Ex Parte Challa

Patent Trial and Appeal Board

Mar 27, 2017

13478723 (P.T.A.B. Mar. 27, 2017)

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.
13/478,723 05/23/2012 Narsimha Reddy Challa 82964622 4307
56436 7590 03/29/2017
Hewlett Packard Enterprise
3404 E. Harmony Road
Mail Stop 79
Fort Collins, CO 80528
EXAMINER
ZHU, ZHIMEI
ART UNIT PAPER NUMBER
2495
NOTIFICATION DATE DELIVERY MODE
03/29/2017 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
chris. mania @ hpe. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NARSIMHA REDDY CHALLA1
Appeal 2016-003442
Application 13/478,723
Technology Center 2400
Before MICHAEL J. STRAUSS, DANIEL N. FISHMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1—20. We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b).
We affirm.
1 Appellant identifies Hewlett-Packard Development Company, LP as the
real party in interest. App. Br. 4.
Appeal 2016-003442
Application 13/478,723
THE INVENTION
Appellant’s invention is directed to “managing virtual machines in a
cloud computing system.” Spec., Title. According to the patent application,
the invention creates new virtual machines and moves virtual machines
among server systems “to satisfy policies like security, client confidentiality,
and any other requirement specified in a service level agreement between a
customer and a cloud service provider.” Spec. 2.
Independent claim 1, reproduced below, is illustrative:
1. A computer-implemented method of managing a virtual
machine in a cloud computing system, comprising:
organizing, by a processor, virtual servers, present in the
cloud computing system, to create policy domains, wherein a
policy domain is a group of virtual servers that share a common
policy;
determining, upon receipt of a request for creating a new
virtual machine, whether a policy of the new virtual machine
corresponds to a policy of a policy domain or does not
correspond to policies of the policy domains;
in response to a determination that the policy of the new
virtual machine corresponds to the policy of the policy domain,
creating the new virtual machine in a virtual server of the policy
domain whose policy corresponds with the policy of the new
virtual machine; and
in response to a determination that the policy of the new
virtual machine does not correspond to the policies of the
policy domains, creating a new policy domain for the new
virtual machine, and creating the new virtual machine in a
virtual server of the new policy domain.
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Appeal 2016-003442
Application 13/478,723
THE REJECTIONS
Claims 1, 2, 8, 10, 13, 15, and 20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bennett et al. (US 2011/0231839 Al;
published Sept. 22, 2011) (“Bennett”) and Bakke et al. (US 6,330,621 Bl;
published Dec. 11, 2001) (“Bakke”). Final Act. 4—8.
Claims 3, 5, 6, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bennett, Bakke, and Davis et al. (US 2013/0111468
Al; published May 2, 2013 (filed Oct. 27, 2011)) (“Davis”). Final Act. 8—
10.
Claims 4, 9, 11, and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Bennett, Bakke, and Goland (US 7,500,104 B2;
published Mar. 3, 2009). Final Act. 10-12.
Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett, Bakke, Davis, and Evans (US 2002/0128885 Al;
published Sept. 12, 2002). Final Act. 12—13.
Claims 16 and 17 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett, Bakke, and Ashok et al. (US 2013/0191527 Al;
published July 25, 2013 (filed Jan. 23, 2012)) (“Ashok”). Final Act. 13—15.
Claim 18 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett, Bakke, and Chen et al. (US 2013/0232483 Al;
published Sept. 5, 2013 (filed Mar. 1, 2012)) (“Chen”). Final Act. 15.
Claim 19 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bennett, Bakke, Goland, and Ashok. Final Act. 15—16.
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Appeal 2016-003442
Application 13/478,723
ANALYSIS
Only those arguments actually made by Appellant have been
considered in this Decision. Arguments that Appellant did not make in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
We are not persuaded by Appellant’s contentions of Examiner error
(App. Br. 10-25; Reply Br. 5—20). We adopt as our own the Examiner’s
findings and reasons set forth by the Examiner in the action from which this
appeal is taken (Final Act. 2—16) and as set forth by the Examiner in the
Answer (Ans. 2—8). However, we highlight and address specific arguments
and findings for emphasis as follows.
Claim 1 is directed to determining whether a new virtual machine’s
policy corresponds to a policy domain’s policy. If there is no
correspondence, claim 1 recites (emphasis added), “creating a new policy
domain for the new virtual machine, and creating the new virtual machine in
a virtual server of the new policy domain.” All other independent claims
include similar recitations. In combination with Bennett, the Examiner finds
Bakke’s new logical device including “new and unique quality of service
characteristics that satisfy the criteria for the policies appropriate for a
present data object” teaches or suggests the new policy domain, as claimed.
Final Act. 5 (quoting Bakke, Abstract).2
2 We observe method claims 1 and 8 recite conditionally executed steps (i.e.,
“in response” to a condition, performing a step). Although the Examiner
finds all elements of both claims in cited references, it is not necessary for
the Examiner to find teachings or suggestions in the prior art for conditional
method steps that need not be performed under all conditions. See Ex parte
Schulhauser, No. 2013-007847, 2016 WL 6277792 (PTAB April 28, 2016)
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Application 13/478,723
Appellant contends the Examiner erred in finding Bakke’s new logical
device teaches or suggests the new policy domain as recited in claim 1.
App. Br. 14—16. In particular, Appellant argues Bakke’s new logical device,
responsible for storing a data object, “has no relation whatsoever to any type
of virtual server . . . used to create a virtual machine as recited in
independent claim 1.” App. Br. 15; see also Reply Br. 7. Appellant further
directs attention to the language of claim 1 reciting a “policy domain is a
group of virtual servers that share a common policy,” and argues constming
Bakke’s new logical device as a new policy domain contradicts the express
disclosure of Bakke. App. Br. 16 (citing Bakke, col. 3,11. 14—21); see also
Reply Br. 8. Appellant concludes the Examiner erred in finding Bakke
teaches or suggests the creation of a “new virtual machine in a virtual server
of the new policy domain,” as recited in claim 1. App. Br. 15—16;
see also Reply Br. 7—8.
We are unpersuaded of Examiner error because Appellant’s
contentions are not responsive to the rejection as articulated by the
Examiner. Specifically, the Examiner relies upon the combination of
Bennett and Bakke in rejecting claim 1. Final Act. 4—6. In particular, the
Examiner finds Bennett’s migration pool (the claimed “policy domain”) is a
group of virtual machine hosts (the claimed “virtual servers”) that include
virtual machines and share similar capabilities (the claimed “common
policy”). Final Act. 4 (citing Bennett 110). The Examiner further finds
Bennett teaches determining whether a new virtual machine’s capabilities
correspond to the capabilities of a target host in the migration pool, and if
the capabilities do not correspond, then “failing the request.” Final Act. 5
(citing Bennett | 57). Further, the Examiner finds, and we agree, Bakke
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Application 13/478,723
teaches, upon determining no logical device presently satisfies a required
policy, then creating a new logical device. Final Act. 5 (citing
Bakke, Abstract).
The Examiner further explains, and we agree, in response to
determining the capabilities of a new virtual machine and a target host do
not correspond, it would be obvious to try create a new policy domain
because “there are at least two alternatives: 1) failing the request for
creating a new virtual machine and 2) creating a new policy domain so that
the new virtual machine can be created in the new policy domain.” Ans. 5.
See KSR Inti Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (if there are a
finite number of identified, predictable solutions to solve a problem, a
person of ordinary skill in the art has good reason to pursue the known
options within his or her technical grasp). For these reasons, we are not
persuaded the Examiner erred.
Appellant contends one of ordinary skill in the art would not look to
the teachings of Bakke to create a “new virtual machine in a virtual server of
the new policy domain,” as recited in claim 1, because this contradicts the
express teachings of Bennett. App. Br. 16—17; see also Reply Br. 9—12.
Appellant asserts paragraphs 56 and 57 of Bennett “explicitly indicate that
for a virtual machine migration request to a target host, if the target host is
not compatible with the virtual machine capability data sent to it, then the
virtual machine is not migrated.” App. Br. 17; see also Reply Br. 10.
Appellant argues Bennett discourages creation of a new target host because
“a goal” of Bennett (Reply Br. 11) is to achieve an alternative of a feature
set’s virtualization on a source host so as to match the same target host in
anticipation of a future migration. Reply Br. 11—12 (citing Bennett 129).
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Application 13/478,723
A prior art reference does not teach away from the claimed subject
matter unless the prior art reference criticizes, discredits, or otherwise
discourages the solution claimed. See In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004); see also DePuy Spine, Inc. v. Medtronic Sofamor Danek,
Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009).
A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from
following the path set out in the reference, or would be led in a
direction divergent from the path that was taken by the applicant.
The degree of teaching away will of course depend on the
particular facts; in general, a reference will teach away if it
suggests that the line of development flowing from the
reference’s disclosure is unlikely to be productive of the result
sought by the applicant.
In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994).
We are not persuaded the Examiner erred. At the outset, we note
Bennett does not explicitly discuss creating a new migration pool (the
claimed “new policy domain”) for Bennett’s new virtual machine, nor does
Bennett further explicitly discuss creating the new virtual machine in a
virtual server of the new migration pool. Further, Appellant’s argument that
Bennett’s goal to eventually match to the same target host is described in
paragraph 29 of Bennett as an “alternative.” Further, though paragraph 29
of Bennett discusses matching CPU feature capabilities, paragraph 25 of
Bennett describes the CPU feature capabilities as “[o]ne group of
capabilities.” Further, contrary to Appellant’s argument that a goal of
Bennett is to eventually match to the same target host, paragraph 57 of
Bennett asserts if the target host and virtual machine are “not compatible, the
request is failed at step 518 and the virtual machine may continue to run on
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Application 13/478,723
the source, possibly again requesting migration to a different target host”
(emphasis added). Accordingly, Appellant has not persuaded us Bennett
discourages, discredits, or criticizes the claimed solution to thereby teach
away from the proposed combination.
Accordingly, we sustain the Examiner’s rejection of independent
claim 1 and, for similar reasons, the rejection of independent claims 8, 10,
and 15, which recite similar limitations and were argued together with claim
1. See App. Br. 18—20. Additionally, we sustain the Examiner’s rejections
of dependent claims 2—7, 9, 11—14, and 16—20, which were not argued
separately. See App. Br. 20-25.
DECISION
We affirm the Examiner’s decision to reject claims 1—20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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