Nalinkumar Mistry et al.Download PDFPatent Trials and Appeals BoardMay 20, 20202018007225 (P.T.A.B. May. 20, 2020) 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. 14/581,224 12/23/2014 Nalinkumar Mistry EMC-14-0805 7578 80167 7590 05/20/2020 Ryan, Mason & Lewis, LLP 48 South Service Road Suite 100 Melville, NY 11747 EXAMINER CELANI, NICHOLAS P ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 05/20/2020 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): jbr@rml-law.com nyoffice@rml-law.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte NALINKUMAR MISTRY and PRASANNA PATIL Appeal 2018-007225 Application 14/581,224 Technology Center 2400 Before CARL W. WHITEHEAD JR, DAVID M. KOHUT, and IRVIN E. BRANCH, Administrative Patent Judges. PUR CURIAM DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–4, 6, 12–16, 19, and 21–29. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use “Appellant” to reference the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “subsidiaries of Dell Technologies” and, more particularly, as assignee “EMC IP Holding Company LLC” and applicant “EMC Corporation.” Appeal Br. 1. Appeal 2018-007225 Application 14/581,224 2 STATEMENT OF THE CASE Appellant’s Invention Appellant’s invention relates to “techniques for implementing assurance functionality in information processing systems comprising virtualization infrastructure.” Spec. 1, ll. 6–7. Claim 1 is representative of the claimed subject matter. 1. An apparatus comprising: at least one processing platform comprising: virtualization infrastructure; and at least one processing device comprising a processor coupled to a memory; wherein the at least one processing device is configured: to orchestrate one or more virtual network functions [(VNFs)] to be provided using network functions virtualization of the virtualization infrastructure, a given one of the VNFs comprising one or more applications implemented utilizing at least one of a virtual machine running on the virtualization infrastructure and a container running on the virtualization infrastructure; to generate topology information relating to the VNFs provided using the virtualization infrastructure, the topology information comprising metadata derived from one or more graph databases, the metadata characterizing relationships between different resource types utilized to orchestrate the VNFs, the different resource types comprising physical resources and virtual resources; to monitor the orchestrated VNFs as provided using the virtualization infrastructure; to process results of monitoring of the orchestrated VNFs Appeal 2018-007225 Application 14/581,224 3 [by]2 utilizing the generated topology information to determine an actual state of the [orchestrated]3 VNFs relative to a desired state of the [orchestrated] VNFs and to generate corresponding feedback identifying one or more orchestration actions for automatically driving the actual state of the [orchestrated] VNFs toward the desired state of the [orchestrated] VNFs; and responsive to the feedback, to perform the identified orchestration actions, the identified orchestration actions comprising at least one of: (i) adjusting one or more characteristics of the VNFs provided using the virtualization infrastructure; and (ii) performing one or more orchestration operations relating to the VNFs provided using the virtualization infrastructure. Appeal Br. 17 (Claims Appendix). Rejection Claims 1–4, 6, 12–16, 19, and 21–29 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Goldszmidt (US 2006/0129687 A1; June 15, 2006) and Himura (US 2014/0010109 A1; Jan. 9, 2014). Final Act. 3–23. 2 We add “[by]” because “utilizing the generated topology information” references the ensuing “to determine an actual state . . . and to generate corresponding feedback” recitations and not the preceding “the orchestrated VNFs” recitation. See, e.g., Spec. 2, ll. 12–13 (“The topology information is utilized . . . in generating the feedback.”); Ans. 11; Appeal Br. 10. 3 We add “[orchestrated]” because the claimed actual and driven states of the VNFs reference the monitored VNFs, which are “the orchestrated VNFs” (i.e., the VNFs that the claimed processing device is configured to orchestrate) as opposed to the general VNFs (i.e., the VNFs that can be provided by the claimed virtualization infrastructure and include the orchestrated VNFs). Appeal 2018-007225 Application 14/581,224 4 OPINION Claims 1–4, 6, 12–16, and 19 Appellant argues claims 1–4, 6, 12–16, and 19 as a group. See Appeal Br. 7 (heading). We select claim 1 as representative. 37 C.F.R. § 41.37(c)(1)(iv). For the following reasons, we are unpersuaded of error in the rejection of claim 1 and, accordingly, sustain the rejection of claims 1–4, 6, 12–16, and 19. We begin with an explanation of Goldszmidt, Himura, and their proposed combination. Goldszmidt’s system sets a “green belt” (i.e., upper and lower thresholds) for a server farm’s compliance with a target service level metric (SLM) Mt(i) assigned to a customer. Goldszmidt ¶¶ 30–31, 43. The green belt includes, and is based on, the target SLM Mt(i). Id. ¶ 52. If/when the monitored SLM M(i) falls outside the belt, a server is added to improve the SLM M(i) (i.e., to drive the SLM M(i) close to the target SLM Mt(i)). Id. ¶¶ 44, 54. If a server cannot be added (i.e., the client reached their maximum allocation), then the inbound traffic to the customer’s servers is reduced to improve the SLM M(i). Id. Himura’s system determines the topologies of virtual networks configured within a network of physical devices. Spec., Abst. Customers are assigned servers and other physical devices (e.g., firewalls, load balancers, switches). Id. ¶ 3. Though customers share physical devices, each customer’s allocated devices is a dedicated device group and discrete part (the customer’s part) of a virtual network. Id. ¶¶ 3, 6. Each device group performs respective functions of the devices (e.g., included servers execute respective applications) and a device or devices may be Appeal 2018-007225 Application 14/581,224 5 implemented as a virtual machine. Id. ¶¶ 58–60, 252. Himura’s Figure 23 illustrates the logical topology for a virtual network of a customer’s allocated virtual resources. Id. ¶¶ 47, 228. The Examiner finds Goldszmidt teaches all of the claimed “configured[] . . . to” limitations—that is, all but the claimed virtualization. Final Act. 6; Ans. 3, 5. The Examiner reads the claimed VNFs on Goldszmidt’s servers and reads the claimed topology information on Goldszmidt’s tracked allocations of servers (one allocation for each customer). Final Act. 4; Ans. 5, 10–11. The Examiner finds Goldszmidt system teaches the claimed invention (limitations identified in the following parentheses) by adding servers (“orchestrate . . . VNFs”) to a customer’s tracked allocation (“topology information relating to the VNFs”) based on the allocation’s green-belt performance and feedback (“monitor the orchestrated VNFs . . . [,] process results of monitoring of the orchestrated VNFs utilizing the generated topology information to determine an actual state of the VNFs . . . [,] generate corresponding feedback . . . for automatically driving the actual state . . . toward the desired state”). Final Act. 4–6. The Examiner proposes to perform Goldszmidt’s orchestrating, monitoring, etc., of a customer’s allocated servers on Himura’s Figure 23 topology of a customer’s allocated virtual resources (nodes). Ans. 5. In doing so, the Examiner reaches the details of the claimed topology information (e.g., metadata) by finding Himura’s topology information includes a graph structure and would sometimes represent both physical and virtual resources. Id. at 6–7. Appellant first addresses the following claim limitation: Appeal 2018-007225 Application 14/581,224 6 to orchestrate one or more VNFs to be provided using network functions virtualization of the virtualization infrastructure, a given one of the VNFs comprising one or more applications implemented utilizing at least one of a virtual machine running on the virtualization infrastructure and a container running on the virtualization infrastructure[.] Appeal Br. 7. Regarding this limitation, Appellant contends “the Examiner fails to cite to any portion of Himura . . . [that] disclose[s] orchestrating VNFs.” Id. at 8. Appellant further contends “Himura appear[s] concerned solely with managing logical topology information of . . . a plurality of virtual networks.” Id. We are unpersuaded of Examiner error because the Examiner relies on the Goldszmidt-Himura combination—not only Himura—to teach the claimed orchestrating (e.g., adding) of VNFs. See supra 5. Appellant cannot overcome this finding by merely showing Himura does not alone teach or suggest orchestrating of VNFs. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (Where a claim limitation is read on a combination of prior art references, it is not persuasive to show one reference fails to teach the entire limitation.). Further, regardless of what Himura’s disclosure may be “concerned . . . with” (Appeal Br. 8 (quoted above)), the Examiner supports the reliance on Himura by showing its topology information is described as a tool for managing a customer’s allocation of resources. Ans. 10; see also In re Fritch, 972 F.2d 1260, 1264, 23 USPQ2d 1780, 1782 (Fed. Cir. 1992) (“[A] prior art reference is relevant for all that it teaches.”). Specifically, the Examiner shows that Himura describes the topology information as a “basic work” of managing a customer’s allocated resources. Id. (quoting Himura ¶ 7); see also Himura ¶ 7 (“To understand the individual tenant Appeal 2018-007225 Application 14/581,224 7 topologies is a basic work in operation management services and is necessary, for example, when . . . changing, deleting, designating, or monitoring the configuration of the existing tenants.”). Appellant also addresses the following claim limitation: to generate topology information relating to the VNFs provided using the virtualization infrastructure, the topology information comprising metadata derived from one or more graph databases, the metadata characterizing relationships between different resource types utilized to orchestrate the VNFs, the different resource types comprising physical resources and virtual resources[.] Appeal Br. 8. Regarding this limitation, Appellant contends: “None of the cited portions of Himura disclose . . . metadata . . . characteriz[ing] relationships between different resource types (physical and virtual resources) that are utilized to orchestrate VNFs.” Id. at 9. We are unpersuaded of Examiner error because the argument is not commensurate with the claim scope. See In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998) (“[The] proffered facts . . . are not commensurate with the claim scope and are therefore unpersuasive.”). Appellant’s argument implies the claimed “metadata . . . utilized to orchestrate” restricts the preceding “configured[] . . . to orchestrate . . . VNFs” limitation. Rather, the claimed “metadata . . . utilized to orchestrate” describes only an intended use of the metadata to orchestrate at least some of the general VNFs that may not be “the orchestrated VNFs” (i.e., those the claimed processor is configured to orchestrate). Cf TomTom, Inc. v. Adolph, 790 F.3d 1315, 1324 (Fed. Cir. 2015) (finding the claimed “generating and updating data for use in” is merely an intended use); see also supra n.4 (distinguishing between the general VNFs and the orchestrated VNFs). Appeal 2018-007225 Application 14/581,224 8 Further, regardless of the above consideration, the Examiner reaches the description of the claimed metadata by finding Himura’s topology information characterizes relationships between physical and virtual resources. Ans. 7. We agree because Himura’s system “indicat[es] the correspondence relationship between virtual resources and physical devices” (Himura ¶ 229 (addressing Figure 23)), e.g., “a physical resource [can be] recognized as one of virtual resources” (id. ¶ 249). Appellant also addresses the following claim limitation: to process results of monitoring of the orchestrated VNFs [by] utilizing the generated topology information to determine an actual state of the [orchestrated] VNFs relative to a desired state of the [orchestrated] VNFs and to generate corresponding feedback identifying one or more orchestration actions for automatically driving the actual state of the [orchestrated] VNFs toward the desired state of the [orchestrated] VNFs[.] Appeal Br. 9. Regarding this limitation, Appellant contends “Goldszmidt makes no mention of . . . utilizing topology information to determine an actual state of VNFs relative to a desired state of VNFs.” Id. at 10. We are unpersuaded of Examiner error because the Examiner relies on the Goldszmidt-Himura combination—not only Goldszmidt—to reach the claimed “utilizing the generated topology information to determine an actual state of the VNFs relative to a desired state of the VNFs.” Ans. 10. Specifically, the Examiner finds Goldszmidt determines a customer’s present allocation of servers to determine the allocation’s green-belt performance and consequent need for additional servers. Id. The Examiner finds the Goldszmidt-Himura combination likewise determines a customer’s present allocation of resources, from Himura’s virtual network and topology Appeal 2018-007225 Application 14/581,224 9 information (VNFs), to determine the allocation’s green-belt performance (an actual state of VNFs relative to a desired state of VNFs). Id. Claim 21 Appellant argues claim 21 separately. See Appeal Br. 10 (heading). For the following reasons, we are persuaded of error in the rejection of claim 21 and accordingly do not sustain the rejection. Claim 21 depends from claim 1 and adds “the feedback further comprises identifying one or more additional orchestration actions to be utilized in orchestrating one or more additional VNFs.” Appeal Br. 21 (Claims Appendix). Appellant contends “[n]one of the cited portions of Goldszmidt . . . have anything to do with identifying orchestration actions for VNFs, much less using feedback from monitoring of already orchestrated VNFs to identify additional orchestration actions to be utilized in orchestrating additional VNFs.” Appeal Br. 11. We are persuaded of Examiner error because the Examiner does not address the claimed “additional VNFs” limitation. The Examiner finds the Goldszmidt-Himura combination adds a resource to a customer’s allocation of resources (orchestration action of base claim 1) in response to feedback showing the allocation’s performance lies below the green belt (feedback of claims 1 and 21). Ans. 12–13. The Examiner further finds the addition of the resource may prompt the system to reclaim the resource from another customer (additional orchestration action of claim 21). Id. at 13. As Appellants argues, the above process involves two orchestration actions for one resource (VNF)—namely reclaiming and adding the same resource. See also Appeal Br. 10–11. The process does not involve an additional resource (additional VNFs). Appeal 2018-007225 Application 14/581,224 10 Claim 22 Appellant argues claim 22 separately. See Appeal Br. 12 (heading). For the following reasons, we are unpersuaded of Examiner error in the rejection of claim 22 and accordingly sustain the rejection. Claim 22 depends from claim 1 and adds that “the generated topology information comprises a topological view of the at least a portion of the physical resources and the virtual resources utilized to orchestrate the VNFs.” Id. at 21 (Claims Appendix). Appellant contends claim 22 requires a topological view that simultaneously displays physical and virtual resources. Reply Br. 9. Appellant further contends “Himura . . . appears to describe display options [that] show virtual resources only . . . or . . . a physical network but not the virtual resources.” Appeal Br. 13. We are unpersuaded of Examiner error because the argument is not commensurate with the claim scope. For the same reasons claim 1’s description of the metadata constitutes intended use (supra 7–8), claim 22’s description of the topological view also constitutes intended use. Namely, claim 22 describes the topological view as “utilized to orchestrate” some of the general VNFs. Further, even assuming the claimed topological view does not constitute an intended use, the argument would not be commensurate with the claim scope. The argument would imply that a “view” of resources (physical and virtual) means a single, simultaneous display of the resources. A “view” is rather a single orientation and range of perspective; e.g., Gamma and X-ray telescopes can produce different images of the same view. As Appellant acknowledges (see above arguments), Himura teaches a means of toggling the Figure 23 topology of a customer’s allocated Appeal 2018-007225 Application 14/581,224 11 resources (i.e., a single view) between the allocation’s physical and virtual resources. Himura ¶ 228. Finally, even assuming the claimed topological view simultaneously displays physical and virtual resources, Himura teaches that “a physical resource [can be] recognized as one of virtual resources.” Himura ¶ 249. This suggests that Himura’s Figure 23 topology would sometimes simultaneously display a physical resource (albeit recognized as a virtual resource) and virtual resource. Claims 24, 26, and 28 Appellant argues claims 24, 26, and 28 as a group. Appeal Br. 14 (heading). We select claim 24 as representative. 37 C.F.R. § 41.37(c)(1)(iv). For the following reasons, we are unpersuaded of Examiner error in the rejection of claim 24 and accordingly sustain the rejection of claims 24, 26, and 28. Claim 24 depends from claim 1 and adds, “the generated topology information comprises a topological view of the [general] VNFs based on monitoring the orchestrated VNFs in accordance with a monitoring model.” Appeal Br. 21 (Claims Appendix). Appellant contends, “Goldszmidt is devoid of any reference to VNFs, and thus can in no way b[e] said to disclose monitoring orchestrated VNFs in accordance with a monitoring model.” Id. at 14. We are unpersuaded of Examiner error because only the claimed monitoring of the orchestrated VNFs (claim 1)—not the monitoring’s claimed effect on a topological view (claim 24)—is argued.4 As discussed, 4 Appellant does not respond to the Examiner’s following determination: “The claim does not require a particular manner that the monitoring Appeal 2018-007225 Application 14/581,224 12 Appellant shows no error in the Examiner’s determination that the Goldszmidt-Himura combination reaches the claimed monitoring of the orchestrated VNFs. See supra 6 (claim 1). Claims 25, 27, and 29 Appellant argues claims 25, 27, and 29 as a group. Appeal Br. 15 (heading). We select claim 25 as representative. 37 C.F.R. § 41.37(c)(1)(iv). For the following reasons, we are unpersuaded of error in the rejection of claim 25 and accordingly sustain the rejection of claims 25, 27, and 29. Claim 25 depends from claim 24 and adds that “the monitoring model comprises at least one of: a fault, configuration, accounting, performance and security [(FCAPS)] model; and a fulfillment, assurance and billing [(FAB)] model.” Appeal Br. 21 (Claims Appendix). Appellant contends: None of the cited portions [of Goldszmidt] . . . disclose an FCAPS or FAB model. For example, the Examiner argues that paragraph [0025] of Goldszmidt discloses that different customers may have different “green bands.” Even if this were true, this has nothing whatsoever to do with monitoring orchestrated VNFs using an FCAPS or FAB model[.] Reply Br. 11; see also Appeal Br. 15–16. We are unpersuaded because Appellant does not address the Examiner’s finding that Goldszmidt’s monitoring—and particularly the use of customer-specific green belts—is based on fulfillment, assurance, and billing (FAB) of a customer’s service level agreement (SLA). Ans. 21. The influences the view. . . . Thus a [sufficient] combination would be that Himura displays the topology for the [customer] whose green [belt monitoring] is being interrogated.” Ans. 19–20. Appeal 2018-007225 Application 14/581,224 13 Examiner finds Goldszmidt’s monitoring concerns “fulfillment” of an SLA, provides “assurance” an SLA performance measure is continually met, and implements “billing” per an SLA (e.g., tracks added servers for billing). Id. (citing Goldszmidt ¶¶ 51, 69, 77). Appellant does not address these findings, but merely characterizes Goldszmidt’s cited disclosures and then summarily states “[n]one . . . disclose” an FAB model. Reply Br. 11. This is not a meaningful argument. See, e.g., In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (affirming the rejection because appellant “merely argued that the claims differed from [the prior art], and chose not to proffer a serious explanation of this difference.”). CONCLUSION We affirm the Examiner’s decision to reject claims 1–4, 6, 12–16, 19, and 22–29. We reverse the Examiner’s decision to reject claim 21. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 6, 12– 16, 19, 21–29 § 103(a) Goldszmidt, Himura 1–4, 6, 12– 16, 19, 22–29 21 TIME PERIOD FOR 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 IN PART Copy with citationCopy as parenthetical citation