Ex Parte Mohammed et al

Patent Trial and Appeal Board

May 17, 2018

14287366 (P.T.A.B. May. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/287,366 05/27/2014
152569 7590 05/21/2018
Patterson & Sheridan, LLP
24 Greenway Plaza
Suite 1600
Houston, TX 77046
FIRST NAMED INVENTOR
Intesar MOHAMMED
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
B928.0l 5147
EXAMINER
BROPHY, MATTHEW J
ART UNIT PAPER NUMBER
2191
NOTIFICATION DATE DELIVERY MODE
05/21/2018 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):
psdocketing@pattersonsheridan.com
ipadmin@vmware.com
P AIR_eOffice@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INTESAR MOHAMMED and VISHW AS NAGARAJA
Appeal 2017-011018
Application 14/287,366
Technology Center 2100
Before ERIC S. FRAHM, CARL L. SILVERMAN, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Introduction
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-23, which constitute all the claims pending in
this application. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
Exemplary Claim
Appellants' disclosed invention concerns the modeling of virtual
machine-based cloud applications (Spec. ,r 1 ), and specifically the grouping
1 Appellants indicate VMware, Inc. as the real party in interest. App. Br. 3.
Appeal 2017-011018
Application 14/287,366
and identification of one or more virtual machines deployed in a cloud to
facilitate integration between the modeling/deployment platform and
applications deployed in the cloud (Spec. ,r 2). Claims 1, 10, and 19 are
independent and pertain to a method of using a virtual machine management
server receiving instructions from an application management server to
deploy an application to a cloud computing environment having virtual
machines, including the generation of first and second virtual machine
identifiers for a first virtual machine (see, e.g., claim 1); a non-transitory
computer-readable medium for performing the method (see, e.g., claim 10);
and a virtualized computing system to perform the method (see, e.g.,
claim 19) (Spec. ,r,r 16-25; Figs. 1, 2; Abstr.; Title). An understanding of
the invention can be derived from a reading of exemplary claim 1, which is
reproduced below with emphases and bracketed lettering/numbering added
to disputed portions of the claim:
1. A method of deploying, by a virtual machine
management server in accordance with instructions from an
application management server, an application to a
cloud computing environment comprising a plurality of virtual
machines managed by the virtual machine management server,
the application being executed using a plurality of the
virtual machines including a first virtual machine, the method
compnsmg:
[A] generating an application identifier at the application
management server;
generating a first virtual machine identifier at the
application management server for the first virtual machine;
[B 1] instantiating, by the virtual machine management
server, the first virtual machine in the cloud computing
environment;
[B2] generating a second virtual machine identifier for
the first virtual machine at the virtual machine management
server; and
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Application 14/287,366
[CJ creating an association among the application
identifier, the first virtual machine identifier, and the second
virtual machine identifier.
The Examiner's Rejection
The Examiner rejected claims 1-23 under 35 U.S.C. § I03(a) as being
unpatentable over the combination oflyoob (US 2014/0279201 Al;
published Sept. 18, 2014) and Dadhia (US 2008/0250407 Al; published Oct.
9, 2008). Final Act. 2-14; Ans. 2-14.
Principal Issue on Appeal
Based on Appellants' arguments in the briefs (App. Br. 7-10; Reply
Br. 2--4) in response to the Examiner's rejection (Final Act. 2-14), and the
Examiner's response to Appellants' Appeal Brief (Ans. 15-22), the
following principal issue is presented on appeal: 2
Did the Examiner err in rejecting claims 1-23 over the combination of
Iyoob and Dadhia because the combination fails to teach or suggest the
disputed limitations of a method of deploying an application to a cloud
computing environment, including steps [A], [Bl], [B2], and [CJ, as recited
in representative independent claim 1?
2 Appellants argue independent claims 1, 10, and 19 as a group, and argue
only the merits of claim 1 (App. Br. 7-9; Reply Br. 2--4), relying on these
arguments for the patentability of the remaining claims. Independent claims
1, 10, and 19 each recite similar limitations involving a method of deploying
an application to a cloud computing environment, including steps [A], [B 1 ],
[B2], and [CJ. Accordingly, we select claim 1 as representative of the group
of claims 1-23 rejected over Iyoob and Dadhia.
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Application 14/287,366
ANALYSIS
We have reviewed the Examiner's rejection (Final Act. 2-14; Ans. 2-
14) in light of Appellants' contentions in the Appeal Brief (App. Br.
7-10) and the Reply Brief (Reply Br. 2--4) that the Examiner has erred, as
well as the Examiner's response to Appellants' arguments in the Appeal
Brief(Ans. 17-19, 21-22).
We disagree with Appellants' arguments as to independent claims 1,
10, and 19. With regard to representative independent claim 1, we adopt as
our own (1) the findings and reasons set forth by the Examiner in the Final
Office Action from which this appeal is taken (Final Act. 2-8), and (2) the
reasons set forth by the Examiner in the Examiner's Answer in response to
the Appellants' Appeal Brief (Ans. 17-19, 21-22). We provide the
following for emphasis.
We agree with the Examiner (Final Act. 3---6; Ans. 3---6, 1 7, 21) that
Iyoob teaches or suggests a method of deploying an application to a cloud
computing environment, including steps [A] and [B 1 ], as recited in
representative independent claim 1. We also agree with the Examiner (Final
Act. 6-7; Ans. 7, 18) that Dadhia's virtual machine management subsystem
516 (see Dadhia Fig. 5; ,r,r 31-3 7; see also Abstr.) teaches or suggests step
[B2] of claim 1, as well as the recited virtual machine management server
that generates a group name (i.e., the recited "second virtual machine
identifier"). Finally, we agree with the Examiner (Final Act. 5-8; Ans. 5-8,
21-22) that the combination oflyoob and Dadhia, both in the virtualized
computing environment, would predictably result in step [CJ of claim 1, the
creation of an association of identifiers.
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Application 14/287,366
Appellants do not respond in the briefs to the Examiner's comparisons
of (i) Appellants' application management server 110 (see Fig. 1; Spec.
,r 17) to Iyoob's cloud service brokerage (CSB) platform 202 shown in
Figure 2A (see Ans. 4, 17); and/or (ii) Appellants' virtual machine
management server 130 (see Fig. 1; Spec. ,r 21) to Dadhia's virtual machine
management subsystem 516 shown in Figure 5 (see Ans. 7). Furthermore,
Appellants' Reply Brief does not respond to the Examiner's finding (see
Ans. 22) that Appellants' Specification (see Spec. ,r 24) discloses an
embodiment where both the application management server and virtual
machine management server functions are formed by modules in the same
host computer.
We note that each reference cited by the Examiner must be read, not
in isolation, but for what it fairly teaches in combination with the prior art as
a whole. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(finding one cannot show non-obviousness by attacking references
individually where the rejections are based on combinations of references).
In this light, Appellants' arguments presented as to each individual reference
(see App. Br. 8; Reply Br. 3) are not persuasive inasmuch as the Examiner
relies on a properly made combination oflyoob and Dadhia to support the
conclusion of obviousness of the subject matter of representative
independent claim 1, including step [CJ, "creating an association among the
application identifier, the first virtual machine identifier, and the second
virtual machine identifier." Appellants have not rebutted or otherwise
shown the Examiner's explanation of the combination of the collective
teachings and suggestions of the applied references (see Final Act. 2-8; Ans.
2-8, 17-19, 21-22) made in response to the Appellants' arguments in the
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Application 14/287,366
Appeal Brief (regarding the references individually) to be in error.
Appellants' Reply Brief does not persuade us otherwise.
Appellants' arguments (App. Br. 9; Reply Br. 3) that neither reference
nor their combination teaches the "interplay" between the application
management server and the virtual machine management server, as recited in
claim 1, are not commensurate in scope with the language of claim 1.
Notably, claim 1 merely recites, "creating an association" ( claim 1, step [CJ
( emphasis added)).
To the extent Appellants present new arguments for the first time in
their Reply Brief- that the combination fails to teach or suggest steps [B 1]
and [B2] (Reply Br. 2), Appellants do not provide a compelling explanation
for why this argument was not previously presented. Therefore, this
argument is waived. See Ex parte Borden, 93 USPQ2d 1473, 1473-74
(BPAI 2010) (informative opinion) (absent a showing of good cause, the
Board is not required to address an argument newly presented in the reply
brief that could have been presented in the principal brief on appeal);
37 C.F.R. § 41.41(b)(2) (same). Even so, we find that the combination of
references teaches or suggests method steps [B 1] and [B2].
Lastly, Appellants' contentions (App. Br. 8-9; Reply Br. 3) that the
combination of Iyoob and Dadhia would not result in the subject matter
recited in claim 1 are conclusory and unsupported by evidence of record.
Such conclusory contentions do little to overcome the Examiner's prima
facie case of obviousness, which is supported by citations to the references
and Appellants' Specification.
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Application 14/287,366
In view of the foregoing, we sustain the Examiner's obviousness
rejection of representative independent claim 1, as well as the remaining
claims on appeal grouped therewith.
CONCLUSION
The Examiner did not err in rejecting claims 1-23 over the
combination of Iyoob and Dadhia because the combination teaches or
suggests the disputed limitations of a method of deploying an application to
a cloud computing environment, including steps [A], [Bl], [B2], and [CJ, as
recited in representative independent claim 1.
DECISION
The Examiner's rejection of claims 1-23 under 35 U.S.C. § I03(a) 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)(l)(iv).
AFFIRMED
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