Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Aug 2, 2021

2020002502 (P.T.A.B. Aug. 2, 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.
15/378,406 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
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Application 15/378,406

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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.
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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;
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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
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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.
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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
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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
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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).
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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
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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
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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