Ex Parte Bess

Patent Trial and Appeal Board

Mar 16, 2016

12148767 (P.T.A.B. Mar. 16, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/148,767 04/22/2008 Charles E. Bess
56436 7590 03/18/2016
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
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.
82257560 4305
EXAMINER
ZHEN, LIB
ART UNIT PAPER NUMBER
2197
NOTIFICATION DATE DELIVERY MODE
03/18/2016 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):
hpe.ip.mail@hpe.com
mkraft@hpe.com
chris.mania@hpe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHARLES E. BESS
Appeal2014-003906
Application 12/148,767
Technology Center 2100
Before JEAN R. HOMERE, JOSEPH P. LENTIVECH, and
SHARON PENICK, Administrative Patent Judges.
LENTIVECH, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1-13, the only claims pending in the
application on appeal. We have jurisdiction over the pending claims under
35 U.S.C. § 6(b).
We reverse.
1 According to Appellant, the real party in interest is Hewlett-Packard
Company and Hewlett-Packard Development Company, L.P. App. Br. 3.
Appeal2014-003906
Application 12/148,767
STATEMENT OF THE CASE
Appellant's Invention
Appellant's invention generally relates to portability of data
processing system applications. Spec. i-f 1. Appellant's invention enables
the movement of the application from one platform (e.g., a work desktop
computer) to another (e.g., a mobile device) to another (e.g., a home desktop
computer). Spec. i-f 25. To enable the movement of the application, the
application is encapsulated within a virtual environment that has an interface
with the outlying operating system. Spec. i-f 26. The interface is supported
on all the platforms where the application can be transported. Id. To move
the application to a new platform, the application's environment is
packaged, including any state information, transported to the new system,
opened, and then plugged in using the supported interface. Id. Claim 1,
which is reproduced below (with some paragraphing and emphasis added to
highlight the disputed limitations).
1. A data processing system compnsmg a processor and
accessible memory,
the data processing system executing a first operating
system instance of a first operating system,
the data processing system also having an application and
virtualized application environment executable thereon,
the application and virtualized application environment
being capable of storing a state of the application and of being
packaged and moved without moving an operating system to a
second data processing system having a second operating system
instance,
the second operating system instance being an instance of
a second operating system different from the first operating
system,
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Appeal2014-003906
Application 12/148,767
the virtualized application environment being capable of
executing on the second operating system.
Rejections
Claims 1, 4---6, 8, and 10 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Miloushev et al. (US 2007 /0078988 Al, published
April 5, 2007) (hereinafter "Miloushev") and Barnes et al. (US 7 ,818,410
Bl, issued Oct. 19, 2010) (hereinafter "Barnes"). Final Act. 3-7.
Claims 2, 3, 7, 9, and 11-13 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Miloushev, Barnes, and Allwell et al. (US
2008/0263258 Al, published Oct. 23, 2008) (hereinafter "Allwell"). Final
Act. 7-10.
Dispositive Issue
Did the Examiner err by finding that the combination of Miloushev
and Barnes discloses "the application and virtualized application
environment being capable of storing a state of the application and of being
packaged and moved without moving an operating system to a second data
processing system having a second operating system instance ... ,"as
recited in claim 1?
ANALYSIS
Miloushev relates to methods and systems for deploying and
operating distributed applications on a wide variety of hardware
configurations. Miloushev, Abstract; i-fi-126-27. Miloushev describes a
method that is based on an application model, and is used for visually
designing, constructing, troubleshooting, and deploying distributed
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Appeal2014-003906
Application 12/148,767
applications. Miloushev if 26. The Examiner finds "the operating system in
Miloushev's virtual appliance corresponds to the claimed 'virtualized
application environment."' Ans. 4. The Examiner finds Miloushev teaches
or suggests the disputed limitation because:
Miloushev in paragraph [0261] discloses server with host
operating systems and virtual machine manager for executing the
virtual appliances (paragraph [0266]), which in tum includes its
own operating system. Therefore, the host operating system in
one server (i.e. server 2210, Fig. 22) in Miloushev correspond to
the claimed "instance of a first operating system" on a data
processing system and host operating system executing in a
second server (i.e. server 2220, Fig. 22) corresponds to the
claimed "a second operating system instance" on a second data
processing system. The host operating system in Miloushev is
not packed and moved to another server when the virtual
appliance is migrated.
Ans. 4.
Appellant contends the Examiner erred in finding Miloushev teaches
the disputed limitation because the applied references do not teach or
suggest packaging and moving the application and the virtualized
application environment without moving an operating system, as required by
claim 1. App. Br. 12-14. Appellant acknowledges Miloushev's host
operating system is not moved with the application but contends Miloushev
fails to teach or suggest the disputed limitation because Miloushev expressly
teaches that the operating system for the application is moved during the
migration and"[ c ]laim 1 requires 'without moving an operating system."'
Reply Br. 6; see also Reply Br. 8-9. Appellant further contends that
Miloushev does not teach or suggest that the operating system for the
application is a "virtualized application environment" but, instead, teaches
that the operating system is a "real" application environment because
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Appeal2014-003906
Application 12/148,767
Miloushev does not teach or suggest that the operating system for the
application emulates anything. Reply Br. 9-10.
We find Appellant's contentions persuasive. Miloushev teaches that a
key aspect of the application model is a virtual appliance. Miloushev i-f 29.
Miloushev further teaches:
A virtual appliance is an instantiable object that consists of a
virtual machine, one or more virtual volumes and one or more
virtual network interfaces" and "encapsulates a complete
software stack, including an operating system, middleware and
similar software services, and a distinct application service that
implements a specific function to be used in a distributed
application (e.g., a web server, a load balancer, a database
engine).
Id. (emphasis added). Because Miloushev' s teaching of moving the virtual
appliance to a computing environment would result in moving an operating
system thereto, and would thereby vitiate the claim requirement "without
moving an operating system ... ,"we agree with Appellant Miloushev fails
to teach or suggest the disputed limitations as required by claim 1.
Because we find this issue to be dispositive, we do not reach
Appellant's further allegations of error.
Accordingly, we do not sustain the Examiner's rejection of claim 1
and claims 2-13 which recite corresponding limitations.
DECISION
We reverse the Examiner's rejections of claims 1-13.
REVERSED
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