Ex Parte Shani et al

Patent Trials and Appeals Board

Jun 26, 2019

14787380 - (D) (P.T.A.B. Jun. 26, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/787,380 10/27/2015
146568 7590
ENTIT SOFTWARE LLC
500 Westover Drive
#12603
Sanford, NC 27330
06/28/2019
FIRST NAMED INVENTOR
Inbar Shani
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
90091219 6522
EXAMINER
KIM, SISLEY NAHYUN
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
06/28/2019 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):
software.ip.mail@microfocus.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INBAR SHANI, SIGAL MAON,
and AMICHAI NITSAN
Appeal2018-003416
Application 14/787,380
Technology Center 2100
Before DENSIE M. POTHIER, WSTIN BUSCH, and
NORMAN H. BEAMER, Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 1 and 3-20, which constitute all the
claims pending in this application. We have jurisdiction over the pending
claims under 35 U.S.C. § 6(b ).
We affirm-in-part.
CLAIMED SUBJECT MATTER
Appellants' disclosed and claimed invention generally relates to
"modifying an application process that is responsible for initiating a virtual
machine (e.g., DVM), pre-loading system classes that are used by
applications, and/or initiating other processes." Spec. ,r 14. More
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specifically, the disclosed and claimed modification involves including a
hook framework in the application process, "which can be executed upon
initiation of the virtual machine and can insert a hook on the virtual machine
to access data associated with an application via the hook." Spec. ,r 14; see
Spec. ,r,r 23-24. When an application is loaded, a new virtual machine can
be initiated, which also may be hooked by the hook that was previously
inserted. Spec. ,r 23. Claims 1, 9, and 12 are independent claims. Claim 1
is reproduced below:
1. A non-transitory computer-readable medium storing
machine-readable instructions executable by a processing
resource to:
execute an application process based on an initialization
instruction, wherein the application process includes instructions
associated with a hook framework;
initiate a virtual machine by the application process;
execute the instructions associated with the hook
framework upon initiation of the virtual machine to insert a hook
on the virtual machine;
initiate a nascent process configured to initiate an
additional instance of the virtual machine based on a request to
load an application, wherein the additional instance of the virtual
machine is hooked via the hook inserted on the virtual machine;
and
collect, by the hook, data from a service, and pass the
collected data to the application run in the additional instance of
the virtual machine.
REJECTIONS
Claims 1, 3-6, 8-11, and 17-19 stand rejected under 35 U.S.C. § 103
as obvious in view of McKenzie (US 2013/0155083 Al; June 20, 2013) and
Zhu (US 2013/0036470 Al; Feb. 7, 2013). Final Act. 2-20.
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Claim 7 stands rejected under 35 U.S.C. § 103 as obvious in view of
McKenzie, Zhu, and Sharp (US 2012/0089980 Al; Apr. 12, 2012). Final
Act. 20-22.
Claims 12 and 13 stand rejected under 35 U.S.C. § 103 as obvious in
view of McKenzie and Chess (US 2008/0270199 Al; Oct. 30, 2008). Final
Act. 22-26.
Claims 14--16 and 20 stand rejected under 35 U.S.C. § 103 as obvious
in view of McKenzie, Chess, and Zhu. Final Act. 26-32.
ANALYSIS
CLAIMS 1, 3---6, 8-11, AND 17-19
The Examiner rejects claims 1, 3---6, 8-11, and 17-19 as obvious in
view of McKenzie and Zhu. Final Act. 2-20. Appellants argue these claims
as a group. Therefore, we select independent claim 1 as representative of
these claims. 37 C.F.R. § 4I.37(c)(l)(iv).
The Examiner finds McKenzie teaches every limitation recited in
representative claim 1, except McKenzie does not teach "collect, by the
hook, data from a service, and pass the collected data to the application run
in the additional instance of the virtual machine," recited in claim 1. Final
Act. 2-5. The Examiner finds Zhu teaches these limitations, and the
Examiner provides a rationale for combining Zhu's cited teachings with
McKenzie's cited teachings. Final Act. 5-7 (citing Zhu ,r,r 25-28, 48,
Abstract). Of particular note with respect to Appellants' arguments related
to McKenzie, the Examiner finds McKenzie teaches or suggests the
initiating "a nascent process configured to initiate an additional instance of
the virtual machine based on a request to load an application, wherein the
additional instance of the virtual machine is hooked via the hook inserted on
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the virtual machine" step, as recited in claim 1. Final Act. 4--5 (citing
McKenzie ,r,r 71, 76, 96); Ans. 3-5 (citing McKenzie ,r,r 71, 76, 140,
Figs. 2-3). The Examiner further finds McKenzie's disclosure of a control
virtual machine initiating an additional instance of a virtual machine to
execute an application by loading an image and running the control program
that controls the additional instance teaches the disputed limitation. Ans. 4--
5.
Appellants argue McKenzie fails to teach the initiating a nascent
process step recited in claim 1 and Zhu fails to teach the collecting data step.
Appeal Br. 6-9; Reply Br. 2-7. More specifically, Appellants argue neither
McKenzie's control program nor McKenzie's hypervisor teaches the recited
nascent process because the claims recite the nascent process is configured
to initiate an additional instance of the virtual machine on which the hook
was inserted. Appeal Br. 6-8; Reply Br. 2--4 (arguing that, McKenzie
initiates a new virtual machine, not an "additional instance" of the already-
initiated virtual machine already on which the hook was inserted).
Appellants contend Zhu fails to teach the collecting data by the hook step
because Zhu' s cited security virtual machine is a special virtual machine
distinct from any other virtual machine and, therefore the security virtual
machine is not an additional instance of the virtual machine on which the
hook was inserted. Appeal Br. 8; Reply Br. 5-7.
We begin by addressing Appellants' arguments regarding Zhu.
Notably, the Examiner relies on McKenzie for initiating an additional
instance and the limitations related to inserting a hook on a virtual machine.
See Final Act. 2-5. The Examiner finds Zhu teaches collecting data by a
hook installed on a virtual machine. Final Act. 5---6. Thus, the Examiner
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relies on the combination of McKenzie and Zhu for the entirety of the
collecting limitation because the Examiner finds McKenzie teaches the
recited virtual machine being an additional instance of the virtual machine.
The Examiner explains that it is the proposed combination-i.e.,
incorporating Zhu' s disclosure of monitoring/intercepting traffic between
virtual machines in order to inspect all traffic into McKenzie's disclosure of
starting a new virtual machine with a hook point-that suggests the
collecting data step. Ans. 6-7.
Appellants argument that Zhu' s security virtual machine fails to teach
or suggest an additional instance of the virtual machine on which the hook
was inserted does not address the Examiner's rejection. In other words,
Appellants' arguments of Zhu's alleged deficiency is an individual attack on
the Zhu whereas the rejection is based on a combination of McKenzie and
Zhu and, therefore, not persuasive of error. In re Keller, 642 F.2d 413, 426
(CCPA 1981); see In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(the test for obviousness is whether the combination of references, taken as a
whole, would have suggested the patentee's invention to a person having
ordinary skill in the art). Accordingly, we agree with the Examiner that the
proposed combination of McKenzie and Zhu teaches or suggests the
collecting data by the hook step recited in representative claim 1.
Next, we address Appellants' argument that McKenzie fails to teach
or suggest the "initiate a nascent process" step. Appellants' argument
focuses on the fact that McKenzie creates new virtual machines rather than
an additional instance of an existing virtual machine on which a hook has
been inserted. Appeal Br. 6-8; Reply Br. 3-5.
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McKenzie discloses a "control program," which is also referred to as
"a control operating system, a control domain, domain O or domO" and "may
be executed within a control virtual machine or domO virtual machine, may
be executed by the hypervisor, or may be executed by an operating system
executing the hypervisor." McKenzie ,r 76. McKenzie's control program
allows an administrator to manage and configure the virtual machines
running on a processor, including starting new virtual machines and
interfacing "with programs and applications executing within the context of
a virtual machine." McKenzie ,r 76; see McKenzie ,r,r 81, 96. More
specifically, McKenzie's hypervisor may load "a virtual machine image to
create a virtual machine." McKenzie ,r 71.
The control program also can monitor the virtual machines and
intercept a request initiated from a program. McKenzie ,r 96. More
specifically, McKenzie discloses a "control virtual machine may be
configured to monitor or intercept any communication initiated by a user or
program via another virtual machine," such as "system calls, hypercalls,
interrupts, or other messages." McKenzie ,r 97. In certain embodiments,
"some or all of the virtual machines 232 are configured to pass all or specific
types of communications through the control virtual machine 232A or
hypervisor, whereupon the control virtual machine 232A can intercept at
least some of these communications." McKenzie ,r 97. McKenzie further
discloses embodiments in which "the control virtual machine initiates a
paravirtualized driver in the guest OS to interface with an I/0-type API"
( application programming interface) and "may provide an interrupt service
routine to handle interrupts." McKenzie ,r 140.
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We disagree with Appellants' assertion that McKenzie's does not
teach or suggest its control program can initiate an additional instance of the
virtual machine on which a hook was inserted. Appellants' Specification
explains that "[h ]ooking can include altering a behavior of an application
and/or collecting data associated with the application by intercepting data
passed between software components" and "hooking can refer to various
techniques to monitor, alter, and/or otherwise gain control of an
application." Spec. ,r 9. "Hooking an application can include injecting a
library including an executable hooking instruction into the application prior
to the application executing and/or injecting an executable hooking
instruction into the application during runtime of an OS and/or during
execution of functions of the application." Spec. ,r 9.
As discussed above, McKenzie describes a control program that has
the ability to start, configure, and monitor virtual machines. See McKenzie
,r,r 71, 7 6, 81, 96. McKenzie's control program can also intercept program
calls on the virtual machines it is monitoring. McKenzie ,r,r 96-97. Further,
McKenzie discloses that, in some embodiments, some or all of the virtual
machines are configured to pass all or some communications through the
control virtual machine and the control virtual machine may initiate a driver
on the guest OS ( of the virtual machines) to interface with a control program
I/0 API and the control program provides an interrupt service routine to
handle the interrupts. McKenzie ,r 140. Based on Appellants' description of
"hooking" and McKenzie's cited disclosures, we agree with the Examiner
that McKenzie at least suggests hooking each of the virtual machines ( other
than a control virtual machine) by inserting a hook ( e.g., the driver initiated
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on the guest OS or other mechanism suggested by the disclosure of
monitoring and controlling the virtual machines).
Moreover, we agree with the Examiner that McKenzie's disclosure of
creating virtual machines by loading a virtual machine image, McKenzie
,r 71, at least suggests the virtual machines McKenzie's hypervisor or control
program creates may be an additional instance of an already-started virtual
machine because a subsequently created virtual machine may be started
from the same virtual machine image as a previously created virtual
machine. Moreover, McKenzie suggests that the control program or
hypervisor controls and monitors each of the virtual machines in the same
way and, therefore, we agree that McKenzie at least suggests a hook inserted
on a virtual machine created by loading a virtual machine image would be
the same hook inserted on a virtual machine previously-created by loading
that same image. In light of McKenzie's disclosure that virtual machines
may be created by loading a virtual machine image, we are not persuaded by
Appellants' argument that McKenzie fails to teach, or at least suggest,
creating multiple instances of a virtual machine.
To the extent Appellants' arguments are based on an assertion that
McKenzie's control virtual machine, or Zhu's security virtual machine,
needs to create an additional instance of the virtual machines that
McKenzie's control program monitors, we disagree. Rather, we understand
the rejection to find that McKenzie's control program may initiate a first
virtual machine to run applications by loading a virtual machine image to
create that virtual machine. When creating that virtual machine, the image
may already include the hook, or the control program may execute
additional instructions that, insert a hook ( e.g., a driver initiated on the
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virtual machine's guest OS) so that it can monitor and control that virtual
machine. At some later time, when another virtual machine needs to be
created to run another application, the control program may initiate another
process that creates a new virtual machine. Similarly, the control program
may create an additional virtual machine by loading the same virtual
machine image with the same hook that was inserted on the first virtual
machine.
For these reasons, we sustain the Examiner's rejection of claim 1 as
obvious in view of McKenzie and Zhu. We also sustain the rejection of
independent claim 9 ( which recites commensurate limitations) and claims 3-
6, 8, 10, 11, and 17-19 (which ultimately depend from one of claims 1 and
9) for the same reasons because Appellants did not argue these claims
separately with particularity.
CLAIM7
The Examiner rejects claim 7 as obvious in view of McKenzie, Zhu,
and Sharp. Final Act. 20-22. Appellants argue only that Sharp does not
cure the alleged deficiencies of McKenzie and Zhu and, therefore, claim 7 is
allowable based on its dependency from claim 1. Appeal Br. 10. Because
we find no deficiency in the Examiner's rejection of claim 1 as obvious in
view of McKenzie and Zhu, we also sustain the Examiner's rejection of
claim 7.
CLAIMS 12 AND 13
The Examiner rejects claims 12 and 13 as obvious in view of
McKenzie and Chess. Final Act. 22-26. The Examiner finds McKenzie
discloses each limitation recited in independent claim 12, except the
Examiner finds McKenzie does not disclose "wherein the additional instance
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of the virtual machine is created by duplication the virtual machine on which
the hook has been inserted." Final Act. 22-25. The Examiner finds Chess
discloses this limitation. Final Act. 25 ( citing Chess ,r,r 51, 53).
The cited portions of Chess describe "creat[ing] and configure[ing] a
VM [(virtual machine)] image for a new domain, copy[ing] files from
domain Oto another domain, start[ing] a process in[] another domain, and
[controlling] the mapping of physical resources to virtual resources." Chess
,r 51. Chess describes scrubbing images previously used to run a process of
the process data so the image can be reused by future processes. Chess ,r 52.
Chess discloses that it is sufficient to "pre-create a small number of images"
and the image management subsystem may dynamically add images, if
needed. Chess ,r 53. New processes may be created inside these pre-created
images by populating the image-i.e., copying the files necessary to run that
process from domain Oto the created image. Chess ,r 53.
Appellants reference their argument regarding claim 1 and argue
McKenzie fails to teach the portion of the initiating a nascent process step
that is commensurate in scope to the initiating a nascent process step recited
in claim 1. Appeal Br. 10-11. For the reasons discussed above, we are not
persuaded by this argument.
Appellants also argue Chess fails to teach duplicating a virtual
machine. Appeal Br. 11. Specifically, Appellants argue Chess does not
refer to duplicating a virtual machine and simply describes creating virtual
machines using a newly created image and copying files to be used by the
new virtual machine between domains. Appeal Br. 11 ( citing Chess ,r 51 ).
Appellants argue Chess's creation and configuration of a virtual machine
image for a new domain provides no indication of duplicating a virtual
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machine on which a hook was inserted. Appeal Br. 11. Appellants note
claims 12 and 13 were rejected under a different combination and the
Examiner did not respond to this argument in the Answer. Reply Br. 7-8.
We agree with Appellants. We see no disclosure in Chess's cited
portions that teach or suggest duplicating a virtual machine on which a hook
was inserted. Chess describes scrubbing an image of process data for
processes that previously ran on a particular image. Chess ,r 52. To the
extent the Examiner relies on Chess's disclosure that images may be reused
that already include a hook, that is not apparent from the cited disclosures
and the Examiner provides insufficient explanation or evidence to support
such a finding.
Although, as discussed above, we find McKenzie at least suggests
reusing an image to create an additional instance of a virtual machine,
McKenzie does not necessarily teach or suggest "duplicating" the instance
of the virtual machine already initiated. To the extent McKenzie's images
used to create new virtual machines may already include the hook and,
therefore, creating new virtual machines from the image would teach
duplicating a virtual machine on which a hook was inserted, we cannot say
on this record. The Examiner does not find McKenzie teaches this limitation
and it is not apparent from the Examiner's findings that the proposed
combination would provide this suggestion. Furthermore, Chess suggests
"scrubbing" an image before reusing it, such that, even to the extent
McKenzie's disclosure suggests creating an additional instance having the
same hook, the Examiner's proposed combination would lead to using a
scrubbed image that no longer includes the hook.
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For the reasons discussed herein, we do not sustain the rejection of
claims 12 and 13 as obvious in view of McKenzie and Chess.
CLAIMS 14 AND 15
The Examiner rejects claims 14 and 15, which directly depend from
claim 12, as obvious in view of McKenzie, Chess, and Zhu. Final Act. 26-
30. With respect to these claims, Appellants argue Zhu does not cure the
deficiencies of McKenzie and Chess identified with respect to independent
claim 12. Appeal Br. 7. The Examiner does not rely on Zhu to cure the
deficiencies identified with respect to McKenzie and Zhu. See Final
Act. 26-30. Therefore, for the same reasons discussed above with respect to
claim 12, we do not sustain the Examiner's rejection of claims 14 and 15 as
obvious in view of McKenzie, Chess, and Zhu.
CLAIMS 16 AND 20
The Examiner rejects claims 16 and 20, which depend directly from
claims 1 and 9, respectively, as obvious in view of McKenzie, Zhu, and
Chess. Final Act. 30-32. With respect to these claims, Appellants argue
Chess does not cure the deficiencies of McKenzie and Zhu identified with
respect to claims 1 and 9. Appeal Br. 12. Appellants also argue Chess fails
to teach or suggest the step of creating the additional instance of the virtual
machine "by duplicating the virtual machine on which the hook has been
inserted," as recited in claims 16 and 20, for the same reasons asserted with
respect to claim 12, which recites a commensurate limitation. Appeal
Br. 13. For the same reasons discussed above with respect to claim 12, and
because claims 16 and 20 recite a commensurate limitation, we do not
sustain the Examiner's rejection of claims 16 and 20 as obvious in view of
McKenzie, Zhu, and Chess.
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DECISION
We affirm the Examiner's decision to reject claims 1, 3-11, and
17-19 under 35 U.S.C. § 103.
We reverse the Examiner's decision to reject claims 12-16 and 20
under 35 U.S.C. § 103.
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-IN-PART
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