Ian Pratt et al.Download PDFPatent Trials and Appeals BoardDec 2, 201914140438 - (D) (P.T.A.B. Dec. 2, 2019) Copy Citation 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 2 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 3 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 4 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 5 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 Appeal 2018-004952 Application 14/140,438 6 ¶ 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 Copy with citationCopy as parenthetical citation