Ian Pratt et al.

Patent Trials and Appeals Board

Dec 2, 2019

14140438 - (D) (P.T.A.B. Dec. 2, 2019)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/140,438 12/24/2013 Ian Pratt BROM.P246 9201
102107 7590 12/02/2019
Brokaw Patent Law, PC
101 Church Street, Suite 50
Los Gatos, CA 95030
EXAMINER
WU, STEPHANIE
ART UNIT PAPER NUMBER
2133
NOTIFICATION DATE DELIVERY MODE
12/02/2019 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):
amaloney@brokawpatentlaw.com
chris@brokawpatentlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte IAN PRATT and CHRISTIAN LIMPACH1
____________________

Appeal 2018-004952
Application 14/140,438
Technology Center 2100
____________________

Before MICHAEL J. STRAUSS, JEREMY J. CURCURI, and
JON M. JURGOVAN, Administrative Patent Judges.

JURGOVAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant seeks review under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3–7, 9–13 and 15–18, which constitute all the
claims pending in this application. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.2

1 We use the word “Appellant” to refer to “applicant(s)” as defined in 37
C.F.R. § 1.42. According to Appellant, the real party in interest is Bromium,
Inc. Appeal Br. 3.
2 Our Decision refers to the Specification (“Spec.”) filed December 24,
2013, the Final Office Action (“Final Act.”) mailed April 6, 2017, the
Appeal Brief (“Appeal Br.”) filed October 16, 2017, the Examiner’s Answer
Appeal 2018-004952
Application 14/140,438

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CLAIMED SUBJECT MATTER
The claims are directed to memory management performed by a
hypervisor which executes on a host operating system and manages virtual
machines. Spec. Abstract. When the hypervisor instantiates a virtual
machine, it preferentially allocates memory pages for the new machine using
unassigned memory above four gigabytes before using memory below four
gigabytes which the host operating system allocates. Id. Claim 1,
reproduced below, is representative of the claimed invention:
1. A non-transitory computer-readable storage medium that
tangibly stores one or more sequences of instructions for
performing memory management by a hypervisor, which when
executed by one or more processors, cause:
executing, on a device, a host operating system and the
hypervisor, wherein the host operating system is not configured
to access physical memory addressed above four gigabytes, and
wherein the hypervisor executes on the host operating
system;
the hypervisor managing a set of memory to be used by
the hypervisor or by virtual machines instantiated by the
hypervisor, wherein the set of memory includes memory
addressed above four gigabytes, and
upon the hypervisor being instructed to instantiate a virtual
machine, the hypervisor allocating memory pages for the virtual
machine by preferentially using any unassigned memory
addressed above four gigabytes before using memory allocated
from the host, wherein all memory allocated from the host is
below four gigabytes.

Appeal Br. 23 (Claims Appendix).

(“Ans.”) mailed February 12, 2018, and the Reply Brief (“Reply Br.”) filed
April 12, 2018.
Appeal 2018-004952
Application 14/140,438

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REFERENCES AND REJECTIONS ON APPEAL
Claims 1, 3, 4, 7, 9, 10, 13, 15, and 16 stand rejected under 35 U.S.C.
§ 103 based on Chen (US 7,478,388 B1 issued January 13, 2009), Campini
(US 2008/0229053 A1, published September 18, 2008), and Zimmer
(US 2006/0070065 A1, published March 30, 2006). Final Act. 2–12.
Claims 5, 11, and 17 stand rejected under 35 U.S.C. § 103 based on
Chen, Campini, Zimmer, and Omelyanchuk (US 8,370,838 B1, issued
February 5, 2013). Final Act. 12–15.
Claims 6, 12, and 18 stand rejected under 35 U.S.C. § 103 based on
Chen, Campini, Zimmer, Omelyanchuk, and Tomlinson
(US 2013/0346719 A1, published December 26, 2013). Final Act. 15–20.

ANALYSIS
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) where present, objective
Appeal 2018-004952
Application 14/140,438

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evidence of nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18
(1966).
Appellant argues independent claims 1, 7, and 13 together as one
group. App. Br. 22. Accordingly, we select claim 1 as representative of the
group and address only this claim in our analysis. See 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 1 recites “upon the hypervisor being instructed to instantiate a
virtual machine, the hypervisor allocating memory pages for the virtual
machine by preferentially using any unassigned memory addressed above
four gigabytes before using memory allocated from the host, wherein all
memory allocated from the host is below four gigabytes.” The Examiner
finds that Zimmer teaches this limitation. Final Act. 4–5 (citing Zimmer
¶¶ 45, 46, Fig. 4). Appellant disagrees. Final Act. 19–21; Reply Br. 2–8.
Specifically, Appellant argues that Zimmer initially packs a Guest OS
below 4 GB, and for this reason, Zimmer cannot perform “allocating
memory pages for the virtual machine by preferentially using any
unassigned memory addressed above four gigabytes before using memory
allocated from the host, wherein all memory allocated from the host is below
four gigabytes.” App. Br. 21.
Appeal 2018-004952
Application 14/140,438

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Appellant’s argument is persuasive. Zimmer’s Figure 4 is shown
below:

In Zimmer’s Figure 4, after launching a Virtual Machine Monitor (“VMM”)
(which corresponds to the claimed “hypervisor”) (Fig. 4, Step 404) and a
virtual machine (“VM”) and its associated guest OS (Fig. 4, Step 410), the
guest OS is packed into a lower virtual memory address space below 4 GB
(Fig. 4, Step 412). Zimmer ¶ 45. “The logic assumes a 32-bit Guest OS, so
any Guest OS is initially placed below 4 GB.” Id. Zimmer’s teaching in this
regard directly contradicts the argued claim language, which requires
allocating a virtual machine unassigned memory pages above 4 GB before
using memory allocated by the host operating system below 4 GB. The
Guest OS can go into a 64-bit mode (Fig. 4, Step 414) and Zimmer remaps
the guest OS to a higher virtual memory address space above 4 GB (Fig. 4,
Step 416) so that lower virtual memory address space may be saved for use
by 32-bit Guest OS’s and applications. This remap, however, occurs after
initial packing in the lower virtual memory space below 4 GB. Zimmer
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Application 14/140,438

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¶ 46. Accordingly, Zimmer does not disclose the argued claim limitation.
The Examiner does not find that any of the other references cures this
deficiency.
For the foregoing reason, we do not sustain the rejection of
independent claims 1, 7, and 13, or their dependent claims.
As our decision concerning this argument is dispositive of the case,
we do not address Appellant’s remaining arguments.

DECISION
We reverse the Examiner’s rejection of claims 1, 3–7, 9–13, and 15–
18 under 35 U.S.C. § 103.

Claims
Rejected
Basis References Affirmed Reversed
1, 3, 4, 7,
9, 10, 13,
15, 16
103 Chen, Campini, Zimmer
1, 3, 4, 7,
9, 10, 13,
15, 16
5, 11, 17 103 Chen, Campini, Zimmer, Omelyanchuk 5, 11, 17
6, 12, 18 103 Chen, Campini, Zimmer, Omelyanchuk, Tomlinson 6, 12, 18
Overall
Outcome

1, 3–7,
9–13,
15–18

REVERSED