VMware, Inc.Download PDFPatent Trials and Appeals BoardSep 28, 20212020000918 (P.T.A.B. Sep. 28, 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. 15/687,057 08/25/2017 Reza Taheri B247.C1 7452 152606 7590 09/28/2021 Olympic Patent Works PLLC 4979 Admiral Street Gig Harbor, WA 98332 EXAMINER UNG, LANNY N ART UNIT PAPER NUMBER 2191 MAIL DATE DELIVERY MODE 09/28/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte REZA TAHERI, KALYAN SALADI, DANIEL MICHAEL HECHT, JIN HEO, and JEFFREY BUELL Appeal 2020-000918 Application 15/687,057 Technology Center 2100 Before ELENI MANTIS MERCADER, JENNIFER L. McKEOWN, and MICHAEL T. CYGAN, Administrative Patent Judges. MCKEOWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–20. We have jurisdiction 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(a). Appellant identifies the real party in interest as VMWARE, INC. Appeal Br. 1. Appeal 2020-000918 Application 15/687,057 2 CLAIMED SUBJECT MATTER The claims are directed to “virtualization of computer hardware and hardware-based performance monitoring and, in particular, to a virtualized performance-monitoring unit decoupled from underlying hardware features.” Spec. ¶ 2. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A cloud-computing facility comprising: multiple computer systems, each including one or more processors, one or more memories, and a virtualization layer comprising computer instructions, stored in a physical data-storage device within the computer system, that, when executed by one or more of the one or more processors, control the computer system to provide a virtual hardware interface to a virtual machine that includes a guest operating system; and provide, as a component of the virtual hardware interface, a set of hardware-decoupled virtual performance monitoring registers that are accessed by the guest operating system, that are provided by the virtualization layers of the other of the multiple computer systems so that the guest operating system accesses the same set of hardware-decoupled virtual performance monitoring registers when the virtual machine migrates among the multiple computer systems, and that includes a hardware- decoupled virtual performance monitoring register that accumulates a count of the occurrence of an event of a type that is not accumulated by the hardware performance monitoring registers of one or more of the processors of one or more of the multiple computer systems. REFERENCE(S) The prior art relied upon by the Examiner is: Appeal 2020-000918 Application 15/687,057 3 Name Reference Date Taheri US 9,756,118 B2 Sept. 5, 2017 Bose US 2012/0245897 A1 Sept. 27, 2012 Serebrin US 2013/0219389 A1 Aug. 22, 2013 REJECTIONS The Examiner rejected claims 1 and 15 under nonstatutory double patenting as unpatentable over claims 1 and 12 of U.S. Patent No. 9,756,118 and Serebrin. Final Act. 3–11. The Examiner rejected claims 1–4 and 7–18 under 35 U.S.C. § 102 as anticipated by Serebrin. Final Act. 11–18. The Examiner rejected claims 5, 6, 19 and 20 under 35 U.S.C. § 103 as unpatentable over Serebrin and Bose. Final Act. 18–20. OPINION THE ANTICIPATION REJECTION BASED ON SEREBRIN Claims 1–4 and 7–18 Appellant argues that “cloud-computing facility” in the preamble is entitled to patentable weight because “cloud-computing facility” is not part of a statement of purpose or intended use and “comprises the entire preamble.” Reply Br. 3. Appellant maintains that the Examiner incorrectly applied the test set forth in MPEP §2111.02 and instead points to Eaton Corp. v. Rockwell International Corp., 323 F.3d 1332 (Fed. Cir. 2003). Id. Moreover, Appellant argues Serebrin fails to disclose the claimed cloud- computing facility. Reply Br. 5. According to Appellant, “[w]hile Serebrin does mention moving a virtual machine to another computer system, in paragraphs [0085-0088] with reference to Figure 6 of Serebrin, Serebrin Appeal 2020-000918 Application 15/687,057 4 does not mention anything about cloud-computing facilities.” Appeal Br. 11. Appellant argues that the Specification describes a cloud-computing facility as “a distributed computing system that provides certain types of functionalities and interfaces.” Reply Br. 3–4 (citing Spec. Fig. 3, ¶¶ 37– 38). Appellant further cites exemplary embodiments that are not cloud computing. See Reply Br. 4 (“There are many different types of distributed computing systems, including private data centers and private virtual data centers, which employ virtual-machine technology and that are not cloud- computing facilities.”); Reply Br. 5 (asserting that Specification paragraph 35, along with Figure 2, describes “Internet-connected distributed computer system, which are not cloud computing facilities” and Specification paragraph 47 describes virtual data centers, which “provide a data-center interface to virtual data centers computationally constructed within physical data centers” but are also not cloud computing facilities). The Examiner, on the other hand, determines that the recited “cloud- computing facility” in the preamble is not limiting. The Examiner reasons that “‘cloud-computing facility’ is simply a name of the system.” The Examiner points out that “[i]f the Appellant was to change the language to ‘A system comprising,’ it would have the same meaning as ‘A cloud- computing facility comprising.” Ans. 27. Moreover, the Examiner determines that “[t]he managing of the migration of a virtual machine from one computing system to another where virtual counters are maintained can be reasonably considered a ‘cloud-computing facility’ as multiple computing systems are linked to each other to perform a task.” Ans. 27–28. See also Ans. 24 (“Serebrin discloses ‘cloud-computing facility’ and ‘multiple Appeal 2020-000918 Application 15/687,057 5 computer systems’ in Paragraphs 86 and 87 which discuss the migration of a virtual machine from multiple computing systems.”). “Whether to treat a preamble as a limitation is a determination ‘resolved only on review of the entire[] . . . patent to gain an understanding of what the inventors actually invented and intended to encompass by the claim.’” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002) (quotations omitted). “In general, a preamble limits the invention if it recites essential structure or steps, or if it is ‘necessary to give life, meaning, and vitality’ to the claim.” Id. “Conversely, a preamble is not limiting ‘where a patentee defines a structurally complete invention in the claim body and uses the preamble only to state a purpose or intended use for the invention.’” Id. We are not persuaded of error in the Examiner’s determination. For example, Appellant’s reliance on Eaton Corp. v. Rockwell International Corp., 332, 339 F.3d 1332 (Fed. Cir. 2003) is misplaced. In Eaton Corp., the two method steps of the claim body both referred back to or relied upon multiple components described in the preamble. See Eaton Corp. v. Rockwell International Corp., 332, 339 F.3d 1332, 1340 (Fed. Cir. 2003)(“The method steps of claim 14 thus require the manipulation of particular structures that are identified and described only by the preamble, during a particular sequence of events defined only by the preamble.”). In contrast, the preamble here merely recites a “cloud computing” use for the claimed facility. Moreover, we disagree that the “cloud computing” preamble is used to define the subject matter of the claimed invention. As the Examiner points out, the body of the claim outlines a structurally complete system, without the need for or reference to cloud computing. Ans. 27. The Appeal 2020-000918 Application 15/687,057 6 limitations of the claims do not rely on or refer to cloud computing or a cloud computing facility. And the Specification, as Appellant points out, does not limit the claimed invention to only cloud computing, but instead generally describes applying virtualized performance monitoring units (PMUs) with various distributed computing systems. See, e.g., Reply Br. 4– 5; Spec. Summary. As such, we are not persuaded that the Examiner erred in determining that the recited cloud computing is merely an intended use of the claimed invention. Appellant’s argument with respect to Serebrin is likewise unavailing. Serebrin’s lack of “mentioning” cloud computing is not persuasive to identify error. There is no ipsissimis verbis test for determining whether a reference discloses a claim element, i.e., identity of terminology is not required. In re Bond, 910 F.2d 831, 832 (Fed. Cir. 1990). Additionally, Appellant fails to define cloud computing, either in the Specification or with extrinsic evidence. In the Reply Brief, Appellant offers that “[a] cloud-computing facility is a distributed computing system that provides certain types of functionalities and interfaces, as explained in the current application,” but cites only to a general discussion of how organization administrators can use private and public cloud computing and some of the advantages of cloud computing. See Reply Br. 4 (citing Spec. 37–38). Nowhere does Appellant persuasively explain the “certain types of functionalities and interfaces” of cloud computing. As such, based on the record before us, we are not persuaded of error in the Examiner’s interpretation of cloud computing and the Examiner’s finding that Serebrin reasonably teaches this limitation. See, e.g., Ans. 27–28. Next, Appellant argues that Serebrin does not disclose the claimed Appeal 2020-000918 Application 15/687,057 7 set of hardware-decoupled virtual performance monitoring registers. . . that are provided by the virtualization layers of the other of the multiple computer systems so that the guest operating system accesses the same set of hardware-decoupled virtual performance monitoring registers when the virtual machine migrates among the multiple computer systems. Appeal Br. 14–18. Appellant, in particular, asserts that “neither Figure 6 of Serebrin nor paragraphs [0085-0088] teaches either hardware-decoupled virtual performance monitoring registers or a common set of hardware- decoupled virtual performance monitoring registers provided by the multiple computer systems within a cloud-computing system.” Appeal Br. 14. According to Appellant, Serebrin, “does not attempt to provide a common set of hardware performance counters across multiple machines.” Appeal Br. 15. Specifically, There is nothing in Figure 6 or in paragraphs [0085-0088] of Serebrin that states or teaches that Serebrin’s virtual performance counters count the same types of events in the first system prior to migration and in the second system following migration, but only that the counts are stored and that, when the processors of the two systems differ, the counts are converted and the hardware performance counters are reconfigured to count new types of events. Appeal Br. 15. Appellant’s arguments, however, are not commensurate with the scope of the claim. Namely, the claims do not recite a common set of hardware performance counters across multiple machines nor do the claims require counting the same types of events before and after migration. Serebrin discloses migrating virtualized performance counters with the migrated virtual machine with a harmonization layer reconfiguring the virtualized performance counters. Serebrin ¶¶ 85–87. In other words, Serebrin’s harmonization layer accesses the same set of migrated virtualized Appeal 2020-000918 Application 15/687,057 8 performance counters, provided by other computing systems, when the virtual machine migrates among multiple computer systems. As such, we find Appellant’s arguments unpersuasive. Appellant additionally argues that Serebrin fails to disclose including “a hardware-decoupled virtual performance monitoring register that accumulates a count of the occurrence of an event of a type that is not accumulated by the hardware performance monitoring registers of one or more of the processors of one or more of the multiple computer systems.” Appeal Br. 15. Specifically, Appellant asserts that Serebrin’s virtual performance counters only count the same type of events as the hardware performance counters. Appeal Br. 15–16. For example, Serebrin describes that the virtual performance counters emulates physical hardware performance counters. Appeal Br. 16. We disagree. As the Examiner points out, Serebrin teaches a “virtual counter can be paravirtualized counters which can be specific to a virtualized environment (e.g. are not present in native execution environments) such as hypervisor-specific counters and/or virtualization-specific counters.” Ans. 29 (citing Serebrin ¶ 57). In other words, Serebrin teaches counting virtualized events, or events not accumulated by hardware performance monitoring registers. As such, we are not persuaded of error in the rejection of the claimed invention as anticipated by Serebrin. Appellant’s arguments with respect to dependent claims 2–4 are similarly unpersuasive. With respect to claims 2 and 3, Appellant asserts Serebrin teaches only teaches that a performance metric may be calculated from values stored in two or more performance counters. Appeal Br. 16. According to Appellant, Appeal 2020-000918 Application 15/687,057 9 Performance metrics are calculated values used by profile software. They are not virtual performance counters or hardware- decoupled virtual performance monitoring registers. There is nothing in this paragraph that even remotely suggests that any of Serebrin's virtual performance counters count events of different types and counted by the underlying physical hardware performance counters. Metrics values are derived values computed by software profilers. Appeal Br. 16. Additionally, with respect to claim 4, Appellant similarly argues the Examiner incorrectly relies on “values calculated by software profiler are unrelated to virtual performance counters or hardware performance counters.” Appeal Br. 17. We are not persuaded of error in the Examiner’s rejection of claims 2– 4. Claim 2 merely requires a virtual monitoring register that accumulates a count of an event derived from two or more hardware monitoring registers and claim 4 recites that the count of the event is derived by computing an approximate count. Serebrin describes performance monitoring counters that can count a variety of events, including speculative and non-speculative events, and a hypervisor virtualizing performance monitoring counters. Serebrin ¶ 16, 18. As the Examiner points out “Serebrin discloses that virtual counters can be measured based on multiple hardware counters.” Ans. 34 (citing Serebrin ¶ 56); see also Serebrin ¶ 38 (describing virtual counters emulating the event counters). Additionally, Serebrin, like the present invention, teaches monitoring non-speculative events, i.e. processor events, and speculative events, i.e. approximated processor events. Serebrin ¶ 33. As such, based on the record before us, we are not persuaded that the Examiner erred in determining that Serebrin discloses the disputed limitations of claims 2–4. Appeal 2020-000918 Application 15/687,057 10 Accordingly, based on the record before us, we sustain the rejection of claims 1–4 and 7–18 as anticipated by Serebrin. THE OBVIOUSNESS REJECTION BASED ON SEREBRIN AND BOSE Claims 5, 6, 19, and 20 Appellant does not present separate arguments for the patentability of dependent claims 5, 6, 19, and 20. See, e.g., Appeal Br. 19. For the reasons discussed above, we are not persuaded that Serebrin fails to disclose the limitations of independent claims 1 and 15. As such, we are also not persuaded of error in the rejection of claims 5, 6, 19, and 20 as unpatentable over Serebrin and Bose and sustain the rejection. THE NONSTATUTORY OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION Claims 1 and 15 Initially, Appellant argues that U.S. Patent No. 9,756,118 fails to disclose certain limitations of claim 1 and 15. Appeal Br. 8–11. The Examiner, however, clarifies that the rejection relies on Serebrin for those disputed limitation. Ans. 23–24. Appellant then presents the same arguments with respect to Serebrin discussed above. See Appeal Br. 8–13; Reply Br. 2–9. For the reasons discussed above, we are not persuaded that Serebrin fails to teach the disputed limitations of claims 1 and 15. As such, we are not persuaded that the Examiner erred in rejecting claims 1 and 15 under nonstatutory obviousness-type double patenting and sustain the rejection. Appeal 2020-000918 Application 15/687,057 11 CONCLUSION The Examiner’s rejections of claims 1–20 is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 15 Nonstatutory Double Patenting US 9,756,118, Serebrin 1, 15 1–4, 7–18 102 Serebrin 1–4, 7–18 5, 6, 19, 20 103 Serebrin, Bose 5, 6, 19, 20 Overall Outcome 1–20 TIME PERIOD FOR 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation