Leidos, Inc.

Patent Trials and Appeals Board

Mar 24, 2021

2020000169 (P.T.A.B. Mar. 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.
15/351,722 11/15/2016 Kurt R. Hawkes SAIC0160-DIV1 1656
75131 7590 03/24/2021
Bey & Cotropia PLLC (LEIDOS CUSTOMER NUMBER)
ATTN: DAWN-MARIE BEY
213 Bayly Court
Richmond, VA 23229
EXAMINER
KENNEDY, LESA M
ART UNIT PAPER NUMBER
2458
NOTIFICATION DATE DELIVERY MODE
03/24/2021 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):
bey_cotropia_docketing@cardinal-ip.com
dawnmarie@beycotropia.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte KURT R. HAWKES, CHRISTINA L. BOUWENS,
JAMES E. SHIFLETT, and MICHAEL R. MACEDONIA
________________

Appeal 2020-000169
Application 15/351,722
Technology Center 2400
________________

Before ROBERT E. NAPPI, JUSTIN BUSCH, and
JASON J. CHUNG, Administrative Patent Judges.

CHUNG, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection
of claims 1, 3–5, and 7–13.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
INVENTION
The invention relates to managing the provisioning and allocation of
system resources dynamically for distributed applications in a virtualized
environment. Spec. ¶ 2. Claim 1 is illustrative of the invention and is
reproduced below:

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. According to Appellant, Leidos, Inc. is the real party in
interest. Appeal Br. 2.
2 Claims 2 and 6 are cancelled. Appeal Br. 11 (Claims Appendix).
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1. A process for dynamically managing a pool of
virtual and physical resources accessible by multiple tenants
running multiple instances of a distributable simulation
application, the method comprising:
monitoring, by at least one processing server in the pool, a
processing load of each of the multiple instances of the
distributable simulation application running within one or more
virtual machines in the pool, the one or more virtual machines
each comprising a plurality of nodes, wherein monitoring the
processing load includes determining by an extension framework
module for each of the multiple instances of the distributable
simulation application health of each of the multiple instances;
determining, by the at least one processing server, that one
or more nodes of the one or more virtual machines is overloaded
or underloaded by a status of each of the multiple instance of the
distributable simulation application, wherein the extension
framework module determines that one or more nodes of the one
or more virtual machines has an overloaded status when it
determines the occurrence of a gasp condition;
if overloaded then starting, by the at least one processing
server, at least one new virtual machine; and
instructing, by the at least one processing server, the one
or more multiple instances of the application causing the
overload to transfer a portion of its processing load from the one
or more overloaded nodes to the at least one new virtual machine;
if underloaded then instructing, by the at least one
processing server, the one or more multiple instances of the
application currently running on one or more underloaded nodes
to transfer all of its processing load from the one or more
underloaded nodes to one or more alternate nodes; and
stopping, by the at least one processing server, the one or
more of the underloaded nodes.
Appeal Br. 10 (Claims Appendix).3

3 Claim 1 recites “if overloaded then starting, by the at least one processing
server, at least one new virtual machine; and instructing, by the at least one
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REJECTIONS
The Examiner rejects claims 1 and 3–54 under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Sahasranaman (US 9,176,759
B1; filed Mar. 12, 2012), Parker (US 2014/0026133 A1; filed July 20,
2012), Rosu (US 2006/0230407 A1; published Oct. 12, 2006), and Moriki
(US 2011/0307889 A1; published Dec. 15, 2011). Final Act. 3–8.
The Examiner rejects claims 7–12 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sahasranaman, Ruso, and Moriki.
Final Act. 8–13.

processing server, the one or more multiple instances of the application
causing the overload to transfer a portion of its processing load from the one
or more overloaded nodes to the at least one new virtual machine; if
underloaded then instructing, by the at least one processing server, the one
or more multiple instances of the application currently running on one or
more underloaded nodes to transfer all of its processing load from the one or
more underloaded nodes to one or more alternate nodes; and stopping, by the
at least one processing server, the one or more of the underloaded nodes.”
To paraphrase, claim 1 recites, “if A, then perform step X” and “if B, then
perform step Y.” In the event of further prosecution, the Examiner should
determine whether only one of: (1) the “if A, then perform step X”
limitation of claim 1 and (2) the “if B, then perform step Y” limitation of
claim 1 needs to be satisfied in the prior art to render the claim anticipated or
obvious. Ex parte Schulhauser, No. 2013-007847, 2016 WL 6277792
(PTAB Apr. 28, 2016) (precedential); MPEP § 2111.04 II.
4 Although the Examiner states claims 1–5 are rejected under 35 U.S.C.
§ 103(a) in the statement of the rejection, claim 2 is cancelled. Compare
Final Act. 3 (including claim 2 in the statement of the rejection) with Appeal
Br. 11 (Claims Appendix) (denoting claim 2 as cancelled). Moreover, the
Examiner does not include a substantive analysis for claim 2 in the body of
the rejection. Final Act. 3–11. We, therefore, interpret the Examiner’s
statement of the rejection as a typographical error. Additionally, we
interpret the Examiner’s statement to be claims 1 and 3–5 are rejected under
35 U.S.C. § 103(a) in the statement of the rejection.
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Application 15/351,722

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The Examiner rejects claim 13 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sahasranaman, Ruso, Moriki, and
Parker. Final Act. 13–15.
ANALYSIS
The Examiner relies on the combined teachings of Sahasranaman,
Parker, Ruso, and Moriki to account for limitations of claim 1. Ans. 3–7;
Final Act. 3–7. In particular, the Examiner finds Moriki teaches notifying
network monitoring terminal 119 that business application 262 has
developed a fault when there is an increase in processing latency because of
virtual CPU utilization rates exceeding a threshold, which the Examiner
maps to the limitation “determines the occurrence of a gasp condition”
recited in claim 1. Ans. 6–7; Final Act. 6 (citing Moriki ¶ 143).
Appellant argues Moriki merely teaches monitoring CPU utilization
rates rather than determining a gasp condition during health monitoring of
multiple instances of the distributable simulation application. Appeal Br. 5–
7 (citing Moriki ¶ 143; Spec. ¶ 55); Reply Br. 2–4 (citing Moriki ¶ 143;
Spec. ¶ 55). We disagree with Appellant.
As an initial matter, we note Appellant’s statement that
“determination of a gasp condition during health monitoring of multiple
instances of the distributable simulation application” (emphasis added and
Appellant’s emphases omitted) (see Appeal Br. 5) is not recited in claim 1.5

5 Although this feature is not recited in claim 1, claim 7 recites a similar
feature to what Appellant is arguing because claim 7 recites “monitoring the
health of the distributable simulation application including gasp conditions”
(emphasis added). Appeal Br. 11–12 (Claims Appendix). Nonetheless, the
combination of Sahasranaman, Ruso, and Moriki teaches “monitoring the
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“[A]ppellant’s arguments fail from the outset because . . . they are not based
on limitations appearing in the claims.” See In re Self, 671 F.2d at 1348
(CCPA 1982).
To the extent that Appellant is arguing that Moriki fails to teach the
limitations “wherein monitoring the processing load includes determining by
an extension framework module for each of the multiple instances of the
distributable simulation application health of each of the multiple instances”
and “wherein the extension framework module determines that one or more
nodes of the one or more virtual machines has an overloaded status when it
determines the occurrence of a gasp condition,” we disagree.
One cannot show nonobviousness “by attacking references
individually” where the rejections are based on combinations of references.
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (citing In re
Keller, 642 F.2d 413, 425 (CCPA 1981)). In this case, the Examiner relies
on the combined teachings of Sahasranaman, Parker, Ruso, and Moriki to
account for limitations of claim 1.
Regarding the limitation “wherein monitoring the processing load
includes determining by an extension framework module for each of the
multiple instances of the distributable simulation application health of each
of the multiple instances,” we note that the Examiner relies on
Sahasranaman and Ruso to address this limitation. Specifically,
Sahasranaman teaches various virtual machines running a particular
application and identifying instances (i.e., monitoring processing load) of the
particular application that are more heavily loaded than normal (i.e.,

health of the distributable simulation application including gasp conditions”
for the reasons stated infra on page 7.
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application health), which teaches the limitation “wherein monitoring the
processing load includes determining by an extension framework module for
each of the multiple instances of the distributable . . . application health of
each of the multiple instances” recited in claim 1. Ans. 3 (citing
Sahasranaman, 4:16–31, 6:64–7:12). Ruso teaches virtual machine
technology for managing parallel communicating gaming applications,
which teaches the limitation “simulation application” recited in claim 1.
Ans. 3–4 (citing Ruso ¶¶ 16, 56–58).
As for the limitation “wherein the extension framework module
determines that one or more nodes of the one or more virtual machines has
an overloaded status when it determines the occurrence of a gasp condition,”
the Examiner relies on Sahasranaman, Parker, Ruso, and Moriki to teach this
feature. In particular, Sahasranaman teaches analyzing performance
statistics of applications running on virtual machines that include virtual
hardware (i.e., nodes) to determine whether applications need to be scaled
up or scaled down (i.e., an overloaded status), which teaches the limitation
“wherein the extension framework module determines that one or more
nodes . . . has an overloaded status” recited in claim 1. Ans. 4–5 (citing
Sahasranaman, 5:11–32, 6:64–7:12, 9:14–21, 10:56–11:10). Parker teaches
determining when a virtual machine is overloaded or underloaded. Ans. 5
(citing Parker ¶¶ 48–49). Ruso teaches virtual machine technology for
managing parallel communicating gaming applications, which teaches the
limitation “simulation application” recited in claim 1. Ans. 6 (citing Ruso
¶¶ 16, 56–58). Moriki teaches notifying network monitoring terminal 119
that business application 262 has developed a fault (i.e., determines a gasp
condition) when there is an increase in processing latency because of virtual
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CPU utilization rates exceeding a threshold, which teaches the limitation
“determines the occurrence of a gasp condition” recited in claim 1. Ans. 6–
7; Final Act. 6 (citing Moriki ¶ 143).
Regarding the limitation in claim 7, the combination of
Sahasranaman, Ruso, and Moriki teaches “monitoring the health of the
distributable simulation application including gasp conditions.” See Ans. 3
(citing Sahasranaman, 4:16–31, 6:64–7:12) (Sahasranaman teaches various
virtual machines running a particular application and identifying instances of
the particular application that are more heavily loaded than normal (i.e.,
application health); Ans. 3–4 (citing Ruso ¶¶ 16, 56–58) (Ruso teaches
virtual machine technology for managing parallel communicating gaming
applications (i.e., simulation application); Ans. 6–7; Final Act. 6 (citing
Moriki ¶ 143) (Moriki teaches notifying network monitoring terminal 119
that business application 262 have developed a fault (i.e., a gasp condition)
when there is an increase in processing latency because of virtual CPU
utilization rates exceeding a threshold).
Appellant does not argue claims 1, 3–5, and 7–13 separately with
particularity. Appeal Br. 4–8. Accordingly, we sustain the Examiner’s
rejection of: (1) independent claims 1 and 7; and (2) dependent claims 3–5
and 8–13 under 35 U.S.C. § 103(a).
We have only considered those arguments that Appellant actually
raised in the Briefs. Arguments Appellant could have made, but chose not to
make, in the Briefs have not been considered and are deemed to be waived.
See 37 C.F.R. § 41.37(c)(1)(iv).

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CONCLUSION

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. § 1.136(a)(1)(iv).

AFFIRMED

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3–5 103(a) Sahasranaman,
Parker, Ruso,
Moriki
1, 3–5
7–12 103(a) Sahasranaman,
Ruso, Moriki
7–12
13 103(a) Sahasranaman,
Ruso, Moriki,
Parker
13
Overall
Outcome
1, 3–5, 7–
13