Ex Parte Ashok et al

Patent Trial and Appeal BoardFeb 23, 2016

13420102 (P.T.A.B. Feb. 23, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/420,102 03/14/2012 75949 7590 IBM CORPORATION C/O: Fabian Vancott 215 South State Street Suite 1200 Salt Lake City, UT 84111 02/25/2016 FIRST NAMED INVENTOR Rohith Kottamangalam Ashok 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. RS\V920100008US2 5234 EXAMINER ULLAH, SHARIF E ART UNIT PAPER NUMBER 2495 NOTIFICATION DATE DELIVERY MODE 02/25/2016 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): patents@fabianvancott.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROHITH KOTTAMANGALAM ASHOK, DANIEL EVERETT JEMIOLO, TODD ERIC KAPLINGER, and AARON KYLE SHOOK Appeal2014-004566 Application 13/420, 102 Technology Center 2400 Before BRUCE R. WINSOR, LINZY T. McCARTNEY, and NATHAN A. ENGELS, Administrative Patent Judges. McCARTNEY, Administrative Patent Judge. DECISION ON APPEAL Appellants 1 appeal under 35 U.S.C. Â§ 134(a) from a rejection of claims 1-9. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 According to Appellants, the real party in interest is International Business Machines Corporation. App. Br. 2. Appeal2014-004566 Application 13/420,102 BACKGROU-ND2 The Claims Independent claim 1 recites the following (disputed limitation italicized): 1. A method for providing secure access to a virtual machine, the method comprising: dispensing an image corresponding to a virtual machine from a management appliance to a distributed computing system such that said virtual machine is implemented by at least one of a plurality of interconnected physical computing devices in said distributed computing system; establishing a trusted relationship between said management appliance and said virtual machine implemented on said at least one of said computing devices; and providing a user with access to said virtual machine from said management appliance based on said trusted relationship without further authentication credentials from said user. App. Br. 17. 2 Appellants state "[t]here are no appeals or interferences related to the present application of which the Appellant[s] [are] aware." App. Br. 3. But two days before Appellants filed the present appeal, Appellants filed another appeal involving similar claims and issues. See Notice of App., App. No. 2014-004566 (2013) (filed May 15, 2013); Notice of App., App. No. 2014- 003480 (2013) (filed May 13, 2013); compare App. Br., App. No. 2014- 004566 (2013), with App. Br., App. No. 2014-003480 (2013). We remind Appellants that 3 7 C.F .R. Â§ 41.3 7 ( c )( 1 )(ii) requires Appellants to identify related appeals in their appeal briefs. 2 Appeal2014-004566 Application 13/420,102 The Examiner's Rejections The Examiner provisionally rejected claims 1-9 on the ground of non- statutory, obviousness-type double patenting over claims 10-20 of co-pending Application 12/763,748. The Examiner rejected claims 1-5 under 35 U.S.C. Â§ 103(a) as unpatentable over Bhai et al. (US 2011/0107401 Al; published May 5, 2011) ("Bhai") and Nice et al. (US 2009/0300739 Al; published Dec. 3, 2009) ("Nice"). The Examiner rejected claims 6-7 under 35 U.S.C. Â§ 103(a) as unpatentable over Bhai, Nice, and Lambiase (US 2011/0119747 Al; published May 19, 2011). The Examiner rejected claim 8 under 35 U.S.C. Â§ 103(a) as unpatentable over Bhai, Nice, and Croft (US 200710180493 A 1; published Aug. 2, 2007). ANALYSIS We have reviewed the Examiner's rejections in light of Appellants' arguments and the evidence of record, and we disagree with Appellants that the Examiner erred. We adopt the Examiner's reasoning, findings, and conclusions set forth in the Final Action and Answer to the extent they are consistent with the analysis below. Obviousness-Type Double Patenting Appellants request we hold this rejection in abeyance because "there remains the possibility of amendment to the claims of this application." App. Br. 10. Because Appellants have not addressed the merits of the 3 Appeal2014-004566 Application 13/420,102 provisional obviousness-type double patenting rejection, we summarily sustain it. 3 Rejections under 35 U.S.C. Â§ 103(a) Claims 1, 2, and 4-8 Appellants contend Nice does not teach or suggest "provid[ing] a user with access to said virtual machine based on said trusted relationship without further authentication credentials from said user" because Nice requires authenticating either the user or the user's device. See App. Br. 12; Reply Br. 7-8. Moreover, Appellants note Nice discloses that "periodically, the entity may be re-authenticated" and argue this disclosure teaches away from the claimed subject matter. App. Br. 12. According to Appellants, Nice's disclosure that re-authentication may occur explicitly provides for "further authentication credentials from said user." App. Br. 13; Reply Br. 9, 11. We find Appellants' arguments unpersuasive. Claim 1 's use of the word "further" in "providing a user with access to said virtual machine based on said trusted relationship without further authentication credentials from said user" indicates at least one set of authentication credentials has already been provided. This interpretation is consistent with Appellants' Specification, which discloses that upon access to the management appliance, a user is typically required to enter a set of credentials such as a login identification and password. Spec. i-f 45; see also Ans. 10-11. If a 3 Appellants present additional arguments concerning this rejection for the first time in the Reply Brief. See Reply Br. 4--5. Appellants have waived these arguments because Appellants failed to raise them in the Appeal Brief and have not shown good cause for their untimely presentation. See Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010) (informative). 4 Appeal2014-004566 Application 13/420,102 trusted relationship between the management appliance and a virtual machine has already been established, the user does not need to enter more credentials to access the virtual machine. See Spec. i-fi-144--45. Therefore, given its broadest reasonable interpretation in light of Appellants' Specification, the disputed "providing" limitation encompasses providing at least one set of authentication credentials to access the virtual machine based on a trusted relationship. Applying this interpretation of the "providing" limitation, we disagree with Appellants that Nice's requiring authentication of the user or user's device precludes Nice from teaching or suggesting "without further authentication credentials from said user." We also disagree that Nice's teaching that re-authentication may occur requires "further authentication credentials from said user." Nice i181; App. Br. 13; Reply Br. 9, 11. To the contrary, as the Examiner finds, the conditional word "may" indicates that Nice's system can authenticate a user once without further authentication. Ans. 12. Because a broad but reasonable interpretation of the disputed limitation includes Nice's teaching of authenticating a user only once, we find Appellants' arguments unpersuasive. Accordingly, we sustain the Examiner's rejection of independent claim 1 and dependent claims 2 and 4-- 8, which were not separately argued with particularity beyond the arguments advanced for claim 1. See App. Br. 11-14, 16; Reply Br. 6-12, 14. Claim 3 With respect to claim 3, Appellants merely restate the Examiner's rejection and conclude that Bhai's trust relationship is not established "in response to said user attempting to access said virtual machine" because 5 Appeal2014-004566 Application 13/420,102 Bhai is silent regarding this limitation. App. Br. 15-16; Reply Br. 12-14. We find Appellants' argument unpersuasive because it does not substantively address the Examiner's findings and conclusions and point out with particularity the Examiner's purported error. Cf 37 C.F.R. Â§ 41.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (explaining that appellants must advance substantive arguments beyond mere recitation of the claim elements and naked assertions that the corresponding elements were not found in the prior art). Moreover, we find no error in the Examiner's broad but reasonable interpretation of the disputed limitation as including Bhai's establishing a trust relationship in response to an administrator (i.e., a user) configuring virtual machines in a data center. See Ans. 13; Bhai i-fi-1 23 (disclosing that a provisioning request from an administrator may include a usemame and password of a user with authority to perform the provisioning operation), 29. Accordingly, we sustain the Examiner's rejection of claim 3. DECISION The decision of the Examiner to provisionally reject claims 1-9 on the ground of non-statutory, obviousness-type double patenting is affirmed. The decision of the Examiner to reject claims 1-8 under 35 U.S.C. Â§ 103(a) is affirmed. No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. Â§ 1.136(a)(l). AFFIRMED 6