VMWARE, INC.

Patent Trials and Appeals BoardJun 2, 2021

2020000896 (P.T.A.B. Jun. 2, 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. 15/584,054 05/02/2017 SUDHEENDRA BANGALORE KRISHNAMURTHY D191 1662 152691 7590 06/02/2021 Setter Roche LLP 1860 Blake Street Suite 100 Denver, CO 80202 EXAMINER ZHAO, WEI ART UNIT PAPER NUMBER 2473 NOTIFICATION DATE DELIVERY MODE 06/02/2021 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 uspto@setterroche.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SUDHEENDRA BANGALORE KRISHNAMURTHY Appeal 2020-000896 Application 15/584,054 Technology Center 2400 Before ELENI MANTIS MERCADER, JAMES R. HUGHES, and JAMES W. DEJMEK, Administrative Patent Judges. MANTIS MERCADER, 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. See Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE and enter a new ground of rejection. 1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42 (2018). Appellant identifies the real party in interest as VMware, Inc., which is a Delaware company with principal offices located in Palo Alto, California. Appeal Br. 2. Appeal 2020-000896 Application 15/584,054 2 CLAIMED SUBJECT MATTER The claims are directed to a load balancing between edge systems in a high availability edge system pair. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of load balancing between a pair of virtual edge systems configured for high availability at an edge of a local network environment, the method comprising: assigning a virtual network address to the pair of virtual edge systems; generating state information used by one or more stateful functions of a first virtual edge system of the pair of virtual edge systems; transferring the state information to a second virtual edge system of the pair of virtual edge systems; and in a virtual router, receiving network traffic and load balancing the pair of virtual edge systems by directing a first portion of the network traffic to the first virtual edge system and a second portion of the network traffic to the second virtual edge system, wherein the network traffic comprises packets addressed with the virtual network address. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Aggarwal US 2012/0250516 A1 Oct. 4, 2012 Wood US 2014/0280969 A1 Sept. 18, 2014 Zhou US 2016/0119229 A1 Apr. 28, 2016 REJECTIONS Claims 1–4, 6, 8–14, 16, and 18–20 rejected under 35 U.S.C. § 103 as being unpatentable over Zhou and Wood. Final Act. 2. Appeal 2020-000896 Application 15/584,054 3 Claims 5, 7, 15, and 17 rejected under 35 U.S.C. § 103 as being unpatentable over Zhou, Wood as applied to claim 1 or 11, and Aggarwal. Final Act. 8. Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1–4, 6, 8–14, 16, 18–20 103 Zhou, Wood 5, 7, 15, 17 103 Zhou, Wood, Aggarwal OPINION Claim 1 recites in pertinent part “in a virtual router, receiving network traffic . . . wherein the network traffic comprises packets addressed with the virtual network address.” See claim 1 (emphasis added). Appellant argues inter alia, that neither Zhou nor Wood teach that an element, which performs load balancing like the virtual router of claim 1, receives network traffic addressed with a virtual network address. Appeal Br. 8. In particular, Appellant argues that even if Zhou’s provider edge device, PE1, could accept the load balancing teachings of Wood, the network traffic received by PE1 (e.g., traffic received from customer edge device, CE1) is not addressed with virtual next hop, vNH1, which is equated to the virtual network address of claim 1. Id. Rather, it is not until PE1 encapsulates the network traffic for the tunnel between PE1 and the virtual node, via either PE3 or PE4, that the network traffic is addressed with vNH1. Id (citing Zhou ¶ 252). Appellant argues Wood does not discuss a virtual network address. Id. Thus, Zhou and Wood both fail to disclose a virtual router, which performs load balancing, receiving network traffic addressed with a virtual network address, as required by claim 1. Id. Appeal 2020-000896 Application 15/584,054 4 Appellant contends, in its Reply, that the Examiner has not rebutted Appellant’s argument that Zhou fails to teach a virtual router receiving network traffic comprising packets addressed with the virtual network address. Reply Br. 2. We agree with Appellant’s argument. The Examiner finds that Zhou teaches a virtual node with an address of vNH1 is generated in provider edge device PE3 and in PE4. Final Act. 3 (citing Zhou ¶ 265). The Examiner also finds that Zhou teaches a tunnel (via PE1->P1->PE3->virtual node) from PE1 to the virtual node in a primary provider edge device (PE3) and a tunnel (via PE1->P1->P1->PE4->virtual node) to the virtual node in a backup provider edge device (PE4). Final Act. 4 (citing Zhou ¶ 252). Zhou teaches when PE3 and PE4 publish a VPN1 route, a Router ID vNH1 of the virtual node is used as the BGP next hop of the VPN1 and the route published by PE3 may be VPN1: prefix->L1, vNH1. Zhou ¶ 252. That is, a packet received at PE1 has a label L1 attached to the packet after receipt of the packet by PE1. Zhou ¶ 252, Fig. 20. The Examiner did not rebut Appellant’s argument that “it is not until PE1 encapsulates the network traffic for the tunnel between PE1 and the virtual node, via either PE3 or PE4, that the network traffic is addressed with vNH1.” See Appeal Br. 8. That is, the record before us does not address the claim 1 and claim 11 limitations “in a virtual router, receiving network traffic” and “wherein the network traffic comprises packets addressed with the virtual network address.” If, as the Examiner finds and argued by Appellant, PE1 is the virtual router, then the Examiner has not provided where Zhou teaches that the packets received by PE1 already have the vNH1 designated label attached before the packets arrive at PE1. On the contrary, Appeal 2020-000896 Application 15/584,054 5 Zhou teaches that the L1, vNH1 label is placed on the packet after it arrives at PE1 and therefore, the packet does not arrive with the L1, vNH1 label at PE1 which has been mapped to the virtual router of claim 1. See Zhou ¶ 252. Consequently, the limitations of the claim have not been fully addressed by the prior art. Accordingly, we are constrained by the record to reverse the Examiner’s rejections of claim 1 and for the same reasons the rejections of claims 2–20 because the Examiner does not rely on the additional references of Wood and Aggarwal to cure the cited deficiencies. NEW GROUNDS OF REJECTION Pursuant to our authority under 37 C.F.R. § 41.50(b), we enter new grounds of rejection and separately reject independent claims 1 and 11 under pre-AIA 35 U.S.C. § 103(a) as obvious over Zhou in view of Wood. Zhou teaches a pair of virtual edge systems (see Zhou, Fig. 21, PE3, PE4); generating state information used by one or more stateful functions of a first virtual edge system of the pair of virtual edge systems (see Zhou ¶ 294, ll. 1-22, Primary PE), transferring the state information to a second virtual edge system of the pair of virtual edge systems (see Zhou ¶ 294, ll. 14-22). Zhou also teaches PE1 (i.e., a virtual router) routes traffic among the primary and backup paths (see Zhou, Fig. 22) and wherein the pair of virtual edge systems are assigned an address (see Zhou ¶ 265, ll. 1-15). As discussed above, Zhou does not teach that the virtual router is receiving network traffic and load balancing the pair of virtual machines by directing a first portion of the network traffic to the first virtual machine and a second portion of the traffic to the second virtual machine, wherein the Appeal 2020-000896 Application 15/584,054 6 network traffic comprises packets addressed with the virtual network address. However, in the same field endeavor Wood teaches a virtual router receiving network traffic and load balancing the pair of virtual machines by directing a first portion of the network traffic to the first virtual machine and a second portion of the traffic to the second virtual machine, wherein the network traffic comprises packets addressed with the virtual network address (see Wood ¶ 4). That is, Wood teaches a gateway (i.e., virtual router) that load balances two virtual machines on different servers. The gateway decodes incoming network traffic to identify a destination address of the packets, and if the packets are addressed to a load-balanced virtual machine (e.g. virtual network address), the packets are routed to a destination virtual machine according to a load-balancing scheme (see Wood ¶ 4). Wood teaches that choosing which virtual machine to apply load-balancing is determined by the virtual machine having the least processing load that is capable of handling the traffic (see Wood ¶ 15). We find one of ordinary skill in the art before the effective filing date would modify Zhou with Wood to include the teaching of a virtual router, receiving network traffic and load balances the pair of virtual machines by directing a first portion of the network traffic to the first virtual machine and a second portion of the traffic to the second virtual machine, wherein the network traffic comprises packets addressed with the virtual network address. One of ordinary skill in the art would be motivated to integrate Wood’s additional functionality in the provider edge (PE1) of Zhou which allows for the usage of more of the available network capacity and less delay in the processing of packets by utilizing the two virtual provider devices Appeal 2020-000896 Application 15/584,054 7 simultaneously and also to prevent excessive network congestion along one path in a network (see Wood ¶ 15). We note the Patent Trial and Appeal Board is a review body, rather than a place of initial examination. We have rejected independent claims 1 and 11 based on our authority under 37 C.F.R. § 41.50(b). We have not, however, reviewed the remaining claims to the extent necessary to determine whether those claims are unpatentable under 35 U.S.C. § 103(a). We leave it to the Examiner to ascertain whether claims dependent from claims 1 and 11 should be rejected on similar grounds to those set forth herein or in combination with additional prior art. CONCLUSION The Examiner’s decision to reject claims 1–20 is REVERSED. We newly reject claims 1 and 11. 37 C.F.R. § 41.50(b) provides a “new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 1–4, 6, 8–14, 16, 18–20 103 Zhou, Wood 1–4, 6, 8–14, 16, 18–20 1, 11 5, 7, 15, 17 103 Zhou, Wood, Aggarwal 5, 7, 15, 17 Overall Outcome 1–20 1, 11 Appeal 2020-000896 Application 15/584,054 8 TIME PERIOD FOR RESPONSE This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). Section 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” Section 41.50(b) also provides: When the Board enters such a non-final decision, the appellant, within two months from the date of the decision, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. The new ground of rejection is binding upon the examiner unless an amendment or new Evidence not previously of Record is made which, in the opinion of the examiner, overcomes the new ground of rejection designated in the decision. Should the examiner reject the claims, Appellant may again appeal to the Board pursuant to this subpart. (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. The request for rehearing must address any new ground of rejection and state with particularity the points believed to have been misapprehended or overlooked in entering the new ground of rejection and also state all other grounds upon which rehearing is sought. Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. Appeal 2020-000896 Application 15/584,054 9 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). REVERSED; NEW GROUND 37 C.F.R. § 41.50(b)