Leidos, Inc.Download PDFPatent Trials and Appeals BoardMar 24, 20212020000169 (P.T.A.B. Mar. 24, 2021) Copy Citation 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). Appeal 2020-000169 Application 15/351,722 2 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 Appeal 2020-000169 Application 15/351,722 3 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. Appeal 2020-000169 Application 15/351,722 4 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 Appeal 2020-000169 Application 15/351,722 5 “[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. Appeal 2020-000169 Application 15/351,722 6 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 Appeal 2020-000169 Application 15/351,722 7 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). Appeal 2020-000169 Application 15/351,722 8 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 Copy with citationCopy as parenthetical citation