VMware, Inc.

Patent Trials and Appeals Board

Apr 8, 2021

2019006766 (P.T.A.B. Apr. 8, 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.
15/011,480 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.
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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
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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.
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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
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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.
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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.
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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
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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.,
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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).
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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
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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
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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)).
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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
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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
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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
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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
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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