2019005551 (P.T.A.B. Dec. 22, 2020)

International Business Machines Corporation

Patent Trials and Appeals BoardDec 22, 2020

2019005551 (P.T.A.B. Dec. 22, 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. 14/586,078 12/30/2014 Gregory R. Hintermeister ROC920140146US2 7669 46296 7590 12/22/2020 MARTIN & ASSOCIATES, LLC P.O. BOX 548 CARTHAGE, MO 64836-0548 EXAMINER PATEL, RONAK ART UNIT PAPER NUMBER 2458 NOTIFICATION DATE DELIVERY MODE 12/22/2020 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): derekm@ideaprotect.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY R. HINTERMEISTER and DAVID NIEDERGESES Appeal 2019-005551 Application 14/586,078 Technology Center 2400 Before, ALLEN R. MACDONALD, JEAN R. HOMERE, and CAROLYN D. THOMAS, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s rejection of claims 1–8 and 10–18, all of the claims pending.2 Appeal Br. 1. Claim 9 has been canceled. Appeal Br. 13 (Claims App). Claim 11 is missing from the claims appendix. Id. We have jurisdiction 1 We refer to the Specification filed Dec. 30, 2014 (“Spec.”); the Non-Final Office Action, mailed Sept. 5, 2018 (“Non-Final Act.”); the Appeal Brief, filed Jan. 28, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed May 17, 2019 (“Ans.”); and the Reply Brief, filed July 16, 2019 (“Reply Br.”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies International Business Machines Corporation., as the real party-in-interest. Appeal Br. 1. As noted by Appellant, this appeal relates to Appeal No. 2019-005620 (14/585,475). Id. Appeal 2019-005551 Application 14/586,078 2 under 35 U.S.C. § 6(b). We affirm, and designate our affirmance as a new ground of rejection. II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for pre-deploying and relocating pre-configured embedded cloud elements (518, 520) for fast configuration/deployment of a scalable cloud computing environment. Spec. ¶¶ 2, 6. Figure 6, reproduced and discussed below, is useful for understanding the claimed subject matter: Figure 6 above illustrates cloud manager (510) utilizing environment configuration mechanism (ECM- 350) to relocate virtual machines (VMs 518, 520) from pre-deployed/pre-configured virtual server/ embedded cloud (1) on physical server (512) to a more permanent location in physical server (610) as the workload of VMs (518, 520) exceeds a predetermined threshold. Spec. ¶¶ 6, 62–67. Appeal 2019-005551 Application 14/586,078 3 In particular, upon pre-deploying embedded clouds (1, 2) on physical server (512), ECM (350) monitors resource consumption of VMs (518, 520) therein, and dynamically relocates VMs (518, 520) from embedded cloud (1) in physical server (512) to a more permanent location in physical server (610, 612) on dedicated hardware as their resource consumption exceeds a predetermined threshold, ECM (350). Id. ¶¶ 65– 67. Claims 1, 10, and 18 are independent. Claim 1, reproduced below with disputed limitations emphasized, is illustrative: 1. An apparatus comprising: at least one processor; a memory coupled to the at least one processor; an environment configuration mechanism residing in the memory and executed by the at least one processor, wherein the environment configuration mechanism predeploys and preconfigures a plurality of embedded clouds on a physical server, wherein each of the plurality of embedded clouds comprise an embedded cloud controller and at least one embedded host for provisioning workloads; and wherein the environment configuration mechanism allows a user to provision workloads on an embedded host on an embedded cloud of the plurality of embedded clouds, and relocates the provisioned workloads by the user from the embedded host to a new host on permanent physical hardware when a resource loading of the physical server of the embedded cloud exceeds a threshold. Appeal Br. 12 (Claims App.). Appeal 2019-005551 Application 14/586,078 4 III. REFERENCES The Examiner relies upon the following references.3 Name Reference Date Gupta US 2012/0096457 A1 Apr. 19, 2012 Srinivasan US 2014/0164598 A1 June 12, 2014 Singh US 2015/0378765 A1 Dec. 31, 2015 IV. REJECTION The Examiner rejects claims 1–8 and 11–18 under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Gupta, Singh, and Srinivasan. Non-Final Act. 4–11. V. ANALYSIS We consider Appellant’s arguments in the order they are presented in the Appeal Brief, pages 4–11 and the Reply Brief, pages 2–7.4 Appellant argues that the Examiner erred in finding that the combination of Gupta, Singh, and Srinivasan teaches or suggests pre- deploying embedded clouds on a physical server, as recited in independent claims 1, 10, and 18. Appeal Br. 4, Reply Br. 2. In particular, Appellant argues that Singh does not cure the admitted deficiencies of Gupta because Singh is concerned with “pre-provisioning virtual machines” and “scaling resources in a deployment environment located on multiple physical machines in the cloud computing platform 110”. Appeal Br. 4 (citing Singh 3 All reference citations are to the first named inventor only. 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2018). Appeal 2019-005551 Application 14/586,078 5 ¶ 37) (emphasis added). According to Appellant, even if Singh’s deployment environment can be considered as the embedded clouds, Singh teaches provisioning them on a cloud computing platform with multiple physical servers, and pre-deploying VM pools therein as opposed to pre- deploying the deployment environments on a single physical server. Id. at 5. Appellant admits nonetheless that Singh teaches deploying the deployment environment on servers 148. Id. (citing Singh, Fig. 1). These arguments are not persuasive of reversible Examiner error. As a preliminary matter, Appellant’s argument regarding pre- deploying the deployment environments on a single server is not commensurate with the scope of the claim. The disputed claim limitation does not recite or require a single server. Under the broadest reasonable interpretation, the recitation of “pre-deploying a plurality of embedded clouds on a physical server,” encompasses pre-deploying the embedded clouds on one or more physical servers. Accordingly, Singh’s disclosure, as admitted by Appellant, of a cloud computing platform including a plurality of physical servers upon which are deployed the VM pools and in which resources of the deployment environments are located teaches the disputed limitations. Further, Appellant’s attempt to distinguish Singh’s VM pools from the deployment environments misses the mark. In fact, Singh discloses that VM pools are collections of virtual machines that have been provisioned, configured and pre-loaded with software by a pool manager to execute one or more application components in a deployed application. Singh ¶¶ 16, 17. According to Singh, the pool manager may create the VM pools within deployment environments provided by a cloud computing platform provider including network of storage arrays shared between Appeal 2019-005551 Application 14/586,078 6 physical servers thereon. Id. ¶ 19. Therefore, Singh discloses that the deployment environment as including one or more VM pools, which are stored on physical servers interfacing with one another. Id. ¶ 21. Accordingly, Singh’s disclosure of deployment environments including the VM pools deployed on the physical servers teaches the embedded clouds pre-deployed on one or more physical servers, as required by independent claims 1, 10, and 18. Further, Appellant argues that Singh does not teach each embedded cloud includes a cloud controller and a host for provisioning workloads. Appeal Br. 5. According to Appellant, Singh’s disclosure of virtual computing resources (e.g., load balancer, appserver node) in the cloud computing platform do not teach the cloud controller for performing cloud management function such as deploying VMs. Id. at 5. This argument is not persuasive. Singh discloses an application director, which may be implemented in the VMs to deploy an application into the deployment environment, as well as for managing the resources of the VMs. Singh ¶¶ 21, 22, 29. Accordingly, Singh’s resource director, when implemented in the VM pools within a deployment environment teaches the cloud controller, and the host provisioning the workloads, as recited in independent claims 1, 10, and 18.5 5 Because we have modified the Examiner’s proposed combination of Gupta, Singh, and Srinivasan, we designate our affirmance of the Examiner rejection as a new ground of rejection. See In re Leithem, 661 F.3d 1316, 1319 (Fed. Cir. 2011) (“Mere reliance on the same statutory basis and the same prior art references, alone, is insufficient to avoid making a new ground of rejection when the Board relies on new facts and rationales not previously raised to the applicant by the examiner.”). Appeal 2019-005551 Application 14/586,078 7 Additionally, Appellant argues that Srinivasan does not teach or suggest relocating workloads from embedded host to a new host on a permanent physical hardware. Appeal Br. 6. This argument is not persuasive because it does not particularly address the Examiner’s finding that Srinivasan’s disclosure of migrating workload between cloud environments when a predetermined threshold is reached thereby complimenting Singh to migrate cloud resources from one physical server to another. Non-Final Act. 6–7 (citing Srinivasan ¶ 16). We find nonetheless that the combination of the cited teachings of Gupta, Singh, and Srinivasan is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from such an arrangement. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Therefore, the ordinarily skilled artisan, being “a person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably achieve a deployment environments containing VM pools pre-deployed on a cloud computing platform located on a physical server, wherein the VM pools include a resource director for controlling resources being shared by multiple servers. Because Appellant has solely addressed Singh’s teachings without addressing the merits of Gupta and Srinivasan’s teachings, Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Therefore, we agree with the Examiner that the proposed modification would have been within Appeal 2019-005551 Application 14/586,078 8 the capabilities of the ordinarily skilled artisan. Consequently, we are satisfied that, on this record, that the combination of Gupta, Singh, and Srinivasan would have taught or at least suggested the disputed limitations as discussed above. Accordingly, we are not persuaded of error in the Examiner’s rejection of claims 1, 10, and 18 over the combined teachings of Gupta, Singh, and Srinivasan. Regarding the rejection of claims 2–8 and 11–17, Appellant has not presented separate patentability arguments or has reiterated substantially the same arguments as those previously discussed for the patentability of claims 1, 10, and 18. As such, claims 2–8, and 11–17 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). VI. CONCLUSION We affirm the Examiner’s rejection of claims 1–8, and 10–18. 37 C.F.R. § 41.50(b) provides that, “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new grounds of rejection to avoid termination of proceedings (37 C.F.R. § 1.197 (b)) as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under 37 C.F.R. § 41.52 by the Board upon the same record. . . . Appeal 2019-005551 Application 14/586,078 9 VII. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/ Basis Affirmed Reversed New Ground 1–8, 10– 18 103 Gupta, Singh, Srinivasan 1–8, 10– 18 1–8, 10–18 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED 37 C.F.R. § 41.50(b)