Ex Parte Hadas et alDownload PDFPatent Trial and Appeal BoardJan 31, 201813006758 (P.T.A.B. Jan. 31, 2018) 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. 13/006,758 01/14/2011 DAVID HADAS AUS920110003US1 5206 124677 7590 02/02/2018 Russell No- PT T C 6TRM ATTSR EXAMINER 8729 Shoal Creek Blvd., Suite 100 Austin, TX 78757 HOUSHMAND, HOOMAN ART UNIT PAPER NUMBER 2465 NOTIFICATION DATE DELIVERY MODE 02/02/2018 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): stephanie@russellnglaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID HADAS, VIVEK KASHYAP, JAYAKRISHNA KIDAMBI, RENATO J. RECIO, and BENNY ROCHWERGER Appeal 2017-004344 Application 13/006,758 Technology Center 2400 Before ELENI MANTIS MERCADER, JAMES R. HUGHES, and JASON M. REPKO, Administrative Patent Judges. MANTIS MERCADER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 13—36. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appeal 2017-004344 Application 13/006,758 CLAIMED SUBJECT MATTER The claimed invention is directed to a virtual machine monitor (VMM) applying a tag to a packet that differentiates the packet from any other packet sharing a common address but having a different associated consumer and passes the packet to a service virtual machine (VM) for performance of the service. Thereafter the VMM removes the tag from the packet in response to receipt of the packet from the service VM following performance of the service. Abstract. Claim 13, reproduced below, is illustrative of the claimed subject matter: 13. A data processing system, comprising: a processor; and data storage coupled to the processor, the data storage including program code executable by the processor, wherein the program code includes a virtual machine monitor (VMM) in communication with a plurality of consumer virtual machines (VMs) each associated with a respective one of multiple different consumers, wherein the VMM manages performance of a service, by a service virtual machine (VM) in packet communication with the VMM, on behalf of the plurality of consumer VMs, wherein the service VM performs the service on packets communicated with consumer VMs associated with different ones of the multiple different consumers, and wherein the VMM manages performance of the service by: the VMM, responsive to receipt by the VMM of a packet being communicated with one of the plurality of consumer VMs, determining whether the service is to be performed for the packet by the service VM; the VMM, responsive to determining that the service is to be performed for the packet by the service VM, applying a tag to the packet that differentiates the packet from any other packet sharing a common address with the packet but being communicated with one of the plurality of consumer VMs having 2 Appeal 2017-004344 Application 13/006,758 a different associated one of the multiple different consumers, passing the packet with the tag applied to the service VM for performance of the service, and removing the tag from the packet in response to receipt of the packet from the service VM following performance of the service; and the VMM, responsive to receipt of the packet back from the service VM, forwarding the packet after removal of the tag. REFERENCES prior art relied upon by the Examiner in rejecting the claims on US 2009/0083445 A1 Mar. 26, 2009 US 2010/0153945 A1 June 17, 2010 REJECTIONS Claims 13—25 stand rejected under 35U.S.C. § 112 second paragraph as being indefinite. Claims 13—36 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bansal in view of Ganga.1 The appeal is: Ganga Bansal OPINION Claims 13—25 rejected under 35 U.S.C § 112 second paragraph The Examiner rejected claims 13 and 25 for reciting “the program code includes a virtual machine monitor (VMM)” inquiring the appropriateness of a program code including a virtual monitor machine (Final Act. 5). 1 We do not reach the Examiner’s double patenting rejections because it appears that Appellants have filed terminal disclaimers for consideration and thus, waived any appeals on the rejections. 3 Appeal 2017-004344 Application 13/006,758 The test for definiteness under 35 U.S.C. § 112, second paragraph, is whether “those skilled in the art would understand what is claimed when the claim is read in light of the specification.” Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1576 (Fed. Cir. 1986) (citations omitted). Appellants argued, and we agree, that their Specification makes clear that the claimed virtual machine monitor (VMM) is a software element that forms part of the claimed program code and not a “device” as asserted by the Examiner (App. Br. 6—7 citing to Spec, paras. 6 and 57). Thus, we agree with Appellants that when claims 13 and 26 are read in light of the Specification one skilled in the art would understand that the VMM is software—not a device. The Examiner further rejected claims 13 and 18 as being indefinite because the term “each” as recited in the claimed limitation of “a plurality of consumer virtual machines (VMs) each associated with a respective one of multiple different consumers” lacks antecedent basis (Final Act. 5). Appellants explained, and we agree, that the rules of English grammar dictate that the antecedent for a pronoun such as “each” is found in the immediately preceding noun—in this case, the different service VMs (App. Br. 7—9). We further agree with Appellants that their Specification describes an embodiment in which a packet is passed to multiple different service VMs 830 providing different services, such as encryption, security, and analysis (App. Br. 7—9 citing para. 55).2 2 With respect to claim 13, Appellants addressed the term “each” as it appears in the limitation of “a plurality of consumer virtual machines (VMs) each associated with a respective one of multiple different consumers” instead of the actual limitation rejected by the Examiner as addressed in our Opinion (see App. Br. 7—8). We consider this an inadvertent error and since 4 Appeal 2017-004344 Application 13/006,758 One skilled in the art would recognize that the recitation of “the service VM is one of a plurality of different service VMs each providing a respective one of a plurality of different services” (claim 18, emphasis added) clearly refers to the different service VMs. Accordingly, we reverse the Examiner’s rejection of claims 13, 18, and 25 and of their dependents claims 14—17 and 19-24 under 35 U.S.C. § 112, second paragraph. Claims 13—36 rejected under 35 U.S.C § 103(a) as being unpatentable over Bansal in view of Ganga. We adopt the Examiner’s findings in the Answer and Final Action and we add the following primarily for emphasis. We note that if Appellants failed to present arguments on a particular rejection, we will not unilaterally review those uncontested aspects of the rejection. See Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential); Hyatt v. Dudas, 551 F.3d 1307, 1313—14 (Fed. Cir. 2008) (The Board may treat arguments Appellants failed to make for a given ground of rejection as waived). Claims 13—18 and 20—36 Appellants argue that the combination of Bansal and Ganga does not teach or suggest the limitation of “the VMM manages performance of a service, by a service virtual machine (VM) in packet communication with the VMM, on behalf of the plurality of consumer VMs, wherein the service VM performs the service on packets communicated with consumer VMs Appellants’ arguments address the equivalent limitation with respect to claim 18 we considered the argument as it also applies with respect to claim 13. 5 Appeal 2017-004344 Application 13/006,758 associated with different ones of the multiple different consumers” as recited in claim 13 (App. Br. 10). Appellants in particular argue that Bansal explicitly teaches that each of the multiple VMs provides service to only a respective one of the client systems (i.e., referring to para. 8 citing ‘“configuring the first VM to provide service to only the first client’”), and each of the VMs is accordingly tagged with the ID of the associated client system (App. Br. 10). According to Appellants the combination with Ganga would appear to include multiple service VMs each providing service to a respective different client system (App. Br. 10-11). Appellants assert that Bansal’s Figure 5 and paragraph 58 make clear the VMM “‘assigns a specific VM to each client,',, and thus do not teach the claimed VM that “‘performs the service on packets communicated with consumer VMs associated with different ones of the multiple different consumers’” as recited in Claim 13, but instead restrict each service VM to providing service to a single client (App. Br. 11). We do not agree with Appellants’ argument. The Examiner responds, that in essence Appellants are arguing that, the service virtual machine VM of the invention, is mapped to, multiple service virtual machines VMs, in Bansal (Ans. 5). The Examiner finds, and we agree, that nothing in the claimed invention states that a virtual machine monitor VMM may not increase the number of service virtual machines VMs, to meet increased loads, or to provide better quality of service (Ans. 6). We further agree with the Examiner that in the field of endeavor of virtual machines, having one service virtual machine VM, or cloning and deploying many more service virtual machines VMs, to meet perceived or actual increases in system load - 6 Appeal 2017-004344 Application 13/006,758 is at the heart of the virtual machine, or cloud computing, endeavors (Ans. 6). In KSR, the Supreme Court held that “if a technique has been used to improve one device, and a person of ordinary skill in the art would recognize that it would improve similar devices in the same way, using the technique is obvious unless its actual application is beyond his or her skill.” See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Supreme Court has also determined the conclusion of obviousness can be based on the interrelated teachings of multiple patents, the effects of demands known to the design community or present in the marketplace, and the background knowledge possessed by a person having ordinary skill in the art. Id. at 418. The skilled artisan is “a person of ordinary creativity, not an automaton.” Id. at 421. In the instant case, we agree with the Examiner that at the time of the invention, one skilled in the art by increasing the number of service VMs to service each client would decrease the system load. We further note that the claim language does not preclude the Examiner’s interpretation. The modified BansaTs Figure 2 is reproduced below: 7 Appeal 2017-004344 Application 13/006,758 200 Fig. 2 Modified Bansal Figure 2 shows different ones of multiple consumer client systems (i.e., 280a, 280b, and 280c), a Virtual Machine Manager VMM, and multiple service virtual machines (i.e., VM1, VM2, VM3, VN4 . . . VMn) which could all be considered as sup-parts of a service Virtual Machine serving different consumers. Thus, Bansal teaches the VMM managing performance of a service, by a service virtual machine (i.e., VM having multiple sup-parts VM1, VM2, VM3, VN4 . . . VMn) in packet communication with the VMM, on behalf of the plurality of consumers (i.e., 280a, 280b, and 280c), wherein the service VM (i.e., VM having multiple sup-parts VM1, VM2, VM3, VN4 . . . VMn) performs the service on packets communicated with consumers associated with different ones of the multiple different consumers (i.e., 280a, 280b, and 280c) (see Modified Bansal Fig. 8 Appeal 2017-004344 Application 13/006,758 2). Appellants’ argument is not commensurate in scope with the claimed language. Appellants appear to argue that a single service VM services multiple different clients, but that is not what is recited in claim 13 (see App. Br. 10-11). In fact, Appellants argued with respect to the indefiniteness rejection of claims 13 and 18, and we agreed supra, that their Specification describes an embodiment in which a packet is passed to multiple different service VMs 830 providing different services, such as encryption, security, and analysis (App. Br. 7—9 citing para. 55). Thus, claim 13 does not preclude multiple different service VMs providing different services, such as encryption, security, and analysis to different clients as interpreted by the Examiner. Appellants further argue that the combination of Bansal and Ganga does not teach or suggest a VMM employing packet tagging for a communication loop between the VMM and service VM as recited in Claim 13, such that the VMM applies a tag to a packet sent to the service VM and removes the tag in response to receiving the packet back from the service VM (App. Br. 11—12). Appellants assert that instead, the cited combination of Bansal and Ganga, tags Ethernet frames communicated between the VMM and the physical edge switch as specifically taught by Ganga (App. Br. 12—13 citing paras. 28 and 33). Appellants note that the tagging of Ganga is not modified by Bansal as Bansal does not teach tagging of frames or packets at all and the Examiner has not provided any reasoning why an ordinarily skilled artisan would be motivated to modify the frame tagging taught by Ganga (App. Br. 13). We are not persuaded by Appellants’ argument. The Examiner finds, and we agree, that Ganga teaches virtual machines VMs (i.e., Figure 1 and 9 Appeal 2017-004344 Application 13/006,758 elements 111) and a VMM removing the tag from the packet in response to receipt of the packet from the service VM (i.e., Figure 3 shows Insert VM tag element 304, Remove VM tag element 306 and paras. 14, 28, and 33 describe the VMM adding the tag and then removing the tag at the completion of service). Ans. 8—9. The Examiner further finds, and we agree, that the modification of Bansal in view of Ganga is a simple substitution of client machines as taught by Bansal with virtual client machines as taught by Ganga and the VMM functionality of Bansal has been substituted with the VMM functionality of Ganga that includes the removal of the tag upon completion of the service (Ans. 8—9). These are substitutions of one known element for another to obtain predictable results. Id. We agree with the Examiner’s findings because where the claimed subject matter is no more than “the simple substitution of one known element for another or the mere application of a known technique to a piece of prior art ready for improvement,” and, the combination does no more than yield predictable results, the claim is unpatentable under 35 U.S.C. § 103(a). KSR, 550 U.S. at 401 (see Ans. 9). Furthermore, where the claimed subject matter is a combination that only unites old elements with no change in their respective established functions, and the combination yields predictable results, the claim is unpatentable as obvious under 35 U.S.C. § 103(a). Id. Accordingly, we affirm the Examiner’s rejection of claim 13. Appellants rely on the same arguments for claim 25 and its dependents. For the same reasons as articulated supra, we affirm the Examiner’s rejections of claims 14—18 and 20-36 (see App. Br. 11, 13). 10 Appeal 2017-004344 Application 13/006,758 Claim 19 Appellants argue that the combination of Bansal and Ganga does not teach the same tag applied to the packet each time the packet is passed to any of the plurality of different service VMs as required by claim 7 (App. Br. 13-14). We are not persuaded by Appellants’ argument. We agree with the Examiner that Claim 19 recites “VMM applies and removes the tag each time the packet is passed to any of the plurality of different service VMs” but does not recite that “the same” tag is applied each time the packet is passed to any of the plurality of different service VMs (Ans. 14). Thus, the argument is not commensurate in scope with claim 19. We further agree with the Examiner that even if the claim recited the term “the same tag” for tagging and un-tagging, Ganga Figure 3 teaches “INSERT VM TAG” in step 304 and “REMOVE VM TAG” in step 306 so Ganga teaches or suggests the insertion and removal of the same tag (see Ans. 15). Furthermore, even if Ganga did not teach the removal of the same tag, one skilled in the art would know to utilize one of two possible scenarios, of either the same or different VM tags being used, but the likelihood would be higher for using the same tags since a symmetric operation is being performed (see Ans. 15 and Ganga’s Fig. 3). The Supreme Court recognized that “[w]hen there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.” KSR, 550 U.S. at 421. Thus, one skilled in the art would know to pick one of the two scenarios and use the same tag as it is within the technical grasp of a skilled artisan. 11 Appeal 2017-004344 Application 13/006,758 Accordingly, we affirm the Examiner’s rejection of claim 19. DECISION The Examiner’s rejection of claims 13—36 is affirmed. 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)(l)(iv). AFFIRMED 12 Copy with citationCopy as parenthetical citation