DETAILED ACTION
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 .
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 12/05/2024 and 12/08/2025, are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements are being considered by the examiner.
Claim Status
Claims 1-20 are pending
Claims 4, 6-7, 14 and 16-17 are objected to
Claims 1-3, 5, 8-13, 15 and 18-20 are rejected under 35 USC § 103
Response to Arguments
Applicant's arguments filed on 04/10/2026 have been fully considered but not all of them are persuasive.
Applicant argues –
Under the all-elements rule, "similar to" is not legally sufficient for §102. The Office must show Zhang expressly or inherently discloses a queue data structure (not merely an amount of remaining data) that is monitored (see MPEP § 2131; Net Moneyin v. VeriSign, 545 F.3d 1359, 1371 (Fed. Cir. 2008)).
To avoid any disagreement on this, examiner changed 102 rejection into a 103 rejection using the same reference.
Applicant argues –
The Broadest Reasonable Interpretation (BRI) does not permit the broadest possible interpretation of a claim term. The MPEP explicitly states that the "broadest reasonable interpretation does not mean the broadest possible interpretation." MPEP § 2111 (emphasis added). Rather, the MPEP states that the interpretation of any claim term "must be consistent with the use of the claim term in the specification and drawings." Id. Adherence to this rule is not optional. The MPEP indicates that the interpretation of claim terms "must be" "consistent with the use of the claim term in the specification and drawings."
Applicant also argues –
The Office Action's interpretation of "migration queue" as being equivalent to any "data remaining to be migrated" goes well beyond what is allowable under this BRI doctrine. It is not consistent with the use of "migration queue" in the specification and drawings. According to the Specification (e.g., Specification, ,i,i [0077]-[0085], [0089]-[0107]), a "migration queue" is a concrete queue/buffer. For example, paragraph [0077] of the Specification refers to migration queue (MQ) 330, and paragraph [0078] states "MQ 330 may include a data structure configured to hold data sets and subsets of data sets moved during a migration." As a further example, paragraph [0081] states MQ 330 may be configured as a circular buffer; and paragraph [0083] states MQ 330 may be a circular FIFO buffer and that MQ 330 may include migration queue entries (MQEs). As an additional example, paragraph [0093] of the Specification states, "The occupancy of MQ 430 indicates how full MQ 430 is." Applying this "occupancy" aspect of the migration queue to the "data waiting to be migrated" of Zhang, shows how absurd the Office Action's allegations are. How can the data of Zhang indicate how full the data of Zhang is?
Examiner disagrees. Claim 1 talks/teaches about the content of migration queue that is data to be migrated- ‘monitoring/determining and applying’ are all related to ‘data to be migrated’ and are remaining in the migrating queue. Zhang teaches the same.
Zhang: abstract, claim 1: teaches a virtual machine migration method, belonging to the virtual machine migration technology, the method comprises: monitoring the current network state, wherein the network state comprises the network bandwidth and delay condition between the source host and the target host; according to the network state and the size of the data to be migrated, calculating the migration rate, and dynamically adjusting the migration rate according to the change condition of the bandwidth and the delay. Zhang para 81-82 (attached pdf file): discloses Specifically: measuring the size S of the data to be migrated; The estimated transmission time can be calculated according to the size of the data to be migrated. The time required for data transmission can be estimated according to the actual bandwidth and the size of the data to be migrated. Zhang para 89 (in attached pdf file): discloses dynamically adjusting the migration rate according to the real-time network condition and the residual size of the data to be migrated. If the network condition is good and the remaining size of the data to be migrated is large, increasing the migration rate. Conversely, if the network condition is poor or the remaining size of the data to be migrated is small, reducing the migration rate.
So, monitoring the delay condition between the source host and the target host and monitoring the data still remaining to be migrated is similar to monitoring a migration queue associated with a migration process because a migration queue retains the data to be migrated. Zhang repeatedly mentions ‘measuring/calculating size of the data to be migrated’ which implies/requires ‘migrating data’ being retained/saved/stored somewhere i.e. ‘some locations’ which is similar to a migrating queue that also retains migrating data in some location that is named ‘migration queue’. The migration process also implies/requires getting data in and out of the location having migrating data which is similar to a migrating queue. Monitoring migration rate and measuring/determining remaining data also indicates having a storage/buffer retaining the data, transmitting it and measuring remaining data and all these also implies Zhang’s ‘migrating data location’ is similar to a queue ‘retaining migration data’ as claimed in the claim.
Applicant also argues that Zhang describes migration management performed at a host, not at a storage device. Nothing in Zhang indicates that a storage device independently monitors a migration queue associated with a virtual machine. Nor does Zhang disclose that a queue resides within, or is observable by, the storage device itself. Applicant also spent few paragraphs on the term ‘storage layer’ used in Zhang and was quoted during interview while doing a quick search in the Zhang reference about storage device when applicant was making the above claim.
Examiner disagrees to applicant’s arguments and explanations. Zhang para 13 (in attached pdf file) talks about the development of virtual machine migration technology at different level including ‘storage layer’. Examiner asserts that the concept of virtual machine includes ‘storage device’ which is part of a computer system that is being shared by a number of operating systems each becoming a virtual machine. To support this assertion, examiner attaches a pdf copy of ‘https://www.vmware.com/topics/virtual-machine’ that discloses –
The virtual machine runs as a process in an application window, similar to any other application, on the operating system of the physical machine. Key files that make up a virtual machine include a log file, NVRAM setting file, virtual disk file and configuration file.
It is obvious that migration process in Zhang involves transferring data from one storage device in host to another storage device in target using a network connected and communicating between host and target. It is obvious that host contains all the logic-circuit to carryout the migration process. Host also includes other logic unit to carryout many other tasks including data storage and supporting execution of all the VMs running on it. Examiner considers the combination of migration logic unit and the data storage unit of the host as one storage device.
Applicant argues - Any adjustment of migration speed in Zhang is directed to scheduling or throttling of migration operations at the system level, such as controlling bandwidth usage or migration progress. Such system-level adjustments do not constitute applying a rate limit on a controller of a storage device, nor are they disclosed as being based on a migration rate determined by the storage device.
Examiner finds this argument mis-leading. A host system contains all different logic units to perform different tasks. It includes logic unit and sub-units to complete all the tasks related to migration process as shared in the office action and more in the referenced Zhang document. As mentioned above examiner considers all the logic unit needed execute migration and storing data in the storage as the ‘storage device’.
Applicant objected to the motivation/obviousness of the additional references but did not point out which of the knowledge shared in the additional references - if available to a person ordinarily skilled in this art – could not be used to produce a system similar to the one claimed in the instant application.
The claim is about adding new inventive concept in the virtual machine migration process. Examiner is raising questions – what difference does it make in the invention - if the migration logic unit is placed inside the storage device or outside it and also why the migration logic unit and storage unit in Zhang cannot be combined and called as the storage device.
It will be lot more productive if applicant identifies the differences in migration process between the instant claim and the Zhang reference. The functionality of a migration queue and storage device are both present in Zhang’s system and both of them are obvious to execute a VM migration process even if they are not named explicitly.
If applicant wants to be specific about migration queue then it needs to be mentioned in the claim. The definition in spec is open ended (and leaves the scope for BRI) like - paragraph [0081] states MQ 330 may be configured as a circular buffer; and paragraph [0083] states MQ 330 may be a circular FIFO buffer and that MQ 330 may include migration queue entries (MQEs). Had the ‘may be’ been replaced with ‘is’ then the definition would be definitive and would close the door for BRI related to migration queue.
Examiner finds the instant claims as the ‘work of a carpenter’ taking different pieces from the different cited references and produce a similar item. Examiner needs applicant’s help to identify the ‘spark of a genius’ in the instant claims to move it forward in the path of allowance.
Claim Rejections - 35 USC § 103
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.
Claims 1, 11 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over ZHANG, LEI et al. (CN 117492907 A)[Zhang]
Regarding Claim 1, Zhang discloses:
A method of migration rate limiting at a storage device, the method comprising:
monitoring, by the storage device, a migration queue associated with a migration process of a virtual machine that is associated with the storage device (Applicant did not provide any details about a migration queue. Examiner interprets it as the storage space of data remaining to be migrated. Zhang: abstract, claim 1: teaches a virtual machine migration method, belonging to the virtual machine migration technology, the method comprises: monitoring the current network state, wherein the network state comprises the network bandwidth and delay condition between the source host and the target host; according to the network state and the size of the data to be migrated, calculating the migration rate, and dynamically adjusting the migration rate according to the change condition of the bandwidth and the delay. Zhang para 81-82 (in attached pdf file): discloses Specifically: measuring the size S of the data to be migrated; The estimated transmission time can be calculated according to the size of the data to be migrated. The time required for data transmission can be estimated according to the actual bandwidth and the size of the data to be migrated. Zhang para 89 (in attached pdf file): discloses dynamically adjusting the migration rate according to the real-time network condition and the residual size of the data to be migrated. If the network condition is good and the remaining size of the data to be migrated is large, increasing the migration rate. Conversely, if the network condition is poor or the remaining size of the data to be migrated is small, reducing the migration rate.
So, monitoring the delay condition between the source host and the target host and monitoring the data still remaining to be migrated is similar to monitoring a migration queue associated with a migration process because a migration queue retains the data to be migrated. Zhang repeatedly mentions ‘measuring/calculating size of the data to be migrated’ which implies/requires ‘migrating data’ being retained/saved/stored somewhere/‘some locations’ which is similar to a migrating queue that also retains migrating data. The migration process also implies/requires getting data in and out of the location having migrating data which is similar to a migrating queue. Monitoring migration rate and measuring/determining remaining data also indicates having a storage/buffer retaining the data, transmitting it and measuring remaining data also implies Zhang’s ‘migrating data locations’ is similar to a queue ‘retaining migration data’ as claimed in the claim);
determining, by the storage device, a rate of migration based on the monitoring (Zhang: abstract, claim 1: teaches calculating the migration rate according to the monitored network state and the size of the data to be migrated);
applying, by the storage device and based on the rate of migration, a migration rate limit on a controller of the storage device (Zhang: abstract, claim 1: teaches dynamically adjusting the migration rate based on calculated migration rate, wherein migration rate is calculated based on the monitored network state and the size of the data to be migrated and assessed change condition of the bandwidth and the delay of the network).
Regarding claim 18, it is a computer-readable medium claim corresponding to the method claim 1 and is rejected for the same reason mutatis mutandis.
Regarding claim 11, Zhang discloses:
A device comprising:
at least one memory (Zhang: claim 7: teaches an electronic device comprising: a memory, a processor and a computer program stored on the memory and capable of running on the processor, when the processor executes the computer program, realizing the virtual machine migration method based on cloud computing platform according to any one of claims 1 to 5); and
at least one processor coupled with the at least one memory (Zhang: claim 7: teaches an electronic device comprising: a memory, a processor and a computer program stored on the memory and capable of running on the processor, when the processor executes the computer program, realizing the virtual machine migration method based on cloud computing platform according to any one of claims 1 to 5) configured to:
The remaining limitations of this device claim 11 corresponds to the limitations in method claim 1 and is rejected for the same reasons mutatis mutandis.
Claims 2, 3, 5, 12, 13, 15 and 19-20 are rejected under 35 U.S.C. 103 as being unpatentable over ZHANG, LEI et al. (CN 117492907 A)[Zhang] in view of Zhang; Hui et al. (US 20200272352 A1)[Zhang1]
Regarding Claim 2 Zhang discloses:
The method of claim 1, wherein applying the migration rate limit further comprises at least one of:
applying a first rate limit based on an occupancy of the migration queue being less than a first threshold, applying a second rate limit based on the occupancy of the migration queue being greater than the first threshold and less than a second threshold, or applying a third rate limit based on the occupancy of the migration queue being greater than the second threshold (Zhang: abstract, claim 1: teaches a virtual machine migration method based on cloud computing platform, wherein it comprises: monitoring the current network state, wherein the network state comprises the network bandwidth and delay condition between the source host and the target host; according to the network state and the size of the data to be migrated, calculating the migration rate, and dynamically adjusting the migration rate according to the change condition of the bandwidth and the delay; adjusting the data transmission speed in the migration process according to the calculated migration speed; continuously monitoring the network state in the migration process, calculating the migration efficiency, taking the maximum migration efficiency as the target, and adjusting the migration speed in real time. Zhang's teachings of dynamically adjusting the migration rate in real time according to the change condition of the network bandwidth and the delay and the size of remaining data to be migrated is similar to applying(adjusting) first/second/third rate limit based on an occupancy of the migration queue (size of data remaining to be migrated) being less than a first/second threshold or greater than second threshold. Adding some data size values or rate limits along the process of dynamically adjusting rate limit does not add any new inventive feature.).
Zhang's teachings of dynamically adjusting the migration rate in real time according to the change condition of the network bandwidth and the delay and the size of remaining data to be migrated is similar to applying(adjusting) first/second/third rate limit based on an occupancy of the migration queue (size of data remaining to be migrated) being less than a first/second threshold or greater than second threshold. However, Zhang did not explicitly use any threshold values.
Zhang1 discloses:
applying a first rate limit based on an occupancy of the migration queue being less than a first threshold, applying a second rate limit based on the occupancy of the migration queue being greater than the first threshold and less than a second threshold, or applying a third rate limit based on the occupancy of the migration queue being greater than the second threshold (Zhang1: [0076-0078], [0082-0084], Fig.4, Fig. 5 and Fig. 6: teaches migration manager 102 determining if the number of tracks to be migrated is above a first (or high, or maximum) threshold or below a second threshold and based on the determination/checking takes different migration action and moves the migration pointer(extent) to the head or tail of the migration queue.
Both Zhang and Zhang1 represent works within the same field of endeavor, namely information processing devices focusing on virtual machine migration. It would therefore have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to apply Zhang in view of Zhang1 as it represents a combination of known prior art elements according to known methods (virtual machine migration method of Zhang using threshold values indicating number of tracks to be migrated and taking different migration actions based on determining if the number of tracks to be migrated is above or below some threshold values as used in Zhang1’s system) to develop a less compute intensive virtual machine migration process leading to a more efficient data processing system by freeing up the CPU to do more data processing (see also Zhang1 [0076-0078], [0082-0084], Fig.4, Fig. 5 and Fig. 6).
Regarding claim 3 Zhang/Zhang1 discloses:
The method of claim 2, wherein the first rate limit is based on a default rate limit (Zhang: abstract, claim 1: teaches dynamically adjusting the migration rate in real time according to the change condition of the network bandwidth and the delay and the size of remaining data to be migrated is similar to applying(adjusting) first/second/third rate limit based on an occupancy of the migration queue(size of data remaining to be migrated) being less than a first/second threshold or greater than second threshold. Dynamically adjusting migration rate includes starting rate (similar to default rate) and other rates based on other changes in the migration system).
Regarding claim 5 Zhang/Zhang1 discloses:
The method of claim 2, wherein applying the migration rate limit further comprises at least one of:
removing the second rate limit and applying the first rate limit based on the occupancy of the migration queue being less than the first threshold, or removing the third rate limit and applying the second rate limit based on the occupancy of the migration queue being less than the second threshold (Zhang: abstract, claim 1: teaches dynamically adjusting the migration rate in real time according to the change condition of the network bandwidth and the delay and the size of remaining data to be migrated is similar to applying(adjusting) first/second/third rate limit based on an occupancy of the migration queue(size of data remaining to be migrated) being less than a first/second threshold or greater than second threshold. Dynamically adjusting migration rate depending on change condition of the network bandwidth and the delay and the size of remaining data to be migrated covers different migration rates mentioned in the claim. Zhang1: [0076-0078], [0082-0084], Fig.4, Fig. 5 and Fig. 6: teaches migration manager 102 determining if the number of tracks to be migrated is above a first (or high, or maximum) threshold or below a second threshold and based on the determination/checking takes different migration action and moves the migration pointer(extent) to the head or tail of the migration queue.).
Regarding claims 12, 13 and 15, these are device claims corresponding to the method claim 2, 3 and 5 and are rejected for the same reason mutatis mutandis.
Regarding claims 19-20, these are computer-readable medium claims corresponding to the method claim 2-3 and are rejected for the same reason mutatis mutandis.
Claims 8-10 are rejected under 35 U.S.C. 103 as being unpatentable over ZHANG, LEI et al. (CN 117492907 A)[Zhang] in view of Tsirkin; Michael (US 20140215459 A1)[Tsirkin]
Regarding claim 8 Zhang discloses all the limitation of claim 1. However, Zhang did not explicitly disclose the virtual machine being associated with a source host that is communicatively coupled to a storage device even though the concept of virtual includes this feature.
Tsirkin discloses:
The method of claim 1, wherein the virtual machine is associated with a source host that is communicatively coupled to the storage device (Tsirkin: [0016]: teaches that a source host 101 can include one or more virtual machines 110a and run an operating system 105 ("host OS") to manage its resources. A virtual machine 110a can run a guest operating system. The source host 101a runs a source hypervisor 115a to virtualize access to the underlying source host hardware, making the use of the source virtual machine 110a transparent to the guest OS running on virtual machine 110a and users (e.g., a system administrator) of the source host 101a. Initially, as shown in FIG. 1, the source virtual machine 110a is managed by the source hypervisor 115a. In one embodiment, a process is provided wherein the source virtual machine 110a is migrated from the source hypervisor 115a residing on a source host OS 105a to a destination host 101b using at least one storage device 102. Tsirkin: [0027] FIG. 2: teaches a method 200 for live-migration of a virtual machine from a source host to a destination host using a storage device. The method 200 of FIG. 2 may also be applied to migration of a virtual machine between any two hosts (101a-101n) over the network 103 or residing on the same host machine (e.g., source host 101a))
Both Zhang and Tsirkin represent works within the same field of endeavor, namely information processing devices focusing on virtual machine migration. It would therefore have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to apply Zhang in view of Tsirkin as it represents a combination of known prior art elements according to known methods (virtual machine migration method of Zhang using source and destination host and using a storage device during migration that is communicatively coupled to the source host as used in Tsirkin’s system) to yield a more efficient virtual machine migration leading to a more efficient data processing system (see also Tsirkin [0016], [0027], Fig. 1 and Fig. 2).
Regarding claim 9 Zhang/Tsirkin discloses:
The method of claim 8, wherein the migration queue holds migration tasks for migrating the virtual machine from the source host to a target host (Tsirkin: [0027] FIG. 2: teaches a method 200 for live-migration of a virtual machine from a source host to a destination host using a storage device. Teaches that the method 200 of FIG. 2 is also applicable to migration of a virtual machine between any two hosts (101a-101n) over the network 103 or residing on the same host machine (e.g., source host 101a)).
Regarding claim 10 Zhang discloses all the limitation of claim 1. However, Zhang did not explicitly disclose that the storage device is a solid-state drive.
Tsirkin discloses:
The method of claim 1, wherein the storage device comprises a solid-state drive storing data associated with the virtual machine (Tsirkin: [0044]: teaches the term "machine-readable storage medium" shall accordingly be taken to include, but not be limited to, solid-state memories, and optical and magnetic media.).
Both Zhang and Tsirkin represent works within the same field of endeavor, namely information processing devices focusing on virtual machine migration. It would therefore have been obvious to one of ordinary skill in the art before the claimed invention was effectively filed to apply Zhang in view of Tsirkin as it represents a combination of known prior art elements according to known methods (virtual machine migration method of Zhang using solid-state drive for storing data as used in Tsirkin’s system) to yield a reliable virtual machine migration leading to a reliable data processing system (see also Tsirkin [0044], Fig. 1).
Allowable Subject Matter
Claims 4, 6-7, 14 and 16-17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
The following is a statement of reasons for the indication of allowable subject matter:
Claim 4 recites, ‘The method of claim 2, wherein:
the second rate limit is based on an average rate of head pointer movement of the migration queue that is determined based on the monitoring, and the third rate limit is based on scaling the average rate of head pointer movement according to a scaling factor’.
Regarding claim 4 prior arts ZHANG, LEI et al. (CN 117492907 A)[Zhang] and Zhang; Hui et al. (US 20200272352 A1)[Zhang1] discloses -
Zhang: abstract, claim 1: teaches dynamically adjusting the migration rate in real time according to the change condition of the network bandwidth and the delay and the size of remaining data to be migrated is similar to applying(adjusting) first/second/third rate limit based on an occupancy of the migration queue(size of data remaining to be migrated) being less than a first/second threshold or greater than second threshold. An average rate of head pointer movement of the migration queue simply indicates a speed at which data migration is progressing. Dynamically adjusting migration rate depending on change condition of the network bandwidth and the delay and the size of remaining data to be migrated covers different migration rate including average migration rate and other scaled rates. Zhang1: [0076-0078], [0082-0084], Fig.4, Fig. 5 and Fig. 6: teaches migration manager 102 determining if the number of tracks to be migrated is above a first (or high, or maximum) threshold or below a second threshold and based on the determination/checking takes different migration action and moves the migration pointer(extent) to the head or tail of the migration queue.).
Even though Zhang's system incorporates the same action as part of 'Dynamically adjusting migration rate depending on change condition of the network bandwidth and the delay and the size of remaining data to be migrated' - Zhang does not specifically teach head pointer of the migration queue.
Zhang1 teaches head and tail pointer of the migration queue but Zhang1 does not teach determining average rate of head pointer movement and does not teach limiting/adjusting data migration speed/rate based on the average rate of head pointer movement.
No, known prior arts taken alone or in combination teaches limiting/adjusting data migration speed/rate based on the average rate of head pointer movement of the migration queue.
Claim 14 is a device claim corresponding to the method claim 4 and is allowable for the same reason.
Claim 6 recites, ‘The method of claim 1, further comprising determining a command insertion rate of a submission queue of the virtual machine, wherein applying the migration rate limit further comprises modifying the migration rate limit based on the command insertion rate’. No known prior arts taken alone or in combination teach - modifying the migration rate limit based on the command insertion rate.
Claim 7 is dependent on claim 6 and is allowable due at least to this dependence.
Claim 16 is a device claim corresponding to the method claim 6 and is allowable for the same reason.
Claim 17 is dependent on claim 16 and is allowable due at least to this dependence.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
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 MOHAMMAD S HASAN whose telephone number is (571)270-1737 and email address is mohammad.hasan@uspto.gov. The examiner can normally be reached on Mon-Fri 8-5.
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/M.S.H/Examiner, Art Unit 2138
/SHAWN X GU/
Primary Examiner, AU2138