Ex Parte Tormasov

Board of Patent Appeals and Interferences

Dec 17, 2008

10298441 (B.P.A.I. Dec. 17, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE

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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ALEXANDER TORMASOV
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Appeal 2008-4218
Application 10/298,441
Technology Center 2100
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Decided: December 17, 2008
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Before LANCE LEONARD BARRY, ST. JOHN COURTENAY III, and
CAROLYN D. THOMAS, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 14-29 and 31-52. Claims 1-13 and 30 have
been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). An oral
hearing for this appeal was conducted on December 11, 2008. We reverse.

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THE INVENTION
The disclosed invention relates generally to techniques for balancing
the workload of network services and servers on the basis of Virtual
Environments with common effective sharing of resources (Spec. 2).
More particularly, Appellant’s invention is directed to virtual environments
that each represent a “personal well-protected ‘machine’ that possesses an
operating system and functions as an independent workstation or a server
where several virtual environments may function at one computer
simultaneously.” (Spec. 7, para. [0019]).
Independent claim 47 is illustrative:
47. A system for providing computer hosting
services comprising:

a computer cluster including a plurality of
physical cluster nodes, each node representing
a stand-alone physical computer; and

a plurality of Virtual Execution
Environments running on the computer cluster,
wherein each Virtual Execution
Environment includes the following operating
system components: a unique administrative root
user, a file system, and an IP address,
wherein the plurality of Virtual Execution
Environments are aggregated into a plurality of
Virtual Execution Environment sets, each set
functioning as a server farm and providing services
to the remote users, and different Virtual
Execution Environment sets provide different
types of services to the remote users,
wherein each physical cluster node includes
Virtual Execution Environments that belong to
different sets, and
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wherein the computer cluster provides
hosting services to owners of the server farms.

THE REFERENCES
The Examiner relies upon the following references as evidence in
support of the rejections:
Aziz US 6,597,956 B1 Jul. 22, 2003
Apache, www.apache.org from August 2000

THE REJECTIONS
1. Claims 25-29, 42-47, and 49-52 stand rejected under
35 U.S.C. §102(e) as being anticipated by Aziz.1

2. Claims 14-24, 31-41, and 48 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Aziz in view of Apache.

APPELLANT’S CONTENTIONS
Appellant contends that the Examiner erred in rejecting claims 25-29,
42-47, and 49-52 as being anticipated by Aziz for at least the following
reasons:

1 Claims 47 and 52 are the only independent claims on appeal. We note that
Appellant’s claim numbering does not comply with 37 C.F.R. § 1.75(c)
(“One or more claims may be presented in dependent form, referring back to
and further limiting another claim or claims in the same application.”). See
also 35 U.S.C. § 112, fourth paragraph (“a claim in dependent form shall
contain a reference to a claim previously set forth and then specify a further
limitation of the subject matter claimed.”) (emphasis added). We also note
that claim 51 improperly depends upon cancelled claim 13.
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Appellant contends that the “central teaching of Aziz is aggregation of
multiple hardware nodes (in other words, real physical computers, not VEEs
[Virtual Execution Environments]) into Virtual Server Farms.” (App. Br.
16). Appellant further contends that “Aziz certainly does not teach that a
single physical node can be part of two different VSFs [Virtual Server
Farms] – this approach is contrary to the entire teaching of Aziz.” (App. Br.
17, ¶ 1). Thus, Appellant asserts, inter alia, that Aziz does not disclose the
claimed limitations of “wherein each physical cluster node includes Virtual
Execution Environments that belong to different sets,” as recited in each of
independent claims 47 and 52 (App. Br. 17-18).

EXAMINER’S FINDINGS
The Examiner responds as follows:
In reviewing [Appellant’s] specification the examiner is only
able to find the disclosure of running of different sets, which
Aziz teaches in Col. 5 lines 14-7, in which Aziz discusses that
the server can be changed dynamically. Also in Col. 10 lines
40-62, Aziz shows that CPU B and C are load balanced to
different data and different tasks, [with] the ability to boot to
different operating system environments, link Solaris, Windows
NT and Linux. Also if applicant's argument of an entirely
virtual system is accepted it would introduce possible 101
issues.

(Ans. 11, ¶ 1).

ISSUE
Based upon our review of the record, we have determined that the
following issue is dispositive in this appeal:
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1. Has Appellant shown that the Examiner erred in finding
that Aziz discloses the limitations of “wherein each
physical cluster node includes Virtual Execution
Environments that belong to different sets,” as recited in
each of independent claims 47 and 52.

FINDINGS OF FACTS
The following Findings of Facts (FF) are shown by a preponderance
of the evidence:
The Aziz reference
1. Aziz discloses a Virtual Server Farm (VSF) that executes on a
wide scale computing grid that is logically partitioned into
VSFs on demand (col. 5, ll. 5-8).
2. Aziz discloses that part of the computing grid is allocated to
each of a plurality of enterprises or organizations where each
organization’s logical portion of the computing grid is referred
to as a VSF (col. 5, ll. 8-11).
3. Aziz discloses that “each computing element in the computing
grid is fungible and has no static role assigned to it.” (Col. 9, ll.
25-26).
4. Aziz discloses that “[a] particular computing element may
perform different roles as it is brought into and out of various
VSFs.” (Col. 9, ll. 18-19).

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PRINCIPLES OF LAW
In rejecting claims under 35 U.S.C. § 102, “[a] single prior art
reference that discloses, either expressly or inherently, each limitation of a
claim invalidates that claim by anticipation.” Perricone v. Medicis Pharm.
Corp., 432 F.3d 1368, 1375-76 (Fed. Cir. 2005) (citation omitted).
Appellant has the burden on appeal to the Board to demonstrate error in the
Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006). Therefore, we look to Appellant’s Briefs to show error in the
proffered prima facie case.

ANALYSIS
Independent claims 47 and 52
We consider the Examiner’s rejection of independent claims 47 and
52 as being anticipated by Aziz.
At the outset, based upon our review of the record, we generally agree
with Appellant that the Examiner’s mapping of the claim elements to the
corresponding portions of the Aziz reference is unclear (see e.g., Appellant’s
comments, App. Br. 14; Reply Br. 10). Given the rejection of claim 47 on
page 3 of the Answer, and the Examiner’s Response on pages 9-12, it
appears that the Examiner is reading the claimed “Virtual Execution
Environment” on Aziz’s Virtual Server Farms.

Claim Construction
We begin our analysis by broadly but reasonably construing the
disputed claim term “Virtual Execution Environment.” During prosecution,
“the PTO gives claims their ‘broadest reasonable interpretation.’” In re
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Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (quoting In re Hyatt, 211 F.3d
1367, 1372 (Fed. Cir. 2000)).
Here, when we refer to Appellant’s disclosure for context, we note
that Appellant’s claimed “Virtual Execution Environment” is described at
paragraph [0018] of the Specification, as follows:
The system and method of the present invention is organized to
respond to requests for hosting services wherein each user has
access to a virtual environment which is installed at a cluster of
computers in a data center. Each virtual environment represents
a full-service computer which has an operating system with a
unique administrative root user, a file system, internet protocol
address, and configurable parameters, but with no dedicated
storage or other hardware resources. Each virtual environment
is launched at a different cluster node and is created for each
user. One cluster may contain several virtual environment sets
which supply different services and users of a data center, or
each virtual environment may support a set of services to act as
a part of a common shared server.

(Spec. para. [0018], pp. 6-7, emphasis added ).
Consistent with Appellant’s Specification, we broadly but reasonably
construe the claimed “Virtual Execution Environment” as a set of services
that act as a part of a shared server (see independent claims 47 and 52).
Given the aforementioned claim construction, we agree with the
Examiner that the scope of the claimed Virtual Execution Environments
broadly encompasses Aziz’s Virtual Server Farms (see FF 1-2). In
particular, we find that the scope of Appellant’s claimed plurality of Virtual
Execution Environment sets (i.e., where each set functions as a server farm)
broadly encompasses a set containing a single element, i.e., a single server
farm. Because Aziz discloses that each organization’s logical portion of the
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computing grid is referred to as a Virtual Server Farm, we also generally
agree with the Examiner that Aziz’s Virtual Server Farms reasonably
provide different types of services to remote users who belong to different
organizations or enterprises (see FF 2).
However, the Examiner does not establish, and we do not find, that
Aziz discloses the claimed limitations of “wherein each physical cluster
node includes Virtual Execution Environments that belong to different sets,”
as recited in each of independent claims 47 and 52. In particular, we agree
with Appellant that Aziz does not teach that a single physical node can be
(simultaneously) part of two different Virtual Server Farms (see App. Br.
17, ¶ 1).
We acknowledge that Aziz discloses that computing elements (i.e.,
physical nodes) in the computing grid are fungible and have no static role
(i.e., particular computing elements in the computing grid may be
dynamically assigned to different Virtual Server Farms on an as-needed
basis, see FF 3-4). Nevertheless, we find the evidence before us supports
Appellant’s contention that the central teaching of Aziz is aggregation of
multiple hardware nodes (i.e, computers) into one or more Virtual Server
Farms (see App. Br. 16; see also FF 1).
In particular, we find Aziz is silent regarding any description of each
physical node (i.e,. each computing element or cluster of elements) being
part of two or more different Virtual Server Farms at any single point in
time. Given the Examiner’s reading of the claimed Virtual Execution
Environments on Aziz’s Virtual Server Farms, we agree with Appellant that
Aziz does not fairly disclose the limitations of “wherein each physical
cluster node includes Virtual Execution Environments that belong to
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different sets,” as recited in each of independent claims 47 and 52. We note
that “absence from the reference of any claimed element negates
anticipation.” Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571
(Fed. Cir. 1986).
Accordingly, we reverse the Examiner’s rejection of independent
claims 47 and 52 as being anticipated by Aziz. Because we have reversed
the Examiner’s rejection of each independent claim on appeal, we also
reverse the Examiner’s rejections of the dependent claims on appeal.

CONCLUSION OF LAW
Appellant has established that the Examiner erred in rejecting claims
25-29, 42-47, and 49-52 under 35 U.S.C. § 102(e) for anticipation.
Appellant has established that the Examiner erred in rejecting claims
14-24, 31-41, and 48 under 35 U.S.C. § 103(a) for obviousness.

DECISION
We reverse the Examiner’s decision rejecting claims 14-29 and 31-52.

REVERSED

pgc

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