Ex Parte Suryanarayanan et al

Patent Trial and Appeal Board

Jul 30, 2018

13928283 (P.T.A.B. Jul. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/928,283 06/26/2013 Deepak Suryanarayanan
79502 7590 08/01/2018
Knobbe, Martens, Olson & Bear, LLP
AMAZON TECHNOLOGIES, INC. (SEAZN/ AMAZON)
2040 Main Street
Fourteenth Floor
Irvine, CA 92614
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
SEAZN.803A 2043
EXAMINER
JAKOVAC,RYANJ
ART UNIT PAPER NUMBER
2445
NOTIFICATION DATE DELIVERY MODE
08/01/2018 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
SEAZN.Admin@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEEP AK SURYANARAYANAN, DAVID EVERARD BROWN,
EUGENE MICHAEL FARRELL, VIVEK LAKSHMANAN,
COLIN HARRISON BRACE, and ERIK JONATHON TELL VIK
Appeal2018-004600
Application 13/928,283
Technology Center 2400
Before JEAN R. HOMERE, MICHAEL M. BARRY, and
MICHAEL J. ENGLE, Administrative Patent Judges.
BARRY, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 1-7, 10-15, and 18-20, which are all the pending
claims. App. Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify Amazon Technologies, Inc. as the real party in
interest. App. Br. 3. Appellants also identify U.S. Patent Application Nos.
13/928,278, 13/928,284, 13/928,286, and 13/928,290 as related applications
either on appeal or in preparation for appeal. Id. at 4.
Appeal2018-004600
Application 13/928,283
Introduction
Appellants' Specification and claims are "directed to the generation
and management of a remote computing session between one or more client
computing devices and a virtual desktop instance hosted by one or more
remote data center computers of a Program Execution Service (PES)
platform." Spec. ,r 16.
Claim 1 is illustrative of the claims on appeal, shown here with
disputed limitations in italics:
1. A system comprising:
one or more computers of a Program Execution Service
(PES) including processors and memory, the memory including
instructions that, upon execution, cause the one or more
computers to:
receive a request for a virtual desktop instance
from a computing device, the request identifying a user
of the computing device, wherein the computing device
includes a local data store;
identify a first desktop store corresponding to the
user of the computing device, the first desktop store
including a desktop profile for the user and one or more
folders including user content, wherein the first desktop
store is different from the local data store; and
identify a virtual desktop instance corresponding to
the request, the virtual desktop instance associated with a
host computer system, the host computer system
including one or more processors and memory, the
memory including instructions that upon execution cause
the host computer system to:
attach the first desktop store to the virtual
desktop instance over a network;
replicate the user content in the one or more
folders stored in the first desktop store to a second
2
Appeal2018-004600
Application 13/928,283
desktop store, wherein the second desktop store is
different from the first desktop store and the local
data store;
provide, to the computing device, access to
the virtual desktop instance customized according
to the desktop profile for the user and configured
to store changes to user content to the one or more
folders stored in the first desktop store;
write changes to the user content made by
the virtual desktop instance to the one or more
folders stored in the first desktop store;
write changes to the user content made by
the virtual desktop instance to the user content
stored in the second desktop store;
determine an event related to the first
desktop store, wherein the event is indicative of a
failure of the first desktop store; and
responsive to the determination of the event,
detach the first desktop store from the virtual
desktop instance and attach the second desktop
store to the virtual desktop instance over the
network, wherein the virtual desktop instance is
maintained while the first desktop store is
detached and the second desktop store is attached.
App. Br. 30-31 (Claims App'x).
Rejections
Claims 1-7, 10, 14, 15, and 18-20 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Das (US 2013/0073703 Al; Mar. 21, 2013), Ben-
Shaul (US 2011/0231844 Al; Sept. 22, 2011), Hsu (US 2014/0095816 Al;
Apr. 3, 2014), Hansen (US 2013/0125122 Al; May 16, 2013), and Steiner
(US 2013/0219043 Al; Aug. 22, 2013). Final Act. 4--10.
3
Appeal2018-004600
Application 13/928,283
Claims 11-13 stand rejected under§ 103 as unpatentable over Das,
Ben-Shaul, Hsu, Hansen, Steiner, and Schmidt (US 2008/0189468 Al; Aug.
7, 2008). Final Act. 11-12.
ISSUES
Appellants' arguments raise the following issues:
1) Whether the Examiner failed to establish a prima facie
showing of obviousness with respect to claims 1-7, 10-15,
and 18-20 (see App. Br. 11 );
2) Whether the Examiner errs in finding the cited art teaches or
suggests the above-identified disputed limitations of claim 1
(see App. Br. 12-15);
3) Whether the Examiner errs in finding an ordinarily skilled
artisan would have been motivated to combine the teachings
of Das, Ben-Shaul, Hsu, Hansen, and Steiner to achieve the
system of claim 1 (see App. Br. 15-17); and
4) Whether the Examiner errs in finding the cited art teaches or
suggests the limitations of claim 5 (see App. Br. 17-18).
Appellants do not offer arguments for claims 2--4, 7, 10-15, and 18-
20 that substantively differ from the arguments presented for claim 1. See
App. Br. 17-29 and compare with App. Br. 12-17. Accordingly, claims 2-
4, 7, 10-15, and 18-20 stand or fall with claim 1. 37 C.F.R. 4I.37(c)(l)(iv).
ANALYSIS
Prima F acie Showing of Obviousness
Appellants argue "the reasoning of the Office Action fails to establish
a prima facie case of obviousness with respect to Claims 1-7, 10-15, and
18-20." App. Br. 11. This argument is unpersuasive. As the Federal
Circuit has clarified,
"the prima facie case is merely a procedural device that enables
an appropriate shift of the burden of production." Hyatt v.
4
Appeal2018-004600
Application 13/928,283
Dudas, 492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re
Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992)[)]. See also In
re Piasecki, 745 F.2d 1468, 1472 (Fed. Cir. 1984). The Patent
and Trademark Office ("PTO") satisfies its initial burden of
production by "adequately explain[ing] the shortcomings it
perceives so that the applicant is properly notified and able to
respond." Hyatt, 492 F.3d at 1370. In other words, the PTO
carries its procedural burden of establishing a prima facie case
when its rejection satisfies 35 U.S.C. § 132, in "notify[ing] the
applicant ... [by] stating the reasons for [its] rejection, or
objection or requirement, together with such information and
references as may be useful in judging of the propriety of
continuing the prosecution of [the] application." 35 U.S.C.
§ 132. That section "is violated when a rejection is so
uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection." Chester v.
Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990).
In re Jung, 637 F.3d 1356, 1362 (Fed. Cir. 2011).
The Examiner's findings are sufficient to establish a prima facie case
of obviousness. The Examiner maps specifically identified disclosures from
the cited references to each limitation recited in the claims and articulates
rationales, supported by citations to the references, for why an ordinarily
skilled artisan would have been motivated to combine the references as
proposed. See Final Act. 5-12; see also id. at 2-3 (providing further
relevant explanations and citations to the references in response to
arguments raised by Appellants earlier in the prosecution of the application).
Accordingly, the Examiner's rejection is not "so uninformative that it
prevents the applicant from recognizing and seeking to counter the grounds
for rejection." In re Jung, 637 F.3d at 1362.
Claim 1
In rejecting claim 1, the Examiner finds Ben-Shaul teaches the
disputed limitation's requirement of "responsive to the determination of the
5
Appeal2018-004600
Application 13/928,283
event, detach the first desktop store from the virtual desktop instance and
attach the second desktop store to the virtual desktop instance over the
network." Final Act. 6 ( citing Ben-Shaul ,r,r 52-53, 63). The Examiner then
finds Steiner teaches the recited requirement "wherein the virtual desktop
instance is maintained while the first desktop store is detached and the
second desktop store is attached." Id. at 7 (citing Steiner ,r,r 15, 18, 61---62).
Appellants argue the Examiner errs because "[t]here is no
embodiment in which the system taught in Steiner maintains a virtual
desktop instance while detaching and attaching data stores." App. Br. 12.
"Because the teachings of Steiner require that migration is predicated on a
user connecting to an instantiated [ virtual desktop], it is necessary in
accordance with the teachings of Steiner that the user was not previously
connected to the system or otherwise has to disconnect and instantiate with a
virtual desktop." Id. at 13; see also Reply Br. 2--4 (contending Steiner
merely purports to teach of a "seamless" transition, and what it teaches "is
actually a transition between two distinct user sessions" (Reply Br. 3)).
This argument is unpersuasive. Appellants read Steiner too narrowly.
Steiner discloses that when a user "migrates" between data centers, "[t]he
user connects to the instantiated VD [(virtual desktop)] on IPd [(i.e., a new
IP address)] and seamlessly resumes the session." Steiner ,r 61. In other
words, Steiner specifically states its service "migrates the VD" (virtual
desktop) and "seamlessly resumes the session." Id. ( emphases added). As
the Examiner finds, and we agree, ordinarily skilled artisans would have
understood Steiner teaches "maintaining the virtual desktop as it provides
for the user to continue using the virtual desktop, even continuing the same
session, without any appreciable downtime when the virtual desktop is
6
Appeal2018-004600
Application 13/928,283
migrated between data centers." Ans. 4. We also agree with the Examiner
that Steiner's teaching of maintaining a virtual desktop session/instance
during migration is consistent with the plain meaning of the term maintain,
which also is consistent the use of that term in Appellants' Specification and
claims. See Ans. 4---6.
Appellants also argue the Examiner errs in finding Ben-Shaul teaches
"responsive to the determination of the event, detach the first desktop store
from the virtual desktop instance and attach the second desktop store to the
virtual desktop instance," as recited in claim 1. App. Br. 13-15. "The
teachings of the Ben-Shaul reference are limited to managing an existing
data store and are expressly silent regarding any type of attaching, detaching,
switching, or replacing of multiple desktop stores." Id. at 14.
This argument is unpersuasive. As the Examiner finds, "Ben-Shaul
discloses various events that are detected which trigger the replacement of
[a] first store with an updated second store." Ans. 6 (citing Ben-Shaul ,r,r 25,
26, 45--48, 52-53, 63). We agree. Ben-Shaul specifically discloses virtual
desktops with virtual disks (i-fi-f 45--48) and switching the storage location
that a virtual disk points to based on various events (i-fi-f 52-53). Ordinarily
skilled artisans would have understood Ben-Shaul's trigger-driven
replacement of a virtual desktop' s storage to teach detaching the first
desktop store and attaching the second desktop store, as recited. Ans. 6-7.
Appellants further argue the Examiner errs because "[a]bsent
improper hindsight reasoning based on the teachings of the present
application, one skilled in the art would not be motivated to combine the
teachings of Das, Ben-Shaul, Hsu, Hansen, and Steiner," as proposed by the
Examiner. App. Br. 15; see also Reply Br. 4--5. Appellants specifically
7
Appeal2018-004600
Application 13/928,283
contend "Hansen only describes a failover procedure" and "discloses no
applicability related to continuous virtual desktop instances," and that
"Steiner is only applicable in the context of planned virtual machine
migration, and provides no utility for migration 'responsive to' an
'interruption' or 'failure,' as recited," and Steiner's teachings "are
fundamentally incompatible with the teachings of Hansen." App. Br. 16.
This argument is unpersuasive. "The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference. . . . Rather, the test is what the
combined teachings of those references would have suggested to those of
ordinary skill in the art." In re Keller, 642 F.2d 413,425 (CCPA 1981)
(citations omitted); see also EWP Corp. v. Reliance Universal Inc., 755 F.2d
898, 907 (Fed. Cir. 1985) ("A reference must be considered for everything it
teaches by way of technology and is not limited to the particular invention it
is describing and attempting to protect.").
Here, we disagree that the teachings of Hansen and Steiner are
fundamentally incompatible. Instead, the Examiner's response is
persuasive:
Hansen is only relied upon to disclose the writing of changes to
content made by a virtual desktop instance to [a] content store
in a second desktop store where an event is indicative of a
failure of the first desktop store, e.g.[, for] providing reliability,
high availability, and integrity in virtual machine systems
which are tied to remote stores. Hansen is applicable to virtual
desktop technology as it is directed to ensuring virtual machines
remain available in case of failure by replicating the data from
the virtual machine to a remote store (Hansen, [i1i1] 4--7). This
is directly related to the field of virtual desktops and appellant's
invention in particular which replicates the content of a store
associated with a virtual desktop to a secondary store.
8
Appeal2018-004600
Application 13/928,283
Ans. 7 ( also finding Steiner, similar to claim 1, "is directed to managing
computing sessions for virtual desktop instances").
We find the Examiner articulates reasoning with sufficient rational
underpinning for combining the teachings of Hansen with those of Steiner
and the other references. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)
( cited with approval in KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 419
(2007)). Accordingly, we sustain the rejection of claim 1 and, for the same
reasons, the rejections of claims 2--4, 7, 10-15, and 18-20.
Claim 5
Claim 5 recites "[ t ]he system of Claim 1, wherein the first desktop
store and the second desktop store are respectively stored on servers located
in networks independent from one another." App. Br. 31 (Claims App'x).
The Examiner finds the data replication disclosure in Das, i.e., storing a
copy of data at "another data center in a different physical location for
redundancy and enhanced availability," teaches this requirement. Final Act.
8 ( quoting Das ,r 60). Appellants argue the Examiner errs in this finding
because Das does not teach or suggest the copies "would be located in
different networks" and "to the extent Das discloses multiple data centers,
the data centers are consistently depicted as being connected to a user
computer by a single network." App. Br. 17.
Appellants' argument is unpersuasive. Das discloses a variety of
network topologies, including with multiple different networks at different
levels. See, e.g., Das ,r,r 28-29, 35, 41--42. For example, Figure 1 of Das
depicts the computer connected to both "a local area network (LAN) 51 and
a wide area network (WAN) 52." Id. ,r 28. Appellant relies on Figure 3 of
Das to argue that Das's data centers are connected "by a single network."
9
Appeal2018-004600
Application 13/928,283
App. Br. 17 (emphasis added). Das, however, contradicts Appellants'
argument. In explaining the network in Figure 3, Das discloses "[i]t should
be appreciated that a local-area network ('LAN'), the Internet, or any other
networking topology known in the art that connects the data centers 308 to
remote consumers may be utilized. It should also be appreciated that
combinations of such networks might also be utilized." Id. ,r 35 ( emphasis
added). Thus, Das teaches using multiple networks (i.e., "combinations of
such networks") for user computer 304 to connect to data centers 308.
The ordinarily skilled artisan is "a person of ordinary creativity, not an
automaton," KSR, 550 U.S. at 421, and such an artisan, in view of the
overall disclosure of Das, would have understood Das paragraph 60 teaches
or suggests using different networks for connecting to different data centers.
Accordingly, we sustain the rejection of claim 5.
DECISION
For the above reasons, we affirm the 35 U.S.C. § 103 rejections of
claims 1-7, 10-15, and 18-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
10