Ex Parte Hackett et al

Patent Trial and Appeal Board

Oct 31, 2017

13760396 (P.T.A.B. Oct. 31, 2017)

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
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/760,396 02/06/2013 JOSEPHE. HACKETT CHA920120021USl_8134-0066 3734
73109 7590 11/02/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, EL 33498
EXAMINER
DASCOMB, JACOB D
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
11/02/2017 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):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH E. HACKETT
and
LEONARD S. HAND
Appeal 2016-006366
Application 13/760,396
Technology Center 2100
Before CARLA M. KRIVAK, JEREMY J. CURCURI, and
MICHAEL M. BARRY, Administrative Patent Judges.
KRIVAK, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 3, 4, 6—8, 10, 12, 13, 15—17, 19, 20, 22, and 23. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appeal 2016-006366
Application 13/760,396
STATEMENT OF THE CASE
Appellants’ invention is directed to:
determining an operating parameter of a device during operation
of the device as part of a cluster of devices while the device hosts
a virtual machine and comparing, using a processor, a
requirement for the virtual machine with the operating
parameter. A view of the virtual machine operating within the
device of the cluster can be displayed. A result of the comparison
can be indicated through application of a visualization technique
to an identifier representing the virtual machine within the view.
(Abstract)
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A method comprising:
determining an operating parameter of a device during operation of
the device as part of a cluster of devices while the device hosts a virtual
machine;
comparing, using a processor, a requirement for the virtual machine
with the operating parameter;
displaying a view of the virtual machine operating within the device
of the cluster; and
indicating a result of the comparison through application of a
visualization technique to an identifier representing the virtual machine
within the view; and
providing a recommendation of an alternative device to host the
virtual machine, wherein
the recommendation depends, at least in part, upon a trend of a score
for the alternative device.
REFERENCES and REJECTIONS
The Examiner rejected claims 1, 3, 6—8, 10, 12, 15—17, 19, 22, and 23
under 35 U.S.C. § 103(a) based upon the teachings of Ostermeyer (US
8,175,863 Bl, issued May 8, 2012) and Shu (US 2010/0311576 Al,
published Dec. 6, 2012).
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Application 13/760,396
The Examiner rejected claims 4, 13, and 20 under 35 U.S.C. § 103(a)
based upon the teachings of Ostermeyer, Shu, and Ji (US 8,095,929 Bl,
issued Jan. 10, 2012).
ANALYSIS
Appellants contend the Examiner erred in finding a “memorization
utilization” in Ostermeyer is not a “score” as that term is used in Appellants’
Specification, because the term “score” is distinguishable from an “operating
parameter” and further the score is for an alternate device (App. Br. 10).
Appellants assert Ostermeyer describes memory usage in a host server and
not an alternative device as claimed. Further, Appellants contend,
Ostermeyer does not teach or suggest using a memory utilization trend for
making a recommendation as claimed {id.). We do not agree.
We agree with and adopt the Examiner’s findings as our own (Ans. 2—
11). We particularly agree with the following. The Examiner finds the
performance data recited in column 13 of Ostermeyer corresponds to the
claimed operating parameter (Appellants’ Specification paragraph 73
provides a broad example of what an “operating parameter” is—“an operating
parameter indicates the state or status of a capability of the device at a given
point in time”) (Ans. 2, 8—9; Ostermeyer Fig. 5; col. 13,11. 25—35
(“performance data (e.g., metrics)”). We further agree Ostermeyer discloses
“a trend of a score” by its teaching, or at a minimum, suggesting, utilizing
metrics collected over a predetermined period of time, including monitoring
upward trends in order to migrate a virtual machine (Ans. 9; Ostermeyer
Abstract, col. 8,11. 7—15 and col. 11,11. 13—30; see also col. 13,11. 32—35
“the monitoring system 200 receive[d] the performance data (e.g., metrics)
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Application 13/760,396
directly from the monitored objects”). We further note the claims do not
recite a “memory utilization trend,” only a “trend,” which Appellants’
Specification does not define, but uses broadly—“capabilities of the device
[can be] measured by the state, e.g., values, of one or more operating
parameters of the device at any given time and stored to maintain historical
and trend data for the device over time” (173). The Specification also
describes a “trend value” (not claimed) as “When the trend is positive or
negative, the value of trend indicates the magnitude of the trend” (1 87).
Consistent with the use of “trend” in Appellants’ Specification, Ostermeyer
forecasts the impact of migrating a virtual machine to a target host (col. 11,
11. 60-64), utilizes “metric values collected over a predetermined period of
time” (Abstract, Col. 8,11. 7—15), and monitors “for upward trends in
memory utilization for a host server and compare[s] the amount of memory
that is being requested by virtual machines on a host server to the amount of
memory available on the host server” (col. 11,11. 29—31). Thus, we agree
with the Examiner finding Appellants’ “trend of a score” is taught by
Ostermeyer’s forecasting, metrics, and “memory utilization trend.”
We also agree with the Examiner that Ostermeyer teaches or suggests
“a trend score for the alternative device” as claimed (Ans. 9—10 (citing
Ostermeyer col. 13,11. 53—62; col. 3,11. 18—22; col 11,11. 57—61)).
Ostermeyer’s “‘destination host server’ [target host server] corresponds to
the claimed ‘alternative’ device (see col. 13,11. 53—55). Additionally,
Ostermeyer also suggests a trend of a score for an alternative device by
determining the impact of migration, which reflects projected performance
of the migrated virtual machine, target host sever, or other virtual machine
running on the target host server (see col. 11,11. 52—61; see also Ans. 9— 10).
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Application 13/760,396
Although Ostermeyer does not explicitly disclose “providing a
recommendation,” it does suggest this limitation (Ans. 10). Further, the
Examiner cites Shu’s paragraph 18 for this limitation: “the DRS module
makes recommendations that a user or administrator who can review and
carry out the changes manually” (Ans. 10 (emphasis added); see also id. at
4, 10—11). Appellants provide no persuasive argument or evidence to rebut
the Examiner’s finding that Shu teaches providing a recommendation (App.
Br. 14; Reply Br. 6—7).
We further note Appellants appear to argue the references separately,
as their arguments do not take into account what the collective teachings of
the prior art would have suggested to one of ordinary skill in the art and are
therefore ineffective to rebut the Examiner’s prima facie case of
obviousness. As the Court stated in In re Keller, 642 F.2d 413, 425 (CCPA
1981) (emphasis added) (citations omitted):
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of
the references would have suggested to those of ordinary skill in
the art.
Thus, we agree with the Examiner, it would have been obvious to a
person having ordinary skill in the art to combine the recommendation to
migrate to another VM as taught by Shu with the display of a forecasted
impact of migrating a VM to a destination host server (alternative device) as
taught by Ostermeyer (Ans. 10—11).
In light of the Examiner’s findings, we sustain the Examiner’s
rejection of independent claim 1 and claims 3, 4, 6—8, 10, 12, 13, 15—17, 19,
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20, 22, and 23, argued therewith (App, Br. 9, 15 (Ji does not cure the
deficiencies of Ostermeyer and Shu)).
DECISION
The Examiner’s decision rejecting claims 1, 3, 4, 6—8, 10, 12, 13, 15—
17, 19, 20, 22, and 23 is 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)(l)(iv).
AFFIRMED
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