VMware, Inc.Download PDFPatent Trials and Appeals BoardApr 8, 20212019006766 (P.T.A.B. Apr. 8, 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. 15/011,480 01/30/2016 Xinhui LI C349 9835 152591 7590 04/08/2021 Ren-Sheng International (VMWARE-NICIRA) 7F, No. 57, Sec. 2, DunHua S. Road Taipei, 106 TAIWAN EXAMINER MILLS, PAUL V ART UNIT PAPER NUMBER 2196 NOTIFICATION DATE DELIVERY MODE 04/08/2021 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): filing@suipconsulting.com gsu@suipconsulting.com ipadmin@vmware.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte XINHUI LI, LUKE LU, and SHENG LU ________________ Appeal 2019-006766 Application 15/011,480 Technology Center 2100 ____________ Before JOHN A. JEFFERY, JOYCE CRAIG, and MATTHEW J. McNEILL, Administrative Patent Judges. McNEILL, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1, 2, 4‒14, 16‒22, and 24‒28, which are all the claims pending in this application. Claims 3, 15, and 23 are canceled. Appeal Br. 16, 20, 24. 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 the real party in interest as VMWARE, INC. Appeal Br. 3. Appeal 2019-006766 Application 15/011,480 2 STATEMENT OF THE CASE Introduction Appellant’s application relates to a virtualized distributed computing framework, and in particular to identifying anomalies in such a framework. Spec. ¶¶ 1‒3. Claim 1 is illustrative of the appealed subject matter and reads as follows: 1. A method to identify a possible anomaly in a virtual distributed computing system comprising virtual nodes that are virtual machines on hosts, the method comprising: receiving, by a virtual appliance on a first host associated with the virtual distributed computing system, a trace of a job executed on the virtual distributed computing system and a topology of the virtual distributed computing system, the job comprising local resource tasks and network dependent tasks executed on the virtual nodes, the topology comprising virtual node-to-host mappings; in response to a determination of the virtual appliance on the first host that the virtual distributed computing system is offline: for each virtual node, determining, by the virtual appliance on the first host, performance indicators of the virtual node’s (1) busyness from executing its share of the local resource tasks and the network dependent tasks, (2) efficiency for executing its share of the local resource tasks, and (3) efficiency for executing its share of the network dependent tasks; for each host of the hosts, aggregating, by the virtual appliance on the first host, performance indicators of the host’s virtual nodes to determine the host’s (1) busyness from executing its share of the local resource tasks and the network dependent tasks, (2) efficiency for executing its share of the local resource tasks, and (3) efficiency for executing its share of the network dependent tasks; determining, by the virtual appliance on the first host, if Appeal 2019-006766 Application 15/011,480 3 one host of the hosts is least efficient in both executing its share of the local resource tasks and its share of the network dependent tasks; when the one host is least efficient in both executing its share of the local resource tasks and its share of the network dependent tasks: determining, by the virtual appliance on the first host, if the one host is less busy from executing its share of the local resource tasks and the network dependent tasks than other hosts; when the one host is not less busy from executing its share of the local resource tasks and the network dependent tasks than other hosts, reporting, by the virtual appliance on the first host, a busiest virtual node among the virtual nodes on the one host as a candidate of processor error; when the one host is less busy from executing its share of the local resource tasks and the network dependent tasks than other hosts, determining, by the virtual appliance on the first host, if the one host’s virtual nodes have greater distribution of variances in their busyness than the other hosts’ virtual nodes; when the one host’s virtual nodes do not have greater distribution of variances in their busyness than the other hosts’ virtual nodes, reporting the one host as a candidate of disk configuration error. The Examiner’s Rejections Claims 1, 2, 4‒14, 16‒22, and 24‒28 stand rejected under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter. Final Act. 9‒12. Claims 1, 2, 4‒14, 16‒22, and 24‒28 stand rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 12‒13. Appeal 2019-006766 Application 15/011,480 4 ANALYSIS Patent-Ineligible Subject Matter An invention is patent eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court has long interpreted 35 U.S.C. § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, we are guided by the Supreme Court’s two-step framework, described in Mayo and Alice. Alice, 573 U. S. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India Appeal 2019-006766 Application 15/011,480 5 rubber, smelting ores” (id. at 183 n.7 (quoting Corning v. Burden, 56 U.S. (15 How.) 252, 267–68 (1854))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, we turn to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. Appeal 2019-006766 Application 15/011,480 6 In January 2019, the U.S. Patent and Trademark Office (“USPTO”) published revised guidance on the application of 35 U.S.C. § 101. See 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“2019 Guidance”), updated by USPTO, October 2019 Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/ default/files/documents/peg_oct_2019_update.pdf) (“Update”); see also October 2019 Patent Eligibility Guidance Update, 84 Fed. Reg. 55942 (Oct. 18, 2019) (notifying the public of the availability of the Update). “All USPTO personnel are, as a matter of internal agency management, expected to follow the guidance.” 2019 Guidance, 84 Fed. Reg. at 51; see also October 2019 Guidance Update at 1. The Manual of Patent Examining Procedure (“MPEP”) now incorporates this revised guidance and subsequent updates at Section 2106 (9th ed. Rev. 10.2019, rev. June 2020).2 Under that guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application.3 MPEP §§ 2106.04(a), (d). 2 All references to the MPEP are to the Ninth Edition, Revision 10.2019 (Last Revised June 2020), unless otherwise indicated. 3 “Examiners evaluate integration into a practical application by: (1) identifying whether there are any additional elements recited in the claim beyond the judicial exception(s), and (2) evaluating those additional elements individually and in combination to determine whether they integrate the exception into a practical application.” MPEP § 2106.04(d)II. Appeal 2019-006766 Application 15/011,480 7 Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field; or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. MPEP § 2106.05(d). Revised Guidance Step 2A, Prong 1 Under Step 2A, Prong 1 of the Revised Guidance, we determine whether the claims recite any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes). MPEP § 2106.04(a). The Examiner determines claim 1 is directed to the abstract idea of collecting a set of data regarding a job previously executed on hosts and virtual nodes, performing an analysis of the collected data to identify a possible anomaly, and producing a result of the analysis. See Final Act. 10. The Examiner determines this falls within the mental process category of abstract ideas. Ans. 3. Appellant argues the Examiner errs by failing to consider claim 1 as a whole, instead discounting the various comparisons recited in the claims as simple comparisons to reach basic conclusions. Appeal Br. 10‒11. We agree with the Examiner that certain limitations of claim 1 recite concepts performed in the human mind that fall within the mental processes category of abstract ideas. In particular, claim 1 recites “for each virtual Appeal 2019-006766 Application 15/011,480 8 node, determining, by the virtual appliance on the first host, performance indicators of the virtual node’s (1) busyness from executing its share of the local resource tasks and the network dependent tasks, (2) efficiency for executing its share of the local resource tasks, and (3) efficiency for executing its share of the network dependent tasks.” This determination comprises an evaluation or judgement of certain criteria, which may be performed in the human mind or with pen and paper. Claim 1 also recites “for each host of the hosts, aggregating, by the virtual appliance on the first host, performance indicators of the host’s virtual nodes to determine the host’s (1) busyness from executing its share of the local resource tasks and the network dependent tasks, (2) efficiency for executing its share of the local resource tasks, and (3) efficiency for executing its share of the network dependent tasks.” This aggregation also comprises an evaluation or judgment of certain criteria, which may be performed in the human mind or with pen and paper. Claim 1 also recites “determining, by the virtual appliance on the first host, if one host of the hosts is least efficient in both executing its share of the local resource tasks and its share of the network dependent tasks” and “determining, by the virtual appliance on the first host, if the one host is less busy from executing its share of the local resource tasks and the network dependent tasks than other hosts.” These determinations also comprise evaluations or judgments, which may be performed in the human mind or with pen and paper. Thus, we agree with the Examiner that claim 1 recites a mental process, which is a category of abstract ideas.4 4 Our reviewing court recognizes that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., Appeal 2019-006766 Application 15/011,480 9 Appellant’s argument that the Examiner errs by discounting various comparisons is unpersuasive. The Examiner characterizes the claims as being directed to the abstract idea of collecting a set of data regarding a job previously executed on hosts and virtual nodes, performing an analysis of the collected data to identify a possible anomaly, and producing a result of the analysis. Our reviewing court recognizes that “[a]n abstract idea can generally be described at different levels of abstraction.” Apple, Inc. v. Ameranth, Inc., 842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does not, “impact the patentability analysis.” Id. at 1241. Further, “[t]he Board’s slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. Thus, the characterization of the claim at a relatively high level of abstraction does not alter the fact that the claim recites processes that may be performed in the human mind or with pen and paper, as discussed above. For these reasons, we conclude claim 1 recites an abstract idea and turn to Step 2A, Prong 2 of the Revised Guidance. 842 F.3d 1229, 1240 (Fed. Cir. 2016). That need not and, in this case does not, “impact the patentability analysis.” Id. at 1241. Further, “[t]he Board’s slight revision of its abstract idea analysis does not impact the patentability analysis.” Id. Moreover, merely combining several abstract ideas does not render the combination any less abstract. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322, 1327 (Fed. Cir. 2017) (“Adding one abstract idea (math) to another abstract idea . . . does not render the claim non-abstract.”); see also FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016) (determining the pending claims were directed to a combination of abstract ideas). Appeal 2019-006766 Application 15/011,480 10 Revised Guidance Step 2A, Prong 2 Under Step 2A, Prong 2 of the Revised Guidance, we next determine whether the claims recite additional elements that integrate the judicial exception into a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)). To integrate the exception into a practical application, the additional claim elements must, for example, improve the functioning of a computer or any other technology or technical field (see MPEP § 2106.05(a)), apply the judicial exception with a particular machine (see MPEP § 2106.05(b)), affect a transformation or reduction of a particular article to a different state or thing (see MPEP § 2106.05(c)), or apply or use the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological environment (see MPEP § 2106.05(e)). The additional elements recited in claim 1 include “a virtual distributed computing system,” “virtual nodes,” “virtual machines,” “hosts,” and “a virtual appliance.” These additional elements do not constitute additional elements that integrate the judicial exception into a practical application. Appellant argues claim 1 integrates the alleged abstract idea into a practical application because claim 1 recites an improvement to technology or a technical field. Appeal Br. 11‒12; Reply Br. 7. In particular, Appellant argues Hadoop implements a computational paradigm that divides large data processing jobs into many small map and reduce tasks and executes these on a large cluster of nodes. Appeal Br. 11. Appellant argues third party monitoring tools generally monitor virtual Hadoops that are online, which increases overhead and cost. Id. Appellant argues that claim 1 solves this Appeal 2019-006766 Application 15/011,480 11 problem by identifying possible anomalies in a virtual distributed computing system that is offline. Id. at 12. Appellant argues that by monitoring performance while the system is offline, claim 1 recites an improvement to a technical field. Id. (citing Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc., 880 F.3d 1356 (Fed. Cir. 2018)). Appellant has not persuaded us of Examiner error. The focus of claim 1 is not on an improvement to computers or another technology, but rather on using generic computer components to perform the recited method of identifying an anomaly in collected data related to a virtualized distributed computing system. That is, claim 1 focuses on the observations, evaluations, and judgments that constitute the mental process, rather than any technical improvement. In particular, Claim 1 recites receiving data in the form of a trace of a job and a topology of a virtual distributed computing system. Claim 1 recites determining performance indicators for nodes and hosts within the virtual distributed computing system and, if certain performance criteria are satisfied, reporting that those criteria are met. In other words, claim 1 recites collecting data, analyzing the collected data, and reporting whether certain criteria are satisfied. However, claim 1 does not recite using the data to change anything about the virtual distributed computing system. Indeed, claim 1 does not recite using the result of the analysis in any way; claim 1 merely recites reporting the result of the analysis. Thus, claim 1 does not “enable[] a computer . . . to do things it could not do before.” Finjan, Inc. v. Blue Coat Sys., Inc., 879 F.3d 1299, 1305 (Fed. Cir. 2018). Nor does claim 1 recite a specific method of measuring performance indicators that improves the particular means by which these indicators are Appeal 2019-006766 Application 15/011,480 12 measured. Instead, claim 1 recites these determinations at a high level of generality. For example, claim 1 recites “determining . . . performance indicators of the virtual node’s (1) busyness from executing its share of the local resource tasks and the network dependent tasks, (2) efficiency for executing its share of the local resource tasks, and (3) efficiency for executing its share of the network dependent tasks.” Claim 1 does not recite how the busyness or two efficiency indicators are determined or how this determination is unique to a system that is offline. We further note that our reviewing court has made it clear that mental processes remain unpatentable even when automated to reduce the burden on the user of what once could have been done with pen and paper. CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1375 (Fed. Cir. 2011) (“That purely mental processes can be unpatentable, even when performed by a computer, was precisely the holding of the Supreme Court in Gottschalk v. Benson[, 409 U.S. at 67].”). The law is clear that programming a computer to perform what would otherwise be an abstract idea is not sufficient to impart patent eligibility. See Alice, 573 U.S. at 224. Also, improvements to the manner in which collected data is analyzed are improvements to the abstract idea itself. Even if a claimed abstract idea is novel, a claim directed to a new abstract idea is still directed to an abstract idea. Elec. Commc’n Techs., LLC v. ShoppersChoice.com, LLC, 958 F.3d 1178, 1182–83 (Fed. Cir. 2020). Indeed, “[w]e may assume that the techniques claimed are ‘[g]roundbreaking, innovative, or even brilliant,’ but that is not enough for eligibility.” SAP Am., Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018) (quoting Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013)). Appeal 2019-006766 Application 15/011,480 13 The Specification further confirms that the improvements at issue are improvements to the abstract idea itself. In particular, “[t]he specification is silent as to any specific structural or inventive improvements in computer functionality related to this claimed system.” See Customedia Techs., LLC v. Dish Network Corp., 951 F.3d 1359, 1365 (Fed. Cir. 2020). Providing “simply generic descriptions of well-known computer components” does not integrate the abstract idea into a practical application where, as here, Appellant “makes no claim that it invented any of those components or their basic functions, nor does it suggest that those components, at that level of generality, were unknown in the art.” Affinity Labs of Tex., LLC v. Amazon.com Inc., 838 F.3d 1266, 1270 (Fed. Cir. 2016); see also Intellectual Ventures I LLC v. Erie Indem. Co., 850 F.3d 1315, 1331 (Fed. Cir. 2017) (“The claimed mobile interface is so lacking in implementation details that it amounts to merely a generic component (software, hardware, or firmware) that permits the performance of the abstract idea, i.e., to retrieve the user-specific resources.”). Appellant’s argument that claim 1 improves a technical field because the analysis occurs on data collected from a distributed computing system that is offline is unpersuasive because this merely ties the mental process to a particular technological environment. “[L]imit[ing] the claims to a particular a particular environment . . . does not make the claims any less abstract for the step 1 analysis.” In re TLI Comm’cns LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016). Also, claim 1 does not recite using the results of the analysis to improve the functioning of any computer or other technology. Thus, in claim 1 a generic computer system is used to implement the claimed functionality, and there is no indication that claim 1 Appeal 2019-006766 Application 15/011,480 14 improves the functioning of the processor, makes it operate more efficiently, or solves a technological problem with a solution rooted in computer technology. For these reasons, Appellant has not persuaded us of Examiner error with respect to Step 2A, Prong 2 of the Revised Guidance. We, therefore, conclude the judicial exception is not integrated into a practical application under the Revised Guidance. Revised Guidance Step 2B Under Step 2B of the Revised Guidance, we next determine whether the claims recite an “inventive concept” that “must be significantly more than the abstract idea itself, and cannot simply be an instruction to implement or apply the abstract idea on a computer.” BASCOM Glob. Internet Servs., Inc. v. AT&T Mobility LLC, 827 F.3d 1341, 1349 (Fed. Cir. 2016). There must be more than “computer functions [that] are ‘well- understood, routine, conventional activit[ies]’ previously known to the industry.” Alice, 573 U.S. at 225 (second alteration in original) (quoting Mayo, 566 U.S. at 73). As discussed above, Appellant argues claim 1 is directed to an improvement to computer technology. See Appeal Br. 10‒12; Reply Br. 5‒7. As explained above, Appellant’s argument that the claims recite an improvement to computer technology is unpersuasive because claim 1 recites an improved mental process, not an improvement to computer technology. Thus, Appellant has not persuasively identified any “inventive concept” sufficient to transform the claims from an abstract idea to a patent- eligible application. For these reasons, we agree with the Examiner (see Appeal 2019-006766 Application 15/011,480 15 Final Act. 9‒12; Ans. 3‒10) that the claims do not recite an “inventive concept” sufficient to transform the claims from an abstract idea to a patent- eligible application. We, therefore, sustain the patent-ineligible subject matter rejection of claim 1. We also sustain the patent-ineligible subject matter rejection of independent claims 13 and 21, for which Appellant relies on the same arguments. Appeal Br. 12. We also sustain the patent-ineligible subject matter rejection of dependent claims 2, 4‒12, 14, 16‒20, 22, and 24‒ 28, for which Appellant relies on the same arguments. Id. Indefiniteness The Examiner determines claim 1 is indefinite because the limitation “reporting a busiest virtual node among the virtual nodes on the one host” does not clearly set forth the metes and bounds of the claims. Final Act. 12. The Examiner determines it is unclear as to the correspondence required between nodes and hosts, and in particular it is unclear whether the claim requires a plurality of virtual nodes on the one host or merely one or more virtual nodes on the one host. Id. Appellant argues the Examiner errs because an ordinarily skilled artisan would understand the metes and bounds of the claims, particularly in light of the Specification. Appeal Br. 12‒13. Appellant argues the claim, when read as a whole, establishes the correspondence between virtual nodes and hosts. Id. Appellant argues that under either of the Examiner’s proposed constructions (a plurality of virtual nodes on the one host or one or more virtual nodes on the one host), the remainder of the claim clearly requires multiple virtual nodes on the one host. Reply Br. 8. In particular, Appellant points to the limitations “reporting . . . the busiest virtual node among the virtual nodes on the one host,” “if the one host’s virtual nodes have greater Appeal 2019-006766 Application 15/011,480 16 distribution of variances,” and “when the one host’s virtual nodes do not have greater distribution of variances.” Id. Appellant has persuaded us of Examiner error. Claim 1 recites “a virtual distributed computing system comprising virtual nodes that are virtual machines on hosts.” Claim 1 further recites a “topology comprising virtual node-to-host mappings.” Claim 1 further recites “for each host of the hosts, aggregating, by the virtual appliance on the first host, performance indicators of the host’s virtual nodes.” Claim 1 further recites “reporting, by the virtual appliance on the first host, a busiest virtual node among the virtual nodes on the one host as a candidate of processor error.” Claim 1 further recites “determining, by the virtual appliance on the first host, if the one host’s virtual nodes have greater distribution of variances in their busyness than the other hosts’ virtual nodes.” Finally, claim 1 recites “when the one host’s virtual nodes do not have greater distribution of variances in their busyness than the other hosts’ virtual nodes.” Each of these recitations contemplates plural virtual nodes on hosts. The “aggregating” limitation requires aggregating performance indicators for nodes on a host, which suggests multiple virtual nodes on the host. The “reporting” limitation refers to “a busiest virtual node” which suggests that more than one virtual node is present in order for one to be “busiest.” The “determining” limitation refers to “the one host’s virtual nodes” in the plural and determines whether those nodes “have greater distribution of variances in their busyness” which also suggests plural virtual nodes. Taken as a whole, we agree with Appellant (see Reply Br. 8) that an ordinarily skilled artisan would understand claim 1, particularly when read in light of the Appeal 2019-006766 Application 15/011,480 17 Specification (see, e.g., Spec. ¶¶ 30‒51, Figs. 3‒1, 3‒2), to refer to multiple virtual nodes on the one host. For these reasons, we agree with Appellant that an ordinarily skilled artisan would understand the metes and bounds of claim 1. Accordingly, we do not sustain the indefiniteness rejection of claim 1. We also do not sustain the indefiniteness rejection of independent claims 13 and 21, which recite commensurate limitations. We also do not sustain the indefiniteness rejection of claims 2, 4‒12, 14, 16‒20, 22, and 24‒28, which depend from claims 1, 13, and 21. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4‒14, 16‒22, 24‒ 28 101 Eligibility 1, 2, 4‒ 14, 16‒ 22, 24‒ 28 1, 2, 4‒14, 16‒22, 24‒ 28 112(b) Indefiniteness 1, 2, 4‒ 14, 16‒ 22, 24‒28 Overall Outcome 1, 2, 4‒ 14, 16‒ 22, 24‒ 28 CONCLUSION Because we have sustained at least one ground of rejection with respect to each claim on appeal, we affirm the decision of the Examiner rejecting claims 1, 2, 4‒14, 16‒22, and 24‒28. See 37 C.F.R. § 41.50(a)(1). Appeal 2019-006766 Application 15/011,480 18 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)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation