Ex Parte Davis et al

Patent Trial and Appeal Board

Mar 23, 2016

12261386 (P.T.A.B. Mar. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/261,386 10/30/2008 Mark Charles Davis
63203 7590 03/25/2016
ROGITZ & AS SOCIA TES
750B STREET
SUITE 3120
SAN DIEGO, CA 92101
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.
RPS920080070-US-NP 4337
EXAMINER
GEIB, BENJAMIN P
ART UNIT PAPER NUMBER
2183
NOTIFICATION DATE DELIVERY MODE
03/25/2016 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):
Noelle@rogitz.com
eofficeaction@appcoll.com
J ohn@rogitz.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK CHARLES DA VIS,
CHARLES BURNHAM OXRIEDER, DAVID RIVERA, and
ROD DAVID WALTERMANN
Appeal2014-003378
Application 12/261,386
Technology Center 2100
Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
JOYCE CRAIG, Administrative Patent Judges.
CRAIG, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final rejection of claims 1, 3, 4, 6-10, 12-14, 16-19, and 21-
24.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify Lenovo Singapore PTE. Ltd. as the real party in
interest. App. Br. 2.
2 Claim 25 is objected to as being dependent upon a rejected base claim,
allowable if rewritten in independent form. Final Act. 7.
Appeal2014-003378
Application 12/261,386
fNVENTION
Appellants' invention relates to plug-in architecture for a hypervisor-
based system. Abstract. Claim 1, reproduced below, is illustrative:
1. A system comprising:
a processor executing at least one guest operating system (GOS);
at least a first GOS plug-in module associated with the GOS, the
first plug-in module being executable by the processor to
undertake a respective first function;
a hypervisor executable by the processor and communicating
with the GOS;
at least a first hypervisor plug-in module associated with the
hypervisor and being configured to communicate with the first
GOS plug-in module to execute the first function;
at least a second GOS plug-in module associated with the GOS,
the second plug-in module being executable by the processor to
undertake a respective second function; and
at least a second hypervisor plug-in module associated with the
hypervisor and being configured to communicate with the
second GOS plug-in module to execute the second function.
REJECTIONS
Claims 1, 3, 4, 9, 10, 12-14, 18, and 22 stand rejected under
35 U.S.C. § 102(e) as being anticipated by Aloni et al. (US 2008/0133709
Al; published June 5, 2008).
Claims 6, 19, and 23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Aloni and Kondajeri et al. (US
7 ,562,262 B2; issued July 14, 2009).
Claims 8, 17, and 21 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Aloni and Knauerhase et al. (US
7,962,545 B2; issued June 14, 2011).
2
Appeal2014-003378
Application 12/261,386
Claims 7, 16, and 24 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Aloni and Kurien et al. (US
2006/0236127 Al; published Oct. 19, 2006).
ANALYSIS
We have considered Appellants' arguments, but are not persuaded that
the Examiner erred. We agree with and adopt as our own the Examiner's
findings of facts and conclusions as set forth in the Answer and in the Action
from which this appeal was taken. We provide the following explanation for
emphasis.
Claims 1, 3, 4, 9, 10, 12-14, 18, and 22-35 USC§ 102(e)
With respect to the rejection of claim 1, Appellants contend that the
cited portions of Aloni do not teach "at least a second hypervisor plug-in
module associated with the hypervisor and being configured to communicate
with the second GOS plug-in module to execute the second function," as
recited in claim 1. App. Br. 4--8; Reply Br. 1-3. Appellants argue that
Aloni discloses only one hypervisor driver. App. Br. 7.
Appellants' arguments are not persuasive of error. The Examiner
finds, and we agree, that Aloni teaches a plurality of back-end drivers
associated with a hypervisor that are executable to undertake respective
functions in conjunction with respective GOS plug-in modules, as recited in
claim 1. Final Act. 7-8 (citing Aloni i-fi-1 40, 96). Moreover, we agree with
the Examiner that, although Aloni describes an embodiment in which
interaction with devices bypasses the hypervisor, Aloni also describes an
embodiment that includes the hypervisor and back-end drivers, and uses the
3
Appeal2014-003378
Application 12/261,386
back-end drivers for at least resource allocation and mode setting of the
corresponding device. Ans. 8 (citing Aloni i-fi-144, 46).
In their Reply Brief, Appellants acknowledge that Aloni teaches that a
back-end driver may be associated with each physical device. Reply Br. 1
(citing Aloni i1 40). Appellants, however, present the new argument that the
cited portions of Aloni do not show that the plug-in modules of the
hypervisor "communicate with respective GOS plug-in modules to execute
respective functions," as claim 1 requires. Reply Br. 2. It is inappropriate
for Appellants to raise for the first time in the Reply Brief matters that could
have been raised in the Appeal Brief. Accordingly, we find that this belated
new argument is technically waived. Ex parte Borden, 93 USPQ2d 1473,
1474 (BPAI 2010) (informative decision) ("[T]he reply brief [is not] an
opportunity to make arguments that could have been made in the principal
brief on appeal to rebut the Examiner's rejections, but were not.").
Nevertheless, we note that Appellants' new argument rests on
Appellants' position that "at its most relevant figure 2 shows only one, not
two, back end plug-ins and only one, not two, connections between the
single back-end shown and the relied-upon GOS plug-in module 206."
Reply Br. 2. We addressed above Appellants' argument that Aloni does not
teach "at least a second hypervisor plug-in module associated with the
hypervisor," and Appellants present no other persuasive argument or
evidence why Aloni does not teach or suggest the recited limitations "at least
a first hypervisor plug-in module associated with the hypervisor and being
configured to communicate with the first GOS plug-in module to execute the
first function" and "at least a second hypervisor plug-in module associated
4
Appeal2014-003378
Application 12/261,386
with the hypervisor and being configured to communicate with the second
GOS plug-in module to execute the second function," as claim 1 recites.
For these reasons, we are not persuaded that the Examiner erred in
rejecting claim 1.
Regarding the rejection of independent claim 18, Appellants contend
that the cited portions of Aloni do not teach the recited limitation "each
hypervisor plug-in module being configured to cooperate with its respective
GOS plug-in module to undertake one function and only one function."
App. Br. 7-8. Appellants argue that Aloni explicitly teaches that its single
hypervisor back-end driver performs plural functions. App. Br. 7-8 (citing
Aloni if 32).
Appellants' arguments do not persuade us of error. The Examiner
found that Aloni describes "each back-end driver (i.e. hypervisor plug-in
module) is configured to cooperate with its respective front-end driver (i.e.
GOS plug-in module) to undertake the function of controlling a device and
only that function." Ans. 9. In light of the examples of functions set forth in
Appellants' Specification (Ans. 9 (citing Spec. 6)), and because Appellants
present no persuasive argument or evidence that the Examiner's
interpretation of the term "function" is overly broad, inconsistent with the
Specification, or cannot encompass controlling a device, we are not
persuaded of error in the Examiner's interpretation and analysis in the
Answer. See id.
For these reasons, we are unpersuaded that the Examiner erred in
rejecting claim 18.
Turning to the rejection of dependent claim 22, which depends from
claim 1, Appellants contend that the cited portions of Aloni do not describe
5
Appeal2014-003378
Application 12/261,386
that a "GOS includes a service daemon interfacing the first and second GOS
plug-in modules with a service daemon of the hypervisor," as recited in
claim 22. App. Br. 8-9. Appellants argue that the Examiner erred in
identifying a single element in Aloni-a hypervisor back-end driver-to
meet both the hypervisor plug-in module element recited in independent
claim 1 and the hypervisor service daemon element recited in dependent
claim 22. Id. at 8. Appellants further argue that the Examiner's conclusion
that an artisan of ordinary skill would have understood Aloni's hypervisor
back-end driver as the recited service daemon lacks supporting evidence. Id.
at 8-9.
Appellants' arguments are not persuasive of error. The Examiner
found that, in Aloni, first and second hypervisor back-end drivers are
configured to communicate with the respective GOS plug-in module to
execute respective functions, as claim 1 requires, and to interface with the
first and second GOS plug-in modules, as claim 22 requires. In finding that
back-end drivers meet both functionalities, the Examiner interpreted
"daemon" broadly to mean "a type of software that operates in the
background (i.e. without direct user control)." Ans. 10. This interpretation
of the term "daemon" does not contradict any definition found or ascertained
by a reading of the Specification and is reasonable in light of the
Specification as it would be interpreted by ordinary artisans. Moreover,
Appellants present no alternative construction, persuasive argument, or
evidence that the Examiner's interpretation is overbroad, unreasonable, or
inconsistent with the Specification. See Reply Br. 3--4. Accordingly, in
light of the Specification, the Examiner's broad, reasonable interpretation of
the term "daemon," and the recited claim language, the Examiner has not
6
Appeal2014-003378
Application 12/261,386
erred in finding that Aloni's back-end driver is the type of software that
meets the recited "daemon" limitation or that Aloni teaches a teaming driver
(i.e., service daemon in the GOS) that interfaces the front-end drivers (i.e.,
GOS plug-in modules) with a back-end driver (i.e., a service daemon of the
hypervisor). Ans. 9 (citing Aloni i196).
For these reasons, we are not persuaded that the Examiner erred in
rejecting claim 22.
Accordingly, we sustain the 35 U.S.C. § 102(e) rejection of
independent claims 1, 9, and 18, as well as the 35 U.S.C. § 102(e) rejection
of dependent claim 22, and dependent claim 14, for which Appellants refer
to and rely on the arguments made for claim 22. App. Br. 8-9. We also
sustain the 35 U.S.C. § 102(e) rejection of dependent claims 3, 4, 10, 12, and
13, for which Appellants make no arguments other than those for the
independent claims from which those claims depend. Id. at 4--8.
Claims 6-8, 16, 17, 19, 21, 23, and 24-35 U.S.C. § 103(a)
With regard to the obviousness rejection of claim 6, Appellants
contend that the cited portions of Kondajeri do not describe the recited
limitation "wherein the first function includes logging, in the GOS, errors
occurring in the hypervisor." App. Br. 9. Appellants argue that in Kondajeri
an error log is generated in the error log area of the supervisor partition,
which the Examiner identified as the recited hypervisor, not the GOS. Id.
(citing Kondajeri cols. 7-8).
Appellants' arguments are not persuasive of error. In the Answer, the
Examiner clarified that, in Kondajeri, error logging by the supervisor
partition (more particularly, the supervisor partition's error monitoring
software) teaches or suggests the recited "logging, in the GOS" element.
7
Appeal2014-003378
Application 12/261,386
Ans. 11; see also Final Act. 8 (citing Kondajeri col. 3, 11. 10-28, col. 7, 11.
21--45, col. 8, 11. 4--14). The Examiner further clarified that the hypervisor
in Kondajeri meets the recited hypervisor. Id. Thus, Appellants' arguments
are not commensurate in scope with the Examiner's rejection, and
Appellants present no persuasive argument or evidence in the Reply Brief to
rebut the Examiner's findings. Reply Br. 5.
Accordingly, we sustain the 35 U.S.C. § 103(a) rejection of claim 6,
as well as the 35 U.S.C. § 103(a) rejection of claims 19 and 23, which
Appellants argue are patentable for similar reasons. App. Br. 9. We also
sustain the 35 U.S.C. § 103(a) rejection of dependent claims 7, 8, 16, 17, 21,
and 24, for which Appellants make no arguments other than those for the
independent claims from which those claims depend. Id. at 9--10.
DECISION
The Examiner's decision to reject claims 1, 3, 4, 6-10, 12-14, 16-19,
and 21-24 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
8