Peter Joseph. Heyrman et al.

Patent Trials and Appeals Board

Sep 13, 2019

14306640 - (D) (P.T.A.B. Sep. 13, 2019)

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.
14/306,640 06/17/2014 PETER JOSEPH HEYRMAN AUS920130224US1 8621
124677 7590 09/13/2019
Russell Ng PLLC (IBM AUS)
8729 Shoal Creek Blvd., Suite 100
Austin, TX 78757
EXAMINER
TEETS, BRADLEY A
ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
09/13/2019 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):
stephanie@russellnglaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte PETER JOSEPH HEYRMAN, BRET RONALD OLSZEWSKI,
and SERGIO REYES
____________________

Appeal 2018-006414
Application 14/306,640
Technology Center 2100
____________________

Before LARRY J. HUME, JUSTIN BUSCH, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

BUSCH, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 8, 12–15, 19, and 20, which constitute
all the claims pending in this Application. We have jurisdiction over the
pending claims under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
International Business Machines Corporation. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
Appellant’s disclosure generally relates to a “technique for assigning
physical resources of a data processing system to a virtual machine (VM)”
by reading a fold factor attribute, which “defines an anticipated usage of
physical resources” by the VM and mapping virtual processors of the VM to
physical resources “to maximize processor core access to local memory for
ones of the allocated virtual processors that are anticipated to be utilized.”
Spec. Abstract. The claimed invention relates to reading, in response to a
VM being instantiated, a fold factor attribute that defines the VM’s
anticipated usage of physical resources and mapping allocated virtual
processors of the VM to physical resources based on that attribute to
maximize processor core access to local memory for allocated virtual
processors anticipated to be utilized. See Appeal Br. 16 (claim 8). The
claims recite the fold factor attribute includes a processor fold factor
attribute (defining a percentage of a VM’s allocated virtual processors
anticipated to be used) and a memory fold factor attribute (defining a
percentage of required VM memory anticipated to be used). Claims 8 and 15
are independent claim. Claim 8 is reproduced below:
8. A computer program product, comprising:
a computer-readable storage medium; and
program code embodied on the computer-readable storage
medium, wherein the program code, when executed on a
processor, configures the processor to:
in response to a virtual machine (VM) being instantiated,
read a fold factor attribute for the VM, wherein the fold factor
attribute defines a user specified anticipated usage of physical
resources of a data processing system by the VM; and
map, based on a value of the fold factor attribute, allocated
virtual processors of the VM to the physical resources such that
processor core access to local memory that is not located within
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an associated processor is maximized for ones of the allocated
virtual processors that are anticipated to be utilized, wherein the
fold factor attribute includes a processor fold factor attribute that
defines a percentage of the allocated virtual processors of the VM
that are anticipated to be utilized and a memory fold factor
attribute that defines a percentage of required memory of the VM
that is anticipated to be utilized.

REJECTIONS
Claims 8, 12–15, 19, and 20 stand provisionally rejected on the
ground of nonstatutory obviousness-type double patenting. Final Act. 3–7.
Claims 8, 12–15, 19, and 20 stand rejected under 35 U.S.C. § 103 as
obvious in view of Floyd (US 2012/0096293 A1; Apr. 19, 2012), Smith (US
2004/0117519 A1; June 17, 2004), and Behera (US 8,738,333 B1; May 27,
2014). Final Act. 8–15.
ANALYSIS
THE DOUBLE-PATENTING REJECTION
Appellant does not address the Examiner’s provisional rejection of
claims 8, 12–15, 19, and 20 under the doctrine of obviousness-type double
patenting. See generally Appeal Br. 2–15 (addressing only the rejection of
claims 8, 12–15, 19, and 20 under 35 U.S.C. § 103); Reply Br. 2–4.
Appellant has not filed a terminal disclaimer, nor has the Examiner
withdrawn the provisional rejection. In provisionally rejecting claims 8, 12–
15, 19, and 20, the Examiner relies on claims 1 and 5–7 of U.S. Application
No. 14/491,391.2

2 Co-pending related Application Serial No. 14/491,391 is also on appeal
(Appeal No. 2018-006454).
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To the extent Appellant has not advanced separate, substantive
arguments for particular claims or issues, such arguments are considered
waived. See 37 C.F.R. § 41.37(c)(1)(iv) (2016); see also Hyatt v. Dudas, 551
F.3d 1307, 1314 (Fed. Cir. 2008) (“When the appellant fails to contest a
ground of rejection to the Board, . . . the Board may treat any argument with
respect to that ground of rejection as waived.”). Because Appellant does not
argue the merits of this rejection, we summarily sustain the Examiner’s
provisional rejection of claims 8, 12–15, 19, and 20 under the doctrine of
nonstatutory obviousness-type double patenting.
THE 35 U.S.C. § 103 REJECTION
The Examiner finds the combination of Floyd, Smith, and Behera
teaches or suggests every limitation recited in independent claim 8. Final
Act. 8–13. The Examiner finds Floyd teaches or suggests the majority of
limitations recited in independent claim 8, including: in response to a VM
being instantiated, Final Act. 8–9 (citing Floyd ¶¶ 28, 36–37); read a fold
factor attribute, which defines usage of physical resources, for the VM, Final
Act. 9 (citing Floyd ¶¶ 17–18, 44, 57–68, 70); map the VM’s virtual
processors to physical resources based on a fold factor attribute value, Final
Act. 10 (citing Floyd ¶¶ 18, 78); and that the fold factor attribute includes
processor and memory fold factor attributes, Final Act. 10–11 (citing Floyd
¶¶ 74, 77). The Examiner finds that, although Floyd teaches folding to
optimize local memory, Floyd fails to specifically teach maximizing
processor core access to local memory; however, the Examiner finds Smith
cures this deficiency. Final Act. 11–12 (citing Smith ¶ 66). The Examiner
further finds that, although Floyd and Smith fail to teach the fold factor
attribute defines a user-specified anticipated percentage usage of physical
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resources, Behera teaches these recited aspects of claim 8. Final Act. 12–13
(citing Behera 2:63–3:3, 3:46–51, 5:46–6:12, 9:13–29, 10:42–45, 14:43–48,
Figs. 6, 28).
Appellant argues the rejection of claims 8, 12–15, 19, and 20 as a
group. Appeal Br. 3, 14 (“For at least the reasons set forth above,
independent claims 8 and 15 are patentable over the combination of Floyd,
Smith, and Behera. Additionally, claims 12-14, 19, and 20 are allowable for
at least the reason that the claims depend upon allowable claims.”). We
select independent claim 8 as representative. See 37 C.F.R. § 41.37(c)(1)(iv).
In particular, Appellant argues Floyd teaches folding (i.e., unmapping)
resources based on the folding desirability metric (FDM), but folding or not
folding does not teach or suggest mapping a VM’s allocated virtual
processors to physical resources based on a fold factor attribute and “Floyd
is devoid of any teaching directed to specifically how virtual processors of a
VM are mapped to physical resources of a data processing system.” Appeal
Br. 12–13; see Reply Br. 2. Appellant further contends that, to the extent
Floyd teaches unfolding resources based on Floyd’s FDM, the FDM is based
on current conditions associated with each resource, not a processor fold
factor attribute defining a percentage of virtual processors anticipated to be
used and a memory fold factor attribute defining a percentage of required
memory anticipated to be used. Reply Br. 2. Appellant also argues that, to
the extent Floyd teaches reallocating folded resources, Floyd fails to teach
reallocating resources based on a fold factor attribute read in response to a
VM being instantiated. Reply Br. 2.
We disagree with Appellant that Floyd lacks any teaching regarding
assigned virtual processors to physical resources, teaches only folding
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resources based on the FDM, and fails to teach reallocating resources based
on the FDM. Instead, we agree with the Examiner that Floyd explicitly
discloses allocating resources based on the FDM. Floyd ¶¶ 18 (explaining
that Floyd’s “hypervisor manages a dynamic mapping between virtual
processors and physical processors” and “released processor resources may
subsequently be ‘unfolded’ or reclaimed”), 73 (disclosing “it is also possible
. . . to use the FDM measure . . . to decide which ones of resources 312 to
use for any scheduling,” by unfolding (i.e., reallocating) folded resources
when the FDM surpasses a given threshold).
We also disagree with Appellant’s contention that Floyd fails to teach
its FDM is based on processor and memory fold factor attributes
respectively defining a percentage of virtual processors anticipated to be
used and required memory anticipated to be used. Rather, we agree with the
Examiner that Floyd’s FDM includes processor and memory fold factor
attributes because Floyd explicitly discloses its FDM “value is computed
from the conditions associated with each” resource, where the resources
include processors and memory and the exemplary conditions at least
suggest processor and memory fold factory attributes. Floyd ¶ 70;
see Floyd ¶¶ 57–68 (describing exemplary resource usage properties and
conditions), 69 (explicitly identifying “processor cores” as an exemplary
resource entity), 74 (describing “virtual processor, physical memory” as
exemplary resource types). Appellant’s argument that Floyd fails to teach
the details regarding percentages of resources anticipated to be used is
unpersuasive because the Examiner finds Behera, not Floyd, teaches the
memory fold factor attribute defines a percentage of required memory
anticipated to be used and the processor fold factor attribute defines a
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percentage of allocated virtual processors anticipated to be used. See Final
Act. 12–13.
Next, we address Appellant’s argument that Floyd fails to teach or
suggest reading the FDM in response to a VM being instantiated. As noted
above, the Examiner finds Floyd teaches or suggests “in response to a virtual
machine (VM) being instantiated, read a fold factor attribute.” The Examiner
breaks this limitation into two parts and cites paragraphs 28, 36, and 37 as
teaching “in response to a virtual machine (VM) being instantiated.” Final
Act. 8–9. Paragraph 18 describes operating system (OS) storage and startup
and explains that an OS, among other things, controls program execution
and allocates resources. Floyd ¶ 18. Paragraphs 36 and 37 describe logical
partitions, including instantiation of logical partitions. Floyd ¶¶ 36–37.
Floyd explains that, when logical partitions are instantiated, a virtual
machine monitor loads “a copy of the boot strap code” into the logical
partitions and transfers control to the boot strap code, the boot strap code
loads necessary firmware and software, and then “processors associated or
assigned to logical partitions” are “dispatched to the logical partition’s
memory to execute the logical partition firmware.” Floyd ¶ 37.
The Examiner finds paragraphs 17, 18, 44, 57 through 68, and 70
teach or suggest the “read a fold factor attribute” step. Final Act. 9.
Paragraphs 17 and 44 describe the concept of folding resources to free up
resources so the resources can be used for other tasks, assigned to other
resource pools, or placed in an idle mode to reduce power consumption.
Floyd ¶¶ 17, 44. Paragraph 18 provides an example in which the system may
fold a virtual processor when the aggregate load on a partition is low so the
physical processor corresponding to the freed virtual processor can be placed
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in an idle mode or used for other partitions, but the system may reclaim the
processor resources when the partition’s load increases. Floyd ¶ 18.
Paragraph 70 explains that the system may use “the conditions associated
with each” resource to compute a “Folding Desirability Metric (FDM)”
value for each resource that may be used to determine the correct resources
to fold or unfold. Floyd ¶ 70. Paragraphs 57 through 68 describe various
exemplary resource usage properties or conditions that may be used to
compute the FDM. Floyd ¶¶ 57–68.
The Examiner’s findings, however, are insufficient to demonstrate
that Floyd teaches or suggests the recited limitation of “in response to a
virtual machine (VM) being instantiated, read a fold factor attribute for the
VM” because the Examiner fails to explain how Floyd’s cited passages teach
or suggest the FDM is read in response to a VM being instantiated. Rather,
the Examiner merely points to Floyd’s separate disclosures regarding
instantiating a partition, which the Examiner presumably finds teach the
recited VM, and computing the FDM. See Am. Calcar, Inc. v. Am. Honda
Motor Co., 651 F.3d 1318, 1340 (Fed. Cir. 2011) (“‘In response to’ connotes
that the second event occur in reaction to the first event.”). The Examiner
provides insufficient findings and explanation to demonstrate Floyd
explicitly teaches the FDM is read in response to instantiating a VM.
Furthermore, the Examiner provides insufficient evidence or explanation
demonstrating that an ordinarily skilled artisan would have understood the
cited passages require or at least suggest storing the FDM and reading the
FDM when instantiating a VM in order to allocate resources to the VM.
On this record, for the reasons discussed above, we are constrained to
reverse the § 103 rejection of representative independent claim 8. For the
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same reasons, we cannot sustain the rejection of independent claim 15,
which recites commensurate limitations, or dependent claims 12–14, 19, and
20, which ultimately depend from and inherit the limitations of one of claims
8 and 15.
CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
8, 12–15, 19, 20 Provisional Obviousness-
Type Double Patenting
8, 12–15,
19, 20

8, 12–15, 19, 20 § 103 Floyd, Smith, Behera 8, 12–15, 19, 20
Overall
Outcome
8, 12–15,
19, 20

AFFIRMED