CUCINOTTA, Tommaso et al.

Patent Trials and Appeals Board

Oct 1, 2020

2019003836 (P.T.A.B. Oct. 1, 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.
14/994,298 01/13/2016 Tommaso CUCINOTTA 29250P-000184-US 2938
30594 7590 10/01/2020
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 8910
RESTON, VA 20195
EXAMINER
HEADLY, MELISSA A
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
10/01/2020 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):
dcmailroom@hdp.com
jhill@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOMMASO CUCINOTTA and ERIC JUL
Appeal 2019-003836
Application 14/994,298
Technology Center 2100
Before JAMES B. ARPIN, MICHAEL J. ENGLE, and
PHILLIP A. BENNETT, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1–15, which are all of the claims pending in the
application. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). According to Appellant, the real party-in-interest is
“Alcatel Lucent,” which “has been acquired by Nokia.” Appeal Br. 2.
Appeal 2019-003836
Application 14/994,298

2
TECHNOLOGY
The application relates to “migrating a data session from a first VM
[i.e., virtual machine] to a second VM.” Spec. Abstract.
ILLUSTRATIVE CLAIM
Claim 1, reproduced below with limitations at issue emphasized, is
illustrative:
1. A method, in a virtualized system comprising multiple virtual
machine (VM) instances executing over physical hardware, for
migrating a data session from a first VM instance to a second
VM instance, the method comprising:
modifying a routing rule of a load balancer of the system
such that the routing rule specifies that data from a client device
destined for the first VM instance is queued, the routing rule
representing at least one parameter for communications from the
client device;
suspending processing, at the first VM instance, of
pending requests from the client device;
transmitting, from the first VM instance to the load
balancer, data representing a state of each pending request
among the pending requests;
modifying the routing rule such that the routing rule
specifies that the endpoint for a communication channel from the
client device is the second VM instance;
transmitting the pending requests to the second VM
instance; and
after transmitting the pending requests, modifying the
routing rule such that the routing rule specifies that data from the
client device is transmitted directly to the second VM instance.
Appeal 2019-003836
Application 14/994,298

3
REJECTION
Claims 1–15 stand rejected under 35 U.S.C. § 103 as obvious over the
combined teachings of Miyazaki (US 2012/0096459 A1; Apr. 19, 2012) and
Ashihara (US 2012/0195187 A1; Aug. 2, 2012). Final Act. 3.
ISSUE
Did the Examiner err in finding Miyazaki or Ashihara teaches or
suggests “transmitting, from the first VM instance to the load balancer, data
representing a state of each pending request among the pending requests,” as
recited in claim 1?
ANALYSIS
The Examiner determines that “[u]nder the broadest reasonable
interpretation ‘data representing a state of each pending request’ can include
any information that describes the state of the pending request.” Ans. 4.
The Examiner then finds that Miyazaki “teaches that each pending request is
in a migrating state” and “[t]his information is transmitted to the load
balancer (i.e. Miyazaki’s ‘virtual switch 32-1’).” Id. (citing Miyazaki ¶¶ 57–
58, 47, 61, 69).
In the paragraphs cited by the Examiner, Miyazaki discloses that “the
virtual switch 32-1 determines whether the virtual machine . . . which has
transmitted the packet is being migrated,” and, if so, “the virtual switch 32-1
controls the selector 321-1 so as to store the received packet in the migration
transmission buffer included in the migration buffer 323-1.” Miyazaki
¶¶ 57–58. However, even if data representing the state of the virtual
machine did qualify as “data representing a state of each pending request,”
the Examiner fails to explain whether and why the virtual switch’s
Appeal 2019-003836
Application 14/994,298

4
determination is based on data transmitted from the virtual machine, as
required by claim 1 (“transmitting, by the first VM instance . . . ”).
Similarly, the Examiner finds that Ashihara “also teaches ‘data
representing a state of each pending request’ that is transmitted to the load
balancer,” yet fails to explain how such data is transmitted by a virtual
machine. Ans. 5 (citing Ashihara ¶¶ 120–21, 127).
Accordingly, we do not sustain the Examiner’s rejection of claims 1–
15.
OUTCOME
The following table summarizes the outcome of the appeal of the
rejection:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 103 Miyazaki, Ashihara 1–15
REVERSED