Ex Parte Geibel et al

Patent Trial and Appeal Board

Mar 13, 2018

13401786 (P.T.A.B. Mar. 13, 2018)

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.
13/401,786 02/21/2012 Jonathan Eric Geibel DISNEY-0530-US 8110
94468 7590 03/15/2018
DTSNFY FNTFRPRTNFN TNC EXAMINER
c/o Patent Ingenuity, P.C.
9701 Wilshire Blvd., Suite 1000
GHAFFARI, ABU Z
Beverly Hills, CA 90212 ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
03/15/2018 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):
ssimpson@patentingenuity.com
patents@patentingenuity.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JONATHAN ERIC GEIBEL, JEFFREY M. JORDAN,
SCOTT LANE BURRIS, and KEVIN CHRISTOPHER CONSTANTINE
Appeal 2017-007150
Application 13/401,7861
Technology Center 2100
Before MARC S. HOFF, DENISE M. POTHIER, and SCOTT E. BAIN,
Administrative Patent Judges.
BAIN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Non-Final Rejection of claims 1, 3—8, 10-16, 18—23, and 25—29, which
constitute all claims pending in the application. Claims 2, 9, 17, and 24 have
been canceled. Non-Final 2; App. Br. 2. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as Disney Enterprises, Inc.
App. Br. 2.
Appeal 2017-007150
Application 13/401,786
STATEMENT OF THE CASE
Claimed Invention
Appellants’ claimed invention relates to prioritization of computing
resources, and specifically, dynamic allocation of computing resources using
a “resource broker.” Spec. Tflf 1—6. Claims 1, 8, 15, 16, 23, and 29 are
independent. Claim 1 is illustrative of the invention and the subject matter
of the appeal, and reads as follows:
1. A computer program product comprising a non-transitory
computer readable storage device having a computer readable
program stored thereon, wherein a set of compute resources is
assigned as a priority to a master process, wherein the computer
readable program when executed on a computer causes the
computer to:
determine in real-time, with a resource broker, whether a
portion of the set of compute resources is not being used by the
master process and is not prevented by the master process from
being used by an auxiliary process;
assign, with the resource broker, the portion of the set of
compute resources to the auxiliary process if the portion of the
set of compute resources is not being used by the master process
and is not prevented by the master process from being used by
the auxiliary process;
instantiate a virtual machine to perform processing with
use of the portion of the set of compute resources by the auxiliary
process',
determine, with the resource broker, that the master
process is attempting to utilize the portion of the set of compute
resources during usage by the auxiliary process of the set of
compute resources; and
reassign, with the resource broker, the portion of the set of
compute resources to the master process from the auxiliary
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Application 13/401,786
process such that processing being performed by the master
process is interrupted for a duration that is less than a
predetermined time threshold.
App. Br. 19 (Claims App.) (emphasis added).
Prior Art
The Examiner relies upon the following prior art:
Abbott et al.
Armstrong et al.
Teo et al.
Johnson et al.
Biran et al.
US 2003/0033344 Al
US 2006/0206891 Al
US 2009/0201867 Al
US 2009/0276783 Al
US 2012/0042311 Al
Feb. 13, 2003
Sept. 14, 2006
Aug. 13, 2009
Nov. 5, 2009
Feb. 16, 2012
Rejections on Appeal
Claims 1, 8, 15, 16, 23, and 25—29 stand rejected under pre-AIA 35
U.S.C. § 103(a) as unpatentable over Armstrong et al. (“Armstrong”), Teo et
al. (“Teo”), and Johnson et al. (“Johnson”). Non-Final Act. 3—8.
Claims 3, 4, 6, 7, 10, 11, 13, 14, 18, 19, 21, and 22 stand rejected
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Armstrong, Teo,
Johnson, and Biran et al. (“Biran”). Non-Final Act. 8—10.
Claims 5,12, and 20 stand rejected under pre-AIA 35 U.S.C. § 103(a)
as unpatentable over Armstrong, Teo, Johnson, and Abbott et al. (“Abbott”).
Non-Final Act. 10—11,2
2 The Examiner’s rejection of claims 1, 3—8, 10-16, 18—23, and 25—29
under pre-AIA 35 U.S.C. § 112, second paragraph has been withdrawn.
Final Act. 2—3; Ans. 4.
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Application 13/401,786
ANALYSIS
We have reviewed the Examiner’s rejection in light of Appellants’
arguments presented in this appeal. Arguments which Appellants could
have made but did not make in the Briefs are deemed to be waived. See
37 C.F.R. § 41.37(c)(l)(iv). On the record before us, we are unpersuaded
the Examiner has erred. We adopt as our own the findings and reasons set
forth in the rejections from which the appeal is taken and in the Examiner’s
Answer, and provide the following discussion for highlighting and emphasis.
Appellants do not dispute the Examiner’s finding that Armstrong,
Teo, and Johnson, when combined, teach or suggest all of the elements of
claim l.3 App. Br. 13—15; Reply Br. 2-4. Appellants, however, argue the
Examiner erred in finding a rationale or motivation to combine the
references, and specifically, to combine Armstrong with Johnson. App. Br.
13. Appellants contend the combination would render Armstrong
unsatisfactory for its intended purpose, because Armstrong requires a “strict
binding of virtual resources [for a partition] with the physical resources
assigned to that partition,” whereas Johnson teaches “virtual resources in a
partition to not be strictly bound to the physical resources of that partition.”
Id. Appellants also argue that the combination (or modification of
Armstrong) changes the principle of operation of Armstrong, for the same
reasons. Id. at 14—15. Appellants’ arguments, however, do not persuade us
the Examiner erred.
3 Appellants argue all of the claims on appeal as a group, and we choose
claim 1 as representative of the group. See 37 C.F.R. § 41.37(c)(l)(4).
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Application 13/401,786
The Examiner finds Armstrong teaches or suggests every element of
claim 1 except “instantiating a virtual machine” and “a duration that is less
than a predetermined time threshold” (the latter of which is not at issue in
this appeal). Non-Final Act. 6. The Examiner relies on Johnson for its
teaching of “instantiating a virtual machine.” Non-Final Act. 7; Ans. 7—9.
In the Non-Final Action, the Examiner cites Johnson paragraph 21, which
states in relevant part:
In one embodiment ... a method consistent with the invention
identifies a logical partition profile to configure on the new
logical partition, allocates at least a portion of the resources
... to the new logical partition, and migrates data from the
logical partition profile to the new logical partition. ... In
another embodiment, at least a portion of the resources from the
resource pool is allocated to at least one logical partition.
Johnson 121. Appellants read this disclosure of embodiments as precluding
“strict hardware affinity” in a virtual machine, which Appellants contend is
the purpose of Armstrong. App. Br. 13; Armstrong || 16—17 (“[A] need
exists for a virtualized logical partitioned (FPAR) system that maintains
strict hardware affinity. . . . The virtual resources are mapped and bound to
the physical resources that are available in the system.”).
We agree with the Examiner’s finding, however, that Johnson’s
teachings do not require or suggest “wot using affinity based resources” or
“changing] the binding between physical and virtual resources.” Ans. 9
(citing Johnson || 17, 19-21) (emphasis added). Rather, Johnson more
broadly teaches instantiating a virtual machine. For example, Johnson
states, “the logical partitions may run in a virtualized environment,” and
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Application 13/401,786
“virtual resources are allocated to each logical partition such that the virtual
resources appear to a logical partition to which they are allocated as actual
physical resources.” Johnson || 17, 20. Similarly, Armstrong teaches
“virtual resources, rather than physical resources, are assigned to the
partitions [and] [bjecause of the virtual machine capability of the system,
logical partitions that are in need of resources that are assigned to other
partitions are allowed to use those resources if the resources are idle.”
Armstrong 117.4
In an obviousness analysis, prior art references must be “considered
together with the knowledge of one of ordinary skill in the pertinent art,” In
re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994), and we “take account of
the inferences and creative steps that a person of ordinary skill in the art
would employ.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
For the foregoing reasons, we discern no error in the Examiner’s finding that
it would be obvious to a person of ordinary skill in the art to combine the
teachings of Armstrong and Teo with Johnson’s teaching of “instantiating]
a virtual machine.” Final Act. 7.
Accordingly, we sustain the Examiner’s obviousness rejection of
claim 1. For the same reasons, we sustain the obviousness rejections of the
remaining claims, which Appellants assert are “allowable for similar reasons
as independent claim 1.” App. Br. 15—16.
4 Armstrong paragraphs 16 and 17 provide further support for the
Examiner’s finding that the claim limitation “instantiate a virtual machine”
would be obvious to one of ordinary skill in the art. Non-Final Act. 6; see
also Johnson Abstract (The invention has “virtual machine capability.”).
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Application 13/401,786
DECISION
We affirm the Examiner’s rejections of claims 1, 3—8, 10—16, 18—23,
and 25—29.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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