VMware, Inc.Download PDFPatent Trials and Appeals BoardApr 14, 20212020000409 (P.T.A.B. Apr. 14, 2021) 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. 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 Copy with citationCopy as parenthetical citation