CenturyLink Intellectual Property LLC

Patent Trials and Appeals Board

Feb 23, 2022

2021000868 (P.T.A.B. Feb. 23, 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. 16/119,323 08/31/2018 Ronald A. Lewis 1505-US-U1 4987 83809 7590 02/23/2022 CenturyLink Intellectual Property LLC Patent Docketing 1025 Eldorado Blvd. Broomfield, CO 80021 EXAMINER KIM, SISLEY NAHYUN ART UNIT PAPER NUMBER 2196 NOTIFICATION DATE DELIVERY MODE 02/23/2022 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): patent.docketing@lumen.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RONALD A. LEWIS Appeal 2021-000868 Application 16/119,323 Technology Center 2100 Before JOHN A. JEFFERY, DAVID M. KOHUT, and LARRY J. HUME, Administrative Patent Judges. HUME, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-20, which are all claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as CenturyLink Intellectual Property, LLC. Appeal Br. 2. Appeal 2021-000868 Application 16/119,323 2 STATEMENT OF THE CASE2 The claimed subject matter is directed to a “Method and System for Implementing Virtual Machine (VM) Management Using Hardware Compression.” See Spec. (Title). In particular, Appellant’s disclosed embodiments and claimed invention relate “to methods, systems, and apparatuses for implementing virtual machine (“VM”) management, and, more particularly, to methods, systems, and apparatuses for implementing VM management using hardware compression.” Spec. ¶ 3 (“Field”). Exemplary Claim Claim 1, reproduced below, is representative of the subject matter on Appeal (emphasis added to contested prior-art limitation): 1. A method, comprising: identifying, with a first computing system, one or more first virtual machines (“VM’s”) among a plurality of VM’s that are determined to be currently inactive; identifying, with the first computing system, one or more second VM’s among the plurality of VM’s that are determined to be currently active; compressing, with a second computing system, a virtual hard drive associated with each of the identified one or more first VM’s that are determined to be currently inactive, wherein the virtual hard drive includes two or more virtual disk files, where each of the two or more virtual disk files comprises an image of an associated VM; and 2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed Aug. 27, 2020); Reply Brief (“Reply Br.,” filed Nov. 13, 2020); Examiner’s Answer (“Ans.,” mailed Sept. 25, 2020); Final Office Action (“Final Act.,” mailed May 26, 2020); and the original Specification (“Spec.,” filed Aug. 31, 2018) (claiming benefit of US 62/700,740, filed July 19, 2018). Appeal 2021-000868 Application 16/119,323 3 performing or continuing to perform one or more operations using each of the identified one or more second VM’s that are determined to be currently active. REFERENCES The Examiner relies upon the following prior art as evidence: Name Reference Date Bankier et al. (“Bankier”) US 6,567,814 B1 May 20, 2003 Fries et al. (“Fries”) US 2012/0324446 A1 Dec. 20, 2012 Corrie US 2013/0160011 A1 June 20, 2013 Maybee et al. (“Maybee”) US 2018/0196816 Al July 12, 2018 Wyble et al. (“Wyble”) US 2019/0171472 A1 June 6, 2019 REJECTIONS R1. Claims 1-4, 8-15, and 17-20 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wyble, Corrie, and Fries. Final Act. 2. R2. Claims 5 and 16 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wyble, Corrie, Fries, and Maybee. Final Act. 13. R3. Claims 6 and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable over the combination of Wyble, Corrie, Fries, and Bankier. Final Act. 14. CLAIM GROUPING Based on Appellant’s arguments (Appeal Br. 6-9) and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of obviousness Rejection R1 of claims 1-4, 8-15, and 17-20 on the basis of representative Appeal 2021-000868 Application 16/119,323 4 claim 1. Remaining claims 5-7 and 16 in obviousness Rejections R2 and R3, not argued separately, stand or fall with the respective independent claim from which they depend.3 ISSUES AND ANALYSIS In reaching this decision, we consider all evidence presented and all arguments actually made by Appellant. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, such arguments are waived. 37 C.F.R. § 41.37(c)(1)(iv). We disagree with Appellant’s arguments with respect to claims 1-20 and, unless otherwise noted, we incorporate by reference herein and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken, and (2) the reasons and rebuttals set forth in the Examiner’s Answer in response to Appellant’s arguments. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. 1. § 103 Rejection R1 of Claims 1-4, 8-15, and 17-20 Issue 1 Appellant argues (Appeal Br. 6-8; Reply Br. 2-3) the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 as being obvious over the 3 “Notwithstanding any other provision of this paragraph, the failure of appellant to separately argue claims which appellant has grouped together shall constitute a waiver of any argument that the Board must consider the patentability of any grouped claim separately.” 37 C.F.R. § 41.37(c)(1)(iv). In addition, when Appellant does not separately argue the patentability of dependent claims, the claims stand or fall with the claims from which they depend. In re King, 801 F.2d 1324, 1325 (Fed. Cir. 1986). Appeal 2021-000868 Application 16/119,323 5 combination of Wyble, Corrie, and Fries is in error. These contentions present us with the following issue: Did the Examiner err in finding the cited prior art combination teaches or suggests a method that includes, inter alia, the limitation of “compressing, with a second computing system, a virtual hard drive associated with each of the identified one or more first VM’s that are determined to be currently inactive, wherein the virtual hard drive includes two or more virtual disk files, where each of the two or more virtual disk files comprises an image of an associated VM,” as recited in claim 1? Principles of Law “[O]ne cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Id. at 425. In KSR, the Court stated “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007). When a work is available in one field of endeavor, design incentives and other market forces can prompt variations of it, either in the same field or a different one. If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability. For the same reason, if a technique has been used to improve one device, and a person of ordinary Appeal 2021-000868 Application 16/119,323 6 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. . . . [A] court must ask whether the improvement is more than the predictable use of prior art elements according to their established functions. Id. at 417. Further, the relevant inquiry is whether the Examiner has set forth “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (cited with approval in KSR, 550 U.S. at 418). During prosecution, claims must be given their broadest reasonable interpretation when reading claim language in light of the specification as it would be interpreted by one of ordinary skill in the art. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard, we interpret claim terms using “the broadest reasonable meaning of the words in their ordinary usage as they would be understood by one of ordinary skill in the art, taking into account whatever enlightenment by way of definitions or otherwise that may be afforded by the written description contained in the applicant’s specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Analysis The Examiner finds Wyble teaches or suggests the contested “compressing” limitation of claim 1. Final Act. 3-4 (citing various portions of Wyble). For ease of reference, we map the Examiner’s rejection with respect to the disputed limitation to Wyble in Table 1, below: Appeal 2021-000868 Application 16/119,323 7 Limitation Cited Reference Comments compressing, with a second computing system, a virtual hard drive associated with each of the identified one or more first VM’s that are determined to be currently inactive, Wyble Figs. 1-7, ¶¶ 6, 42, 46 According to an aspect of the present invention there is a method that performs the following operations (not necessarily in the following order): (i) actively running a first instance of a VM/container on a first computer device; (ii) receiving a request to deactivate the first instance of a VM/container; and (iii) responsive to the request to deactivate, storing an image of the first instance, with the storing including: (a) generating an uncompressed image file data set corresponding to the first instance, (b) compressing, by a file level data compression algorithm, the uncompressed image file data set to generate a compressed image file data set, and (c) storing the compressed image file data set in a data storage device. Wyble ¶ 6. Appeal 2021-000868 Application 16/119,323 8 wherein the virtual hard drive includes two or more virtual disk files, where each of the two or more virtual disk files comprises an image of an associated VM. Wyble ¶¶ 47-48, 55-56 Fries ¶¶ 2-4, 29, 37; Figs. 1-10. In step S275 of Wyble Figure 2, “compressed VM image 299b is stored in compressed VM data store 312. In this embodiment, VM image 299b is stored in persistent storage (that is, hibernated) on a computer (specifically VM control computer 200 (see FIG. 1)) that is different that the server computer where the activated instance had previously been running (that is, server 103). Alternatively, the compressed VM/container image may be compressed and/or stored on the same computer where the image had been running as a VM/container instance. Because the image has been compressed, it takes up less storage space.” Wyble ¶ 47. “Fries teaches wherein the virtual hard drive includes two or more virtual disk files, where each of the two or more virtual disk tiles comprises an image of an associated VM (fig. 1-10, par. 2-4.” Final Act. 6 (emphasis omitted). Appeal 2021-000868 Application 16/119,323 9 “The image library 204 may contain various base virtual machine images 206, which are virtual machine images with a core of preinstalled software such as a guest operating system. Some of the images may be golden images, which are virtual machines with an operating system, perhaps a set of pre-configured services, software, settings, or other frequently deployed content. For instance, a golden image might be a database server or web server image that is ready to boot and begin executing.” Fries ¶ 29 (emphasis added). Appeal 2021-000868 Application 16/119,323 10 Figure 2 of Wyble is replicated below: “FIG. 2 is a flowchart showing a first embodiment of a method performed, at least in part, by the first embodiment system.” Wyble ¶ 11. Appeal 2021-000868 Application 16/119,323 11 Figure 6 of Fries is replicated below: “FIG. 6 shows a method of signing a virtual machine image built from a base virtual machine image (e.g., a golden image) and software installed on the base virtual machine image.” Fries ¶ 15 (emphasis added). Appeal 2021-000868 Application 16/119,323 12 As explained in Fries, and as relied upon by the Examiner, “golden images” “are virtual machines with an operating system, perhaps a set of pre-configured services, software, settings, or other frequently deployed content. For instance, a golden image might be a database server or web server image that is ready to boot and begin executing.” Fries ¶ 29. In agreement with the Examiner, we find Fries in combination with Wyble, particularly by virtue of the disclosure in Fries of “golden images” on one or more a virtual machine images, teaches or at least suggests “two or more virtual disk files [that] comprise[] an image of an associated VM,” as required by claim 1. We note Appellant provides no response or rebuttal in the Reply Brief regarding the Examiner’s findings concerning the teaching in Fries of “golden images” on virtual machine images. Based upon the findings above, on this record, we are not persuaded of error in the Examiner’s reliance on the cited prior art combination to teach or suggest the disputed limitation of claim 1, nor do we find error in the Examiner’s resulting legal conclusion of obviousness. Therefore, we sustain the Examiner’s obviousness rejection of independent claim 1, and grouped claims 2-4, 8-15, and 17-20 ,which fall therewith. See Claim Grouping, supra. 2. § 103 Rejections R2 and R3 of Claims 5-7 and 16 In view of the lack of any substantive or separate arguments directed to obviousness Rejections R2 and R3 of claims 5-7 and 16 under § 103 (see Appeal 2021-000868 Application 16/119,323 13 Appeal Br. 8-9), we sustain the Examiner’s rejection of these claims. Arguments not made are waived.4 REPLY BRIEF To the extent Appellant may advance new arguments in the Reply Brief (Reply Br. 2-3) not in response to a shift in the Examiner’s position in the Answer, arguments raised in a Reply Brief that were not raised in the Appeal Brief or are not responsive to arguments raised in the Examiner’s Answer will not be considered except for good cause (see 37 C.F.R. § 41.41(b)(2)), which Appellant has not shown. CONCLUSIONS We AFFIRM the Examiner’s rejections. More specifically, Appellant has not persuasively argued that the Examiner erred with respect to obviousness Rejections R1 through R3 of claims 1-20 under 35 U.S.C. § 103 over the cited prior art combinations of record, and we sustain the rejections. 4 Appellant merely argues, “[a]s each of the above claims depend from claims 1 or 12, as applicable, each of claims 5-7 and 16 incorporate the recitations of their respective independent claims. For the reasons discussed above, the Appellant respectfully submits that the combination of Wyble, Corrie, and Fries fails to disclose or suggest at least the claimed compression of the appealed claims.” Appeal Br. 8. Appeal 2021-000868 Application 16/119,323 14 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § References/ Basis Affirmed Reversed 1-4, 8-15, 17-20 103 Wyble, Corrie, Fries 1-4, 8-15, 17-20 5, 16 103 Wyble, Corrie, Fries, Maybee 5, 16 6, 7 103 Wyble, Corrie, Fries, Bankier 6, 7 Overall Outcome 1-20 FINALITY AND RESPONSE 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)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED