Ex Parte Shultz et alDownload PDFBoard of Patent Appeals and InterferencesJul 7, 201111015167 (B.P.A.I. Jul. 7, 2011) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte STEVEN SHULTZ and XENIA TKATSCHOW ____________ Appeal 2009-007479 Application 11/015,167 Technology Center 2100 ____________ Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and CAROLYN D. THOMAS, Administrative Patent Judges. DIXON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2009-007479 Application 11/015,167 2 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; Appeal 2009-007479 Application 11/015,167 3 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. Appeal 2009-007479 Application 11/015,167 4 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). Appeal 2009-007479 Application 11/015,167 5 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. Appeal 2009-007479 Application 11/015,167 6 (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 Appeal 2009-007479 Application 11/015,167 7 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 tkl Copy with citationCopy as parenthetical citation