VMware, Inc.

Patent Trials and Appeals Board

Jan 20, 2022

2020004840 (P.T.A.B. Jan. 20, 2022)

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. 14/982,837 12/29/2015 Andrei WARKENTIN C478 4205 152569 7590 01/20/2022 Patterson + Sheridan, LLP - VMware 24 Greenway Plaza Suite 1600 Houston, TX 77046 EXAMINER AYERS, MICHAEL W ART UNIT PAPER NUMBER 2195 NOTIFICATION DATE DELIVERY MODE 01/20/2022 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): ipadmin@vmware.com psdocketing@pattersonsheridan.com vmware_admin@pattersonsheridan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREI WARKENTIN, HARVEY TUCH, CYPRIEN LAPLACE and ALEXANDER FAINKICHEN Appeal 2020-004840 Application 14/982,837 Technology Center 2100 Before JEAN R. HOMERE, CARL W. WHITEHEAD JR., and JEREMY J. CURCURI, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s rejection of claims 1-20, all of the pending claims.2 Appeal Br. 1. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We refer to the Specification filed Dec. 29, 2015 (“Spec.”); the Final Office Action, mailed May 1, 2019 (“Final Act.”); the Appeal Brief, filed Oct. 29, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed Jan. 23, 2020 (“Ans.”); and the Reply Brief, filed March 20 , 2020 (“Reply Br.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies VMware Inc., as the real party-in-interest. Appeal Br. 3. Appeal 2020-004840 Application 14/982,837 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a method and system for partitioning hypervisor 116 executing on hardware platform 106 into virtual hypervisors 118 for managing virtual machines (VM) 120. Spec. ¶ 4. Fig. 1, reproduced and discussed below, is useful for understanding the claimed subject matter: Appeal 2020-004840 Application 14/982,837 3 Figure 1 above illustrates computing system 100 including hypervisor 116 containing user-space instances (228, 229) defined by kernel 202 using operating system (OS)-level virtualization, each user-space instance (Fig. 2, 228, 229) being isolated from each other through corresponding namespaces (Fig. 3, 310, 312, 314, 318), and having resources 302 confined by hierarchical resource groups. Upon partitioning hypervisor 116, each ensuing virtual hypervisor 118 includes management plane instance 232 of hypervisor 116 to execute in respective user-space instance (228, 229). Id. ¶¶ 16-20. Claims 1, 11, and 19 are independent. Claim 1, reproduced below with disputed limitations emphasized, is illustrative: A computer system, comprising: a hardware platform; a hypervisor executing on the hardware platform, the hypervisor managing one or more virtual machines external to the hypervisor, the hypervisor including a kernel and a plurality of user-space instances defined by the kernel using operating system (OS)-level virtualization, each user-space instance being isolated from each other user-space instance through namespaces, each user-space instance having resources confined by hierarchical resource groups; and a plurality of virtual hypervisors, each virtual hypervisor executing in a respective userspace instance of the plurality of user-space instances, each virtual hypervisor including an instance of a management plane of the hypervisor. Appeal Br. 15 (Claims App.) (emphasis added). Appeal 2020-004840 Application 14/982,837 4 III. REFERENCES The Examiner relies upon the following references.3 Name Reference Date di Flora US 2008/0148277 A1 June 19, 2008 Phillips US 2011/0061045 A1 Mar. 10, 2011 Head US 2011/ 0185063 A1 July 28, 2011 Lysaght US 8,271,557 B1 Sept. 18, 2012 Fainkichen US 2013/0133061 A1 May 23, 2013 Kannan US 2013/0263118 A1 Oct. 3, 2013 Civilini US 2013/0290694 A1 Oct. 31, 2013 Walsh US 8,627,451 B2 Jan. 7, 2014 Lukacs US 2014/0053272 A1 Feb. 20, 2014 Singh US 9,256,467 B1 Feb. 9, 2016 Probert US 2016/0092678 A1 Mar. 31, 2016 IV. REJECTIONS The Examiner rejects the claims on appeal as follows: Claims 1-3, 11, and 19 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, and Probert. Final Act. 2-6. Claim 4 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert, Lysaght, and Phillips. Final Act. 6-8. 3 All reference citations are to the first named inventor only. Appeal 2020-004840 Application 14/982,837 5 Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert and di Flora. Final Act. 8-9. Claim 6 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert and Head. Final Act. 9-10. Claims 7-9 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert and Walsh. Final Act. 10-13. Claim 10 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert and Fainkichen. Final Act. 13-14. Claims 12-14, and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert, Walsh and Fainkichen. Final Act. 14-16. Claim 15 stands rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert, and Kannan. Final Act. 17-18. Claims 16-18 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combined teachings of Lukacs, Singh, Probert, Kannan, and Civilini. Final Act. 18-21. Appeal 2020-004840 Application 14/982,837 6 V. ANALYSIS We consider Appellant’s arguments, as they are presented in the Appeal Brief, pages 7-13 and the Reply Brief, pages 1-7.4 We are persuaded by Appellant’s contentions as discussed below. Appellant argues, inter alia, that the Examiner errs in finding that the combination of Lukacs, Singh, and Probert teaches or suggests the following: a plurality of virtual hypervisors, each virtual hypervisor executing in a respective user-space instance of the plurality of user-space instances, each virtual hypervisor including an instance of a management plane of the hypervisor [including a kernel and a plurality of user-space instances defined by the kernel using operating system (OS)-level virtualization], as recited in independent claim 1. Appeal Br. 7, Reply Br. 2. In particular, Appellant argues that Lukacs’ disclosed “virtual hypervisor” are nested hypervisors within virtual machines in a virtual hardware platform managed by an outer hypervisor, whereas the claimed “virtual hypervisors” are managed user space instances of the hypervisor executing on a hardware platform. Appeal Br. 7 (citing Lukacs ¶ 21). Therefore, according to Appellant, because the guest hypervisor disclosed in Lukacs is isolated from the host hypervisor, the guest hypervisor is not a user-space instance defined by the kernel of the host hypervisor using OS-level virtualization. Reply Br. 2. Further, Appellant argues that: Considering the combination of Lukacs and Singh, such combination teaches a hypervisor or other virtualization software executing on a hardware, virtual machines managed 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are waived. See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-004840 Application 14/982,837 7 by the hypervisor, operating systems executing in the virtual machines, and containers executing on the operating systems. This combination does not teach or suggest that the containers (e.g., containers 310) are defined by the kernel of the virtualization software (hypervisor) using OS-level virtualization, as recited in Appellant's claims. Defining containers using an OS in a virtual machine managed by the hypervisor does not teach or suggest defining containers using a kernel of the hypervisor. The Examiner cited col. 2, lines 7-9 of Singh as teaching that a virtual machine may be a software container instance. (Examiner's Answer, p. 5). However, the full quote from that section is "[t]he software container instances may be virtual machine instances configured to support containerization." This is a summary of Appellant's description of Singh above. The container instances in Singh (elements 320) are virtual machines that include OS 306 that supports containerization (e.g., containers 310). Singh does not teach an equivalence between "virtual machine" and "user-space instance defined by the kernel of a hypervisor using OS-level virtualization.'' When combining Singh with Lukacs, the virtual machines remain present and managed by the hypervisor, and the containers execute within the virtual machines. Reply Br. 4 (emphasis omitted) (alteration in original). In response, the Examiner finds because “OS-level virtualization” is not defined in the Specification, the combination of Lukacs, Singh, and Probert teaches the disputed limitations. Ans. 5-8. In particular, the Examiner finds the following: Singh teaches that virtual machines may indeed act as user-space. Specifically, Singh teaches that a virtual machine may be a "software container instance" (Column 2, Lines 7-9), and further that a container instance can also be referred to as an "isolated user space instance" (Column 5, Lines 15-29). Appeal 2020-004840 Application 14/982,837 8 Thus, Singh teaches that virtual machines can be isolated user- space instances, and vice versa. Thus, the combination of Lukacs and Singh teaches guest hypervisors that "operate on guest [VMs]" (Lukacs [0027], Lines 3-8), where the guest VMs may be isolated user space instances, and in so doing, teaches the appellant's claimed limitation of virtual hypervisors executing within user space instances. In summary, the appellant argues that Lukacs does not teach virtual hypervisors executing within user-space instances. However, Lukacs does teach virtual hypervisors executing within virtual machines, and Singh teaches that virtual machines can be user-space instances, and thus the combination of teachings arrives at the claimed limitation. . . . [T]he examiner respectfully points out that the definition of "OS-level virtualization" upon which the appellant relies in the argument, specifically that "the user-space instances execute on the hardware platform itself and not a virtual hardware platform" is not found in the claims, nor in the specification. OS-level virtualization is mentioned in [0019], and [0054] of the specification, but nowhere does it define OS-level virtualization as meaning that the user-space instances execute on the hardware platform itself and not a virtual hardware platform. . . . The combination of Lukacs and Singh teaches container instances which are virtual machines (Singh Column 2, Lines 7- 9), and further that container instances are isolated user space instances (Singh Column 5, Lines 15-29). Further, Probert teaches that private user spaces are allocated by a guest OS kernel ([0068], Lines 1-2), and that guest OS kernels operate in virtual partitions managed by a hypervisor ([0044], Lines 4-8). The guest OS kernels of Probert can be considered as being "virtualized" because they are managed by a hypervisor, and absent a definition of "OS-level virtualization" in either the claims or specification as discussed above, the examiner has concluded that the broadest reasonable interpretation of "OS- level virtualization" includes this virtualization of guest OS kernels described in Probert, because operating systems are being "virtualized" by a hypervisor. Further, Probert teaches that the hypervisor has a "minimal OS" ([0044], Lines 1-3), or Appeal 2020-004840 Application 14/982,837 9 in other words, a "kernel of the hypervisor." The hypervisor, under the control of the kernel of the minimal OS, virtualizes the guest OS kernels that allocate the private user spaces, and therefore, the minimal OS kernel of the hypervisor can be seen as providing, or "defining" the private user spaces. Therefore, the combination of Lukacs, Singh, and Probert teaches isolated user spaces, defined by a minimal OS kernel of a hypervisor using a type of OS-level virtualization, and in so doing, teaches the appellant's claimed limitation of user-space instances defined by a kernel of a hypervisor using OS-level virtualization. In summary, the appellant argues that the combination of Lukacs and Singh do not teach the claimed user-space instances defined by a kernel of the hypervisor using OS-level virtualization. However, the specification and claims do not define what is meant by "OS-level virtualization," and additionally, Probert teaches a minimal OS of a hypervisor having a kernel which controls the hypervisor to virtualize guest operating systems that provide user space instances, and thus, the combination of Lukacs, Singh, and Probert arrive at the claimed limitation. Id. at 5-7 (citing Lukacs ¶ 27, Singh 2:7-9, 5:15-29, Probert ¶¶ 44, 68, Spec. ¶¶ 19, 54) (emphasis omitted). Appellant’s arguments are persuasive of reversible Examiner error. As an initial matter, we note the disputed claim limitations require a plurality of virtual hypervisors, each executing in a respective user-space instance, and each virtual hypervisor including an instance of a management plane of a hypervisor including a kernel and a plurality of user-space instances defined by the kernel using OS-level virtualization. Appellant’s Specification delineates between (1) virtual hypervisors running on respective virtual machines including a guest OS defining associated user- spaces and (2) OS -level virtualization running an isolated process in a host computer. Spec. ¶ 54. As persuasively argued by Appellant, the Specification therefore “defines two types of virtualization: (1) virtual Appeal 2020-004840 Application 14/982,837 10 machines managed by a hypervisor executing on hardware; and (2) containers managed by a kernel of a host operating system executing on hardware.” Reply Br. 5 (citing Spec. ¶ 54) (i.e. containers are defined by an abstraction layer on top of the kernel of an OS on a host computer). We thus agree with Appellant that “[o]ne skilled in the art understands that the OS runs on the host computer (the hardware), the kernel is part of the OS (and hence runs on the hardware), and the containers are defined by the kernel (and hence run on the hardware).” Id. Although we agree with the Examiner that the combination of Lukacs and Singh teaches, as stipulated above, a guest hypervisor having guest VMs containing virtual hypervisors executing within user-space instances defined by a kernel using the OS of the guest hypervisor, the Examiner has not delineated a difference between the host hypervisor and the guest hypervisor disclosed by Lukacs. As persuasively argued by Appellant, the disclosed host hypervisor is an external host with a kernel using an OS-level virtualization to remotely manage the guest hypervisor including the virtual guest VMs/hypervisors executing in user-spaces defined by the kernel using the OS of the guest hypervisor. Id. Because the host hypervisor and the guest hypervisor are isolated from each other, and utilize user-spaces defined by different OS kernels, which operate in a hardware platform and a virtual hardware platform respectively, we agree with Appellant that the combined teachings of Lukacs and Singh do not teach the disputed limitations. Reply Br. 2-4. Likewise, we agree with Appellant that Probert’s teaching of a guest OS kernel allocating private user spaces and a hypervisor managing virtual partitions does not cure the noted deficiencies. Id. at 6. Appeal 2020-004840 Application 14/982,837 11 Because Appellant shows at least one reversible error in the Examiner’s obviousness rejection of independent claim 1, we do not reach Appellant’s remaining arguments. Accordingly, we do not sustain the Examiner’s obviousness rejection of independent claim 1 obvious over the combination of Lukacs, Singh, and Probert. Similarly, we do not sustain the rejections of claims 2-20, which also recite the disputed limitations. VI. CONCLUSION We reverse the Examiner’s rejections of claims 1-20. VII. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-3, 11, 19 103 Lukacs, Singh, Probert 1-3, 11, 19 4 103 Lukacs, Singh, Probert, Lysaght, Phillips 4 5 103 Lukacs, Singh, Probert di Flora 5 6 103 Lukacs, Singh, Probert Head 6 7-9 103 Lukacs, Singh, Probert Walsh 7-9 10 103 Lukacs, Singh, Probert and Fainkichen 10 12-14, 20 103 Lukacs, Singh, Probert, Walsh, Fainkichen 12-14, 20 15 103 Lukacs, Singh, Probert, Kannan 15 16-18 103 Lukacs, Singh, Probert, Kannan, Civilini 16-18 Overall Outcome 1-20 Appeal 2020-004840 Application 14/982,837 12 REVERSED