Microsoft Technology Licensing, LLCDownload PDFPatent Trials and Appeals BoardAug 2, 20212020002502 (P.T.A.B. Aug. 2, 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. 15/378,406 12/14/2016 Mallik BULUSU 400269-US-NP 1007 69316 7590 08/02/2021 MICROSOFT CORPORATION ONE MICROSOFT WAY REDMOND, WA 98052 EXAMINER STEWART, KEVIN MICHAEL ART UNIT PAPER NUMBER 2186 NOTIFICATION DATE DELIVERY MODE 08/02/2021 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): chriochs@microsoft.com jkarr@microsoft.com usdocket@microsoft.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MALLIK BULUSU, BRYAN KELLY, and TOM LONG NGUYEN Appeal 2020-002502 Application 15/378,406 Technology Center 2100 Before JAMES R. HUGHES, LARRY J. HUME, and JUSTIN BUSCH, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Claims 1–20 are pending, stand rejected, are appealed by Appellant, and are the subject of our decision under 35 U.S.C. § 134(a).1 See Non- Final Act. 1; Appeal Br. 2.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Microsoft Technology Licensing, LLC. Appeal Br. 2. 2 We refer to Appellant’s Specification (“Spec.”), filed Dec. 14, 2016; Appeal Brief (“Appeal Br.”), filed Sept. 24, 2019; and Reply Brief (“Reply Appeal 2020-002502 Application 15/378,406 2 CLAIMED SUBJECT MATTER The claimed subject matter, according to Appellant, generally relates to “updating a kernel in a computing system without losing user context that has been created by virtual machines or user applications.” Spec. ¶ 2. Specifically, the Specification describes that a server or other computing system supports a kernel soft reset for updating a kernel without losing user context. The computing system includes a kernel image A, a user context generated during operation of the system under control of kernel image A, and a kernel image B which may differ from kernel image A.” Spec. ¶ 3. “In operation [the] . . . boot software code checks the kernel soft reset indicator” and, when “the kernel soft reset indicator indicates a kernel soft reset is underway, the code” “loads the kernel image B from the kernel reset memory into the operating memory,” “initializes kernel data structures of the kernel image B,” and “passes control to the initialized kernel image B to continue operation of the system with the same user context under control of kernel image B rather than under control of kernel image A.” Spec. ¶ 4. Claim 1 (directed to a computing system), claim 9 (directed to a method), and claim 16 (also directed to a server) are independent. Claims 1 and 9, reproduced below, are illustrative of the claimed subject matter: 1. A computing system which supports a kernel soft reset for updating a kernel without losing user context, the system comprising: Br.”), filed Feb. 10, 2020. We also refer to the Examiner’s Non-Final Office Action (“Non-Final Act.”), mailed Sept. 6, 2019; and Answer (“Ans.”) mailed Dec. 19, 2019. Appeal 2020-002502 Application 15/378,406 3 a kernel image A; a user context generated during operation of the system under control of kernel image A, the user context including at least one initialization of a service which resulted in an initialized service; a kernel image B which differs from kernel image A; at least one processor; an operating memory in operable communication with the processor, the operating memory including volatile random access memory (RAM) and containing the user context and at least a portion of the kernel image A; a kernel reset memory, the kernel reset memory including non-volatile storage containing the kernel image B; a kernel soft reset indicator; and boot software including code which upon execution checks the kernel soft reset indicator, and when the kernel soft reset indicator indicates a kernel soft reset is underway the code (a) loads the kernel image B from the kernel reset memory into the operating memory, (b) initializes kernel data structures of the kernel image B, and (c) passes control to the initialized kernel image B to continue operation of the system with the same user context under control of kernel image B rather than under control of kernel image A, including continued operation of the system under the same initialized service, and when the kernel soft reset indicator indicates a kernel soft reset is not underway the code does not pass control to kernel image B to continue operation of the system with the same user context. Appeal Br. 19 (Claims App.) (emphasis added). 9. A kernel soft reset method comprising: boot software of a device checking a kernel soft reset indicator; upon finding that the kernel soft reset indicator indicates a kernel soft reset is underway, loading a kernel image B into an operating memory of the device; Appeal 2020-002502 Application 15/378,406 4 initializing kernel data structures of the loaded kernel image B; passing control to the initialized kernel image B; performing a validation test on a copy of a user context; and executing at least a portion of at least one user program in the validated user context on top of the initialized kernel image B, the user context previously created during operation of the device under the control of a kernel image A; whereby the method updates the device from kernel image A to kernel image B without losing the user context and with values updated in kernel data structures. Appeal Br. 21 (Claims App.) (emphasis added). REFERENCES The prior art relied upon by the Examiner as evidence is: Name Reference Date Kruger et al. (“Kruger”) US 2005/0160257 A1 July 21, 2005 Patel US 2009/0124375 A1 May 14, 2009 Forristal US 2015/0067311 A1 Mar. 5, 2015 Russinovich US 2015/0178097 A1 June 25, 2015 Lu et al. (“Lu”) US 2017/0372075 A1 Dec. 28, 2017 (filed June 23, 2016) REJECTIONS3 1. Claims 1, 3–9, 11, 12, and 14–20 are rejected under 35 U.S.C. § 103 as being unpatentable over Russinovich and Forristal. See Non-Final Act. 3–14. 3 The Leahy-Smith America Invents Act (“AIA”), Pub. L. No. 112–29, 125 Stat. 284 (2011), amended 35 U.S.C. § 103. Because the present application Appeal 2020-002502 Application 15/378,406 5 2. Claim 2 is rejected under 35 U.S.C. § 103 as being unpatentable over Russinovich, Forristal, and Kruger. See Non-Final Act. 14. 3. Claim 10 is rejected under 35 U.S.C. § 103 as being unpatentable over Russinovich, Forristal, and Patel. See Non-Final Act. 15. 4. Claim 13 are rejected under 35 U.S.C. § 103 as being unpatentable over Russinovich, Forristal, and Lu. See Non-Final Act. 15– 16. ANALYSIS Obviousness Appellant argues claims 1–8 together as a group and does not separately argue dependent claims 2–8. Appellant also argues claims 9–15 together as a group and does not separately argue dependent claims 10–15. Appellant further argues claims 16–20 together as a group, relying on the arguments made with respect to claim 1. See Appeal Br. 8, 14, and 17.4 We select independent claim 1 as representative of Appellant’s arguments with respect to claims 1–8 and 16–20. We select independent claim 9 as representative of Appellant’s arguments with respect to claims 9–15. See 37 C.F.R. § 41.37(c)(1)(iv). has an effective filing date after the AIA’s effective date (March 16, 2013), this decision refers to 35 U.S.C. § 103. 4 Appellant makes numerous references to previous Office Actions and a previous Appeal Brief. See Appeal Br. 8–17. Such arguments are not germane to the instant appeal and we do not address arguments concerning prior prosecution. We instead address Appellant’s arguments, to the extent developed, in the instant Appeal Brief and Reply Brief. Appeal 2020-002502 Application 15/378,406 6 Claims 1, 3–8 and 16–20 The Examiner rejects independent claim 1 as being obvious in view of Russinovich and Forristal. See Non-Final Act. 2–5; Ans. 7–10. Specifically, the Examiner relies on Russinovich for teaching a computing system with soft kernel reset functionality that includes a user context generated during operation of the system under a kernel (kernel image A)— “a user context generated during operation of the system under control of kernel image A” (Non-Final Act. 3). See Non-Final Act. 3–4; Ans. 7–10. The Examiner relies on Forristal for teaching a kernel soft reset indicator and loading an updated kernel. See Non-Final Act. 4–5. Appellant contends the Examiner erred because the Examiner conflated “applications with services” (Appeal Br. 8 (emphasis omitted)) and Russinovich does not describe services or the initialization of services. Appeal Br. 8–14; Reply Br. 1–3. Specifically, Appellant contends Russinovich “does not teach enabling some application X to initialize a service that is also used by some other application Y, and to then place that initialization in a user context of application X in order to be preserved in memory after a reboot” (Appeal Br. 9) and the Examiner errs in “conflat[ing] an application program with a service. A conflation cannot properly stretch the Russinovich teachings about preserving application state far enough to cover Applicant’s innovative preservation of an initialized service” Appeal Br. 9–10; see Appeal Br. 8–14; Reply Br. 1–3. We adopt as our own (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Non-Final Act. 2–5) and (2) the reasons set forth by the Examiner in the Examiner’s Answer (Ans. 7–10) in response to Appellant’s Appeal Brief. We concur with the Appeal 2020-002502 Application 15/378,406 7 findings and conclusions reached by the Examiner, and we provide the following analysis for emphasis. We begin by noting that Appellant does not dispute the Examiner’s findings with respect to Forristal and does not dispute (the Examiner’s findings and conclusions with respect to) Russinovich’s kernel Soft Reset (KSR) functionality. See Appeal Br. 8–14; Reply Br. 1–3. Appellant’s contentions instead focus on whether Russinovich teaches an initialized service (supra). We give claims their “broadest reasonable interpretation” in light of the Specification, In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997) (citations omitted), without importing limitations into the claims from the Specification. See SuperGuide Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004). Appellant’s claim 1 (Appeal Br. 19 (Claims App.)) recites “a user context generated during operation of the system under control of kernel image A,” i.e., the “state information in user processes” (Spec. ¶ 123) generated during operation of the system and that the user context includes “at least one initialization of a service which resulted in an initialized service,” i.e., state information for an initialized service. That is, the claim requires a user context generated during operation of the system under control of kernel (operating system) and that user context includes state information for an initialized service. Contrary to Appellant’s contentions, Russinovich need not explicitly teach an initialized service to obviate claim 1. As Appellant explains, a “service” simply “means a program in a computing environment which provides functionality or computing resource access to multiple application programs” (Spec. ¶ 82), and it is well-known to initialize (after the kernel Appeal 2020-002502 Application 15/378,406 8 and basic drivers are initialized and running) “support services such as storage, networking, directory, and other services” (Spec. ¶ 1). As explained by the Examiner, Russinovich teaches a kernel soft reboot that preserves application state information (user context). Appellant does not contest the Examiner’s findings and conclusions (supra). We agree with the Examiner that Russinovich teaches a kernel soft reboot that preserves computer program state information, and also teaches computer programs that provide functionality or computing resource access to multiple application programs, e.g., a database program. See Non-Final Act. 3–4; Ans. 7–10; Russinovich ¶¶ 2, 8, 20, 24, 32, 38, and 39. Accordingly, we agree with the Examiner that Russinovich at least suggests a kernel soft reset that preserves “a user context generated during operation of the system” (under control of kernel image A), which includes “an initialized service” (Appeal Br. 19 (Claims App.)). “The test for obviousness . . . . is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). Thus, Appellant does not persuade us of error in the Examiner’s obviousness rejection of representative claim 1. Independent claim 16 recites commensurate limitations. Dependent claims 3–8 and 17–20 depend from and fall with claims 1 and 16, respectively. Therefore, we affirm the Examiner’s obviousness rejection of representative claim 1 and claims 3–8 and 16–20 not separately argued with particularity (supra). See 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-002502 Application 15/378,406 9 Claim 2 The Examiner rejects dependent claim 2 as being obvious in view of Russinovich, Forristal, and Kruger. See Non-Final Act. 14. Appellant does not separately argue dependent claim 2, which depends from claim 1. See Appeal Br. 8, 14. Appellant does not persuade us of error in the Examiner’s rejection of claim 2 for the same reasons as claim 1 (supra). Accordingly, we affirm the Examiner’s rejection of claim 2 for the same reasons as claim 1 (supra). See 37 C.F.R. § 41.37(c)(1)(iv). Claims 9, 11, 12, 14, and 15 The Examiner rejects claims 9, 11, 12, 14, and 15 as being obvious in view of Russinovich and Forristal. See Non-Final Act. 7–9; Ans. 10–12. Specifically, the Examiner relies on Russinovich for teaching, “performing a validation test on a copy of a user context” (claim 9 (Appeal Br. 21 (Claims App.)). See Non-Final Act. 7; Ans. 10–12. In particular, the Examiner finds that Russinovich’s disclosure of checking permission and/or authorization to load data teaches performing a validation test on a user context. See id. Appellant contends the Examiner errs in relying on Russinovich for performing a validation test on a user context. Appeal Br. 14–17; Reply Br. 4–5. Specifically, Appellant contends that, contrary to the rejection, Russinovich does not even check permission to execute a copy of a user context, much less validate a user context (determine that a user context is valid). See Appeal Br. 14–17; Reply Br. 4–5. Appellant’s arguments are persuasive of Examiner error. Claim 9 (as well as claims 11, 12, 14, and 15) requires performing “a validation test” on “a user context.” The Examiner asserts “Russinovich considers whether a copy of a user generated data (i.e. a user context) should be used by a Appeal 2020-002502 Application 15/378,406 10 computer system” (Ans. 11 (citing Russinovich ¶ 37)) and that validating a user context reads on Russinovich’s disclosure. As explained by Appellant, at best Russinovich checks whether a memory region exists (was preserved). Russinovich does not actually check permission to execute a copy of a user context, much less determining if the data (user context) is valid. See Appeal Br. 14–17; Reply Br. 4–5. The Examiner has not sufficiently shown that Russinovich teaches performing a validation test on a user context as required by claim 9. Consequently, we are constrained by the record before us to find that the Examiner erred in finding Russinovich and Forristal render obvious Appellant’s claim 9. Claims 11, 12, 14, and 15 depend from and stand with claim 9. Thus, we do not sustain the Examiner’s obviousness rejection of claims 9, 11, 12, 14, and 15. Obviousness Rejection of Claims 10 and 13 The Examiner rejects dependent claim 10 as being obvious over Russinovich, Forristal, and Patel. See Non-Final Act. 15. The Examiner also rejects dependent claim 13 as being obvious over Russinovich, Forristal, and Lu. See Non-Final Act. 15–16. The Examiner does not find that the additionally cited references (Patel or Lu) cure the deficiencies of Russinovich in combination with Forristal (supra). Therefore, we do not sustain the Examiner’s obviousness rejections of claims 10 and 13 for the same reasons set forth for claim 9 (supra). CONCLUSION Appellant has not shown persuasively that the Examiner erred in rejecting claims 1–8 and 16–20 under 35 U.S.C. § 103. Appellant has Appeal 2020-002502 Application 15/378,406 11 shown persuasively that the Examiner erred in rejecting claims 9–15 under 35 U.S.C. § 103. We, therefore, sustain the Examiner’s rejections of claims 1–8 and 16–20, but do not sustain the Examiner’s rejection of claims 9–15. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–9, 11, 12, 14–20 103 Russinovich, Forristal 1, 3–8, 16– 20 9, 11, 12, 14, 15 2 103 Russinovich, Forristal, Kruger 2 10 103 Russinovich, Forristal, Patel 10 13 103 Russinovich, Forristal, Lu 13 Overall Outcome 1–8, 16–20 9–15 RESPONSE 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. § 41.50(f). AFFIRMED-IN-PART Copy with citationCopy as parenthetical citation