International Business Machines Corporation

Patent Trials and Appeals BoardMay 24, 2021

2020001726 (P.T.A.B. May. 24, 2021)

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. 15/017,555 02/05/2016 Joseph W. Cropper AUS920150500US1 7693 103751 7590 05/24/2021 IBM Corporation - Patent Center 1701 North Street B/256-3 Endicott, NY 13760 EXAMINER VANG, MENG ART UNIT PAPER NUMBER 2457 NOTIFICATION DATE DELIVERY MODE 05/24/2021 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): rocdrctr@us.ibm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte JOSEPH W. CROPPER, TAYLOR D. PEOPLES, JEFFREY W. TENNER, and ANDREW T. THORSTENSEN ____________________ Appeal 2020-001726 Application 15/017,555 Technology Center 2400 ____________________ Before ROBERT E. NAPPI, JUSTIN BUSCH, and CARL L. SILVERMAN, Administrative Patent Judges. NAPPI, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1 and 4 through 20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, International Business Machines Corporation is the real party in interest. Appeal Br. 1. Appeal 2020-001726 Application 15/017,555 2 INVENTION The invention is directed to asset management with respect to a shared pool of configurable computing resources. Abstract. Claim 1 is illustrative of the invention and is reproduced below. 1. A computer-implemented method for virtual machine management with respect to a shared pool of configurable computing resources, the method comprising: identifying, with respect to a set of virtual machines which share a resource on a first compute node, a set of virtual machine weight values which indicates a set of utilization shares of the resource by the set of virtual machines, wherein the resource includes a processor capacity remainder on the first compute node; identifying, with respect to the set of virtual machines on the first compute node, a set of virtual machine priority values which indicates a relative status arrangement for the set of virtual machines; determining, using both the set of virtual machine weight values and the set of virtual machine priority values, to migrate a first virtual machine of the set of virtual machines from the first compute node to a second compute node; and migrating the first virtual machine of the set of virtual machines from the first compute node to the second compute node. Appeal 2020-001726 Application 15/017,555 3 EXAMINER’S REJECTIONS2 The Examiner has rejected claims 1, 4, 6 through 11, 15, and 18 under 35 U.S.C. § 103 as unpatentable over Cardosa et al. (US 2010/0306382 A1; Dec. 2, 2010), Abali et al. (US 2014/0208329 A1; July 24, 2014), and Talwar et al. (US 2009/0271646 A1; Oct. 29, 2009). Final Act. 4–10. The Examiner has rejected claim 5 under 35 U.S.C. § 103 as unpatentable over Cardosa, Abali, Talwar, and Krishamurthy (US 2009/0193122 A1; July 30, 2009). Final Act. 10–11. The Examiner has rejected claims 12 through 14 and 19 under 35 U.S.C. § 103 as unpatentable over Cardosa, Abali, Talwar, and Ishida et al. (US 2014/0189441 A1; July 3, 2014). Final Act. 11–23. The Examiner has rejected claim 20 under 35 U.S.C. § 103 as unpatentable over Cardosa, Abali, Talwar, Ishida, and Krishamurthy (US 2009/0193122). Final Act. 23–24. The Examiner has rejected claim 16 under 35 U.S.C. § 103 as unpatentable over Cardosa, Abali, Talwar and Pillutla (US 2011/0202640 A1; Aug. 18, 2011). Final Act. 24–25. The Examiner has rejected claim 17 under 35 U.S.C. § 103 as unpatentable over Cardosa, Abali, Talwar and Bhogal (US 2012/0180045 A1; July 12, 2012). Final Act. 26. 2 Throughout this Decision we refer to the Appeal Brief, filed July 8, 2019 (“Appeal Br.”); Reply Brief, filed January 2, 2020 (“Reply Br.”); Final Office Action, mailed January 8, 2019 (“Final Act.”); and the Examiner’s Answer, mailed November 1, 2019 (“Ans.”). Appeal 2020-001726 Application 15/017,555 4 ANALYSIS We have reviewed Appellant’s arguments in the Briefs, the Examiner’s rejections, and the Examiner’s response to Appellant’s arguments. Appellant’s arguments have persuaded us of error in the Examiner’s rejections of claims 1 and 4 through 20. Independent claims 1 and 18 Appellant presents several arguments directed to the Examiner’s rejection of independent claims 1 and 18. Appeal Br. 9–11. The dispositive issue presented by Appellant’s argument is: did the Examiner demonstrate the combination of Cardosa, Abali, and Talwar teach determining to migrate a virtual machine from a first node to a second node based upon a determined set of weight values which indicates utilization shares of the resources which includes a processor capacity remainder on the first compute node and virtual machine priority values as is recited in claims 1 and 18? Appeal Br. 8–10. The Examiner finds that Cardosa teaches a method for virtual machine management which identifies a set of virtualization parameters including weighting and virtual machine priority. Final Act. 4–5. The Examiner finds that Cardosa does not teach using both to migrate the machine from a first to a second machine and does not teach the resource includes a processor capacity remainder. Final Act. 5–7 (citing Cardosa ¶¶ 30, 32, 40, Figs. 1, 2, 4). The Examiner finds that Abali teaches using weights and virtual machine priority values to migrate virtual machines. Final Act. 6 (citing Abali ¶¶ 20, 33, 55, 63 and 64 and Fig. 5). The Examiner finds that Talwar teaches the resources include processor capacity remainder on the first node. Final Act. Appeal 2020-001726 Application 15/017,555 5 7 (citing Talwar ¶ 24, Fig. 3), Ans. 4 (citing ¶¶ 18, 20, 22–25, 33, 55, 63, 64, and Figs. 3, 5). We have reviewed the teachings of the references cited by the Examiner and are persuaded of error in the rejection by Appellant’s arguments. Each of independent claims 1 and 18 recites limitations directed to: identifying with respect to a set of virtual machines, weight values which indicate a set of utilization shares of the shared resources, where the resource includes a processor capacity remainder of the first compute node; and determining to migrate a virtual machine from the first node using the weight value and a virtual priority value. Thus, as argued by Appellant, on pages 9 and 10 of the Brief, the weight value, which is indicative of processor capacity, must be identified prior to the migration from the first node as it is used in the determination of whether to migrate from the first node. We disagree with the Examiner’s rationale, explaining how Talwar teaches the limitation directed to the resource includes a processor capacity remainder on the first node, on page 4 of the Answer. In this rationale the Examiner cites to Talwar’s teaching that after a virtual machine has been migrated from one core operating at a frequency of F1 (equated to the first node), to a core with a frequency of F2 (equated to the second node), the core operating at the frequency F1 is evaluated to determine if the frequency of that core can be reduced. Ans. 4 (citing Talwar ¶¶ 22–25, Fig. 3). We do not consider this teaching or the Examiner’s rationale sufficient to teach the disputed limitation of the claim as it is not identifying the processing capacity remainder prior to the decision to migrate the virtual machine from one core to another. Rather, the Examiner’s rationale is discussing Talwar’s teaching of a process that happens after the virtual machine is migrated. As Appeal 2020-001726 Application 15/017,555 6 such the Examiner has not shown that the prior art teachings of Cardosa, Abali, and Talwar teach determining to migrate a virtual machine from a first node to a second node based upon a determined set of weight values which indicates utilization shares of the resources which includes a processor capacity remainder on the first compute node and virtual priority values. As such we do not sustain the Examiner’s obviousness rejection of independent claims 1, 18, and dependent claims 4, 6 through 11, and 15. The Examiner’s rejection of independent claim 19, which recites similar limitations to those discussed with respect to independent claims 1 and 18, relies upon the teachings of Cardosa, Abali, and Talwar and a similar rationale to reject claim 19. Final Act. 11–13, Ans. 6–7. The Examiner has not shown that Ishida teaches the disputed limitation. Accordingly, we similarly do not sustain the Examiner’s obviousness rejection of independent claim 19 and dependent claims 12 through 14, for the same reasons as discussed with respect to claim 1. With respect to the Examiner’s rejections of dependent claims 5, 16, 17, and 20, the Examiner has not shown that the additional references teach the disputed limitation. Accordingly, we similarly do not sustain the Examiner’s obviousness rejections of dependent claims 5, 16, 17, and 20, for the same reasons as discussed with respect to claim 1. Appeal 2020-001726 Application 15/017,555 7 CONCLUSION We reverse the Examiner’s rejections of claims 1 and 4 through 20. Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 6–11, 15, 18 103 Cardosa, Abali, Talwar 1, 4, 6–11, 15, 18 5 103 Cardosa, Abali, Talwar, Krishamurthy 5 12–14, 19 103 Cardosa, Abali, Talwar, Ishida 12–14, 19 20 103 Cardosa, Abali, Talwar, Ishida Krishamurthy 20 16 103 Cardosa, Abali, Talwar, Pillutla 16 17 103 Cardosa, Abali, Talwar, Bhogal 17 Overall Outcome 1, 4–20 REVERSED