Ex Parte Alanis et al

Patent Trial and Appeal Board

Jun 22, 2016

13584059 (P.T.A.B. Jun. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/584,059 08/13/2012
40412 7590 06/24/2016
IBM CORPORATION-AUSTIN (JVL)
C/O LESLIE A. VAN LEEUWEN
6123 PEBBLE GARDEN CT.
AUSTIN, TX 78739
FIRST NAMED INVENTOR
Francisco Jesus Alanis
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.
AUS920110313US2 4851
EXAMINER
RANKIN, CANDICE A
ART UNIT PAPER NUMBER
2132
NOTIFICATION DATE DELIVERY MODE
06/24/2016 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):
leslie@vI-patents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FRANCISCO JESUS ALANIS and OMAR CARDONA
Appeal2014-007348
Application 13/584,059
Technology Center 2100
Before CARL W. WHITEHEAD JR., HUNG H. BUI, and
MICHAEL M. BARRY, Administrative Patent Judges.
WHITEHEAD JR., Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants are appealing the final rejection of claims 1, 2, and 4--9
under 35 U.S.C. § 134(a). Appeal Brief2. Claim 3 is canceled. We have
jurisdiction under 35 U.S.C. § 6(b) (2013).
We affirm.
Introduction
The invention is directed to a method "in which a migration agent
receives a message to migrate a virtual machine from a first system to a
second system." Specification, paragraph [04].
Appeal2014-007348
Application 13/584,059
Representative Claim (disputed limitations emphasized)
1. A method comprising:
receiving a message to migrate a virtual machine
executing on a first system to a second system, wherein the first
system includes a first network adapter used to send one or
more stateful offload data packets over a computer network;
extracting hardware state data in a native format from the
first network adapter, the hardware state data utilized to process
one or more of the stateful offload data packets;
storing the hardware state data in a first memory area
corresponding to the first system;
migrating the virtual machine to the second system,
wherein the migrating includes copying the hardware state data
from the first memory area to the second system; and
configuring a second network adapter included on the
second system, wherein the configuration includes writing the
hardware state data in the native format to the second network
adapter.
Rejections on Appeal
Claims 1, 2, and 4--9 stand provisionally rejected on the ground of
nonstatutory obviousness-type double patenting. 1,2 Final Rejection 2---6.
1 Appellants did not argue the validity of the nonstatutory obviousness-type
double patenting rejection, therefore, we sustain the rejection. See Ex parte
Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential) ("If an appellant
fails to present arguments on a particular issue - or, more broadly, on a
particular rejection-the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection. See, e.g., Hyatt v. Dudas,
551F.3d1307, 1313-14 (Fed. Cir. 2008) (the Board may treat arguments
appellant failed to make for a given ground of rejection as waived)").
Footnote continued on the next page.
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Appeal2014-007348
Application 13/584,059
Claims 1, 4, 5, 7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Broadcom (Broadcom Network Controller
Enhanced Virtualization Functionality (2009)) and van der Linden (United
States Patent Application Publication Number 2011/0022812 Al; published
January 27, 2011). Final Rejection 7-10.
Claims 2, 6, and 9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Broadcom, van der Linden and Hunt (United States Patent
Application Number 8,352,938 B2; published January 8, 2013). Final
Rejection 10-12.
ANALYSIS
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Appeal Brief (filed January 21, 2014), the Reply Brief (filed
June 18, 2014), the Answer (mailed May 22, 2014) and the Final Rejection
(mailed August 27, 2013) for the respective details. We have considered in
this Decision only those arguments Appellants actually raised in the Briefs.
Appellants argue that "Broadcom never teaches or suggests migrating
the hardware state data stored on a network adapter during virtual machine
migration" as required in claim 1. Appeal Brief 6.
The Examiner finds Broadcom discloses:
"extracting hardware state data in a native format from the first
network adapter, the hardware state data utilized to process one
or more of the stateful offload data packets" (See [Pages 2 and
3] teachings of utilizing hardware queues to route packets to
the VMs) "storing the hardware state data in a first memory
2 The Examiner included claim 3 in the statement of rejection, however,
claim 3 was cancelled. See Final Rejection 3; Appeal Brief 11.
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Appeal2014-007348
Application 13/584,059
area corresponding to the first system" (See [Pages 2 and 3]
teachings of utilizing hardware queues to route packets to
the VMs) "migrating the virtual machine to the second system,
wherein the migrating includes copying the hardware state data
from the first memory area to the second system" (See [Page 8]
teachings of a virtual functions associated with the main
data movement being assigned to another VM) "configuring
a second network adapter included on the second system,
wherein the configuration includes writing the hardware state
data in the native format to the second network adapter" (See
[Pages 2 and 3] teachings of a network adapter transiting
and receiving stateful offload packets over a network and
assigning virtual functions to another VM).
Final Rejection 7-8 (emphasis removed, parentheticals added).
Appellants further contend that Broadcom fails to disclose the
invention as the Examiner finds because:
As shown by Broadcom's Figure 1, which correspond[s] to
Broadcom's only discussion of stateful offload connections,
Broadcom discloses a single network adapter that supports
multiple virtual machines. The network adapter stores stateful
offload information in a local storage area to manage separate
queue pairs on a per-virtual machine basis. As such, if
Broadcom migrates a virtual machine that employs a stateful
offload connection, Broadcom does not migrate the hardware
state data from a first network adapter to a second network
adapter because Broadcom' s network adapter supports both
pre-migration and post-migration locations of the virtual
machine.
Appeal Brief 6.
We find Appellants' arguments persuasive because Broadcom fails to
disclose copying the hardware data of the first system to the second system
during the migration of the virtual machine from the first system to the
second system as required by both independent claims 1 and 9. We also
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Appeal2014-007348
Application 13/584,059
agree with Appellants' arguments that neither Linden nor Hunt addresses
Broadcom's deficiency. See Appeal Brief 8-9.
DECISION
The Examiner's nonstatutory obviousness-type double patenting
rejection of claims 1, 2, and 4--9 is affirmed.
The Examiner's obviousness rejection of claims 1, 2, and 4--9 is
reversed.
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). See 37 C.F.R.
§ 1.136(a)(l)(iv)(2015).
AFFIRMED
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