VMware, Inc.

Patent Trials and Appeals Board

Apr 14, 2021

2020000409 (P.T.A.B. Apr. 14, 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.
15/621,465 06/13/2017 Piyush KOTHARI B074.01.C1 1826
152569 7590 04/14/2021
Patterson + Sheridan, LLP - VMware
24 Greenway Plaza
Suite 1600
Houston, TX 77046
EXAMINER
MOREAU, AUSTIN J
ART UNIT PAPER NUMBER
2446
NOTIFICATION DATE DELIVERY MODE
04/14/2021 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):
ipadmin@vmware.com
psdocketing@pattersonsheridan.com
vmware_admin@pattersonsheridan.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PIYUSH KOTHARI, MUKESH BAPHNA, and CHIHSIANG SU
Appeal 2020-000409
Application 15/621,465
Technology Center 2400
Before ERIC S. FRAHM, JUSTIN BUSCH, and JOYCE CRAIG,
Administrative Patent Judges.
CRAIG, 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, which are all the pending claims.
See Final Act. 1. 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. Appellant identifies to VMware, Inc. as the real party in
interest. Appeal Br. 3.
Appeal 2020-000409
Application 15/621,465

2
CLAIMED SUBJECT MATTER
The invention, according to Appellant, generally relates to managing
configuration of virtual switches in a virtual machine network. Spec. ¶ 5.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A non-transitory computer-readable storage medium
containing program instructions for managing a configuration of
virtual switches from a virtual machine management system in a
virtual machine network, wherein execution of the program
instructions by one or more processors causes the one or more
processors to perform steps comprising:
establishing a communications connection between a
virtual switch of the virtual switches and the virtual machine
management system using a first configuration for the virtual
switch running on top of a host computing device;
saving the first configuration at the host computing device;
receiving, at the virtual switch, a request from the virtual
machine management system to change a configuration of the
virtual switch from the first configuration to a second
configuration;
determining, at the virtual switch, if the virtual machine
management system is able to communicate with the virtual
switch after the configuration is changed by determining if the
virtual switch receives a confirming message from the virtual
machine management system;
if it is determined that the virtual machine management
system is able to communicate with the virtual switch after the
configuration is changed, then flushing the saved first
configuration; and
if it is determined that the virtual machine management
system is not able to communicate with the virtual switch after
the configuration is changed, then changing the configuration
from the second configuration back to the first configuration
using the saved configuration and reconnecting the virtual switch
to the virtual machine management system using the first
configuration.
Appeal Br. 14 (Claims App.).
Appeal 2020-000409
Application 15/621,465

3
REJECTIONS
Claims 1–4 and 6–20 stand rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Tenginakai et al. (US 2014/0258479
A1, published Sept. 11, 2014) (“Tenginakai”), Wackerly (US 2012/0102166
A1, published Apr. 26, 2012), Noy et al. (US 2003/0051049 A1, published
Mar. 13, 2003) (“Noy”), and Venkataswami et al. (US 2015/0030024 A1,
published Jan. 29, 2015) (“Venkataswami”). Final Act. 4–14.
Claim 5 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Tenginakai, Wackerly, Noy, Venkataswami, and
Block et al. (US 6,983,324 B1, issued Jan. 3, 2006) (“Block”). Final Act.
14–15.
ANALYSIS
We have reviewed the § 103 rejections of claims 1–20 in light of
Appellant’s arguments that the Examiner erred. We have considered in this
decision only those arguments Appellant actually raised in the Briefs. Any
other arguments Appellant could have made, but chose not to make, in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(1)(iv).
Appellant’s arguments are not persuasive of error. We agree with and
adopt as our own the Examiner’s findings of facts and conclusions as set
forth in the Answer and in the Action from which this appeal was taken. We
provide the following explanation for emphasis.
Appellant contends the cited portions of Tenginakai, Wackerly, and
Noy do not teach or suggest the limitations “saving the first configuration at
the host computing device” and “determining, at the virtual switch, if the
virtual machine management system is able to communicate with the virtual
switch after the configuration is changed by determining if the virtual switch
Appeal 2020-000409
Application 15/621,465

4
receives a confirming message from the virtual machine management
system,” as recited in independent claim 1. Appeal Br. 9–10. Appellant
argues that each of the three references is “completely silent” with regard to
a virtual switch and a virtual machine management system.2
Appellant acknowledges that the Examiner relied on Venkataswami to
further modify the disclosures of Tenginakai, Wackerly, and Noy to teach or
suggest “a virtual switch running on top of a host computing device.” See id.
at 11; Final Act. 8; Ans. 9. Appellant contends, however, that “none of the
relied upon references provide an articulated reasoning (In re Kahn, 441
F.3d 977, 988) to modify the hardware elements of Tenginakai, Wackerly
and Noy with the virtual switches of Venkataswami.” Appeal Br. 11.
The Examiner found Tenginakai teaches that a management system,
component, or service can be used to manage distribution of configuration
information, configuration updates, OS images, authentication data, and/or
other information to components, such as switches, routers, servers, or other
devices in the data center including any appropriate switch, such as a
multilayer switch. Ans. 9, citing Tenginakai ¶¶ 23–24. The Examiner further
found Tenginakai teaches that the network and host devices can be used in
“any appropriate electronic environment, such as a data center offering in a
shared resource or other multi-tenant environment (i.e. virtual environment)

2 Appellant improperly attacks each of Tenginakai, Wackerly, and Noy
individually, even though the Examiner relied on the combination of
Tenginakai, Wackerly, Noy, and Venkataswami in rejecting claim 1. See In
re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Keller, 642
F.2d 413, 425 (CCPA 1981)) (“The test for obviousness is what the
combined teachings of the references would have suggested to those having
ordinary skill in the art.”).
Appeal 2020-000409
Application 15/621,465

5
as well as any non-virtualized or otherwise private data center.” Ans. 9,
citing Tenginakai ¶ 12. Moreover, the Examiner found that Tenginakai
contemplates migrating virtual machines across physical hosts. Id., citing
Tenginakai ¶ 21. The Examiner similarly found that the teachings of
Wackerly can be used on any network managed device. Id., citing Wackerly
¶ 10. The Examiner also found that Venkataswami teaches techniques
involving management of a virtual switch. Id., citing Venkataswami ¶ 23.
The Examiner found that the “virtual switch of Venkataswami appears to be
an appropriate switch capable of management in the systems of Tenginakai
and Wackerly.” Id. The Examiner concluded that one of ordinary skill in the
art would have been motivated to combine the teachings of Tenginakai,
Wackerly, and Venkataswami, as doing so would “improve the migration
process by promoting dynamic resource allocation by allowing the plurality
of virtual machines to be migrated across physical hosts on the network
while ensuring integrity of the virtual machine profiles.” Id. at 10, citing
Venkataswami ¶ 45.
The Examiner also found that Noy teaches “if it is determined that the
virtual machine management system is able to communicate with the virtual
switch after the configuration is changed, then flushing the saved first
configuration.” Final Act. 7, citing Noy ¶¶ 77, 80. The Examiner concluded
it would have been obvious to one of ordinary skill in the art at the time of
the invention to modify Tenginakai-Wackerly in view of Noy in order to
flush the saved first configuration in the system of Tenginakai-Wackerly. Id.
The Examiner further concluded
[o]ne of ordinary skill in the art would have been motivated to
combine Tenginakai-Noy with Venkataswami as doing so would
promote dynamic resource allocation by allowing the plurality of
Appeal 2020-000409
Application 15/621,465

6
virtual machines to be migrated across physical hosts on the
network while ensuring integrity of the virtual machine
profiles[.]
Final Act. 8, citing Venkataswami ¶ 45.
Moreover, the Examiner found that “[v]irtual switches are well known
and understood in the networking prior art.” Ans. 10. Thus, the Examiner
found that replacing the networking switch of Tenginakai, Wackerly, and
Noy with the virtual networking switch of Venkataswami “is little more than
a simple substitution of one known element for another to obtain predictable
results” because “[a]ll of the claimed elements are known in the prior art and
one skilled in the art could have combined the elements as claimed by
known methods with no change in their respective functions, and the
combination would have yielded predictable results.” Id.
Appellant has not persuaded us that combining the respective familiar
elements of the cited references in the manner proffered by the Examiner
would have been “uniquely challenging or difficult for one of ordinary skill
in the art” at the time of Appellant’s invention. Leapfrog Enters., Inc. v.
Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550
U.S. at 418). Indeed, Appellant has not addressed or persuasively rebutted
the Examiner’s findings that “[v]irtual switches are well known and
understood in the networking prior art” and “replacing the networking
switch of Tenginakai, Wackerly and Noy with the virtual networking switch
of Venkataswami is little more than a simple substitution of one known
element for another to obtain predictable results.” See Ans. 10. Moreover,
the Examiner provides “articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006); Final Act. 6–8; Ans. 9–10.
Appeal 2020-000409
Application 15/621,465

7
For these reasons, we are not persuaded that the Examiner erred in
finding that the combination of Tenginakai, Wackerly, Noy, and
Venkataswami teaches or suggests the disputed limitations of claim 1.
Accordingly, we sustain the Examiner’s § 103 rejection of
independent claim 1, as well as the Examiner’s § 103 rejection of
independent claims 15 and 18, not argued separately with particularity. See
Appeal Br. 12. For the same reasons, we also sustain the Examiner’s § 103
rejection of dependent claims 2–4, 6–14, 16, and 17, argued as a group with
claim 1. See id. And, for the same reasons, we also sustain the Examiner’s
§ 103 rejection of dependent claim 5. See id.
DECISION
We affirm the Examiner’s decision rejecting claims 1–20.
DECISION SUMMARY

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–4, 6–20 103 Tenginakai, Wackerly,
Noy, Venkataswami
1–4, 6–20
5 103 Tenginakai, Wackerly,
Noy, Venkataswami,
Block
4
Overall
Outcome:
  1–20
Appeal 2020-000409
Application 15/621,465

8

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