Ex Parte Levy et al

Patent Trial and Appeal Board

Oct 6, 2016

12540650 (P.T.A.B. Oct. 6, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/540,650 08/13/2009
1009 7590 10/11/2016
KING & SCHICKLI, PLLC
800 CORPORATE DRIVE, SUITE 200
LEXINGTON, KY 40503
FIRST NAMED INVENTOR
Roger P. Levy
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.
1363-091 1746
EXAMINER
KA WSAR, ABDULLAH AL
ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
10/11/2016 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):
uspto@iplawl.net
laura@iplawl.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROGER P. LEVY, JEFFREY M. JAFFE, KATTIGANEHALLI Y.
SRINIVASAN, MATTHEW T. RICHARDS, and ROBERT A. WIPFEL
Appeal2015-002388
Application 12/540,650
Technology Center 2100
Before MAHSHID D. SAADAT, MIRIAM L. QUINN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1-20, i.e., all pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 According to Appellants, the real party in interest is Novell, Inc.
App. Br. 3.
Appeal2015-002388
Application 12/540,650
STATEMENT OF THE CASE
The Invention
The invention concerns managing computer workloads in a virtual
computing environment. Spec. 1:2-2:4, 3: 16-22, Abstract. 2
Representative Claim
Independent claim 1 exemplifies the subject matter of the claims
under consideration and reads as follows, with italics identifying the key
limitations at issue:
1. In a computing system environment, a method of
managing workloads deployed as virtual machines under the
scheduling control ofhypervisors on computing devices having
hardware platforms with at least one operating system with
guest user and kernel spaces, comprising:
individually instrumenting each of the workloads,
hypervisors and guest user and kernel spaces of attendant
operating systems with separate probes for independently
collecting current state information therefrom;
by said probes, collecting current state information from
each of the workloads, hypervisors and guest user and kernel
spaces; and
correlating the current state information to predefined
operational characteristics for the workloads, hypervisors and
guest user and kernel spaces.
App. Br. 23 (Claims App.).
2 This decision employs the following abbreviations: "Spec." for the
Specification, filed August 13, 2009; "Final Act." for the Final Office
Action, mailed May 20, 2014; "App. Br." for the Appeal Brief, filed
August 25, 2014; and "Ans." for the Examiner's Answer, mailed
November 7, 2014.
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Application 12/540,650
The Prior Art Supporting the Rejections on Appeal
As evidence of unpatentability, the Examiner relies on the following
prior art:
Gotwals et al. US 7,043,719 B2 May 9, 2006
("Gotwals")
Araujo et al. US 2008/0082977 Al Apr. 3, 2008
("Araujo")
F einleib et al. US 2008/0196043 Al Aug. 14, 2008
("F einleib")
Ferris US 2009/0293056 Al Nov. 26, 2009
(filed May 22, 2008)
Fries US 2009/0328030 Al Dec. 31, 2009
(filed June 27,2008)
Suri et al. US 2010/0131636 Al May 27, 2010
("Suri") (filed Nov. 24, 2008)
The Rejections on Appeal
Claims 1-3, 7, 9-14, and 17-19 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Suri in view of Araujo, Feinleib, and Fries.
Final Act. 2-16; App. Br. 5; Ans. 2.
Claims 4--6, 15-16, and 20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Suri in view of Araujo, Feinleib, Fries, and Ferris. Final
Act. 16-19; App. Br. 5; Ans. 2.
Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Suri in view of Araujo, Feinleib, Fries, and Gotwals. Final Act. 20; App.
Br. 5; Ans. 2.
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Application 12/540,650
ANALYSIS
We have reviewed the rejections of the pending claims in light of
Appellants' arguments that the Examiner erred. In doing so, we have
evaluated only the arguments that Appellants actually make on appeal.
The Rejections of Claims 1-3, 7, 9-14,
and 17-19 Under 35 US.C. § 103(a)
The "Individually Instrumenting" Limitation
Independent Claims 1, 10, and 18
Claims 1 and 10 recite "individually instrumenting each of the
workloads, hypervisors and guest user and kernel spaces of attendant
operating systems with separate probes." App. Br. 23, 25 (Claims App.)
("individually instrumenting" limitation). Claim 18 recites a similar
limitation. Id. at 27.
Appellants argue that the independent claims require that "each of the
workloads, hypervisors, guest user, and kernel spaces are instrumented with
separate probes for independently collecting current state information
therefrom." App. Br. 13. Appellants then argue that no reference teaches or
suggests individually instrumenting each recited element, i.e., "workloads,
hypervisors and guest user and kernel spaces." Id. at 13-17. For each cited
reference-Suri, Araujo, Feinleib, and Fries-Appellants argue the failure of
the reference to teach or suggest individually instrumenting each recited
element. Id.
We are not persuaded by Appellants' arguments because the
arguments address the references individually. For example, the Examiner
notes that the rejection rests on § 103 based on Suri in view of Araujo,
Feinleib, and Fries. Ans. 4; see Final Act. 21. From the combined teaching
of the references, the Examiner concludes that "[i]t would have been
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Application 12/540,650
obvious to a person of ordinary skill in art at the time of invention ... to
have [a] plurality [of] agents in a virtual machine/operating system as
desired to monitor" any elements of the virtual machine/ operating system
"to perform individual measurement of the elements ... for better
performance evaluation." Ans. 5---6; see Final Act. 5 i-f 6. Where a rejection
rests on a combination of references, an appellant cannot establish
nonobviousness by attacking the references individually. See In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Furthermore, we agree with the Examiner that the cited references
teach or suggest the "individually instrumenting" limitation. Specifically,
we find that (1) Suri "teaches monitoring all the elements of a host system,"
e.g., "with a probe for collecting current state information" (Final Act. 4, 9,
14, 22; Ans. 4 (citing Suri i-f 32)); (2) Feinleib "teaches separate agent/probe
for hypervisor and virtual machines (workload) for monitoring and
collecting performance information independently" (Final Act. 4, 9, 14, 22
(citing F einleib i-f 6, Fig. 1, Fig. 1 Oa ); Ans. 5 (citing F einleib i-f 6, Fig. 1,
Fig. lOa); see App. Br. 16); and (3) Fries "teaches having [a] plurality [of]
agents in a virtual machine/ operating system as desired to monitor different
elements of the virtual machines/ operating system individually and
independently" (Final Act. 5, 10, 15, 22 (citing Fries i-fi-16-7); Ans. 5 (citing
Fries i-fi-16-7)).
Moreover, the Examiner finds, and we agree, that "it is well known in
the art that a software element or agent ... should be associated with the
individual elements of the system for being able to monitor and collect the
state information of the element ... for making proper corrective decision."
Ans. 4--5. Appellants did not reply, and did not dispute that finding.
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The Interpretation of the Term "Workload"
Addressing the Examiner's reliance on Feinleib as teaching a separate
probe for each workload, Appellants argue that Feinleib's "virtual machine
and the [recited] workload are not the same." App. Br. 15. We are not
persuaded by this argument. As the Examiner notes, and we agree, the
claims themselves refer to "workloads deployed as virtual machines" and,
therefore, the term "workload" reasonably interpreted encompasses a virtual
machine. Ans. 6; see App. Br. 23 (claim 1 ), 24 (claim 10), 26 (claim 18).
Reasons for Combining the References
Appellants also argue that the Examiner failed to provide valid
reasons for combining the references and, instead, relied on "mere
speculation and/or hindsight analysis," not "objective, substantial evidence
within the record as is required of all agency holdings." App. Br. 17-18. To
support that argument, Appellants assert, among other things, ( 1) that Suri
addresses "the health and function of a centralized application" and
"requires centralized monitoring of attendant resources," (2) that in contrast
to Suri, "Appellant[s'] disclosure" concerns "the health and function of the
attendant resources," and (3) that placing monitoring agents "on or in other
elements of the [Suri] system would provide no advantage" to that system.
Id. at 18-19.
We disagree with Appellants that the Examiner failed to provide valid
reasons for combining the references. We concur with, and adopt as our
own, the Examiner's findings regarding the motivation for combining the
teachings of Suri, Araujo, Feinleib, and Fries. Final Act. 3-5, 8-10, 14--15,
22-23; Ans. 7-8 (explaining that a person of ordinary skill in the art would
be motivated to implement the techniques of Araujo, Feinleib, and Fries with
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the teachings of Suri to determine if the monitored elements are in proper
operational state or degrading the required performance level so corrective
action may be made to improve the state of the elements). See KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 417 (2008) ("[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.")
We add the following for emphasis. The Examiner appropriately
points out that the claims do not recite the "decentralized collection" of
information. Ans. 3--4; see Final Act. 23. In addition, Appellants admit that
information collection according to Appellants' disclosure occurs "via a
remote or local management interface," i.e., through a central interface.
Ans. 3--4 (quoting App. Br. 13); compare Spec. Fig. 2 monitor H with
Araujo Fig. 3 monitoring agent 320. Furthermore, to the extent Appellants
challenge the use of various collection or monitoring agents in Suri' s system
as providing no advantage, that argument is not supported by objective facts
(non-attorney argument) and does not overcome the Examiner's reasoning
that desiring to improve performance evaluation of the system motivates the
use, in Suri's system, of separate agents for hypervisor, virtual machines,
and guest user and kernel space, as in Feinleib and Fries. See Ans. 5-6.
Accordingly, Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claims 1, 10, and 18 for obviousness based on
Suri, Araujo, Feinleib, and Fries.
Dependent Claims 3, 9, and 13
For claims 3, 9, and 13, Appellants do not present any separate
patentability arguments. App. Br. 13-21. Because Appellants do not argue
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the claims separately, they stand or fall together. See 37 C.F.R.
§ 41.37(c)(l)(iv).
Dependent Claims 2, 7, 11-12, 17, and 19
For claims 2, 7, 11-12, 17, and 19, Appellants argue patentability
based on the absence in the prior art of a teaching or suggestion for
"individually instrumenting each of the workloads, hypervisors and guest
user and kernel spaces." App. Br. 20-21. For instance, Appellants state that
"[ e Jach of claims 2, 11, and 19 require[ s] determining if any remediation
action is required for the workloads, hypervisors, and guest user and kernel
spaces." Id. at 20. Appellants then contend that the prior art "cannot teach
or suggest determining whether remediation action is required for those
elements" because the prior art does not teach or suggest individually
instrumenting those elements. Id. Appellants' patentability arguments for
claims 7, 12, and 17 parallel the arguments for claims 2, 11, and 19. Id.
at 20-21.
For the reasons discussed for independent claims 1, 10, and 18,
Appellants' arguments have not persuaded us that the Examiner erred in
rejecting claims 2, 7, 11-12, 17, and 19 for obviousness based on Suri,
Araujo, Feinleib, and Fries.
Dependent Claim 14
Claim 14 depends indirectly from claim 10, and recites "consulting an
independent software vendor at still another location remote from the
enterprise in order to establish the acceptable operational state of the
workloads, hypervisors and guest user and kernel spaces." App. Br. 26
(Claims App.). The Examiner finds that Suri teaches that limitation. Final
Act. 11 (citing Suri i-f 27).
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Appellants acknowledge that Suri "teaches an appliance virtual
machine in communication with server management software for centralized
management." App. Br. 21 (citing Suri i-f 27). Appellants then argue that
Suri "never teaches or suggests combining software from third party vendors
and/or receiving information regarding acceptable operational parameters for
software from third party vendors of the software." Id.
We are unpersuaded by this argument for two reasons. First,
Appellants' argument is not commensurate in scope with claim 14.
Claim 14 does not require combining software from third-party vendors or
that third-party vendors provide operational parameters for software.
Claim 14 broadly recites "consulting an independent software vendor ... in
order to establish the acceptable operational state .... " The "acceptable
operational state" for the workloads, hypervisors and guest user and kernel
spaces reasonably may be interpreted to be sourced from an independent
source or an in-house source (or from both).
Second, Appellants' arguments do not address the disclosure in Suri
on which the Examiner relies. In particular, the Examiner relies on
paragraph 27, lines 1-15 of Suri as teaching the limitation. See Final Act.
11. That paragraph of Suri describes the host system with an appliance
virtual machine that includes components accessible by third party vendors.
Appellants' arguments do not address the disclosure of "third party vendors"
accessing the appliance virtual machine host.
Accordingly, Appellants' arguments have not persuaded us that the
Examiner erred in rejecting claim 14 for obviousness based on Suri, Araujo,
Feinleib, and Fries.
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The Rejections of Claims 4-6, 8, 15-16,
and 20 Under 35 USC§ 103(a)
To support the obviousness rejections of dependent claims 4--6, 8,
15-16, and 20, the Examiner relies on Ferris or Gotwals in addition to Suri,
Araujo, Feinleib, and Fries. Final Act. 16-20; Ans. 2. Appellants, however,
do not address either Ferris or Gotwals, or proffer separate arguments for
these dependent claims. App. Br. 22. Therefore, because Appellants do not
argue the claims separately, they stand or fall together. See 37 C.F.R.
§ 41.37(c)(l)(iv). Hence, we sustain the obviousness rejections of these
dependent claims.
DECISION
We affirm the rejections of claims 1-20 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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