VMWARE, INC.

Patent Trials and Appeals Board

Mar 9, 2022

2021001734 (P.T.A.B. Mar. 9, 2022)

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. 16/137,564 09/21/2018 SRINIVAS KANDULA E136.02 6960 152625 7590 03/09/2022 GLOBAL IP SERVICES, PLLC/VMWARE, INC./NICIRA, INC. 121 MOORE ST. PRINCETON, NJ 08540 EXAMINER ANYA, CHARLES E ART UNIT PAPER NUMBER 2194 NOTIFICATION DATE DELIVERY MODE 03/09/2022 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): docketing@globalipservices.com ipadmin@vmware.com pnama@globalipservices.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SRINIVAS KANDULA, GAURAV GUPTA, ARUNVIJAI SRIDHARAN, and VIBHU RASTOGI ____________ Appeal 2021-001734 Application 16/137,564 Technology Center 2100 ____________ Before KARL D. EASTHOM, NORMAN H. BEAMER, and SCOTT B. HOWARD, Administrative Patent Judges. HOWARD, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s Final Rejection of claims 1, 3-11, 13-20, and 22-24. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as VMware, Inc. Br. 4. Appeal 2021-001734 Application 16/137,564 2 THE INVENTION The disclosed and claimed invention relates generally “to computing environments, and more particularly to methods, techniques, and systems to migrate applications between compute nodes using a cloud-based Migration as a Service (MaaS).” Spec. ¶ 3.2 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: receiving a request to migrate an application running on a first compute node to a second compute node with a change in a version of the application; providing, by a migration orchestrator of the first compute node, migration information to a cloud-based Migration as a Service provider via a network upon receiving the request, wherein the migration information comprises configuration details associated with the first compute node, configuration details associated with the second compute node, and version details of the application; receiving, by the migration orchestrator, an application migration component as a service from the cloud-based Migration as a Service provider via the network based on the migration information; and executing the application migration component to migrate the application from the first compute node to the second compute node with the change in the version of the application. 2 We refer to the Specification filed Sept. 21, 2018 (“Spec.”); Final Office Action mailed Jan. 30, 2020 (“Final Act.”); Appeal Brief filed June 27, 2020 (“Br.”); and Examiner’s Answer mailed Nov. 10, 2020 (“Ans.”). Appeal 2021-001734 Application 16/137,564 3 REFERENCES The prior art relied upon by the Examiner as evidence in rejecting the claims on appeal is: Seth US 2013/0246623 A1 Sept. 19, 2013 Fu et al. (“Fu”) US 2014/0372533 A1 Dec. 18, 2014 Chen et al. (“Chen”) US 2017/0134519 A1 May 11, 2017 Curley et al. (“Curley”) US 2018/0293017 A1 Oct. 11, 2018 REJECTIONS Claims 1, 3-6, 8, 9, 11, 13, 15, 16, 18, 22, and 23 stand rejected under 35 U.S.C. § 103 as unpatentable over Chen and Curley. Final Act. 2. Claims 7, 14, 19, and 20 stand rejected under 35 U.S.C. § 103 as unpatentable over Chen, Curley, and Fu. Final Act. 24. Claims 10, 17, and 24 stand rejected under 35 U.S.C. § 103 as unpatentable over Chen, Curley, and Seth. Final Act. 26. ANALYSIS Claim 1 recites “providing, by a migration orchestrator of the first compute node, migration information to a cloud-based Migration as a Service provider via a network upon receiving the request” to migrate an application and “receiving, by the migration orchestrator, an application migration component as a service from the cloud-based Migration as a Service provider via the network based on the migration information.” The Examiner finds that Chen’s deployment plan including deployment settings and tasks to be executed by resources to deploy an application in a public cloud computing environment teaches the migration information provided to a cloud-based Migration as a service provider. Appeal 2021-001734 Application 16/137,564 4 Final Act. 4-5 (citing Figs. 1, 2, ¶¶ 25, 26, 54); see also id. at 6-7 (citing Chen, Figs. 1, 4, ¶¶ 55, 56, 78); Ans. 32-33. The Examiner further finds that Chen’s provisioning virtual machines from cloud provider server according to a deployment plan teaches receiving an application migration component based on the migration information as claimed. Final Act. 7-9 (citing Chen ¶¶ 27-29). Specifically, the Examiner finds that Chen’s Virtual Machines “are functionally equivalent to the claimed migration component because it is provisioned or obtained from a cloud server provider to migrate applications from a private cloud environment to a public cloud environment.” Id. at 9. The Examiner also finds that “migrating or deploying of ‘application’ . . . is functionally equivalent to providing ‘an application migration component’ as a service’ because the migrating or deploying and executing the ‘application’ provides service.” Id. at 32. Appellant argues that Chen “merely describes generating a request by an application services server in a private cloud computing environment to deploy an application in a public cloud computing environment according to a deployment plan,” but not “migrating applications between compute nodes using a cloud-based Migration as a Service” using migration information that “includes configuration details associated with the first compute node, configuration details associated with the second compute node, and version details of the application” as required by the claim. Br. 7-9. Specifically, Appellant argues that Chen’s “application components 132 and 142 are deployed only after provisioning the VM1 130 and VM2 140” in contrast to the claim requiring that the “application migration component is provided in response to receiving the migration information Appeal 2021-001734 Application 16/137,564 5 based on a request to migrate the application that is already running in the first computing device,” which “provides a different meaning/technical solution altogether.” Id. at 11. Appellant also argues that “Chen does not teach or suggest that the tasks/scripts to migrate respective application components as being received from the cloud provider based on the migration information as specified in the pending claims.” Id. We are persuaded by Appellant’s argument as the Examiner has not identified sufficient evidence or provided sufficient explanation as to how Chen teaches providing migration information to a cloud-based Migration as a Service provide upon receiving the request to migrate an application, and then receiving an application migration component as a service from the cloud-based Migration as a Service provide based on the migration information, and executing the application migration component to migrate the application. Chen explains that the “application services server 110 in private cloud computing environment 102 generates a request to deploy an application according to a deployment plan.” Chen ¶ 25. “[G]enerating the request may also include generating the deployment plan, or retrieving the deployment plan,” and may be “in response to an enterprise user (e.g., network administrator) initiating the deployment via application services server 110.” Id. ¶ 26. Additionally, the “application services server 110 sends the request to orchestration node 160 . . . to instruct orchestration node 160 to provision the virtual computing resource . . . from a cloud provider . . . and to cause the virtual computing resource to execute one or more tasks specified by the deployment plan.” Id. ¶ 27. After the “orchestration node 160 receives the request from application services server 110,” it “deploys Appeal 2021-001734 Application 16/137,564 6 the application according to the deployment plan” by “provision[ing] the virtual computing resource (e.g., VM1 130, VM2 140) from cloud provider server 150” and “caus[ing] the virtual computing resource to execute one or more tasks specified by the deployment plan.” Id. ¶ 28. In other words, the sections of Chen cited by the Examiner and on the record before us do not teach a migration orchestrator providing migration information to a cloud-based Migration as a Service provider and receiving an application migration component as a service from the cloud-based Migration as a Service provider in order to migrate the application from the first compute node to the second compute node. Instead, Chen teaches sending a request with a deployment plan to the orchestration node to provision a virtual computing resource from the cloud provider server according to the deployment plan in order to deploy the application. Although Chen teaches an orchestration node receiving a request with a deployment plan and using that to provision virtual computing resources from the cloud provider server, Chen’s orchestration node does not provide the deployment plan to the cloud provider server or receive the provisioned virtual computing resources from the cloud provider server. Furthermore, Chen is directed to deploying an application, rather than migrating an application from a first node to a second node as claimed. Therefore, we agree with Appellant that the Examiner’s finding that Chen teaches the disputed limitations is in error because it is not supported by a preponderance of the evidence. See In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (The Examiner’s burden of proving non-patentability is by a preponderance of the evidence.); see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the Appeal 2021-001734 Application 16/137,564 7 factual basis for its rejection. It may not, because it may doubt that the invention is patentable, resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”). Because we agree with at least one of the arguments advanced by Appellant regarding claim 1, we need not reach the merits of Appellant’s other arguments. Accordingly, we are constrained on the record before us to reverse the Examiner’s § 103 rejection of independent claim 1, as well as independent claims 11 and 18 with commensurate limitations, and dependent claims 3- 10, 13-17, 19, 20, and 22-24. DECISION We reverse the Examiner’s § 103 rejections of claims 1, 3-11, 13-20, and 22-24. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3-6, 8, 9, 11, 13, 15, 16, 18, 22, 23 103 Chen and Curley 1, 3-6, 8, 9, 11, 13, 15, 16, 18, 22, 23 7, 14, 19, 20 103 Chen, Curley, Fu 7, 14, 19, 20 10, 17, 24 103 Chen, Curley, Seth 10, 17, 24 Overall Outcome 1, 3-11, 13- 20, 22-24 REVERSED