DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
Priority
This application discloses and claims only subject matter disclosed in prior Application No. 12/786310, filed 24 May 2010, and names the inventor or at least one joint inventor named in the prior application. Accordingly, this application may constitute as a continuation.
Response to Amendment
Acknowledgement is made that claims 1-33 have been canceled, claims 34, 41, and 48 have been amended and presented herein.
Applicants’ amendment to claim 48 obviates the previously raised rejection. Thus, the claim objection is hereby withdrawn.
Response to Arguments
Applicant’s arguments, see pages 8-14 of Remarks, filed 29 June 2026, with respect to the rejections of claims 35-43 under 35 U.S.C. 102(a) have been fully considered and are persuasive. Therefore, the rejection has been withdrawn. However, upon further consideration, a new ground(s) of rejection is made in view of newly discovered reference(s) below as necessitated by applicants’ amendment to claims thereof
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 pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negated by the manner in which the invention was made.
Claims 34-53 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Gopalakrishnan (US 2007/0198710 A1) (hereinafter as Gopalakrishnan) and in further view of Hyser et al. (US 8, 903, 888 B1) (hereinafter as Hyser).
Regarding Claim 34. Gopalakrishnan teaches a system, comprising: one or more processors and memory, of one or more computing devices (pars [0135-0136] discloses microprocessors and memory), that implement a network-accessible service, configured to:
provide, responsive to receipt of a request to provide one or more fault tolerant virtual machines (par [0047] discusses a management component that can relay or send a control message to application components to retrieve and provide requested data directly to a user, this is transparently presented to a user in a way that the user is not aware of the application components presenting to the user, par [0050], and determination is made to determine a best application component or server 204 that can deliver the user request, par [0062]):
a primary physical device (primary server 1404), and one or more secondary physical devices (backup server 1406, pars [0090-0091] and [0110-0111] and see fig.14);
replicate the physical device to at least one of the one or more secondary physical devices (data associated with a primary server is replicated or mirrored on a backup server, par [0127]);
obtain an indication of a failure of the primary physical device (a notification is sent to the client 1304, primary server 1302 and/or application server if a failure is detected, pars [0057] and [0107]), the indication of failure based on:
heartbeat information associated with the primary physical device (management components 406 can provide load balancing and failover among themselves using heartbeat , par [0072]); and
perform a failover, comprising transparently replacing, based at least in part on the heartbeat information, the primary virtual machine with a secondary virtual machine of the one or more secondary virtual machines that has been replicated from the primary virtual machine (heartbeat messages can be sent between the servers to ensure system health and enabling failover mechanisms when a system fails. Failover is a backup system that automatically switches to a standby database, server or network if the primary server fails or is temporarily out of service, par [0083], This serving or presenting of information is performed transparently to the user, par [0050]).
Gopalakrishnan does not explicitly teach a primary virtual machine at a physical device, replicating the primary virtual machine to at least one of the one or more secondary virtual machines, and wherein the replicating comprising mirroring an execution state of the primary virtual machine and wherein the replacement has been replicated from the primary virtual machine via the mirroring of the execution state of the primary virtual machine.
However, Hyser in a similar field of endeavor discloses retrieving data of a virtual machine based on demand to migrate the virtual machines between physical machines, including a primary virtual machine at a physical device, replicating the primary virtual machine to at least one of the one or more secondary virtual machines, and wherein the replicating comprising mirroring an execution state of the primary virtual machine and wherein the replacement has been replicated from the primary virtual machine via the mirroring of the execution state of the primary virtual machine (the primary virtual machine to at least one of the one or more secondary virtual machines including wherein the replicating comprising mirroring an execution state of the primary virtual machine and wherein the replacement has been replicated from the primary virtual machine via the mirroring of the execution state of the primary virtual machine (a virtual machine can be migrated from a first (origination) physical machine to a second (destination) physical machine by stopping execution of the virtual machine in the first physical machine, where the first physical machine contains data associated with the virtual machine, copying state information of the virtual machine from the first physical machine to the second physical machine, and starting execution of the virtual machine in the second physical machine based on the state information (col.7, lines 21-33).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to utilize the teachings of Hyser in Gopalakrishnan to copy state information. One of ordinary skill in the art before the effective filing date of the claimed invention would have been motivated to combine the teachings of Gopalakrishnan/Hyser to minimize wasting of network and computing resources.
Regarding Claim 35. Gopalakrishnan/Hyser further teach the system of claim 34, further comprising:
a heartbeat manager, executing on the physical device and configured to track heartbeats of the primary virtual machine, wherein the primary virtual machine is determined to be no longer available if a heartbeat is not received by the heartbeat manager for a threshold amount of time (Gopalakrishnan: the determination can be made based upon a time out feature whereby if after a predetermined amount of time after the control message is sent at 1508 an acknowledgement is not received from the client it is assumed that the file delivery failed. In some embodiments, the client may send a failure message if the requested information is not received after a predetermined amount of time, par [0116]).
Regarding Claim 36. Gopalakrishnan/Hyser further teach the system of claim 34, wherein: the physical device is configured to monitor heartbeat information associated with the one or more secondary virtual machines at one or more other physical devices (Gopalakrishnan: par [0085] discloses that the applications servers which comprise the one or more secondary virtual machines are on a physical network, the virtualization can be performed on the primary servers, par [0089]).
Regarding Claim 37. Gopalakrishnan/Hyser further teach the system of claim 34, wherein: the network-accessible service is configured to monitor heartbeat information associated with the primary virtual machine and the one or more secondary virtual machines (Gopalakrishnan: heartbeat messages can be sent between the primary servers to ensure system health and enabling failover mechanisms when a system fails, par [0083]. The application server software is installed as a service, par [0119]).
Regarding Claim 38. Gopalakrishnan/Hyser further teach the system of claim 34, wherein to replicate the primary virtual machine to at least one of the one or more secondary virtual machines the network-accessible service is configured to: continuously or periodically forward state changes of the primary virtual machine to at least one of the one or more secondary virtual machines, wherein the state changes are used to update a consistent copy of a state of first virtual machine (Gopalakrishnan: data associated with a primary server is replicated or mirrored on a backup server. The data can be periodically or continuously communicated between the backup server and the primary server to maintain the integrity and similarity of data on both servers, par [0117]).
Regarding Claim 39. Gopalakrishnan/Hyser further teach the system of claim 38, wherein the network-accessible service (Gopalakrishnan: the application server software is installed as a service, par [0119]) is configured to:
determine, based at least in part on heartbeat information associated with a secondary virtual machine, to replace the secondary virtual machine with a third virtual machine (Gopalakrishnan: backup server 1406, pars [0090-0091] and [0110-0111] and see fig.14, and fig. 8 further discloses Application server(s) M, which can be equated to the third server), and in response:
cause the third virtual machine to begin actively operating based on the consistent copy of the state of the first virtual machine (Gopalakrishnan: data associated with a primary server is replicated or mirrored on a backup server. The data can be periodically or continuously communicated between the backup server and the primary server to maintain the integrity and similarity of data on both servers, par [0117]. However, in this particular instance, the back-up server, would be an application server M, as seen in fig.8).
Regarding Claim 40. Gopalakrishnan/Hyser further teach the system of claim 34, wherein to obtain the indication of a failure of the primary virtual machine, the network-accessible service is configured to determine whether the primary virtual machine is available based on a recency of state data and/or heartbeats have been received from the primary virtual machine or the physical device (Gopalakrishnan: heartbeat messages can be sent between the primary servers to ensure system health and enabling failover mechanisms when a system fails, par [0083]. The application server software is installed as a service, par [0119]).
Regarding Claims 41-47, these method claims comprise limitations substantially the same, as those discussed in claims 34-40 above, same rationale of rejection is applicable.
Regarding Claims 48-53, these non-transitory computer-readable media claims comprise limitations substantially the same, as those discussed in claims 34-40 above, same rationale of rejection is applicable. Gopalakrishnan further teaches non-transitory computer-readable media (par [0133]).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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 nonprovisional extension fee (37 CFR 1.17(a)) 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 ANTHONY MEJIA whose telephone number is (571)270-3630. The examiner can normally be reached Monday-Friday 10:30 AM-6:30 PM EST.
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/ANTHONY MEJIA/Primary Examiner, Art Unit 2451
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