Ex Parte Scott-Nash et al

Patent Trial and Appeal Board

Feb 28, 2017

13537347 (P.T.A.B. Feb. 28, 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.
13/537,347 06/29/2012 Mark Scott-Nash ITL.2798US (P44448) 3588
47795 7590 03/02/2017
TROP, PRUNER & HU, P.C.
1616 S. VOSS RD., SUITE 750
HOUSTON, TX 77057-2631
EXAMINER
AQUINO, WYNUEL S
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
03/02/2017 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):
tphpto@tphm.com
Inteldocs_docketing @ cpaglobal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK SCOTT-NASH, ALBERTO MUNOZ,
and ASHER ALTMAN
Appeal 2015-007271
Application 13/537,347
Technology Center 2100
Before JEFFREY S. SMITH, IRVIN E. BRANCH, and AMBER L. HAGY,
Administrative Patent Judges.
BRANCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims
1—11 and 13—20. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2015-007271
Application 13/537,347
CLAIMED SUBJECT MATTER
The claims are directed to a virtual trusted platform module for a
virtual machine. Abstract.
Claim 1, reproduced below, is representative of the claimed subject
matter:
1. A method comprising:
providing a virtual trusted platform module for a virtual
machine; and
containing the virtual trusted platform module within a
secure enclave of a physical platform.
REJECTION
Claims 1—11 and 13—20 stand rejected under pre-AIA 35 U.S.C.
§ 102(b) as anticipated by Stumpf (NPL, Aug. 2008, “Enhancing Trusted
Platform Modules with Hardware-Based Virtualization Techniques”). Ans.
2-16.
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments the Examiner has erred. We disagree with Appellants’
conclusions and, except as discussed below, we adopt as our own: (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Final Act. 4—13) and (2) the reasons set forth by the
Examiner in the Examiner’s Answer in response to Appellants’ Appeal Brief
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Application 13/537,347
(Ans. 16—26). We concur with the conclusions reached by the Examiner,
and we highlight the following for emphasis.1
Claim 1
The Examiner maps claim 1 ’s “virtual platform trusted module for a
virtual machine” to Stumpf’s Trusted Program Module (TPM) instance and
the claimed “secure enclave” to Stumpf’s multi-context TPM. Ans. 17
(“Stumpf teaches that a TPM instance (i.e. virtual trusted platform module)
of a virtual machine is loaded into a hardware structure TPM (i.e. secure
enclave of a physical platform).”). See Stumpf, Section B.
Appellants argue the Examiner has improperly construed “secure
enclave” because the Examiner has failed to consider Appellants’
Specification, which recites that “a secure enclave 30 is a set of memory
locations that provides a safe place for an application to execute program
instructions and store data inside the enclave 30 in the context of an
operating system (OS) process.” Reply Br. 1—3 (quoting Spec. 117).
We are unpersuaded of error. Appellants provide insufficient
persuasive argument or evidence to convince us that “secure enclave” fails
to read on Stumpf’s multi-context TMP. We note Appellants’ argument that
“the specification describes several features that allow the safe execution of
program instructions, such as an enclave page cache, cryptographic
productions, and so forth” (id. 2), but find this argument unpersuasive of
error because, 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). Appellants always
1 Only those arguments made by Appellants have been considered in this
decision. Arguments Appellants did not make in the briefs have not been
considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(l)(iv).
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Appeal 2015-007271
Application 13/537,347
have the opportunity to amend the claims during prosecution, and broad
interpretation by the Examiner reduces the possibility that the claim, once
issued, will be interpreted more broadly than is justified. In re Prater, 415
F.2d 1393, 1404-05 (CCPA 1969).
Appellants also argue error in the Examiner’s finding that “Stumpf
teaches that a TPM instance (i.e. virtual trusted platform module) of a virtual
machine is loaded into a hardware structure TPM (i.e. secure enclave of a
physical platform)” because Stumpf “fails to disclose loading a virtual
machine into the TPM, as contended by the Examiner's Answer.” Reply
Br. 3 (quoting Ans. 17). We do not agree because the Examiner’s finding
does not say that a virtual machine is loaded “into” the TPM. Rather, the
Examiner finds Stumpf discloses a TMP “of’ (i.e., corresponding to) a
virtual machine is loaded into the TPM, which is true. See, e.g., Stumpf,
Section B.
Appellants do not otherwise persuade us of error in the Examiner’s
rejection of claim 1.
Claims 2 and 3
Appellants’ arguments against claims 2 and 3 are rooted in the
unpersuasive claim construction arguments Appellants advance against
claim 1. App. Br. 10—11; Reply Br. 1—3. We are unpersuaded of error and
adopt the Examiner’s response (Ans. 19-20) to Appellants’ arguments,
which Appellants do not persuasively rebut (see generally Reply Br. 1—3).
Claim 4
Claim 4 depends from claims 1 and 2 and recites “assigning at least
one security key to the virtual trusted platform module to identify the virtual
trusted platform_module.” Appellants argue that “[ajlthough the expressly-
recited key arguably identifies the virtual trusted platform, it does not
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Appeal 2015-007271
Application 13/537,347
necessarily follow that any item that identifies a virtual trusted platform
module is a key or a security key.” App. Br. 11. Appellants further assert
that “[o]ne of ordinary skill in the art would not consider a mere identifier to
be a security key.” Reply Br. 4.
We do not find Appellants’ unsupported assertion persuasive of what
one of ordinary skill in the art “would not consider.” Id. Appellants do not
direct us to persuasive evidence that “the expressly-recited language is being
improperly eviscerated by” the Examiner’s construction of “security key”
(Reply Br. 3) or that “security key” fails to read on Stumpf’s “unique ID” as
the Examiner finds (Ans. 20—21 (citing Stumpf, Section B)).
Accordingly, we are unpersuaded of error in the Examiner’s rejection
of claim 4.
Claim 5
Claim 5 depends from claim 4 and recites “the supervisor signing an
attestation identification credential for the virtual trusted platform module.”
Appellants argue that “Stumpf fails to disclose the VMM (the alleged
supervisor) assigning an attestation identification credential for a
provisioned virtual trusted platform module.” App. Br. 12. In addition to
being an unsupported assertion, Appellants’ argument is unpersuasive
because it is not commensurate with the scope of the claim. Claim 5 recites
“signing,” not “assigning” an attestation identification credential.
In the Reply Brief, Appellants argue that “[i]n essence, the Examiner’s
Answer is relying on inherency for the missing claim elements.” Reply Br.
4. This is in reference to the Examiner’s further citation to Stumpf’s “Secure
TPM Context Migration” section (Ans. 21—22 (citing Stumpf, Section VI.))
and the Examiner’s finding that “the act of encrypting by the TPM key
teaches ‘signing an attestation identification credential’.” Id.
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Application 13/537,347
Appellants’ argument that the Examiner is relying on inherency is a
strawman. The Examiner is not relying on inherency but is, instead, finding
that the claimed “signing,” broadly construed, includes Stumpf’s
“encrypting.” Id. Appellants’ arguments against the strawman are
unavailing, and Appellants do not present argument or evidence sufficient to
persuade us that the Examiner’s construction of “signing” is unreasonably
broad or that, broadly construed, the claimed “signing” does not include
Stumpf’s “encrypting.”
Accordingly, we are unpersuaded of error in the Examiner’s rejection
of claim 5.
Remaining claims
We have reviewed Appellants’ remaining arguments alleging error in
the Examiner’s rejection of the remaining claims (App. Br. 9—16; Reply Br.
1—6) and find them unpersuasive of error for the reasons stated by the
Examiner (Ans. 16—26).
DECISION
We affirm the Examiner’s decision rejecting claims 1—11 and 13—20.
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).
AFFIRMED
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