Ex Parte Kern

Patent Trial and Appeal Board

Dec 9, 2015

12752762 (P.T.A.B. Dec. 9, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121752,762 04/01/2010
56102 7590 12/11/2015
IBM (ROC-KLS)
c/o Kennedy Lenart Spraggins LLP
8601 Ranch Road 2222
Ste. 1-225
AUSTIN, TX 78730
FIRST NAMED INVENTOR
Eric R. Kern
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.
RPS920100009US 1 3162
EXAMINER
SWIFT, CHARLES M
ART UNIT PAPER NUMBER
2196
NOTIFICATION DATE DELIVERY MODE
12/11/2015 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):
office@klspatents.com
kate@klspatents.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ERIC R. KERN
Appeal2014-000037
Application 12/752,762
Technology Center 2100
Before JOSEPH L. DIXON, JAMES R. HUGHES, and ERIC S. FRAHM,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-000037
Application 12/752,762
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
The invention relates to administration of virtual machine affinity in a
cloud computing environment (Spec. 1: 11-13). Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A method of administration of virtual machine affinity in
a cloud computing environment, the cloud computing
environment comprising a plurality of virtual machines
('VMs'), the VMs comprising modules of automated
computing machinery installed upon cloud computers disposed
within a data center, the cloud computing environment further
comprising a cloud operating system and a data center
administration server operably coupled to the VMs, the method
compnsmg:
installing, by the cloud operating system on at least one
VM, an indicator that at least two of the VMs have an affinity
requirement to be installed upon separate cloud computers;
communicating, by at least one of the VMs, the affinity
requirement to the data center administration server; and
moving by the data center administration server the VMs
having the affinity requirement to separate cloud computers in
the cloud computing environment.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Tameshige
Yuyitung
US 7,890,613 B2 Feb. 15, 2011
US 2009/0070771 Al Mar. 12, 2009
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Application 12/752,762
REJECTIONS
The Examiner made the following rejections:
Claims 1, 3, 9, 11, and 17 stand rejected under the doctrine of non-
statutory obviousness-type double patenting over US Application No.
12/730,402. 1
Claims 1--4, 7-12, and 15-18 stand rejected under 35 U.S.C § 102(b)
as being anticipated by Yuyitung.
Claims 5, 6, 13, 14, 19, and 20 stand rejected under 35 U.S.C § 103(a)
as being unpatentable over Yuyitung and Tameshige.
ANALYSIS
The Double Patenting Rejection
Appellant does not present arguments traversing the merits of the non-
statutory obviousness-type double patenting rejection (see Br. 5). We
therefore sustain the double patenting rejection of claims 1, 3, 9, 11, and 17.
The Anticipation Rejection
Appellant contends Yuyitung fails to disclose the claim 1 limitation
"installing, by the cloud operating system on at least one VM, an indicator
that at least two of the VMs have an affinity requirement to be installed upon
separate cloud computers" (Br. 5---6). Specifically, Appellant argues:
[I]n Yuyitung, the analysis system is responsible for
determining which systems should be kept together or apart,
generating virtualization maps based on this determination,
generating affinity rules based on the virtualization map, and
1 US Application No. 12/730,402 issued as US Patent 8,255,508 on August
28, 2012.
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Appeal2014-000037
Application 12/752,762
deploys the virtualization. Because the cited portions of
Yuyitung describe the determination of affinity or anti-affinity
as being done entirely within the analysis system (9) and
Yuyitung's analysis system is not itself a virtual machine (See
Yuyitung at Figures 1-2), Yuyitung does not disclose that one
of Yuyitung's virtual machines has installed upon it any
indication of any other virtual machine's affinity
requirements-much less its own affinity requirement.
(Br. 6.) We are not persuaded by Appellant's arguments.
Yuyitung discloses a system for transforming a physical computing
environment into a virtual environment through the use of an analysis
program, a virtualization ruleset, and a user interface (Yuyitung, i-f 80). The
analysis program creates "an overall system affinity map that indicates the
systems which should be kept together and which ones should be separated
when they are virtualized" (Yuyitung, i-f 211 ). "For example, a virtual
machine that serves an active backup/failover for another virtual machine
should not be deployed on the same target host (anti-affinity)" (Yuyitung, i-f
242). Yuyitung further discloses:
After the virtualized environment 21 is deployed, the analysis
program 10 and virtualization UI 13 can be used to provided
decision support for ongoing management 15 by gathering
configuration and workload data from the virtualization hosts
and virtual machines on an ongoing basis and used this to both
track the environments as well as enable further analysis and
optimization as servers and constraints change over time.
(Yuyitung, i-f 213.) Such further optimization may include actions to "move
existing virtual machines and/ or virtualization hosts to different clusters,
update affinity or anti-affinity rules" (Yuyitung, i-f 254).
Accordingly, we find Yuyitung discloses virtualizing a physical
computing environment and collecting configuration data from the resulting
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Appeal2014-000037
Application 12/752,762
virtual machines on an ongoing basis in order to determine, for example,
whether two virtual machines need to be moved to different physical servers
due to an anti-affinity constraint. We agree with the Examiner (see Ans. 17-
18) that the anti-affinity constraint discovered by Yuyitung's analysis
system, for example, where one virtual machine acts as a backup for another
virtual machine, meets the claim 1 limitation "installing, by the cloud
operating system on at least one VM, an indicator that at least two of the
VMs have an affinity requirement to be installed upon separate cloud
computers." That is, there must be some indicator on a virtual machine in
order for Yuyitung's analysis program to discover, based on configuration
data collected from the virtual machine, that there is a new anti-affinity
constraint. We note that claim 1 does not specify any particular form of the
indicator. Further, one of ordinary skill in the art would understand that the
discovered anti-affinity indicator must indicate the identity of both virtual
machines subject to an anti-affinity rule in the case where one machine is the
backup of the other in order to implement the rule.
We are, therefore, not persuaded the Examiner erred in rejecting claim
1, and claims 2--4, 7-12, and 15-18 not specifically argued separately.
The Obviousness Rejection
Appellant presents no specific arguments for claims 5, 6, 13, 14, 19,
and 20, but rather relies on the same arguments presented for claims 1, 7,
and 17, from which claims 5, 6, 13, 14, 19, and 20 depend (see Br. 8). For
the reasons discussed above, Appellant's arguments are not persuasive. We
therefore also sustain the obviousness rejection of claims 5, 6, 13, 14, 19,
and 20.
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Application 12/752,762
CONCLUSIONS
Under the doctrine of non-statutory obviousness-type double
patenting, Appellant has not shown that the Examiner erred in rejecting
claims 1, 3, 9, 11, and 1 7.
Under 35 U.S.C. § 102(b), the Examiner did not err in rejecting claims
1, 2--4, 7-12, and 15-18.
Under 35 U.S.C. § 103(a), the Examiner did not err in rejecting claims
5, 6, 13, 14, 19, and 20.
DECISION
For the above reasons, the Examiner's decision rejecting claims 1-20
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).
AFFIRivIED
tj
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