Intel Corporation

Patent Trials and Appeals Board

Dec 11, 2020

2019002964 (P.T.A.B. Dec. 11, 2020)

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.
15/808,581 11/09/2017 Xiantao ZHANG 110466-235007/
P69030US-C1
8475
31817 7590 12/11/2020
SCHWABE, WILLIAMSON & WYATT, P.C.
1211 SW 5th Avenue, Suite 1600
Portland, OR 97204
EXAMINER
CHAN, TRACY C
ART UNIT PAPER NUMBER
2137
NOTIFICATION DATE DELIVERY MODE
12/11/2020 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):
IPDocketing@SCHWABE.com
intelparalegal@schwabe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte XIANTAO ZHANG and DONGXIAO XU
Appeal 2019-002964
Application 15/808,581
Technology Center 2100
Before MICHAEL J. STRAUSS, MICHAEL J. ENGLE, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 26–37. Claims 1–25 are cancelled. We
have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Intel
Corporation. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to memory management in virtualized
computing. Appellant summarizes an embodiment in the Specification:
In embodiments, an apparatus may include a virtual machine
manager to manage operations of a plurality of virtual machines,
having a memory manager to manage allocation and de-
allocation of physical memory to and from the plurality of virtual
machines. Allocation and de-allocation may include de-
allocation of . . . used physical memory allocated to a first of the
plurality of virtual machines to recover physical memory for
allocation to one or more other ones of the plurality of virtual
machines, and re-allocation of physical memory for the
previously deallocated . . . used physical memory of the first
virtual machine. As a result, more virtual machines may be
supported for a given amount of physical memory, or less
memory may be required to support a given number of virtual
machines.
Spec. 2, ll. 6–15. Claim 26, reproduced below with the disputed limitation
in italics, is illustrative of the claimed subject matter:
26. An apparatus for virtualized computing, comprising:
one or more processors;
physical memory coupled with the one or more
processors; and
a virtual machine manager to be operated by the one or
more processors to manage operations of a plurality of virtual
machines operated by the one or more processors, that includes
management of allocation and de-allocation of portions of the
physical memory to and from the plurality of virtual machines,
including:
de-allocation of a portion of the physical memory
allocated to a first of the plurality of virtual machines and
currently being used by the first virtual machine, to recover the
portion of the physical memory for allocation to another virtual
machine, and
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re-allocation of the de-allocated portion of the physical
memory to the another virtual machine;
wherein to de-allocate the portion of the physical memory
allocated to and used by the first virtual machine and re-allocate
the portion of the physical memory to the another virtual
machine, the virtual machine manager is to compress data in the
portion of the physical memory being deallocated, make a copy
of the compressed data, prior to re-allocation of the portion of the
physical memory to the another virtual machine.
Appeal Br. 12 (Claims Appendix).
REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Dahlstedt US 2009/0070776 A1 Mar. 12, 2009
Swart US 2009/0204963 A1 Aug. 13, 2009
Martin US 2013/0346493 A1 Dec. 26, 2013
REJECTIONS
Claims 26–28, 30–32, and 34–36 stand rejected under 35 U.S.C. § 103
as being unpatentable over Dahlstedt and Swart. Final Act. 6–11.
Claims 29, 33, and 37 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Dahlstedt, Swart, and Martin. Final Act. 12.
Claims 26, 30, and 34 stand provisionally rejected for double-
patenting as being unpatentable over claims 1, 11, and 21 of Application No.
14/778,054.3

2 All citations herein to the references are by reference to the first named
inventor/author only.
3 As pointed out by Appellant, the allegedly conflicting application cited in
the provisional double patenting rejection has gone abandoned. See Notice
of Abandonment in App. No. 14/778,054 issued on June 21, 2018. As such,
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ISSUE
Has the Examiner erred in finding the combination of Dahlstedt and
Swart teaches or suggests the disputed limitation “de-allocation of a portion
of the physical memory allocated to a first of the plurality of virtual
machines and currently being used by the first virtual machine, to recover
the portion of the physical memory for allocation to another virtual
machine,” as recited in claim 26?
ANALYSIS
The Examiner rejects claim 26 as being obvious over the teachings of
Dahlstedt and Swart. Final Act. 6–10; see also Final Act. 2–4 (responding
to Appellant’s arguments). Relevant here, the Examiner finds that the
combination teaches or suggests the disputed limitation because (1) Swart
teaches compressing used memory in a virtual machine so that it may copied
to another region of memory, thereby freeing up space for use by the virtual
machine, and (2) Dahlstedt teaches compacting (i.e., de-allocating) unused
memory re-allocating that memory to another virtual machine. Final Act. 2–
3. The Examiner concludes that a person of ordinary skill in the art would
have found it obvious to achieve the disputed limitation because:
[W]ith the teachings of Dahlstedt and Swart before them, [a
skilled artisan would have sought] to improve Dahlstedt’s
compaction and reallocation a portion of physical memory of an
operating virtual machine to another operating virtual machine
with Swart’s compressing data and unloading the compressed
data from used physical memory to free up the used physical
memory because compression and unloading the compressed

we agree with Appellant that there is no longer any basis for the provisional
double patenting rejection. Because the Examiner has not withdrawn the
rejection, we reverse the double-patenting rejection.
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data from the used physical memory is well-known in the art to
free up space and increase available memory, wherein the free[d]
up space is then reasonably re-allocated to another virtual
machine.
Final Act. 4.
Appellant argues the Examiner erred because “Swart and Dahlstedt do
not teach the recitations of ‘deallocation of used memory’ or ‘re-allocation
of the de-allocated portion of the physical memory to the another virtual
machine’ of claim 26.” Appeal Br. 9. More specifically, Appellant argues
that Dahlstedt teaches only de-allocating unused memory via compaction of
objects, and re-allocating that memory to another virtual machine—which is
contrary to the requirement that it be memory “currently being used” that is
de-allocated. Appeal Br. 5–6. Appellant further asserts that Swart does not
cure this deficiency because it teaches only compressing and unloading
memory so that the freed memory can be used by the same virtual machine.
Appeal Br. 8–9. According to Appellant, “at best, [Dahlstedt and Swart]
merely teach ‘deallocation of unused memory,’ and reuse of the now
deallocated memory by the same virtual machine.” Appeal Br. 9
(extraneous punctuation removed).
We are not persuaded of error. Appellant emphasizes that neither
reference teaches deallocating a portion of the currently used physical
memory so that it can be allocated to another virtual machine. However, this
form of argument attacks the references singly, while the rejection set forth
by the Examiner is based on what the combined teachings would have
suggested to an ordinarily skilled artisan. See In re Keller, 642 F.2d 413,
425 (CCPA 1981) (holding that one cannot show non-obviousness by
attacking references individually where the rejection is based on
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combinations of references). Appellant’s claim recites a process by which
physical memory that is currently being used by a first virtual machine is
deallocated and recovered for allocation to another virtual machine.
Although Appellant emphasizes that the portion of physical memory is
“currently being used,” in actuality the deallocation process simply
compresses data in the portion of physical memory, makes a copy of the
compressed data, and moves the data so that the portion of physical memory
is freed up for deallocation. That is, properly understood, the claimed
recitation of “currently being used” merely means that the portion of
memory is freed up using memory compression, and then once it is free, is
de-allocated and reallocated. See, e.g., claim 1 (“wherein to de-allocate the
portion of the physical memory allocated to and used by the first virtual
machine and re-allocate the portion of the physical memory to the another
virtual machine, the virtual machine manager is to compress data in the
portion of the physical memory being de-allocated, make a copy of the
compressed data, prior to re-allocation of the portion of the physical memory
to the another virtual machine”). This understanding is consistent with an
embodiment described in the Specification. Spec. 7, ll. 4–11 (describing
process whereby “[d]ata in the used memory being swapped may be
compressed, and copied into the portion of [the] memory pool, thereby
allowing the used memory of the virtual machine to be freed for allocation to
other virtual machines” (reference numerals omitted)).
We agree with the Examiner that the combined teachings of the cited
references teach or suggest the disputed limitation. Dahlstedt relates to “[a]
system and method to improve memory usage in virtual machines.”
Dahlstedt Abstract. Dahlstedt teaches deallocating unused physical memory
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so that it may be reallocated to another virtual machine. Dahlstedt ¶ 43
(“Java objects in these heaps are compacted to make it possible to reduce
their sizes and to create a new Java heap with the newly acquired memory.
The new Java heap can then be used by the new OS/JBM guest to store Java
objects.”). Dahlstedt differs from the claim only in that the space that is re-
allocated is identified because it is already unused, and that unused space is
made contiguous via a memory compaction process. Dahlstedt ¶ 39 (“A
compacting garbage collector . . . moves the selected Java objects close to
each other, to create large areas of unused memory.”).
Swart demonstrates that it was known in the art to free up memory in
virtual machines via a memory compression process. Swart ¶¶ 80–85.
Specifically, Swart teaches “bytecodes have been compressed by a
compression algorithm . . . and have been unloaded from the class storage
region for storage in the moveable storage region.” Swart ¶ 84. By moving
that compressed memory, Swart’s virtual machine “frees up space in the
class storage region . . . [and] enables the usage of permanent storage by a
given program application to be reduced.” Swart ¶ 84.
We agree with the Examiner that a person of ordinary skill in the art,
possessing these teachings would have found it obvious to combine them in
the same fashion as Appellant’s claimed approach. That is, a person of
ordinary skill in the art would have found it obvious to first free up memory
as taught by Swart, and then to de-allocate and re-allocate the memory as
taught by Dahlstedt. As explained by the Examiner in the Answer, “the
memory that has been ‘freed up’ by Swart’s compression and unloading
action is then de-allocated by Dahlstedt’s de-allocating un-used space and
re-allocated to another virtual machine.” Ans. 5. Accordingly, we are not
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persuaded the Examiner erred in concluding that claim 26 would have been
obvious over the prior art.
Remaining Claims
Appellant presents no separate arguments for patentability of any
dependent claims. Accordingly, we sustain the Examiner’s rejections of
these claims for the reasons stated with respect to the independent claims
from which they depend. See 37 C.F.R. § 41.37(c)(1)(iv).
CONCLUSION
We affirm the Examiner’s decision to reject claims 26–28, 30–32, and
34–36 under 35 U.S.C. § 103 as being unpatentable over Dahlstedt and
Swart.
We affirm the Examiner’s decision to reject claims 29, 33, and 37
under 35 U.S.C. § 103 as being unpatentable over Dahlstedt, Swart, and
Martin.
We reverse the Examiner’s decision to reject claims 26, 30, and 34 for
double-patenting as being unpatentable over claims 1, 11, and 21 of
Application No. 14/778,054.
Because we have affirmed at least one ground of rejection for each
claim on appeal, we affirm the Examiner’s decision to reject the claims.
37 C.F.R. § 41.50(a)(1).
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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
26–28, 30–
32, 34–36
103 Dahlstedt, Swart 26–28, 30–
32, 34–36

29, 33, 37 103 Dahlstedt, Swart,
Martin
29, 33, 37
26, 30, 34 N/A Double patenting 26, 30, 34
Overall
Outcome
26–37

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED