Ex Parte TUCH et al

Patent Trial and Appeal Board

Jan 24, 2018

14312175 (P.T.A.B. Jan. 24, 2018)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/312,175 06/23/2014 Harvey TUCH B 804.01 6315
152569 7590 01/26/2018
Patterson & Sheridan, LLP
24 Greenway Plaza
Suite 1600
Houston, TX 77046
EXAMINER
BOURZIK, BRAHIM
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
01/26/2018 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):
psdocketing@pattersonsheridan.com
ipadmin@vmware.com
PAIR_eOffice@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HARVEY TUCH and ANDREI WARKENTIN
Appeal 2017-008030
Application 14/312,17s1
Technology Center 2100
Before CARLA M. KRIVAK, NABEEL U. KHAN, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Technology
The application relates to “a trampoline that supports context
switches” in “a virtualized computer system” having multiple “privilege
levels.” Spec. Abstract.
Illustrative Claim
Claim 1 is illustrative and reproduced below with the limitations at
issue emphasized:
1 Appellants state the real party in interest is VMware, Inc. App. Br. 3.
Appeal 2017-008030
Application 14/312,175
1. A method of executing a context switch between hypervisor
components in a computer system operable in more than two
hierarchical privilege levels, comprising:
assigning a first component of a hypervisor to a first
privilege level and a second component of the hypervisor to a
second privilege level, wherein the second privilege level is more
privileged than the first privilege level;
activating a trampoline at the second privilege level,
wherein the trampoline is configured to support context switches
to the second component;
executing the first component at the first privilege level;
determining that a first context switch from the first
privilege level to the second privilege level is to be performed
and in response thereto, executing the trampoline at the second
privilege level', and
deactivating the trampoline and executing the second
component at the second privilege level.
Rejections
Claims 1,16, and 19 stand rejected on the grounds of nonstatutory
obviousness-type double patenting over co-pending Application No.
14/312,2257 Final Act. 6.
Claims 1-20 stand rejected under 35 U.S.C. § 103(a) as obvious over
the combination of Dobrovolskiy et al. (US 8,127,292 Bl; Feb. 28, 2012)
and Chen et al. (US 2009/0113110 Al; Apr. 30, 2009). Final Act. 11.
2 “Panels have the flexibility to reach or not reach provisional obviousness-
type double-patenting rejections.” Ex parte Jerg, No. 2011-000044, 2012
WL 1375142 at *3 (BPAI Apr. 13, 2012) (informative); see also Ex parte
Moncla, 95 USPQ2d 1884 (BPAI 2010) (precedential). Given the facts of
this case, including that both applications remain co-pending, we decline to
address the double patenting rejection at this time.
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Appeal 2017-008030
Application 14/312,175
ANALYSIS
Claim 1 recites “assigning a first component of a hypervisor to a first
privilege level and a second component of the hypervisor to a second
privilege level, wherein the second privilege level is more privileged than
the first privilege level” and “executing the trampoline at the second
privilege level.” Independent claims 16 and 19 recite commensurate
limitations (though claim 19 reverses the naming of the levels).
The Examiner finds in Chen, “[t]he trampoline is activated and set by
the VMM.” Ans. 19-20 (citing Chen ^213). However, we agree with
Appellants that Chen “does not explicitly describe the privilege level of the
trampoline handler that is setup by the VMM.” Reply Br. 3. Merely
because the VMM sets up the trampoline does not mean the trampoline
executes at the privilege level of the VMM. For example, the VMM also
sets up the virtual machines and kernels, yet these operate at lower privilege
levels than the VMM. Thus, as Appellants note (App. Br. 9), the Examiner
previously found the reverse of the claims: “Trampoline is executing in the
same level as the VM” (i.e., the lower level). Final Act. 13. The Examiner
therefore has not provided sufficient evidence or explanation showing that
Chen’s trampoline executes at the VMM’s higher privilege level.
Accordingly, we do not sustain the rejection of independent claims 1,
16, and 19, and their dependent claims 2-15, 17, 18, and 20.
DECISION
For the reasons above, we reverse the decision rejecting claims 1-20.
REVERSED
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