Microsoft Technology Licensing, LLC

Patent Trials and Appeals Board

Dec 31, 2020

2019003488 (P.T.A.B. Dec. 31, 2020)

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.
15/193,020 06/25/2016 Deepak Bansal 359637.02 7799
69316 7590 12/31/2020
MICROSOFT CORPORATION
ONE MICROSOFT WAY
REDMOND, WA 98052
EXAMINER
CELANI, NICHOLAS P
ART UNIT PAPER NUMBER
2449
NOTIFICATION DATE DELIVERY MODE
12/31/2020 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):
chriochs@microsoft.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DEEPAK BANSAL, NISHEETH SRIVASTAVA, and
SUSHANT SHARMA
Appeal 2019-003488
Application 15/193,020
Technology Center 2400
Before ELENI MANTIS MERCADER, JASON J. CHUNG, and
MATTHEW J. McNEILL, Administrative Patent Judges.
MANTIS MERCADER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Microsoft
Technology Licensing, LLC. Appeal Br. 1.
Appeal 2019-003488
Application 15/193,020
2
CLAIMED SUBJECT MATTER
The claims are directed to a network virtualization of containers in
computing systems. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A method performed by a computing device in a computing
system having a plurality of hosts interconnected by a computer
network, comprising:
receiving a request to instantiate a container from a user,
the container including a software package having a software
application in a filesystem sufficiently complete for execution of
the application in an operating system by a processor;
in response to the received request, selecting one of the
hosts in the computing system as a container host to instantiate
the requested container;
based on the selection of the host, querying, via the
computer network, the selected host for current parameters of
network operations on the selected host;
assigning an IP address to the container to be instantiated
at the selected host, the assigned IP address is accessible from
outside of the selected host via the computer network; and
based on the queried current parameters, configuring
network settings for the requested container to be instantiated on
the selected host in the computing system, the network settings
being consistent with the queried current parameters of the
network operations on the selected host to enable seamless
connectivity to the container via the computer network; and
transmitting an instruction to the selected host to
instantiate the requested container based on the configured
network settings, the instantiated container being network
addressable from outside of the selected host via the computer
network.
REJECTIONS
Claims 1–3, 6–12, and 15–18 are rejected under 35 U.S.C. § 103 as
being unpatentable over Kristiansson (WO 2015/126292 Al) in view of Carl
Appeal 2019-003488
Application 15/193,020
3
(US Pub. 2015/0281111) and further in view of Zhang (US Pub.
2016/0036678). Final Act. 3.
Claims 4–5, 13–14, and 19–20 are rejected under 35 U.S.C. § 103 as
being unpatentable over Kristiansson (WO 2015/126292 Al) in view of Carl
(US Pub. 2015/0281111) in view of Zhang (US Pub. 2016/0036678) and
further in view of Rosen (RFC 4364; “BGP/MPLS IP Virtual Private
Networks (VPNs)”, Feb. 2006). Final Act. 13.
Claims 1–20 are rejected under 35 U.S.C. § 103 as being unpatentable
over Kristiansson (WO 2015/126292 Al) in view of Zhang (US Pub.
2016/0036678) and further in view of Rosen (RFC 4364; “BGP/MPLS IP
Virtual Private Networks (VPNs)”, Feb. 2006). Final Act. 16.

Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1–3, 6–12, 15–18 103 Kristiansson, Carl,
Zhang
4–5, 13–14, 19–20 103 Kristiansson, Carl,
Zhang, Rosen
1–20 103 Kristiansson, Zhang,
Rosen,

OPINION
To the extent consistent with our analysis below, we adopt the
Examiner’s findings and conclusions in the action from which this appeal is
taken and the Answer.
Claims 1–3, 6–12, and 15–18 are rejected under 35 U.S.C. § 103
Appellant argues that Kristiansson, Carl, and Zhang either alone or in
combination do not teach or suggest the limitation of

Appeal 2019-003488
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in response to the received request, querying, via the computer
network, the selected host for current parameters of network
operations on the selected host; assigning an IP address to the
container to be instantiated at the selected host . . . and based on
the queried current parameters, configuring network settings for
the requested container to be instantiated on the selected host in
the computing system . . . consistent with the queried current
parameters of the network operations on the selected host to
enable seamless connectivity to the container via the computer
network
recited in claim 1. App. Br. 16.
In particular, Appellant argues that none of the references teaches or
suggests that the “assignment and configuration and IP address to CE” and
“assignment of port number to container” are “based on the queried current
parameters” of the selected CE (i.e., Computer Engine). Id. at 16–17.
Instead, according to Appellant, Kristiansson teaches assigning a port
number to a container being instantiated and associating the assigned port
number with the IP address of the CE. Id. at 17. Appellant argues that
nowhere does either “Kristiansson or Zhang teach or suggest such port
number assignments are ‘based on the queried current parameters’ of the
CE.” Id. Appellant further argues that “Zhang’s lease time cannot be
‘current network parameters’ because such lease time is ‘recorded for
subsequent query.’” Id.
Also, Appellant argues that “neither Kristiansson nor Zhang teach or
suggest ‘querying . . . the selected host for current parameters of network
operations’ and ‘configuring network settings for the requested container to
be . . . consistent with the queried current parameters of the network
operations on the selected host.’” Id. Appellant explains that even if
Kristiansson’s CE 114 could correspond to the “selected host” of claim 1,
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nowhere does Kristiansson or Zhang teach or suggest that Kristiansson’s
“assignment of port number to container” is consistent with any queried
network parameters of the CE 114. Id. Appellant argues that Kristiansson
teaches checking for duplicate port numbers assigned to multiple containers
such that the assigned port number is potentially consistent with other port
numbers assigned to other containers, but not the CE 114 (see Kristiansson
para.12). Id.
We do not agree with Appellant’s argument. Non-obviousness cannot
be established by attacking references individually where, as here, the
ground of unpatentability is based upon the teachings of a combination of
references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the test
for obviousness is whether the combination of references, taken as a whole,
would have suggested the patentee’s invention to a person having ordinary
skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The Examiner directs us to Appellant’s Brief for not disputing that
Kristiansson teaches instantiation of software containers and assigning them
an address. Ans. 5 (citing Appeal Br. 10–11, and the Kristiansson
reproduction of Fig. 3 therein). The Examiner finds that Kristiansson
teaches configuration of network settings including addressing being
performed by assigning an IP address to the machine and then assigning a
port number to the container. Ans. 5–6 (citing Kristiansson paras. 64–67,
71).
Thus, the Examiner finds, and we agree, that Kristiansson teaches that
“to address a message to container 108 in Figure 3, a message would be
routed to IP address 10.0.0.10 (to reach the machine) and then to port 20 (to
distinguish between container 108 and container 106).” Id. at 6 (see
Kristiansson Fig. 3 and para. 67). The Examiner notes that “Appellant does
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not appear to dispute that this teaches configuring network settings for the
container.” Id. (see Appeal Br. 16 assuming teaching “could be read as
‘configuring network settings for the requested container’”).
The Examiner further finds, and we agree, that Zhang teaches
“communal resources (for example, routing addresses in a system, or
physical processing and memory resources that are shared by many virtual
machines) can be reserved (marked as ‘used’ in Zhang’s parlance) for a
period of time (‘leasing’ the resource).” Id. (citing Zhang para. 116). The
Examiner finds that “Lease times may be recorded and subsequently
queried.” Id. (emphasis added). We also agree with the Examiner that
“Zhang also teaches network parameters generically (para. 35), and
particularly, such as bandwidth or type of service (paras. 62, 168–169).” Id.
(emphasis omitted).
We do not agree with Appellant’s statement that “Zhang’s lease time
cannot be ‘current network parameters’ because such lease time is ‘recorded
for subsequent query.’” Appeal Br. 17. Under the doctrine of inherency, if
a claimed element is not expressly disclosed in a prior art reference, the
reference nevertheless anticipates the claim if the missing element is
necessarily present in the reference, and it would be so recognized by skilled
artisans. Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1380 (Fed. Cir.
2002). One skilled in the art at the time of the invention would recognize
readily that the current query would necessarily be searching the latest
resources available as previously recorded. Thus, the current query is
relying necessarily on previously recorded network parameters.
The Examiner further finds, and we agree, that Carl teaches
assignment of an IP address to each container directly. Ans. 3 citing (Carl
paras. 33, 47). Thus, the combination of Kristiansson, Zhang and Carl
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“suggest querying a host to determine if a previous container is still present,
and thus its IP address is still reserved.” Ans. 6. “If it is not, then the IP
address can be used to configure a new container that will be assigned.” Id.
“If it is, then a different IP address must be used.” Id. “Similarly, if the
physical machine supports a certain amount of bandwidth, that bandwidth is
a communal resource for each container the machine hosts.” Id. “Zhang
teaches querying the machine to determine how much bandwidth is used in
order to set bandwidth configurations, which is a technique which applies to
the containers of Kristiansson just as it applies to the virtual devices of
Zhang for predictable results and benefits.” Id. (citing MPEP 2143(1)(C)
and (D)).
Thus, the combination of Kristiansson, Zhang, and Carl teaches or
suggests the disputed limitation of
in response to the received request, querying, via the computer
network, the selected host for current parameters of network
operations on the selected host; assigning an IP address to the
container to be instantiated at the selected host . . . and based on
the queried current parameters, configuring network settings for
the requested container to be instantiated on the selected host in
the computing system . . . [] consistent with the queried current
parameters of the network operations on the selected host to
enable seamless connectivity to the container via the computer
network
as recited in claim 1.
We further agree with the Examiner that querying for “routing
configurations” is “explicitly considered as within the meaning of network
parameters” which is an interpretation of network parameters consistent with
Appellant’s own Specification. Ans. 7 (citing Spec. paras. 36-37). We give
claims “their broadest reasonable interpretation consistent with the
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specification.” In re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed.
Cir. 2004).
We also agree with the Examiner’s alternative finding that
Kristianson states “the method may further comprise the CEM determining
whether each port number in the second set of numbers is currently being
used by an existing software container” suggesting querying the host to
determine if the container is still in use and if the address is still leased to it.
Ans. 7 (citing Kristianson para. 12) (emphasis omitted).
Appellant further argues that “Kristiansson teaches away from being
modified by the technique of Carl as proposed by the Examiner.” App.
Br. 17. Appellant explains that “Kristiansson, CEM 102 allows a user to
treat the deployment as occurring on a single system being managed by the
CEM, even when the software containers are actually deployed across
multiple container engines” and thus, “the user does not need to deal with
keeping track of multiple machine IP addresses.” Id. (emphasis omitted).
“Thus, the user can treat the CEM as a software container environment
having a single IP address (e.g., the IP address of the CEM), even if the
underlying container engines have multiple, different IP addresses” and the
containers are distinguished at different CEs “using port numbers, not IP
addresses.” Id. at 17–18 (emphasis omitted). Thus, according to Appellant
if “Kristiansson’s system were modified as suggested by the Examiner, such
modification would defeat the purposes of Kristiansson’s technique.” Id. at
18.
We do not agree with Appellant’s argument. “A reference may be
said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
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taken by the applicant.” In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006)
(citation omitted). Nothing in Kristiansson discourages its modification
from assigning an IP address directly to a container as taught by Carl as
opposed to each machine. Non-obviousness cannot be established by
attacking references individually where, as here, the ground of
unpatentability is based upon the teachings of a combination of references.
In re Keller, 642 F.2d 413, 426 (CCPA 1981). We agree with the Examiner
that the combination of Krtistiansson and Carl modifies Kristiansson by
instead of assigning the IP addresses to each machine, assigning IP
addresses directly to each container as taught by Carl.
Further, Appellant argues that if Kristiansson were modified as
proposed by the Examiner, such modification would change the principle of
operation in Kristiansson’s system. Appeal Br. 18. Appellant argues that
Kristiansson teaches routing network traffic to containers based on port
numbers instead of IP addresses. Id. Appellant asserts that one skilled in
the art would recognize, routing network traffic using port numbers are
different than routing network traffic using IP addresses in very fundamental
ways. Id. Appellant explains that in computer networking, port forwarding
or port mapping is an application of network address translation (NAT) that
redirects a communication from one address and port number combination
to another while traversing a network gateway. Id. In contrast, an IP
address provides the location of a host in a computer network to allow
establishment of a network path to that host. Id. As such, Appellant argues
that “routing network traffic according to port numbers involves a different
principle of operation than routing network traffic according to IP
addresses.” Id.
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We do not agree with Appellant’s argument. The Examiner finds, and
we agree that “routing using port numbers is not the same thing as routing
using an IP address, but the standard for a change in the principle of
operation is not ‘difference.’” Ans. 10. The Examiner finds that it is well
known in the art that “endpoints within a machine could be routed using the
port, or they could be routed using an IP address.” Id. For example,
“Kristiansson, Figure 3 explicitly routes twice using an IP address from the
client to the router and from the router to the host machine.” Id. Thus,
assigning IP addresses directly to the containers as taught by Carl (paras.
33, 47) as opposed to using a port to route to the container as taught by
Kristiansson is a reasonable, predictable substitution. Id. “[W]hen a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007) (citing United States v. Adams, 383 U.S. 39, 50-51
(1966)).
Thus, we affirm the Examiner’s rejection of claim 1 and for the same
reasons the rejection of claims 2–3, 6–12, and 15–18.
Claims 4, 5, 6, 7, 8, 10, 17, 18 rejected under 35 U.S.C. § 103
Appellants present no substantive arguments regarding claims 4, 5, 6,
7, 8, 10, 17, 18 other than merely restating the limitations called for in the
claims. See Appeal Br. 18–22 also see 37 C.F.R. § 41.37(c)(1)(iv) (“A
statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim.”); In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
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an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.”).
To the extent that these may constitute arguments we adopt the
Examiner’s findings and conclusions in the Final Action and the Answer
without having to repeat them herein.
CONCLUSION
The Examiner’s decision to reject claims 1–20 is AFFIRMED.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 6–12,
15–18
103 Kristiansson, Carl,
Zhang
1–3, 6–12,
15–18

4–5, 13–14,
19–20
103 Kristiansson, Carl,
Zhang, Rosen,
4–5, 13–14,
19–20

1–20 103 Kristiansson,
Zhang, Rosen,
1–20
Overall
Outcome
1–20

RESPONSE
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)(1)(iv).
AFFIRMED