Ex Parte McConaughy et al

Patent Trial and Appeal Board

Jun 19, 2017

13838653 (P.T.A.B. Jun. 19, 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
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/838,653 03/15/2013 J. Mark McConaughy AUS920120430US1 7626
48916 7590
Greg Goshorn, P.C.
9600 Escarpment Blvd.
Suite 745-9
AUSTIN, TX 78749
06/20/2017 EXAMINER
KIM, SISLEY NAHYUN
ART UNIT PAPER NUMBER
2196
MAIL DATE DELIVERY MODE
06/20/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte J. MARK MCCONAUGHY and KHALID FILALI-ADIB
Appeal 2017-004584
Application 13/838,653
Technology Center 2100
Before JOSEPH L. DIXON, DENISE M. POTHIER, and ALEX S. YAP,
Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 7—24. Claims 1—6 have been canceled. App. Br.
7, 13.1 We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 Throughout this Opinion, we refer to (1) the Final Office Action (Final
Act.) mailed May 9, 2016, (2) the Appeal Brief (App. Br.) filed November 8,
2016, (3) the Examiner’s Answer (Ans.) mailed November 28, 2016, and (4)
the Reply Brief (Reply Br.) filed January 26, 2017.
Appeal 2017-004584
Application 13/838,653
The Invention
Appellants’ invention relates to “techniques for moving, in
conjunction with live application mobility, a virtual machine (VM) workload
partition (WPAR) on a first logical partition (LPAR) running on a first
operating system (OS) to second a LPAR running a second OS.” Spec.,
Abstract. The “first OS is a different version than the second OS,” and “the
second OS [may be] a newer version of the first OS.” Id.\ id. ]ff[ 24, 32—35,
Fig. 3.
Claim 7 is reproduced below with emphasis:
7. An apparatus, comprising:
a processor;
a non-transitory computer-readable storage medium (CRSM); and
logic, stored on the CRSM and executed on the processor, for:
moving a virtual machine (VM) workload partition (WPAR)
on a first logical partition (LPAR) running a first operating system
(OS) to a second LPAR running a second OS, wherein the first OS
is a different version than the second OS, the moving comprising,
in response to a determination that the second OS is a newer
version of the first OS, wherein the moving is in conjunction with
live application mobility in which application processes associated
with the WPAR are not shut down:
identifying a first set of overlays associated with the
WPAR corresponding to the second OS, wherein the first set of
overlays are executables;
removing from the WPAR a second set of overlays
associated with the WPAR corresponding to the first OS,
wherein the second set of overlays is executables; and
applying to the WPAR the first set of overlays
corresponding to the second OS, wherein the first set of
overlays is newer version of the second set of overlays.
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Appeal 2017-004584
Application 13/838,653
The Examiner relies on the following as evidence of unpatentability:
Matthew
Brillhart
Mashtizadeh
McConaughy
US 2009/0307477 A1
US 2010/0138530 A1
US 2011/0066597 A1
US 2012/0011513 A1
Dec. 10, 2009
June 3, 2010
Mar. 17,2011
Jan. 12, 2012
The Rejections
Claims 7, 10-13, 16—19, and 22—24 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over McConaughy, Brillhart, and Matthew. Final
Act. 15-26.
Claims 8, 9, 14, 15, 20, and 21 are rejected under 35 U.S.C. § 103(a)
as unpatentable over McConaughy, Brillhart, Matthew, and Mashtizadeh.
Final Act. 26—32.
Claims 7—24 are rejected under the ground of nonstatutory
obviousness-type double patenting as being unpatentable over claims 1
through 6 ofU.S. Application No. 14/040,817. Final Act. 3—14.
THE OBVIOUSNESS REJECTION OVER MCONAUGHY,
BRILLHART, AND MATTHEW
Regarding independent claim 7, the Examiner finds that McConaughy
teaches many of its limitations, including moving a VM WPAR on a first
LPAR running a first OS to a second LPAR running a second OS, the
second OS being a newer version of the first OS. Final Act. 15—16 (citing
McConaughy H 27—29). The Examiner turns to Brillhart in combination
with McConaughy to teach “the moving is in conjunction with live
application mobility in which application processes associated with the
WPAR are not shut down” limitation of claim 7. Final Act. 18—20 (citing
Brillhart 11 1-6, 17, 22-38, Figs. 1-5).
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Appeal 2017-004584
Application 13/838,653
Appellants argue Brillhart’s discussions of “no application downtime”
and “without causing an interruption of service” are not the same as the
recited “application processes associated with the WPAR are not shut
down.” App. Br. 8; Reply Br. 2. Appellants assert that Brillhart “describes
a situation in which a user of a service does not see the shutdown of an
application rather than a situation in which an application is moved without
actually being shut down.” App. Br. 8. According to Appellants, although
not noticed by the user, Brillhart’s applications must be shut down and
removed. Id. at 9 (citing Brillhart 15); Reply Br. 2 (citing Brillhart
1122-23).
ISSUE
Under § 103, has the Examiner erred in rejecting claim 7 by finding
that McConaughy, Brillhart, and Matthew collectively would have taught or
suggested “the moving is in conjunction with live application mobility in
which application processes associated with the WPAR are not shut down”?
ANALYSIS
Based on the record before us, we find no error in the Examiner’s
rejection of representative claim 72, which calls for, in pertinent part, “the
moving [of a VM WPAR] is in conjunction with live application mobility in
which application processes associated with the WPAR are not shut down.”
Brillhart teaches moving operating processes from one server to another
2 Independent claims 7, 13, and 19 are argued as a group. App. Br. 8—9.
Dependent claims 10—12, 16—18, and 22—24 are not separately argued. App.
Br. 10. We select claim 7 as representative. 37 C.F.R. § 41.37(c)(l)(iv).
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Appeal 2017-004584
Application 13/838,653
“through use of application mobility methods and systems, for example
through implementation of a Live Application Mobility feature of the AIX®
Version 6.1 operating system . . . whereby a running application can be
moved from one physical server to another physical server with no
application downtime.” Brillhart 122, cited in Final Act. 19. Brillhart
further discusses moving partitions with “no application downtown.”
Brillhart 123, cited in Final Act. 19.
These passages in Brillhart do not state explicitly the application
processes “are not shut down.” However, identity of terminology between
Brillhart and the claim language in claim 7 is not required to teach its
limitations. See In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Moreover,
Brillhart discusses “a running application can be moved” (Brillhart 122)
(emphasis added), which, at the very least, suggests a technique of moving
processes without shutting down applications. See id. 1122-23.
Additionally, the Examiner emphasizes that the recited term “live
application mobility” is discussed in Brillhart and in the instant disclosure.
Ans. 2—5. Namely, the Specifications states
When moving WPARs in accordance with live application
mobility, i.e., when applications running in conjunction with
the WPAR being moved are not shut down, there is a short
period of time after starting the WPAR on in [sic] the arrival
LPAR when all the processes on the departure side are frozen.
Spec. 134 (emphasis added), cited in Ans. 2—3. As the disclosure explains,
the phrase “in accordance with live application mobility” is equating to a
technique where applications are running and are not shut down when a
partition is being moved. See Spec. 134.
Thus, when Brillhart teaches moving operating processes from one
server to another, “for example[,] through implementation of a Live
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Appeal 2017-004584
Application 13/838,653
Application Mobility feature of the AIX® Version 6.1 operating system”
(Brillhart 122 (emphasis added)), the reference suggests its processes are
not shut down. The Examiner provides further evidence to support how the
term “live mobility application” in Brillhart would have been understood by
an ordinary skilled artisan. Ans. 4—5. Milberg3 explains how Live
Application Mobility allows a user to move WPARs from one LPAR to
another “while the WPARS are up and running.” Milberg 1,11, cited in
Ans. 5. Milberg also distinguishes Live Application Mobility from a Sun’s
zone-based strategy, indicating Sun’s system “does not provide for a hot
migration of running applications.” Milberg 1,14, cited in Ans. 5.
As such, the discussions of using live application and partition
mobility to move applications and partitions, as taught by Brillhart, suggest
to one skilled in the art that “no application downtime” (Brillhart 122)
involves running applications as evidenced by the disclosure and Milberg.
Notably, the findings related to live application mobility and Milberg are
undisputed by Appellants. See App. Br. 8—9 and Reply Br. 2.
Appellants also assert that Brillhart’s discussion of “moving
processes] ‘without loss of service’” “only refers to the circumstances in
which a user does not detect a shutdown.” Id. at 9 (emphasis omitted).
Appellants further contend in “moving an application from one machine to
another [in Brillhart], applications must be shut down and that which
Brillhart suggest is that users not notice the shutdown.” Id. (emphasis
omitted). Yet, Appellants provide insufficient evidence or line of reasoning
3 Ken Milberg, Live Application Mobility in AIX 6.1 (June 3, 2008)
(“Milberg”), available at
https ://www. ibm. com/ developerworks/aix/library/au-aix61 mobility.
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Application 13/838,653
to support these assertions. Id. It is well-settled that counsel’s arguments
cannot take the place of factually supported objective evidence. See, e.g., In
re Huang, 100 F.3d 135, 139—40 (Fed. Cir. 1996).
Accordingly, we determine the evidence of record favors the
Examiner’s position that Brillhart, when combined with McConaughy,
teaches and suggests the features of logic for moving a VM WPAR, “the
moving is in conjunction with live application mobility in which application
processes associated with the WPAR are not shut down” as recited in
claim 7.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of representative independent claim 7 and claims 10—13,
16—19, and 22—24, not separately argued with particularity (App. Br. 8—10).
THE REMAINING OBVIOUSNESS REJECTION
For the remaining, obviousness rejection, Appellants rely on the
“same reasons explained above with respect to claims 7, 13 and 19” in
contending claims 8, 9, 14, 15, 20, and 21 are patentable. App. Br. 11. We
are not convinced for the reasons previously stated and refer to the above
discussion. Accordingly, the Examiner did not err in rejecting claims 8, 9,
14, 15, 20, and 21.
THE REMAINING REJECTION
Claims 7—24 stand rejected under the ground of non-statutory
obviousness-type double patenting as being unpatentable over claims 1
through 6 of U.S. Application No. 14/040,817. Final Act. 3—14. Because
we sustain the above rejections under 35 U.S.C. § 103, we do not reach the
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Application 13/838,653
non-statutory obviousness-type double patenting rejection. See Ex parte
Moncla, 2010 WL 2543659 (BPAI June 22, 2010) (precedential).
According to Office records, U.S. Application No. 14/040,817 has been
abandoned.
DECISION
We affirm the Examiner’s rejections of claims 7—24 under § 103(a).
We do not reach the Examiner’s rejection of claims 7—24 under the
ground of non-statutory obviousness double patenting.
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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