Ex Parte Ayala et alDownload PDFPatent Trial and Appeal BoardSep 26, 201612856019 (P.T.A.B. Sep. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/856,019 08/13/2010 79980 7590 09/28/2016 Keohane & D'Alessandro 1881 Western Avenue Suite 180 Albany, NY 12203 FIRST NAMED INVENTOR Richard J. Ayala JR. 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. END920100085US 1 1193 EXAMINER AHMED, MOHAMMED ART UNIT PAPER NUMBER 2456 NOTIFICATION DATE DELIVERY MODE 09/28/2016 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): drubbone@kdiplaw.com Docket@Kdiplaw.com lcronk@kdiplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD J. AYALA JR., ERIC K. BUTLER, KA VITA CHA VDA, MIHAIL C. CONSTANTINESCU, RESHU JAIN, PRASENJIT SARKAR, and AAMEEK SINGH Appeal2015-007405 Application 12/856,019 Technology Center 2400 Before JAMES R. HUGHES, JENNIFER L. McKEOWN, and STEVEN M. AMUNDSON, Administrative Patent Judges. McKEOWN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1, 2, 4--10, 12-18 and 20-25. We have jurisdiction under 35 U.S.C. § 6(b ). We reverse. Appeal2015-007405 Application 12/856,019 STATEMENT OF THE CASE Appellant's invention relates "to virtual machine migration. Specifically, the present invention relates to the migration of virtual machines across network (e.g., wide area network or WAN) separated data centers (e.g., storage clouds)." Spec. i-f 1. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A method for migrating a virtual machine across network separated data centers, comprising: synchronizing a first storage system associated with a first subnet with a second storage system associated with a second subnet via a storage system link; migrating a minimal state of the virtual machine executing on a first computer in the first subnet from the first computer to a second computer in the second subnet via a network link, the minimal state being an image of the virtual machine stored on the first storage system that contains only a minimum state information necessary for execution of the virtual machine; starting an execution of the virtual machine in the second computer based solely on the minimal state; terminating the storage system link; and migrating, subsequent to the terminating of the storage system link, updated pages of the virtual machine received from short term memory of the first computer subsequent to the migrating of the minimal state of the virtual machine to a memory of the second computer via the network link, the updated pages containing current state information of the virtual machine which, when merged with the minimal state, cause the virtual machine executing on the second computer to assume a latest state of execution of the virtual machine of the first computer. THE REJECTIONS The Examiner rejected claims 1, 2, 4, 5, 7-10, 12, 13, 15-18, 20, 21, and 23-25 under 35 U.S.C. § 103(a) as unpatentable over Shitomi et al. (US 2 Appeal2015-007405 Application 12/856,019 2009/0240975 Al, published Sept. 24, 2009), Portolani et al. (US 2011/0019676 Al, published Jan. 27, 2011), and Costa (US 2011/0264788 Al, published Oct. 27, 2011 ). Final Act. 2---6. 1 The Examiner rejected claims 6, 14, and 22 under 35 U.S.C. § 103(a) as unpatentable over Shitomi, Portolani, Costa, and Sato (US 2006/0129654 Al published June 15, 2006). Final Act. 7. ANALYSIS THE OBVIOUSNESS REJECTION BASED ON SHITOMI, PORTOLANI, AND COSTA Claims 1, 2, 4, 5, 7-10, 12, 13, 15-18, 20, 21, and 23-25 Based on the record before us, we are persuaded the Examiner erred in rejecting claims 1, 2, 4, 5, 7-10, 12, 13, 15-18, 20, 21, and 23-25 as unpatentable over Shitomi, Portolani, and Costa. Appellants contend that Shitomi fails to teach or suggest "migrating a minimal state of the virtual machine executing on a first computer in the first subnet from the first computer to a second computer in the second subnet via a network link, the minimal state being an image of the virtual machine stored on the first storage system that contains only a minimum state information necessary for execution of the virtual machine" and "starting an execution of the virtual machine in the second computer based solely on the minimal state." App. Br. 7-10. For example, Appellant asserts 1 Throughout this opinion, we also refer to ( 1) the Final Action, mailed July, 21, 2014 ("Final Act."); (2) the Appeal Brief filed December 22, 2014 ("App. Br."); (3) the Examiner's Answer mailed June 5, 2015 ("Ans."); and (4) the Reply Brief filed Aug. 5, 2015 ("Reply Br."). 3 Appeal2015-007405 Application 12/856,019 Shitomi fails to teach that its VNAS has state information, much less a minimal state that contains only a minimum state information necessary for execution of the virtual machine. As such, Shitomi fails to teach or suggest a migration of a minimal state, much less of a minimal state as defined in the claimed invention. App. Br. 8. As such, Appellants maintain that the Examiner fails to sufficiently explain how Shitomi teaches migration of a minimal state of the VNAS system and execution based on that migrated minimal state. Id. We agree. The Examiner finds that "OS [logical unit] LU is minimal state that is transeffered [sic] from old VNAS into new VNAS in order for virtual machine to be successfully migrated to secondary data center" and that migrating a minimal state is satisfied by migrating "VNAS LUNs prior to migration ofVNAS 2120." Final Act. 3. While we understand that OS LU are necessary for execution of the VNAS programs and are transferred, the Examiner fails to explain how the OS LU satisfies the recited minimal state that only contains minimal state information necessary for execution of the VNAS. Further, Shitomi describes migrating both OS LU and data LU and, as such, if only the OS LU is necessary for execution of the VNAS programs, Shitomi would not teach migrating a "minimal state" as required by independent claims 1, 9, 17, and 25. Accordingly, we do not sustain the rejection of claims 1, 2, 4, 5, 7-10, 12, 13, 15-18, 20, 21, and 23-25 as unpatentable over Shitomi, Portolani, and Costa. 4 Appeal2015-007405 Application 12/856,019 THE OBVIOUSNESS REJECTION BASED ON SHITOMI, PORTOLANI, COSTA, AND SATO Claims 6, 14, and 22 We are also persuaded that the Examiner erred in rejecting claims 6, 14, and 22. As discussed above, we agree with Appellants that Shitomi, Portolani, and Costa combined fail to teach the limitations of independent claims 1, 9, and 17, from which claims 6, 14, and 22 depend. Sato does not cure the deficiencies of the combination of Shitomi, Portolani, and Costa. Accordingly, we do not sustain the rejection of claims 6, 14, and 22 as unpatentable over the cited combination of Shitomi, Portolani, Costa, and Sato. DECISION We reverse the Examiner's decision to reject claims 1, 2, 4--10, 12-18 and 20-25. REVERSED 5 Copy with citationCopy as parenthetical citation