts with any “concurrently loaded operating systems” that need to share physical resources, e.g., hardware 204. Powell 145. According to Figures 3, 4, 5A, 5B, 6, and 7, those operating systems include general purpose operating system 210 as well as special purpose operating system 309. Appellants note that our Decision “listed Appellant’s [sic] challenges to the combination of Powell and Guo” by stating: Appellants assert that Powell[’s Virtual Service Provider:] (1) “does not virtualize resources of a second operating system”; (2) cannot “be configured to virtualize resources” of a second operating system; and (3) “emulates physical devices to 4 Appeal 2015-006485 Application 13/865,119 other guest operating systems” but “does not emulate an actual operating system on the device.” Req. Reh’g 6. But Appellants contend that “the Board does not address these challenges on the merits.” Id. Our Decision explained, however, that Appellants’ challenges “concern Powell’s Virtual Service Provider (or Virtual Device Provider according to the terminology in Powell Figure 3),” while “the Examiner relies on Powell’s hypervisor [202], not Powell’s Virtual Service Provider.” Dec. 5. In short, Appellants’ challenges concerning Powell’s Virtual Service Provider do not respond to the rejection. The Board did not misapprehend or overlook those challenges. Context Switching Layer Insertion Before Memory Allocation and Data Loading Appellants contend that the Board misapprehended Interactive Gift Express, Inc. v. CompuServe Inc., 256 F.3d 1323 (Fed. Cir. 2001), because it instructs that the steps in a method claim may implicitly require performance in the order written and that the specification or prosecution history may also require a particular order. Req. Reh’g 3. Appellants then contend that “when the claims are construed in light of the specification, it is clear” that memory allocation and data loading must occur after context switching layer insertion. Id. The Board did not misapprehend Interactive Gift Express. Our Decision explains that the independent claims “do not expressly or implicitly require context [switching] layer insertion before memory allocation and data loading.” Dec. 6. Our Decision also explains that “Appellants identity nothing in the Specification warranting a narrow construction.” Id. 5 Appeal 2015-006485 Application 13/865,119 In requesting rehearing, Appellants do not articulate any reasons why the claim language expressly or implicitly requires performance in the order written. Req. Reh’g 2—3. Instead, Appellants assert that “FIG. 4 of the specification as filed shows” performance in the order written. Id. at 3. Appellants do not assert that any part of the prosecution history requires performance in the order written. Id. at 2—3. Appellants misplace their reliance on Figure 4. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993). Limitations not appearing in the claims cannot be relied upon for patentability. See In re Self, 671 F.2d 1344, 1348, 1350 (CCPA 1982). Appellants suggest that “it would [not] be possible” for context switching layer insertion to occur before memory allocation and data loading. Req. Reh’g 3. But that suggestion conflicts with Appellants’ admission that the Specification itself “allows a different order” than the order “as presently written.” Id. at 3 n.l. Moreover, that admission contradicts Appellants’ assertion regarding Figure 4. CONCLUSION Based on the analysis above, we have granted Appellants’ request to the extent that we have reconsidered our Decision, but we decline to modify our Decision. 6 Appeal 2015-006485 Application 13/865,119 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. § 1.136(a)(l)(iv). DENIED 7