Ex Parte Zhang et al

Patent Trial and Appeal Board

Mar 8, 2016

12559484 (P.T.A.B. Mar. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
12/559,484
36378 7590
VMWARE, INC.
DARRYL SMITH
FILING DATE
09/14/2009
03/10/2016
3401 Hillview Ave.
PALO ALTO, CA 94304
FIRST NAMED INVENTOR
Irene ZHANG
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.
A282 8516
EXAMINER
MACKALL, LARRY T
ART UNIT PAPER NUMBER
2131
NOTIFICATION DATE DELIVERY MODE
03/10/2016 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):
ipteam@vmware.com
ipadmin@vmware.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IRENE ZHANG, KENNETH CHARLES BARR, GANESH
VENKITACHALAM, IRFAN AHMAD, ALEX GARTHWAITE, and
JESSE POOL
Appeal 2014-003926
Application 12/559,484
Technology Center 2100
Before CARL W. WHITEHEAD, JR, JEFFREYS. SMITH, and
DANIEL N. FISHMAN, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2014-003926
Application 12/559,484
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-28, which are all the claims pending in the application.
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Illustrative Claim
1. A method for restoring state information in a virtual machine
("VM") and resuming operation of the VM, the state
information having been saved in connection with earlier
operation of the VM, the state information for the VM
comprising virtual disk state information, device state
information and VM memory state information, the method
compnsmg:
restoring access to a virtual disk for the VM;
restoring device state for the VM;
loading into physical memory one or more memory
pages from a previously identified set of active memory pages
for the Vl\1, the set of active memOPJ pages having been
identified as being recently accessed prior to or during the
saving of the state information of the VM, the set of active
memory pages comprising a subset of VM memory pages,
wherein the previously identified set of active memory pages
for the VM is identified by, in response to determining that
state information for the VM is to be saved, placing traces on
the VM memory pages that are in the physical memory to
detect read accesses and write accesses that occur while the
state information is being saved;
after the one or more memory pages from the previously
identified set of active memory pages have been loaded into the
physical memory, resuming operation of the VM; and
after resuming operation of the VM, loading into the
physical memory additional VM memory pages.
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Appeal2014-003926
Application 12/559,484
Examiner's Rejections
Claims 15-28 stand rejected under 35 U.S.C. § 101 as directed to non-
statutory subject matter.
Claims 1-28 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Nicholas (US 2008/0022032 Al, published Jan. 24, 2008) and
Atkinson (US 2002/0087816 Al, July 4, 2002).
ANALYSIS
We adopt the findings of fact made by the Examiner in the Final
Action and Examiner's Answer as our own. We concur with the conclusions
reached by the Examiner for the reasons given in the Examiner's Answer.
We highlight the following for emphasis.
Section 1 OJ rejection of claims 15-28
Appellants contend a "computer readable storage medium" as recited
in claim 15 is a statutory article of manufacture. Appeal Br. 8-10.
However, the Board addressed this same issue and "[did] not find this
argument persuasive." See Ex parte Mewherter, 107 USPQ2d 1857, 1859
(PT AB 2013) (precedential) (expanded panel). In Mewherter, the Board
found a growing body of evidence demonstrated that "the ordinary and
customary meaning of 'computer readable storage medium' to a person of
ordinary skill in the art was broad enough to encompass both non-transitory
and transitory media." Id. at 1860. Consequently, the Board found claims
directed to a machine-readable storage medium, deemed equivalent to
claims directed to a computer-readable storage medium, are typically, absent
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Appeal2014-003926
Application 12/559,484
intrinsic evidence to the contrary, directed to signals per se and must be
rejected under 35 U.S.C. § 101 as directed to non-statutory subject matter.
Id. at 1859, n.2.
Appellants contend Mewherter contradicts the Federal Circuit's
decision in In re Nuijten, 500 F.3d 1346 (Fed. Cir. 2007). Reply Br. 2-3.
Appellants' contention is based on the dissenting opinion from Nuijten
(Appeal Br. 8), therefore, we disagree with Appellants' contention, and rely
on the analysis from Mewherter to determine whether claim 15 recites
statutory subject matter.
Here, the mere addition of the term "storage" to the claim term
"computer readable medium" does not act to exclude transitory signals when
such signals are not expressly excluded from the Specification or the claim
language. See Mewherter at 1862. Moreover, Appellants do not identify
evidence in the Specification showing that the term "storage" limits the
claimed invention to statutory subject matter.
We sustain the Examiner's§ 101 rejection of claims 15 through 28.
Section 103 rejection of claims 1-7, 9, 11, 12, 15-21, 23, 25, and 26
Appellants contend "placing traces on the VM memory pages that are
in physical memory to detect read accesses and write accesses that occur
while the state information is being saved" as recited in claim 1 is not taught
by the prior art. Appeal Br. 11-13; Reply Br. 3---6. The Examiner finds,
inter alia, paragraphs 78 and 79 of Atkinson teach this limitation. Final Act.
4.
Atkinson teaches monitoring memory pages that are accessed (i-f 78)
by setting a dirty bit to monitor the access (i-f 79). Cumulative to the
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Appeal2014-003926
Application 12/559,484
Examiner's findings, we highlight Atkinson teaches clearing the dirty bit
during a save operation, so that another write to the same memory page will
result in the dirty bit being set again. i-f 59. Appellants have not provided
persuasive evidence or argument to distinguish placing traces "to detect read
accesses and write accesses that occur while the state information is being
saved" as recited in claim 1 from clearing a dirty bit during a save operation
so that another write to the memory page will be detected by setting the dirty
bit again as taught by Atkinson.
Further, Appellants' contention that placing traces to detect read and
write accesses that occur while information is being saved is unknown in the
prior art is inconsistent with paragraphs 33 and 61 of Appellants'
Specification, which discloses patents for installing traces to detect accesses
that occur while memory is being saved.
We sustain the rejection of claim 1 under 35 U.S.C. § 103. Appellants
do not provide arguments for separate patentability of claims 2-7, 9, 11, 12,
15-21, 23, 25, and 26, which fall with claim 1.
Section 103 rejection of claims 8 and 22
Appellants present arguments for the patentability of claims 8 and 22
(Appeal Br. 13-14) similar to those presented for claim 1, which we find
unpersuasive.
Section 103 rejection of claims 10 and 24
Appellants contend Atkinson does not teach "upon determining that
the state information for the VM is to be saved, clearing access bits in page
tables for the VM memory pages in the physical memory" as recited in claim
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Appeal2014-003926
Application 12/559,484
10, because the teachings of Atkinson differ from the actual claim language.
Appeal Br. 14--15. The Examiner finds, inter alia, that paragraph 45 of
Atkinson teaches this limitation. Final Act. 7.
The proper test for obviousness is not whether the prior art references
disclose all elements of the claimed invention; rather, the proper test is what
the combined teachings would have suggested to a person of ordinary skill
in the art. See In re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000). In such
an analysis, precise teachings directed to the specific subject matter of the
challenged claim need not be identified because the inferences and creative
steps that a person of ordinary skill in the art would employ can be taken
into account. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007);
see also In re Preda, 401F.2d825, 826 (CCPA 1968) ("[I]n considering the
disclosure of a reference, it is proper to take into account not only specific
teachings of the reference but also the inferences which one skilled in the art
would reasonably be expected to draw therefrom.").
Paragraph 45 of Atkinson teaches the status bits are readable and
clearable in response to a particular event. One skilled in the art can
reasonably infer that choosing the event as a save event results in clearing
status bits for the particular event of a save operation. Appellants have not
provided persuasive evidence or argument to show clearing status bits in
response to a save event was beyond the level of skill of an artisan who can
clear the status bits in response to a particular event as taught by Atkinson.
See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007).
We sustain the rejection of claims 10 and 24 under 35 U.S.C. § 103.
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Application 12/559,484
Section 103 rejection of claims 13, 14, 27 and 28
Appellants contend the combination of Nicholas and Atkinson does
not teach either the "shadow page tables" recited in claim 13 (Appeal Br.
15-16) or the "virtualization-supporting page tables" recited in claim 14
(Appeal Br. 16-17). Appellants have not provided persuasive evidence or
argument to distinguish "clearing and monitoring access bits in one or more
shadow page tables" as recited in claim 13 from clearing and monitoring
access bits for the page tables taught by Atkinson. In particular, Appellants
have not shown that clearing and monitoring access bits for "shadow page
tables" using the method taught by the combination of Nichols and Atkinson
does anything more than yield the predictable result of clearing and
monitoring the access bits for page tables as taught by Atkinson. See KSR,
550 U.S. at 416. Similarly, we are not persuaded that clearing and
monitoring access bits for "virtualization-supporting page tables" of claim
14 was beyond the level of ordinary skill of one who can clear and monitor
access bits for page tables.
We sustain the rejection of claims 13, 14, 27, and 28 under 35 U.S.C.
§ 103.
DECISION
The rejections of claims 1-28 are 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). See 37 C.F.R.
§ 41.50(f).
AFFIRMED
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