Ex Parte Shultz et al

Board of Patent Appeals and Interferences

Jul 7, 2011

11015167 (B.P.A.I. Jul. 7, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte STEVEN SHULTZ and XENIA TKATSCHOW
____________

Appeal 2009-007479
Application 11/015,167
Technology Center 2100
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Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and
CAROLYN D. THOMAS, Administrative Patent Judges.

DIXON, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
A Patent Examiner rejected claims 22-31. The Appellants appeal
therefrom under 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C.
§ 6(b).
We reverse.
A. INVENTION
The invention at issue on appeal relates generally to computer
systems, and deals more particularly with preserving contents of a cache of a
virtual machine. The invention further relates to managing a cache of a
virtual machine. A cache is defined in memory, and a virtual machine is
assigned to the cache. An identity of the cache is recorded in storage. The
virtual machine terminates, and the cache and contents of the cache are
preserved despite the termination of the virtual machine, such that if the
virtual machine subsequently resumes operating, the virtual machine can
access the cache and its contents. (Spec. 1 and 4).

B. ILLUSTRATIVE CLAIM
Claim 22, which further illustrates the invention, follows.
22. A method for managing virtual machines, said
method comprising the steps of:
a first virtual machine being operational and requesting
to attach to a cache, and in response, attaching said first virtual
machine to said cache, and recording that said first virtual
machine is assigned to said cache;
a second virtual machine being operational and
requesting to attach to said cache, and in response, attaching
said second virtual machine to said cache, and recording that
said second virtual machine is assigned to said cache;
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subsequently, said first virtual machine ceasing to
operate due to failure of said first virtual machine while said
second virtual machine is operational, and in response,
determining that a virtual machine is operational and attached
to said cache, and in response, preserving said cache; and
subsequently, resuming operation of said first virtual
machine, and in response, determining from said record that
said first virtual machine is assigned to said cache and
reattaching said first virtual machine to said cache.

C. REFERENCES
The Examiner relies on the following references as evidence:
Bugnion US 6,075,938 Jun. 13, 2000
Uchishiba US 2002/0016812 A1 Feb. 7, 2002
Judge US 6,430,564 B1 Aug. 6, 2002

Admitted prior art (APA)

D. REJECTIONS
Claims 22-30 stand rejected under 35 U.S.C. 103(a) as being
unpatentable over APA in view of Bugnion and Judge.
Claim 31 is rejected under 35 U.S.C. 103(a) as being unpatentable
over APA in view of Bugnion and Uchishiba.

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PRINCIPLES OF LAW
35 U.S.C. § 103
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so
doing, the Examiner must make the factual determinations set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966). “[T]he Examiner bears
the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability.” In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). Furthermore, “‘there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness’ . . . [H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 418 (2007)(quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir.
2006)).
The question of obviousness is "based on underlying factual
determinations including . . . what th[e] prior art teaches explicitly and
inherently . . . ." In re Zurko, 258 F.3d 1379, 1383 (Fed. Cir. 2001)
(citations omitted). "The Patent Office has the initial duty of supplying the
factual basis for its rejection. It may not . . . resort to speculation, unfounded
assumptions or hindsight reconstruction to supply deficiencies in its factual
basis." In re Warner, 379 F.2d 1011, 1017 (CCPA 1967).

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ANALYSIS
Appellants present separate arguments for each of the three applied
prior art references to show the Examiner's mischaracterization of each of
the three prior art references. (App. Br. 9-11).
Appellants argue that "APA teaches a cache dedicated to a single
virtual machine. According to APA, when the virtual machine terminates,
its cache is not preserved. Consequently, if the virtual machine later resumes
operation, the virtual machine cannot reattach to the cache." (App. Br. 10).
We agree with Appellants characterization of the APA.

Appellants argue that Bugnion discloses
a cache assigned to processes in virtual machines, not assigned
to virtual machines. A "virtual machine" is a partition or share
of computer resources together with the programs that utilize
the partition or share of computer resources, whereas each
"process" of Bugnion et al. is a specific function within a virtual
machine.

(App. Br. 10). In the responsive arguments, the Examiner repeats
Appellants' arguments then generalizes or speculates from the express
teachings of the reference to better fit the language of the claims. (Answer
14-17). For example the Examiner states that

There it is described that the cache contents can be preserved
such that if a virtual machine terminates and later resumes the
cache contents are available to resume processing. Since the
virtual machine is restarted it would be assigned a cache as
before and since the previous cache contents have been
preserved operation can be resumed.

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(Answer 15). We find the Examiner's characterization of the teachings of
page 3 of Appellants' Specification (APA) to be more appropriately
described as occasional backup copies. The APA states "consequently when
the virtual machine is restarted, the contents of the cache will be available
from storage to resume processing. However, the periodic
journaling/copying of data to storage is slow compared to other virtual
machine operations, because of the nature of storage. This slows operation
of the virtual machine." (APA 3). The APA does not expressly state that
when the virtual machine is restarted, it would be assigned to the same cache
with the contents restored. The APA merely teaches that the contents of the
cache are available from somewhere.
With respect to the teachings of Bugnion, we agree with Appellants
that Bugnion does not teach or suggest that the cache memory is assigned to
the virtual machine(s).
While the prior art teachings applied by the Examiner are close to
teaching portions of the claimed invention, we conclude that the Examiner's
combination of express teachings and what one skilled in the art could fairly
suggest from these teachings relied upon by the Examiner do not teach or
fairly suggest the sequence of steps as expressly recited in independent claim
22. Therefore, we cannot sustain the rejection of independent claim 22 and
dependent claims 23-26 (the After-Final Amendment to dependent claim 25
is not present in the Claims Appendix to the Brief, but has been approved by
the Examiner for entry).
Independent claim 27 contains similar limitations to independent
claim 22 which are directed towards a machine with means-plus-function
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limitations. Therefore, we cannot sustain the rejection of independent claim
27 and dependent claims 28-30.
Independent claim 31 contains similar limitations to independent
claim 22 along with additional limitations concerning the second virtual
machine. Therefore, we cannot sustain the rejection of independent claim
31.
CONCLUSION
For the aforementioned reasons, Appellants have shown error in the
Examiner's showing of obviousness of claims 22-31.

VII. ORDER
We reverse the obviousness rejections of claims 22-31.

REVERSED

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