DETAILED NON-FINAL OFFICE ACTION
This action is responsive to the filing of an RCE, dated 08/06/2024.
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 08/06/2024 has been entered.
Reissue
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions. This reissue application was filed 02/24/2022. Thus, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 made in this application are to the current provisions.
Applicant is reminded of the continuing obligation under 37 CFR 1.178(b), to timely apprise the Office of any prior or concurrent proceed-ing in which Patent No. 10/572,287 is or was involved. These proceedings would include interferences, reissues, reexaminations, and litigation.
Applicant is further reminded of the continuing obligation under 37 CFR 1.56, to timely apprise the Office of any information which is mate-rial to patentability of the claims under consideration in this reissue appli-cation.
These obligations rest with each individual associated with the filing and prosecution of this application for reissue. See also MPEP §§ 1404, 1442.01 and 1442.04.
Applicant is notified that any subsequent amendment to the specification and/or claims must comply with 37 CFR 1.173(b).
Response to Amendment
Amended claims have been reviewed. The amendments filed in the Response do not comply with 37 CFR 1.173.
Claims
Claim 17 has been completely deleted and does not state the status of the claim that is required and similar to the other claims in the reissue, i.e., “Claim 17 (Cancelled)”. Applicant is notified that any subsequent amendment to the specification and/or claims must comply with 37 CFR 1.173(b)2,
(2) Claims. An amendment paper must include the entire text of each claim being changed by such amendment paper and of each claim being added by such amendment paper. For any claim changed by the amendment paper, a parenthetical expression "amended," "twice amended," etc., should follow the claim number. Each changed patent claim and each added claim must include markings pursuant to paragraph (d) of this section, except that a patent claim or added claim should be canceled by a statement canceling the claim without presentation of the text of the claim.
Response to Arguments
Applicant's arguments filed 07/09/2024 have been fully considered but they are not persuasive.
Applicant's withdrawal of claim 17 is noted. The rejection of claim 17 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph is withdrawn.
Applicant argues that claim 1 is not rendered obvious by Shan and Matzek because Shan teaches resource pools that are "logically isolated from each other" (Shan, ¶ 0057), meaning a resource is not simultaneously in the default pool and a non-default pool. Applicant argues that in claim 1, "a lower priority VM can be assigned to any processing core including the pinned subset" and thus "the two sets overlap (are not exclusive) with respect to the lower priority VM." Applicant contends that only when a high priority need arises is the core made exclusively available to the high priority VM.
As to this argument, the Examiner respectfully disagrees. The amended claim recites "processing resources of the subset of cores that are pinned by the first virtual machine are available to the first virtual machine when required by the first virtual machine and are not available to the second virtual machine when required by the first virtual machine," and further that "when processing resources of the subset of cores pinned to the first virtual machine are not required by the first virtual machine, the processing resources of the subset of cores pinned to the first virtual machine are available to the second virtual machine." The claim language itself describes a conditional availability, rather than a simultaneous execution overlap. Shan explicitly teaches this conditional availability by reallocating physical cores between the advanced resource pool and the default resource pool based on need. Shan teaches that when an advanced virtual machine is migrated out or shut down (i.e., when processing resources of the subset of cores are not required by the first virtual machine), "one idle physical core computing resource appears in the level-1 resource pool. In this case, one physical core may be allocated to the default resource pool from the level-1 resource pool for use by a virtual machine that runs in the default resource pool" (Shan, ¶ 0071). When the physical core is dynamically made available to the default pool, Shan teaches that "default virtual machines in the default resource pool share computing resources of all the physical cores in the default resource pool" (Shan, ¶ 0073). Therefore, Shan teaches configuring the second virtual machine to run on any of the plurality of physical processing cores, including the specific physical cores comprising the subset pinned by the first virtual machine, because those cores become available to the second virtual machine when they are no longer required by the first virtual machine.
Applicant argues that claim 1 recites "prohibiting pinning of other virtual machines associated with the first type to run on the subset of the plurality of physical processing cores," and that Shan does not teach prohibiting pinning of another high priority VM to the previously pinned subset of cores to prevent contention.
As to this argument, the Examiner respectfully disagrees. Shan explicitly teaches that each virtual machine in the "level-1" resource pool (the first type) is allowed to "exclusively occupy one physical core computing resource" (Shan, ¶ 0058). When an additional level-1 virtual machine is added, Shan determines a new, first number of physical cores that "need to be allocated to the level-1 resource pool" rather than pinning it to the already occupied core (Shan, ¶ 0066). Furthermore, if there are insufficient resources to allocate a new physical core to satisfy the service level, Shan teaches rejecting the request for adding the advanced virtual machine (Shan, ¶ 0075). By enforcing exclusive occupation of the physical core and either allocating new separate cores or rejecting new requests entirely, Shan inherently prohibits the pinning of other virtual machines of the first type to the already occupied (pinned) subset of cores, thereby ensuring no contention occurs.
Applicant argues regarding the recapture rule that the amendment deleting "wherein the method is performed by a scheduler component responsible..." was added as an Examiner Amendment during original prosecution and was not material to patentability. Further, Applicant argues that even if it was surrendered subject matter, the claims have been materially narrowed in other respects by adding the limitation "first priority and the second priority are respectively determined based on the first type and the second type", and thus the amendment is not barred by the recapture rule.
As to this argument, Argument is persuasive. Review of the original specification (e.g., col. 7, lines 20-25; col. 11, lines 45-55) provides proper 35 U.S.C. 112 support for associating virtual machine types (e.g., time-critical vs. non-time-critical) with specific priority levels (e.g., maximum priority vs. default priority). The addition of the limitation requiring that the "first priority and the second priority are respectively determined based on the first type and the second type" constitutes a material narrowing of the claims that relates directly to the configuration and assignment of the virtual machines. Under the recapture rule, a reissue claim that enlarges the scope of the original claims may avoid the recapture bar if it is materially narrowed in a way that relates to the surrendered subject matter. Because the Applicant has materially narrowed the claim regarding how priorities are determined based on VM type, the omission of the "scheduler component" limitation is not barred by 35 U.S.C. 251. However, as noted in the outstanding rejection, this material narrowing has already been mapped to the combination of Shan and Matzek in the 35 U.S.C. 103 rejection (e.g., Matzek teaches assigning different virtual machine types with priorities based on different factors, Matzek, ¶ 0100). Therefore, while the recapture argument is persuasive to permit the entry of the amendment, the 35 U.S.C. 103 rejection over the prior art remains.
Applicant argues that dependent claims 2-16 are not obvious in view of Shan, Matzek, Mehta, and Sugumar by virtue of their dependency on claim 1.
As to this argument, the Examiner respectfully disagrees. Since the arguments for the patentability of independent claim 1 are not persuasive, the rejections of dependent claims 2-16 are maintained. Applicant has merely relied upon the dependency of these claims and has not pointed out any specific errors in the Examiner's mapping of the prior art references to the additional limitations recited in claims 2-16. Therefore, the rejections of claims 2-16 stand.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 1 – 9, and 12 – 16 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shan et al. U.S. Pub. No. 2015/0040131, (hereinafter “Shan”), and further in view of Matzek et al. U.S. Pub. No. 2017/0012904, (hereinafter “Matzek”).
Claim 1:
A method of configuring virtual machines on a host device comprising a plurality of physical processing cores, in which processing resources of each of the plurality of physical processing cores can be made available to one or more virtual machines, the method comprising:
Shan teaches a method of configuring virtual machines on a host device comprising a plurality of physical processing cores, in which processing resources of each of the plurality of physical processing cores can be made available to one or more virtual machines. Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to virtual machines.
assigning a first priority to a first virtual machine;
assigning a second priority to a second virtual machine, wherein the first priority is higher than the second priority;
Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010–0021). Matzek specifically teaches different virtual machine types with priorities based on different factors, (e.g., Matzek, ¶ 0100).
pinning the first virtual machine to run only on a subset of the plurality of physical processing cores, the first virtual machine being associated with a first type;
The act of “pinning” is interpreted as scheduling the virtual machine to a specific resource pool that is exclusive to that level, (e.g., Shan, ¶¶ 0027–0029, 0051, 0058, 0065). Shan teaches different levels assigned to different virtual machines, which correlates to the claimed first type.
configuring the second virtual machine to run on any of the plurality of physical processing cores including the subset of cores that are pinned by the first virtual machine, the second virtual machine being associated with a second type, the first type different from the second type;
Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. What is not specifically taught is a second type being different from a first type. Matzek specifically teaches different virtual machine types with priorities based on different factors, (e.g., Matzek, ¶ 0100).
wherein, based on the first priority being higher than the second priority:
processing resources of the subset of cores that are pinned by the first virtual machine are available to the first virtual machine when required by the first virtual machine and are not available to the second virtual machine when required by the first virtual machine,
Shan teaches that the resources that are allocated to the highest resource pool cannot be used by the default pool and stay in the advanced resource pool until certain specific conditions are met, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065).
when processing resources of the subset of cores pinned to the first virtual machine are not required by the first virtual machine, the processing resources of the subset of cores pinned to the first virtual machine are available to the second virtual machine; and
Shan teaches dynamically reallocating processing cores to the default processing core pool when there are no virtual machines with a high level where all the lower level virtual machines can use all the processing cores, (e.g., Shan, ¶¶ 0063–0065). Specifically, Shan teaches when the number of virtual machines in the advanced resource pool decreases, determining a second number of physical cores that need to be subtracted from the advanced resource pool, and allocating the second number of physical cores to the default resource pool from the advanced resource pool.
processing resources of cores that are not pinned to the first virtual machine are available to the second virtual machine;
Shan teaches that the virtual machines that are assigned to the default resource pool of cores run on any of the cores and share computing resources of all the physical cores in the default resource pool, (e.g., Shan, ¶¶ 0051, 0058).
prohibiting pinning of other virtual machines associated with the first type to run on the subset of the plurality of physical processing cores,
Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065, et al.). In this instance the virtual machines that are assigned to the resource pool levels 1, 2, or 3 of cores run on any of the cores. It is also seen that the resources that are allocated to the highest resource pool cannot be used by the default pool and stay in the advanced resource pool until certain specific conditions are met. Furthermore, Shan prohibits pinning other high-level virtual machines if physical core computing resources are insufficient to satisfy the service level of the advanced resource pool, rejecting requests for adding advanced virtual machines, (e.g., Shan, ¶ 0075).
wherein the first priority and the second priority are respectively determined based on the first type and the second type.
Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). Matzek specifically teaches different virtual machine types with priorities based on different factors, (e.g., Matzek, ¶ 0100). It would have been obvious to one of ordinary skill in the art at the time the invention was made to combine Matzek with Shan because it is utilizing the common practice of assigning priority to tasks to be processed in a timely manner yields the predictable result of the less important activities to make way for what is essential.
Claim 2:
The method of claim 1, wherein configuring the second virtual machine to run on any of the plurality of physical processing cores comprises configuring the second virtual machine to run on any of the cores in the physical plurality of processing cores including at least one physical processing core in the subset of the plurality of physical processing cores such that the processing resource of the at least one physical processing core is available to the first virtual machine when required by the first virtual machine instead of being available to the second virtual machine.
Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010–0021). Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. Shan teaches the cores in the default pool being allocated to the pools of the advanced resource pools during specific conditions, see cited areas above.
Claim 3:
The method of claim 2, wherein the at least one physical processing core is at least partially required by the first virtual machine during a period of relatively high processing demand for the first virtual machine.
Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010 – 0021). Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. Shan teaches the cores in the default pool being allocated to the pools of the advanced resource pools during specific conditions, see cited areas above.
Claim 4:
The method of claim 3, wherein the at least one physical processing core is fully utilized by the first virtual machine during the period of relative high processing demand for the first virtual machine.
Shan teaches the use of scheduling through a resource adjusting unit, (e.g., ¶¶ 0029 – 0031, 0057). As seen in paragraph 57, 100% of the core can be use. It is also noted many different percentages can be designated in the allotment of cores and the amount of processing space if given to a VM.
Claim 5:
The method of claim 2, wherein the at least one physical processing core is not fully required by the first virtual machine during a period of relatively low processing demand for the first virtual machine, and
wherein a processing resource of the at least one physical processing core is at least partially available to the second virtual machine during the period for relatively low processing demand for the first virtual machine.
Shan teaches the use of scheduling through a resource adjusting unit, (e.g., ¶¶ 0030 – 0035, 0057). As seen in paragraph 57, 50% of the core can be use. It is also noted many different percentages can be designated in the allotment of cores and the amount of processing space if given to a VM.
Claim 6:
The method of claim 1, wherein the first type comprises a type of virtual machine responsible for providing one or more time critical services.
It is noted that the Applicant’s specification does not have specific timers or an actual time element to their invention. Therefore, the interpretation of “time critical” is the mere indication of importance and to be performed before others. Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the resource pool levels 1, 2, or 3 of cores run on any of the cores. It is also seen that the resources that are allocated to the highest resource pool cannot be used by the default pool and stay in the advanced resource pool until certain specific conditions are met. In this instance the virtual machines that are assigned to the higher level resource pool are of higher priority. It is further understood by one skilled in the art that the higher the priority the more “time critical” the service is and the more resources need to be dedicated to those processes.
Claim 7:
The method of claim 1, wherein the second type comprises a type of virtual machine responsible for providing one or more non-time critical services.
Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. It is further understood by one skilled in the art that the default resource pool does not have any priority level of significance and is therefore given VMs that are not “time critical”.
Claim 9:
The method of claim 1, wherein the sub set of the plurality of physical processing cores is a first subset of the plurality of physical processing cores, the method further comprising configuring a third virtual machine to run on a second subset of the plurality of physical processing cores, wherein there is no overlap between the first subset of the plurality of physical processing cores and the second subset of the plurality of physical processing cores, the third virtual machine being of the first type,
Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065, et al.). In this instance the virtual machines that are assigned to the resource pool levels 1, 2, or 3 of cores run on any of the cores. It is also seen that the resources that are allocated to the highest resource pool cannot be used by the default pool and stay in the advanced resource pool until certain specific conditions are met. It can be interpreted that the third virtual machine is part of an “advanced resource pool” group and not the default resource pool group and therefore is similar to the first virtual machine type, i.e., “advanced”. Regardless if the Applicant agrees, Matzek specifically teaches different virtual machine types with priorities based on different factors, (e.g., Matzek, ¶ 0100). It would have been obvious to one of ordinary skill in the art at the time the invention was made to combine Matzek with Shan because it is utilizing the common practice of assigning priority to tasks to be processed in a timely manner yields the predictable result of the less important activities to make way for what is essential.
Furthermore, this limitation is mere duplication of parts and is obvious to one skill in the art, see MPEP 2144.04 VI. B. Duplication of Parts.
wherein configuring the second virtual machine comprises configuring the second virtual machine to run on any of the plurality of processing cores including at least one physical processing core in the second subset of the plurality of physical processing cores; and
Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010 – 0021). Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores.
assigning a third priority to the third virtual machine, wherein the third priority is higher than the second priority such that processing resources of the second plurality of physical processing cores are available to the third virtual machine when required by the third virtual machine instead of being available to the second virtual machine.
Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010 – 0021). Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. Shan teaches the use of scheduling specific processor cores out of a pool of different resource pools to the virtual machines that have specific priorities, (e.g., Shan, ¶¶ 0010 – 0021). Shan teaches different levels assigned to different virtual machines, (e.g., Shan, ¶¶ 0051, 0056 et al., 0065). In this instance the virtual machines that are assigned to the default resource pool of cores run on any of the cores. Shan teaches the cores in the default pool being allocated to the pools of the advanced resource pools during specific conditions, see cited areas above. Furthermore, this limitation is mere duplication of parts and is obvious to one skill in the art, see MPEP 2144.04 VI. B. Duplication of Parts.
Claims 8, and 12 – 16 claim similar limitations as stated above and are therefore rejected for the same reasons stated above.
Claim(s) 10 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shan and Matzek, in further view of Mehta et al., U.S. Pub. No. 2016/0092259, hereinafter “Mehta”.
Claim 10:
The method of claim 9,
wherein the host comprises a first non-uniform memory access node and a second non-uniform memory access node, wherein the first non-uniform memory access node comprises the first subset of the plurality of physical processing cores, and wherein the second non-uniform memory access node comprises the second subset of the plurality of physical processing cores,
Shan teaches the use of scheduling through a resource adjusting unit, (e.g., ¶¶ 0029 – 0031, 0057 - 0058). As seen in, wherein there is no overlap between the first subset of the plurality of physical processing cores and the second subset of the plurality of physical processing cores, Shan teaches the use of scheduling through a resource adjusting unit, (e.g., ¶¶ 0029–0031, 0057 - 0058). As seen in paragraph 58, 100% of the core can be used, i.e., “no overlap”. It is also noted many different percentages can be designated in the allotment of cores to the VM(s), (i.e., some cores are used at 100%, some may be at 50% depending on the task).
Mehta specifically teaches the use of non-uniform memory access nodes, (NUMA), comprising specific processing unit subsets, (e.g., Mehta, Abstract, ¶¶ 0079–0084 et seq., Fig. 7). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine Mehta with Shan and Matzek because using matching VMs on a particular NUMA node can achieve the highest overall efficiency, 100% of the core can be use, i.e., “no overlap”. It is also noted many different percentages can be designated in the allotment of cores to the VM(s), (i.e., some cores are used at 100%, some may be at 50% depending on the task).
wherein the host comprises a first non-uniform memory access node and a second non-uniform memory access node, wherein the first non-uniform memory access node comprises the first subset of the plurality of physical processing cores, wherein the second non-uniform memory access node comprises the second subset of the plurality of physical processing cores.
Mehta specifically teaches the use of non-uniform memory access nodes, (NUMA), comprising specific processing unit subsets, (e.g., Mehta, Abstract, ¶¶ 0079–0084 et seq., Fig. 7). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine Mehta with Shan and Matzek because using matching VMs on a particular NUMA node can achieve the highest overall efficiency. It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine Mehta with Shan and Matzek because using matching VMs on a particular NUMA node can achieve the highest overall efficiency (with respect to NUMA node assignments) in transmitting data from VMs to a network when all VMs and queues are on the same NUMA node as the PNIC, (e.g., Mehta, ¶¶ 0080 et al., & Fig. 7).
Claim(s) 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Shan and Matzek, in further view of Sugumar et al., U.S. Patent No. 7,673,113, hereinafter “Sugumar”.
Claim 11:
The method of claim 1, wherein the first type comprises a type of virtual machine responsible for performing media packet forwarding.
The claim language is non-functional descriptive language and therefore does not specifically distinguish itself from the prior art, MPEP, 2112.01 III. Regardless, Sugumar teaches forwarding media packets to VMs, (e.g., Sugumar, 2:50 et seq.). It would have been obvious to one of ordinary skill in the art at the time the invention was filed to combine Sugumar with Shan and Matzek because sending media over a network would result in the predictable result of sending information and further does not require undue experimentation.
Conclusion
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any extension fee pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DAVID E ENGLAND whose telephone number is (571)272-3912. The examiner can normally be reached on M-F 8:00-5:00.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Michael Fuelling can be reached on 571-270-1367. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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DAVID E. ENGLAND
Primary Examiner
Art Unit 3992
/DAVID E ENGLAND/Primary Examiner, Art Unit 3992
Conferees:
/MATTHEW E HENEGHAN/Primary Examiner, Art Unit 3992 /M.F/Supervisory Patent Examiner, Art Unit 3992
