Ex Parte Branson et al

Patent Trial and Appeal Board

Jul 27, 2016

13676714 (P.T.A.B. Jul. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/676,714 11/14/2012 Michael J. Branson
46296 7590 07/29/2016
MARTIN & ASSOCIATES, LLC
P.O. BOX548
CARTHAGE, MO 64836-0548
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.
ROC920080236US2 7643
EXAMINER
LEE, TAMMY EUNHYE
ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
07/29/2016 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):
derekm@ideaprotect.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL J. BRANSON and GREGORY R. HINTERMEISTER
Appeal2015-003281
Application 13/676,714
Technology Center 2100
Before, BRUCE R. WINSOR, LINZY T. McCARTNEY, and
NATHAN A. ENGELS, Administrative Patent Judges.
PERCURIAM.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a rejection of claims
1--4, 8-11, and 15-17. Claims 5-7, 12-14, and 18-20 stand objected to.
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2015-003281
Application 13/676,714
STATEMENT OF THE CASE 1
The present application concerns "virtualization of computer
resources and virtual resource managers, and more specifically relates to
copying segments of an existing virtual resource to another virtual resource
definition to simplify virtualization management." Spec. i-f 2. Claim 1
illustrates the claimed subject matter:
1. An apparatus comprising:
at least one processor;
a memory coupled to the at least one processor;
a repository in the memory containing a plurality of virtual
resource definitions that include parameters and properties that
define a virtual resource to allow the virtual resource to be
created and deployed on a physical resource;
a virtualization manager residing in the memory that
divides the virtual resource definitions into a plurality of
segments and provides a user interface;
wherein the user interface allows a user to select and copy
a segment from a first virtual resource definition and paste the
selected segment into a second virtual resource definition; and
wherein the virtualization manager uses the second virtual
resource definition to deploy a virtual resource on a physical
resource.
1 Appellants state "[t]here are no related appeals or interferences for this
patent application." App. Br. 1. But on the same day Appellants filed the
present appeal, Appellants filed another appeal involving similar claims and
issues. See Notice of App., App. No. 2015-003281 (filed May 27, 2014);
Notice of App., App. No. 2015-003284 (filed May 27, 2014); compare App.
Br., App. No. 2015-003281 (filed July 28, 2014), with App. Br., App. No.
2015-003284 (filed July 28, 2014). We remind Appellants that 37 C.F.R.
§ 41.37(c)(l)(ii) requires Appellants to identify related appeals,
interferences, and trials in their appeal briefs.
2
Appeal 2015-003281
Application 13/676,714
App. Br. 13.
REJECTIONS 2
Claims 1--4, 8-11, and 15-17 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Robinson et al. (US 2007 /0089111 Al; published April
19, 2007) ("Robinson") and Oh (US 2007/0162901 Al; published July 12,
2007) ("Oh"). Final Act. 7-12.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellants'
arguments and the evidence of record. Appellants have not persuaded us the
Examiner erred. We address Appellants' arguments in tum.
Claims 1, 2, 8, 9, 15, and 16
First, Appellants contend the Examiner changed the thrust of the
rejection in the Answer by "cit[ing] a different portion of the Robinson
reference and us[ing] the reference in [a] manner that is different and at odds
with how the reference was previously used." Reply Br. 4. Appellants
assert this change amounts to an undesignated new ground of rejection and
argue we should therefore reverse the Examiner's rejection. Id. at 3--4.
We will not consider Appellants' argument that the Answer includes
an undesignated new ground of rejection. This issue is addressable by
petition to the Director, not appeal to the Board. See 37 C.F.R. §§ 41.40(a),
1.181; MPEP § 1207 .03(b ). Moreover, Appellants waived this argument by
failing to petition the Director "within two months from the entry of the
2 The Examiner withdrew the double patenting rejections of claims 1, 8-9,
11-15, and 18-20. Ans. 2.
3
Appeal 2015-003281
Application 13/676,714
examiner's answer and before the filing of any reply brief." 37 C.F.R.
§41.40(a).
Second, Appellants contend Robinson does not teach or suggest
"wherein the user interface allows a user to select and copy a segment from
a first virtual resource definition and paste the selected segment into a
second virtual resource definition" as recited in claim 1. Reply Br. 4.
According to Appellants, the Examiner mapped the claimed "existing virtual
resource definition" to one of Robinson's virtual machine (VM) descriptors.
See id. Appellants assert that "in Robinson there is only one definition
(descriptor) being manipulated" and "Robinson teaches to copy an entire
definition and then allow the user to edit it." Id. Therefore, in Appellants'
view, "[t ]here is no copying of segments from one [virtual resource
definition] to another." Id. Appellants also assert that in Robinson "it
appears that only the modified descriptor 462 is edited by the user after it is
created by copying the entire descriptor 412." Reply Br. 4. In light of this,
Appellants contend Robinson does not teach or suggest "copying a segment
from a first resource definition and pasting it in a second virtual definition"
and "that an existing resource definition is the recipient of a copied segment
from another resource definition." Id.
Appellants have not persuaded us the Examiner erred. The Examiner
found the broadest reasonable interpretation of "virtual resource definition"
encompasses Robinson's collection of VM descriptors (e.g., descriptors 412,
414, and 416 that make up "Sally Carr's Default Environment" in Figure 4),
each of which describes a VM configuration for creating a VM environment.
See Final Act. 8 (citing Robinson Fig. 3, item 250; i-fi-130, 56; see also Ans.
3--4 (citing Robinson Fig. 4, i-fi-175-76).
4
Appeal 2015-003281
Application 13/676,714
The Examiner's interpretation is consistent with the specification.
The specification discloses that "an existing virtual resource definition" both
"describe[ s] a virtual resource instance on a physical resource" and includes
one or more elements (i.e., segments) "that are parameters or properties that
define the virtual resource depending on the type of virtual resource." Spec.
i-f 27; see also id. Fig. 3, items 310, 312 (depicting an existing virtual
resource definition). Similarly, Robinson's collections of VM descriptors
describe virtual machine environments, which can be virtual machine
instances running on a computer processor. See Robinson i-fi-120-24
(discussing VM implementation on hardware such as a computer processor),
30 ("VM environments (e.g., VM or VM instances created using VM
environment descriptors") (emphases added)), 56 ("description information .
. . is part of the descriptor and describes ... each VM environment"); see
also id. Fig. 4. (showing description and management information for VM
descriptors). Thus, Robinson's collections of VM descriptors "describe ...
virtual resource instance[s] on a physical resource." Robinson also discloses
that the collections of VM descriptors include elements in the form of
parameters or properties (e.g., the description and management information
included within each individual descriptor) that define the virtual resources
depending on the type of virtual resource. See, e.g., id. Fig. 4; i-fi-130-50, 56,
75-78; compare id. Fig. 4, with Spec. Fig. 3.
Further, the Examiner found (and we agree) that a "segment" of the
existing virtual resource definition corresponds to one of Robinson's
collection of VM descriptors. See Final Act. 8; Ans. 3--4; Robinson Fig. 4
(items 412, 414, 420, 424, 428), i-fi-175-76, 78. For example, Robinson's
email VM descriptor is a "segment" because it has one or more parameters
5
Appeal 2015-003281
Application 13/676,714
or properties (e.g., description and management information including 4GB
disk, network access, owner Sally, group Carr, etc.) that define a virtual
resource depending on the virtual resource's type. See Ans. 3--4; Robinson
Fig. 4 (items 410, 412), i-f 75.
Given this, we agree with the Examiner that Robinson teaches or
suggests "wherein the user interface allows a user to select and copy a
segment from a first virtual resource definition." Robinson discloses
copying a particular VM descriptor from its collection of default VM
descriptors into a collection of travel VM descriptors. See Ans. 3--4;
Robinson Fig. 4 (subset copy and exact copy arrows between default VM
descriptors and travel VM descriptors), i-fi-175-76, 78.
With respect to the recited "paste the selected segment into a second
virtual resource definition," we also agree with the Examiner that Robinson
suggests this step. See Ans. 3--4 (citing Robinson Fig 4, i-fi-175-76); see also
Robinson i-f 78. Even though Robinson does not explicitly use the term
"paste," Robinson's Figure 4 includes arrows that contain either the words
"subset copy" or "exact copy" and point from the collection of default VM
descriptors to the collection of travel VM descriptors. See Robinson Fig. 4,
i-fi-175-76, 78. This figure would indicate to one of ordinary skill in the art
that either part or all of the illustrated descriptors have been copied and
pasted from the collection of VM descriptors in the default environment to
the collection of VM descriptors in the travel environment. See KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (explaining that an
obviousness analysis "can take account of the inferences and creative steps
that a person of ordinary skill in the art would employ"); Peifect Web
Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (holding
6
Appeal 2015-003281
Application 13/676,714
that an obviousness analysis "may include recourse to logic, judgment, and
common sense available to the person of ordinary skill that do not
necessarily require explication in any reference or expert opinion"); In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012) (citation omitted) ("A
reference may be read for all that it teaches .... ").
Moreover, Appellants admit they did not invent the concept of
copying and pasting data from one data element to another. See Spec. i-f 32
("The support of the copy and paste functions in the user interface 123 can
be made in any suitable manner, including those know [sic] in the prior
art."). Therefore, it follows that using this known copy-and-paste
functionality to copy segments from a known existing virtual resource
definition to another virtual resource definition would require no more than
the routine incorporation of copy-and-paste functionality into an existing
virtual resource management system. See KSR, 550 U.S. at 417-18;
Soverain Software LLC v. Newegg Inc., 705 F.3d 1333, 1344, amended on
reh 'g, 728 F.3d 1332 (Fed. Cir. 2013) (concluding that claims directed to an
online shopping system were obvious when the patentee "did not invent the
Internet, or hypertext, or the URL" and using hypertext to communicate
information was no more than "a routine incorporation of Internet
technology into existing processes").
Third, Appellants have failed to persuade us that Robinson does not
teach or suggest that "a second existing resource definition is the recipient of
a copied segment." See Reply Br. 4. As an initial matter, claim 1 does not
recite or require an "existing" second virtual resource definition.
Nevertheless, even if the claim were to recite a second existing resource
definition, we would remain unpersuaded of error. Robinson's collection of
7
Appeal 2015-003281
Application 13/676,714
VM descriptors for a travel environment, for example, may be created by
instantiating a new VM environment of descriptors or by resuming a
suspended VM environment of descriptors. See Robinson Fig. 4, claim 19,
i-fi-f 126, 128, 130; see also Final Act. 8; Ans. 3--4. At least because Robinson
describes collections of VM descriptors that are in some cases instantiated,
suspended, and later resumed, such descriptors were in existence, or
"existing," prior to copying VM descriptors from the existing "default
environment." See Robinson Fig. 4, claim 19, i-fi-f 126, 128 (describing
resuming a VM environment that "may include executing (e.g., resuming) a
VM that has already been created ... according to the information for a
descriptor for the previously created VM"), 130 (describing creating and/or
management of VM environments). Accordingly, Robinson additionally
teaches or suggests that its collection of travel VM descriptors, or "second
resource definition" may be "existing." See id.; Mouttet, 686 F.3d at 1331.
For the reasons set forth above, we sustain the Examiner's rejection of
independent claim 1 as well as independent claims 8 and 15 and dependent
claims 2, 9, and 16, which were not argued separately with particularity
beyond the arguments advanced for claim 1. See App. Br. 7-10; Reply Br.
3-7.
Claims 3 and 10
Appellants argue the Examiner erred because Robinson does not teach
or suggest "wherein the virtual resource definition is an existing virtual
resource definition" as recited in claims 3 and 10. App. Br. 10, 13, 15;
Reply Br. 6-7. Specifically, "Appellant[s] assert[] that while [Robinson's]
VM descriptor is indeed in existence after it is created, it is not in existence
8
Appeal 2015-003281
Application 13/676,714
as used in the claims." Reply Br. 6. In other words, Appellants argue
Robinson's VM descriptor is not "existing" as recited in claims 3 and 10
because it "is not in existence until a descriptor is copied to create it." Id. at
6-7.
For the reasons discussed above with respect to claims 1, 2, 8, 9, 15,
and 16, we disagree with Appellants that Robinson fails to teach or suggest
"wherein the virtual resource definition is an existing virtual resource
definition." Accordingly, Appellants have not persuaded us the Examiner
erred in rejecting claims 3 and 10.
Claims 4, 11, and 17
Appellants argue Robinson does not teach or suggest "wherein the
plurality of segments are further divided into sub-segments that may be
selected and copied into the second virtual resource definition" as recited in
claim 4. See App. Br. 10-12; Reply Br. 7-8. Appellants have not persuaded
us the Examiner erred. We agree with the Examiner that each of Robinson's
VM descriptors is a "segment" (see discussion of claim 1 above) that
includes one or more description information elements, or "is further divided
into sub-segments." See Final Act. 9; Advisory Act. 2; Ans. 3--4. We also
agree Robinson teaches or suggests that one or more of the description
information elements may be selected and copied from the collection of
default VM descriptors into the collection of travel VM descriptors, for
example. See Final Act. 9; Advisory Act. 2; Ans. 3--4; compare, e.g.,
Robinson Fig. 4, item 414 (listing Linux, TiVo, 400GB disk, TV tuner, etc.,
as part of the PVR VM set of Sally Carr's collection of default VM
descriptors), with Robinson Fig. 4, item 464 (listing, for example, Linux,
9
Appeal 2015-003281
Application 13/676,714
TiVo, and 400GB disk, but not TV tuner); see also Robinson ilil 75-76, 78.
The Examiner's findings are consistent with the specification, which
discloses that a sub-segment is one or more of a segment's virtual resource
elements associated with a virtual resource. See Spec. i-f 27; see also id. Fig.
5.
Accordingly, we sustain the Examiner's rejection of claim 4, as well
as claims 11 and 17, which recite similar limitations and were argued
together with claim 4. See App. Br. 10-12; Reply Br. 7-8.
DECISION
The decision of the Examiner to reject claims 1--4, 8-11, and 15-17 is
affirmed.
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 )(iv).
AFFIRMED
10