Ex Parte Devine et al

Patent Trial and Appeal Board

Dec 23, 2016

12210249 (P.T.A.B. Dec. 23, 2016)

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.
12/210,249 09/15/2008 Wesley M. Devine RSW920080322US1 (422) 6245
46320 7590
CRGO LAW
STEVEN M. GREENBERG
7900 Glades Road
SUITE 520
BOCA RATON, EL 33434
12/28/2016 EXAMINER
HUISMAN, DAVID J
ART UNIT PAPER NUMBER
2183
NOTIFICATION DATE DELIVERY MODE
12/28/2016 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):
docketing@crgolaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WESLEY M. DEVINE, SIVARAM GOTTIMUKKALA,
LAP T. HUYNH, DINAKARAN JOSEPH, MICHAEL S. LAW, and
LINWOOD H. OVERBY JR.
Appeal 2016-001978
Application 12/210,249
Technology Center 2100
Before ALLEN R. MacDONALD, JOHN P. PINKERTON, and
GARTH D. BAER, Administrative Patent Judges.
PINKERTON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—10, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 The real party in interest identified by Appellants is the assignee,
International Business Machines Corporation. Appeal Br. 2.
Appeal 2016-001978
Application 12/210,249
STATEMENT OF THE CASE
Introduction
Appellants’ disclosed and claimed invention relates generally to “a
method, system and computer program product for secure live migration in a
virtualized computing environment.” Spec. 117.2
Claims 1 and 7 are representative and read as follows (with the
disputed limitations emphasized)'.
1. A method for secure live migration of a virtual machine
(VM) in a virtualized computing environment, the method
comprising:
selecting a VM in a secure virtualized computing
environment for live migration to a different virtualized
computing environment coupled to the secure virtualized
environment over an unsecured computer communications
network and blocking data communications between the selected
VM and other VMs in the secure virtualized computing
environment',
live migrating the selected VM to the different virtualized
computing environment and restarting the selected VM in the
different virtualized computing environment;
establishing a secure communicative link between the
different virtualized computing environment and the secure
virtualized computing environment; and,
enabling data communications between the restarted VM
and the other VMs over the secure communicative link.
2 Our Decision refers to the Final Office Action (mailed Dec. 3, 2014, “Final
Act.”), Appellants’ Appeal Brief (filed May 27, 2015, “Appeal Br.”), the
Examiner’s Answer (mailed Sept. 29, 2015, “Ans.”), and the original
Specification (filed Sept. 15, 2008, “Spec.”).
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Application 12/210,249
7. A computer program product comprising a computer
usable storage medium comprising a device storing computer
usable program code for secure live migration of a virtual
machine (VM) in a virtualized computing environment, the
computer program product comprising:
computer usable program code for selecting a VM in a
secure virtualized computing environment for live migration to a
different virtualized computing environment coupled to the
secure virtualized environment over an unsecured computer
communications network and blocking data communications
between the selected VM and other VMs in the secure virtualized
computing environment;
computer usable program code for live migrating the
selected VM to the different virtualized computing environment
and restarting the selected VM in the different virtualized
computing environment;
computer usable program code for establishing a secure
communicative link between the different virtualized computing
environment and the secure virtualized computing environment;
and,
computer usable program code for enabling data
communications between the restarted VM and the other VMs
over the secure communicative link.
Appeal Br. 14, 18 (Claims App.).
Rejections on Appeal
Claims 1—10 stand rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which the Appellants regard as the invention.
Claims 7—10 stand rejected under 35 U.S.C. § 101 as being directed to
non-statutory subject matter.
Claims 1,3, 5—7, and 9 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Graham et al. (US 2009/0138752 Al; published
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Application 12/210,249
May 28, 2009), in view of the Examiner’s taking of Official Notice and
VMware (VMware, “Connecting Two Virtual Machines,” published July 18,
2005, available at
http://www.vmware.com/support/ws5/doc/ws_devices_serial_2vms.html).
Claims 1—3 and 5—9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Travostino et al. (US 7,761,573 B2; issued July 20, 2010),
in view of Tremain (US 2002/0069369 Al; published June 6, 2002).
Claims 2 and 8 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Graham, in view of Official Notice, in further view of
VMware, and further in view of O’Rourke et al. (US 7,146,419 Bl; issued
Dec. 5, 2006).
Claims 4 and 10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Graham, in view of Official Notice, in further view of
VMware, and further in view of Jones et al. (US 2007/0255840 Al;
published Nov. 1,2007).
Claims 4 and 10 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Travostino, in view of Tremain, and further in view of
Jones.
Issues
Appellants’ arguments in the Briefs present us with the following
dispositive issues:3
1. Is there antecedent basis for “the other VMs,” as recited
in independent claim 1, and similarly recited in claims 2,
U-5, 7-8, and 10?
3 Appellants’ arguments raise additional issues, but we do not reach them
because the identified issues are dispositive of the appeal.
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Application 12/210,249
2. Are claims 7—10 directed to statutory subject matter?
3. Does the combination of Graham, Official Notice,
VMware, O’Rourke, and Jones teach or suggest
“blocking data communications between the selected VM
and other VMs in the secure virtualized computing
environment,” as recited in independent claim 1, and
similarly recited in independent claims 5 and 7?
4. Does the combination of Travostino, Tremain, and Jones
teach or suggest “blocking data communications between
the selected VM and other VMs in the secure virtualized
computing environment,” as recited in independent claim
1, and similarly recited in independent claims 5 and 7?
ANALYSIS
Issue 1
The Examiner finds there is insufficient basis for the recitation of “the
other VMs” in claims 1, 2, 4, 5, 7, 8, and 10, because it is not clear if the
claims are referring to the initial recitation of “other VMs” in independent
claims 1,5, and 7, or all of the VMs in the secure computing environment.
See Final Act. 5; see also Ans. 2. Appellants argue independent claims 1, 5,
and 7 each specifically recite “and other VMs,” and, therefore, all other
references to “the other VMs” are supported by the initial recitation of
“other VMs.” See Appeal Br 5—6. Appellants further argue that, contrary to
the Examiner’s position, there is no difference between “the other VMs,”
and “said other VMs.” See Reply Br. 2—3.
We find Appellants’ argument persuasive. We agree with Appellants
that the initial recitation of “other VMs” in independent claims 1,5, and 7
provides antecedent basis for the recitations of “the other VMs” in claims 1,
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Application 12/210,249
2, 4, 5, 7, 8, and 10. Accordingly, we do not sustain the Examiner’s
rejection of claims 1—10 under 35U.S.C. § 112, second paragraph.
Issue 2
The Examiner finds the broadest reasonable interpretation of
“computer usable storage medium,” as recited in independent claim 7,
covers transitory propagating signals, which are not statutory. See Final
Act. 6. The Examiner further finds claiming that the medium comprises “a
device” does not make the claim statutory because the broadest reasonable
interpretation of “a device” includes a signal, as the dictionary.com
definition of a device is “a thing made or adapted for a particular purpose.”
See id.', see also Ans. 3. Appellants argue independent claim 7 is statutory
because the claim recites that the medium comprises “a device,” Appellants’
specification provides several examples of devices where none of the
examples indicate that a device is a signal, and one of ordinary skill in the
art would never consider a device to be a signal. See Appeal Br. 6—7.
Appellants further argue the web site “techterms.com” indicates that “[a]
computer storage device is any type of hardware that stores data.” See
Reply Br. 2—A.
We do not find Appellants’ arguments persuasive. We agree with the
Examiner that the recitation of “a device” in independent claim 7 does not
make the claim statutory, as neither the claim, nor Appellants’ specification,
sufficiently disclaims embodiments where a computer-usable storage
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Application 12/210,249
medium is a signal.4 Accordingly, we sustain the rejection of claim 7 under
35 U.S.C. § 101, as well as dependent claims 8—10, not argued separately.
Issue 3
The Examiner finds Graham’s description of a loss of network
connectivity in a processor system that includes application VMs teaches
“blocking data communications between the selected VM and other VMs in
the secure virtualized computing environment,” as recited in independent
claim 1, and similarly recited in independent claims 5 and 7. See Final
Act. 8 (citing Graham H 42-44, 50-51, Fig. 3); see also Ans. 6—7.
Appellants argue that Graham’s discussion of a passive observation of a
break in network connectivity does not teach or suggest the affirmative step
of “blocking data communications between the selected VM and other VMs
in the secure virtualized computing environment.” See Appeal Br. 9; see
also Reply Br. 6—7.
We find Appellants’ arguments persuasive. We agree with Appellants
that Graham’s teaching of a loss of network connectivity that triggers an
establishment of a tunnel, and ultimately a live migration of VMs (see
Graham H 49—51) does not teach the aforementioned claim limitation,
because a passive observation of a network connectivity event does not teach
4 For example, paragraph 27 of Appellants’ specification indicates that an
embodiment of the invention can be entirely software, and paragraph 28 of
Appellants’ specification indicates that a computer-usable medium can be a
medium that propagates a program, or a propagation medium. See Spec. 11
27, 28. Further, the term “device” is not the language of the statute which in
this context is a “machine” or a “manufacture.” 35 U.S.C. § 101. Given the
Specification, Appellants do not persuade us that their “device” is limited to
only a machine or manufacture.
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Application 12/210,249
affirmatively blocking data communications between a selected VM and
other VMs. The Examiner has not established that any of the other cited
references cure Graham’s deficiency. Thus, we conclude the Examiner has
not established that the combination of Graham, Official Notice, VMware,
O’Rourke, and Jones teaches or suggests “blocking data communications
between the selected VM and other VMs in the secure virtualized computing
environment,” as recited in independent claim 1, and similarly recited in
independent claims 5 and 7. Accordingly, on this record, we do not sustain
the Examiner’s rejection of independent claims 1,5, and 7 under
35 U.S.C. § 103(a) in view of the aforementioned combination, or dependent
claims 2-4, 6, and 8—10.
Issue 4
The Examiner finds Travostino’s discussion of a suspension of a VM
on a source machine teaches “blocking data communications between the
selected VM and other VMs in the secure virtualized computing
environment,” as recited in independent claim 1, and similarly recited in
independent claims 5 and 7. See Final Act. 11—12; see also Ans. 8 (citing
Travostino col. 2,11. 32—54). Appellants argue Travostino does not teach
suspending a VM, and instead merely discusses suspending an application
within a VM, and thus, Travostino also does not teach or suggest blocking
data communications between the selected VM and other VMs in the secure
virtualized computing environment. See Appeal Br. 10; see also Reply
Br. 8-9.
We find Appellants’ arguments persuasive. We agree with Appellants
that Travostino merely teaches suspending applications within a VM while
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Application 12/210,249
the VM is migrated and subsequently resuming the applications, as opposed
to blocking communications of a VM with other VMs. See Travostino
col. 1,11. 54—56; col. 2,11. 42-43. The Examiner has not established that any
of the other cited references cure Travostino’s deficiency. Thus, we
conclude the Examiner has not established that the combination of
Travostino, Tremain, and Jones teaches or suggests “blocking data
communications between the selected VM and other VMs in the secure
virtualized computing environment,” as recited in independent claim 1, and
similarly recited in independent claims 5 and 7. Accordingly, on this record,
we do not sustain the Examiner’s rejection of independent claims 1, 5, and 7
under 35 U.S.C. § 103(a) in view of the aforementioned combination, or
dependent claims 2-4, 6, and 8—10.
DECISION
We reverse the Examiner’s decision rejecting claims 1—10 under
35 U.S.C. § 112, second paragraph.
We affirm the Examiner’s decision rejecting claims 7—10 under
35 U.S.C. § 101.
We reverse the Examiner’s decision rejecting claims 1—10 under
35 U.S.C. § 103(a).
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-IN-PART
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