VMware, Inc.

Patent Trials and Appeals BoardMar 24, 2021

2020000242 (P.T.A.B. Mar. 24, 2021)

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. 15/657,713 07/24/2017 Jagannath Raghu A803.C1 6238 152606 7590 03/24/2021 Olympic Patent Works PLLC 4979 Admiral Street Gig Harbor, WA 98332 EXAMINER NAOREEN, NAZIA ART UNIT PAPER NUMBER 2458 MAIL DATE DELIVERY MODE 03/24/2021 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAGANNATH RAGHU, JOHN KILROY, and GUY HUSSUSSIAN Appeal 2020-000242 Application 15/657,713 Technology Center 2400 Before JEAN R. HOMERE, PHILLIP A. BENNETT, and SCOTT RAEVSKY, Administrative Patent Judges. RAEVSKY, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 22–40, which constitute all the claims pending in this application. Claims 1–21 have been cancelled. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as VMWARE, INC. Appeal Br. 1. Appeal 2020-000242 Application 15/657,713 2 CLAIMED SUBJECT MATTER The claims are directed to a method and system for providing inter- cloud services. Claim 22, reproduced below, is illustrative of the claimed subject matter: 22. A distributed-services component of a multiple- cloud-computing-facility aggregation that includes two or more geographically and operationally distinct physical cloud- computing facilities, each managed by a management server, the distributed-service component comprising: a physical server that includes server hardware including one or more memories, one or more processors, one or more data-storage components, a virtualization layer that provides an execution environment for one or more virtual machines, and a cloud-connector virtual machine that provides an electronic cloud-connector-service interface through which a cloud-connector-server user interface is displayed on a remote computer and through which cloud-connector-virtual- machine-provided distributed services are accessed by the remote computer, and an electronic cloud-connector-node interface through which the cloud-connector virtual machine requests services from remote cloud-connector nodes; and multiple cloud-connector-node virtual machines that include a cloud-connector-node virtual machine within each cloud-computing facility of the multiple cloud-computing- facility aggregation, each cloud-connector-node virtual machine providing an electronic interface through which the cloud- connector virtual machine accesses services provided by the cloud-connector node, and each cloud-connector-node virtual machine accessing a cloud-management interface, provided by the management server within the cloud-computing facility in which the cloud-connector-node virtual machine is installed, through which the cloud-connector-node virtual machine Appeal 2020-000242 Application 15/657,713 3 accesses management services provided by the cloud- computing facility. REFERENCES The prior art relied upon by the Examiner is: Elson Robinson US 8,682,957 B2 US 8,892,707 B2 Mar. 25, 2014 Nov. 18, 2014 REJECTIONS Claims 22–40 stand rejected under pre–AIA 35 U.S.C. § 112, second paragraph, as being indefinite. Final Act. 2. Claims 22–40 stand rejected under pre–AIA 35 U.S.C. § 103(a) as being unpatentable over Elson and Robinson. Id. at 4. ANALYSIS Rejections under § 112, second paragraph The Examiner rejects claim 22 as indefinite because of the following limitation: “each cloud-connector-node virtual machine providing an electronic interface through which the cloud-connector virtual machine accesses services provided by the cloud-connector node.” Final Act. 2. The Examiner finds it “difficult to understand which cloud connector node is being accessed.” Id. And the Examiner finds it “difficult to determine what the role of each element is within the system.” Id. at 3. We first address the “cloud connector node” and then turn to the “role of each element . . . within the system.” Appellant quotes the Specification extensively in support for the clarity of this limitation. Appeal Br. 7–14. Regarding the claimed “cloud- connector node,” Appellant asserts this phrase is “fully explained” by the Appeal 2020-000242 Application 15/657,713 4 following Specification text: “The VCC node 1200 is a web service that executes within an Apache/Tomcat container that runs as a virtual appliance within a cloud director, VDC management server, or third-party cloud- computing server.” Id. at 12 (citing Spec. ¶ 44). Besides this citation to the Specification and a general assertion that the claim is “extremely clear and maps directly onto a described implementation,” Appellant does not address the Examiner’s concern that it is “difficult to understand which cloud connector node is being accessed.” See Final Act. 3 (emphasis added). For this reason alone, we would sustain the rejection. But we also note that to the extent Appellant relies on claim 22’s “remote cloud-connector nodes” as antecedent basis for “the cloud- connector node,” the claim is indeed unclear. The disputed limitation refers to “services provided by the cloud-connector node,” not services provided by “the remote cloud-connector nodes.” We therefore agree with the Examiner that it is unclear which cloud connector node is being accessed. Turning now to the Examiner’s statement that it is “difficult to determine what the role of each element is within the system,” Final Act. 3, Appellant again describes detailed support in the Specification for the disputed claim limitation, Appeal Br. 8–14. The Examiner responds that despite Appellant providing support from the Specification, this is “not enough to provide a clear definition of each of the mentioned [claim] elements.” Ans. 4. The crux of the Examiner’s complaint is the difficulty in determining what role each of the disputed limitation’s claim elements performs “and whether or not they are different entities or the same entity.” Id. “For example,” the Examiner asks, “are the cloud connector node virtual machines that provide the electronic interface the same as the cloud Appeal 2020-000242 Application 15/657,713 5 connector virtual machine?” Id. The Examiner also wonders if the “cloud connector node virtual machine” is “a part of the cloud connector node or is it the same as the cloud connector node?” Id. And the Examiner questions, “[i]s the cloud connector virtual machine a part of the cloud connector node[,] and are they combined to be the cloud connector node virtual machine?” Id. Appellant responds that the “cloud-connector virtual machine” and “cloud-connector-node virtual machines” are different entities, as they are “consistently and clearly described and illustrated in the current applications being two completely different entities.” Reply Br. 4–5. Appellant also contends that it is “not the purpose of the claims to precisely define terms and phrases,” arguing “[t]hat is what the specification . . . is for.” Id. at 6. “Were claims required to include precise definitions,” Appellant contends, “claims would necessarily run for many pages, and would be uninterpretable by almost anyone, since each claim is required to comprise a single sentence.” Id. We agree with Appellant. Although claim 22 uses terms that may appear confusingly similar at first glance, 35 U.S.C. § 112, second paragraph merely requires the claims to “particularly point[] out and distinctly claim[] the subject matter which the applicant regards as his invention.” Appellant need not define each term within the claim. Claim 22 recites clearly distinct entities, such as a “cloud-connector virtual machine” and “cloud-connector- node virtual machines.” In this instance, the Examiner’s difficulty with determining “what the role of each element is within the system” is insufficient to sustain the indefiniteness rejection, although we still sustain the indefiniteness rejection for the other reasons we explain above. Appeal 2020-000242 Application 15/657,713 6 For claim 25, the Examiner finds there is insufficient antecedent basis for the recited “management system” and also finds that “[i]t is unclear what the management system comprises.” Id. Appellant argues there is no antecedent basis problem because “[i]t is clear from claim 22 that each cloud-connector-node virtual machine is installed in a management server or management system, and claim 25 explicitly lists the types of management systems from which ‘the management system of a cloud computing facility’ the [sic] selected.” Appeal Br. 14. But claim 22 recites a “management server,” not a “management system,” so we agree with the Examiner that claim 25 has an antecedent basis problem. We sustain the Examiner’s indefiniteness rejection. Appellant does not raise any arguments against the Examiner’s indefiniteness rejections of the remaining claims in its Appeal Brief. Appellant briefly addresses dependent claims 23, 24, 26, and 28 in its Reply (Reply Br. 7), but Appellant has not explained why it did not raise these arguments in its Appeal Brief when the Final Office Action rejected them. We do not consider Appellant’s untimely argument. See 37 C.F.R. § 41.41(b)(2); see also In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (argument not first raised in Appeal Brief is waived); Ex parte Nakashima, 2010 WL 191183, at *3–*6 (BPAI 2010) (new Reply arguments not timely presented in the principal Brief will not be considered, absent a showing of good cause). For these reasons, we affirm the Examiner’s indefiniteness rejection of claims 22–40, including independent claims 30, 39, and 40, which Appellant does not argue separately. See Appeal Br. 7–14. Appeal 2020-000242 Application 15/657,713 7 Rejections under § 103 Appellant first contends that the combination of Elson and Robinson fails to teach or suggest the preamble of claim 22: “A distributed-services component of a multiple-cloud-computing-facility aggregation that includes two or more geographically and operationally distinct physical cloud- computing facilities, each managed by a management server.” Appeal Br. 14–16. Appellant contends that the cited language of Elson “is concerned with wireless devices,” “does not mention multiple cloud-computing facilities” or “any type of multiple-cloud-computing-facility aggregation,” or “two or more geographically and operationally distinct physical cloud- computing facilities.” Id. at 15. Appellant also contends there is no mention of “any type of management server.” Id. The Examiner finds Elson discloses the preamble: Elson discloses a system directed to various different types of embedded, wireless cloud-connector devices that provide computing/communications hardware and interfaces to allow various different types of geographically dispersed and/or low-cost electronic devices to exchange data with cloud- resident or cloud-connected application programs (Col. 2, Lines 55 - 67) which teaches the preamble of the claim. Ans. 9 (citing Elson 2:55–67); Final Act. 4 (same). A threshold question is whether the preamble is limiting. The Examiner does not dispute that the preamble is limiting. See Final Act. 4; Ans. 9. Our reviewing court has “repeatedly held a preamble limiting when it serves as antecedent basis for a term appearing in the body of a claim.” SIMO Holdings Inc. v. Hong Kong uCloudlink Network Tech. Ltd., 983 F.3d 1367, 1375 (Fed. Cir. 2021) (citations omitted). Relying on the preamble for antecedent basis “is a strong indication that the preamble acts as a necessary Appeal 2020-000242 Application 15/657,713 8 component of the claimed invention.” Id. (quoting Bio-Rad Labs., Inc. v. 10X Genomics Inc., 967 F.3d 1353, 1371 (Fed. Cir. 2020)). We determine that the preamble of claim 22 is limiting because it recites a necessary component of the claimed invention, as evinced by the claim body relying on the preamble for antecedent basis. The preamble recites “a multiple- cloud-computing-facility aggregation,” while the claim body recites “the multiple-cloud-computing-facility aggregation.” Having determined that the preamble is limiting, we now review the Examiner’s application of the art to the preamble. Elson describes in pertinent part: Cloud providers directly contract with wireless carriers, Wi-Fi providers, and other communications-services providers to provide for wireless connections between embedded, wireless cloud-connector devices and cloud-computing facilities that execute or that are interconnected to the application programs with which the geographically dispersed and/or low-cost electronic devices that contain the embedded, wireless cloud-connector devices exchange data. By doing so, and by providing a simple, well-designed interface to the embedded, wireless cloud-connector devices, a cloud provider can extend cloud-computing services into many different, geographically dispersed areas and to a variety of technologies and uses for which traditional wireless-service subscriptions would not be economically feasible. Elson 2:65–3:12 (emphasis added). Apart from generic references to “geographically dispersed” and “cloud facilities,” this passage does not teach or suggest all the elements of the preamble, and particularly, “a management server.” Id. at 15. The Examiner does not respond to Appellant’s argument that Elson does not disclose “a management server.” Instead, the Examiner’s Answer merely restates the Final Office Action’s findings. See Ans. 9. As the Examiner has not relied on any other reference Appeal 2020-000242 Application 15/657,713 9 to teach this element, we do not sustain the Examiner’s rejections of claim 22 and its dependent claims.2 Turning to independent claim 30, Appellant contends that the combination of Elson and Robinson fails to teach or suggest all the claim limitations, including the preamble. Appeal Br. 22–23. Appellant argues that the cited passage of Elson “is unrelated to virtual machines, cloud- connector-node virtual machines, [and] cloud-connector virtual machines.” Id. at 23. The Examiner cites Elson 8:25–58 for the preamble, but we agree with Appellant that this passage does not discuss virtual machines in any respect. Final Act. 11. We also find the preamble limiting for similar reasons discussed above. The Answer does not address Appellant’s claim 30 preamble argument. Thus, we reverse the Examiner’s rejection of independent claim 30. For independent claims 39 and 40, Appellant makes a similar argument—that the cited references do not teach or suggest the preamble’s “multiple-cloud-computing-facility aggregation that includes multiple, geographically and operationally distinct cloud-computing facilities.” Appeal Br. 23. The Examiner cites Elson 2:55–67, the passage of Elson produced above, for both of these claims. Final Act. 16, 19. The preambles of claims 39 and 40 are significantly broader than those of claims 22 and 30. We agree with the Examiner because Elson discloses “cloud-computing facilities that execute or that are interconnected [i.e., aggregated] to the 2 Elson elsewhere discloses “systems that interconnect and manage . . . devices which allow cloud computing to be extended geographically . . . .” Elson 8:26–28. The Examiner could consider on remand whether Elson’s “systems that . . . manage” teach or suggest the claimed “management server.” Appeal 2020-000242 Application 15/657,713 10 application programs with which the geographically dispersed . . . devices . . . exchange data.” Elson 3:2–6. We therefore sustain the rejection of these claims. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22–40 112 ¶ 2 Indefiniteness 22–40 22–40 103(a) Elson, Robinson 39, 40 22–38 Overall Outcome 22–40 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). Since at least one rejection encompassing all claims on appeal is affirmed, the decision of the Examiner is affirmed. AFFIRMED