VMware, Inc.

Patent Trials and Appeals BoardDec 30, 2021

2021000097 (P.T.A.B. Dec. 30, 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. 14/135,565 12/19/2013 Atanas D. Atanasov B564 1061 136237 7590 12/30/2021 Barta, Jones & Foley, P.C. (Patent Group - VMware) 3308 Preston Road #350-161 Plano, TX 75093 EXAMINER BUKHARI, SIBTE H ART UNIT PAPER NUMBER 2449 NOTIFICATION DATE DELIVERY MODE 12/30/2021 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): docket@bjfip.com ipadmin@vmware.com uspto@dockettrak.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte ATANAS D. ATANASOV ________________ Appeal 2021-000097 Application 14/135,565 Technology Center 2400 ________________ Before JAMES R. HUGHES, JASON J. CHUNG, and JAMES W. DEJMEK, Administrative Patent Judges. CHUNG, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals the Final Rejection of claims 1–4, 6, 8–14, 16, 18, 19, and 21.2, 3 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 (2019). According to Appellant, VMware, Inc. is the real party in interest. Appeal Br. 1. 2 Claim 20 is cancelled. Appeal Br. 5 (Claims Appendix). 3 Claims 5, 7, 15, and 17 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Final Act. 8 Appeal 2021-000097 Application 14/135,565 2 INVENTION The invention relates to proxies on host devices to capture broadcast DHCP traffic in a network. Abstract. Claim 1 is illustrative of the invention and is reproduced below: 1. A method for providing an Internet Protocol (IP) address to a virtual machine (VM) without sending a request for an IP address assignment to a dynamic host configuration protocol (DHCP) server, the method comprising: during initiation of a particular VM on a host device, assigning the IP address to the particular VM and storing the assigned IP address in a data store; redirecting, to a proxy module residing on the host device, a DHCP discover message from the particular VM, without broadcasting the DHCP discover message to any server outside the host device, the proxy module sending a message to an agent; based on the sent message, the proxy module receiving the assigned IP address stored in the data store, from the agent; and supplying the assigned IP address stored in the data store to the particular VM without relying on any server outside the host device to provide the assigned IP address. Appeal Br. 1 (Claims Appendix) (emphases added). REJECTIONS The Examiner rejects claims 1–4, 9, 11–14, 19, and 21 under 35 U.S.C. § 103 as being unpatentable over the combination of Nataraja (US 2014/0064104 A1; filed Aug. 30, 2012) and Devireddy (US 2015/0043581 A1; filed Aug. 6, 2013). Final Act. 3–6. The Examiner rejects claim 10 under 35 U.S.C. § 103 as being unpatentable over the combination of Nataraja, Devireddy, and Alladi (US 2012/0084381 A1; Apr. 5, 2012). Final Act. 7. Appeal 2021-000097 Application 14/135,565 3 The Examiner rejects claims 6, 8, 16, and 18 under 35 U.S.C. § 103 as being unpatentable over the combination of Nataraja, Devireddy, and Khosravi (US 2011/0246633 A1; Oct. 6, 2011). Final Act. 7–8. ANALYSIS The Examiner finds Nataraja teaches assigning context identifiers to virtual machines that include, inter alia, an IP address. Final Act. 4 (citing Nataraja ¶¶ 15–16); see also Ans. 4–5 (citing Nataraja ¶¶ 15–16, 22). The Examiner also finds Nataraja teaches a routing table database that stores context identifier information for virtual machines hosted by servers, which are managed by a switch device. Ans. 4–5 (citing Nataraja ¶¶ 15–16, 22). The Examiner maps these findings to the limitation “during initiation of a particular VM on a host device, assigning the IP address to the particular VM and storing the assigned IP address in a data store” (hereinafter “first limitation”) recited in claim 1. See Final Act. 4; Ans. 4–5. Appellant argues that Nataraja fails to teach the first limitation because Nataraja merely teaches switch device A stores a MAC address and a port, but fails to teach storing an IP address assigned to a virtual machine. Appeal Br. 9–10 (citing Nataraja ¶¶ 15–16); Reply Br. 5–6 (citing Nataraja ¶¶ 15–16). We disagree with Appellant because Nataraja expressly states a memory stores the routing table database “that . . . stores context identifier information for virtual machines.” See Nataraja ¶ 22. As discussed above, Nataraja teaches the context information includes the IP address assigned to the virtual machine. See Nataraja ¶¶ 15–16. Thus, we agree with the Examiner that Nataraja teaches storing in the routing table database the IP address assigned to a virtual machine. Appeal 2021-000097 Application 14/135,565 4 The Examiner finds Devireddy teaches the limitation redirecting, to a proxy module residing on the host device, a DHCP discover message from the particular VM, without broadcasting the DHCP discover message to any server outside the host device, the proxy module sending a message to an agent (hereinafter “second limitation”). Ans. 5; Final Act. 4–5 (citing Devireddy ¶¶ 23–24). Appellant argues Devireddy merely teaches ARP requests rather than the second limitation. Reply Br. 2–5 (citing Devireddy ¶¶ 23–24). Appellant’s argument is untimely and waived because the Examiner did not change the theory of unpatentability in the Answer (compare Ans. 5, with Final Act. 4–54 (citing Nataraja ¶¶ 23–24)), while Appellant proffered new arguments in the Reply Brief (compare Appeal Br. 10–12 (arguing that Nataraja fails to teach the second limitation) with Reply Br. 2–5 (arguing that Devireddy fails to teach the second limitation)) without showing good cause. See 37 C.F.R. § 41.41(b)(2). That is, it was not confusing in the Final Office Action or the Non-Final Office Action mailed on March 22, 2019 that the Examiner was relying on Devireddy to teach the second limitation. The Examiner finds Nataraja teaches IP addresses are assigned to virtual machines and rack 102 includes switch device A 106(a) and server A 104(a), which the Examiner maps to the limitation “supplying the assigned IP address stored in the data store to the particular VM without relying on any server outside the host device to provide the assigned IP address” 4 We also note that the Examiner presented this same theory of unpatentability on pages 3–4 of the Non-Final Office Action mailed on March 22, 2019. Appeal 2021-000097 Application 14/135,565 5 (hereinafter “third limitation”) recited in claim 1. Ans. 5–7 (citing Nataraja ¶¶ 15–29, Fig. 1); Final Act. 4 (citing Nataraja ¶¶ 15, 29). Appellant argues Nataraja fails to teach the third limitation because Nataraja merely teaches two ways of obtaining an IP address for a virtual machine: (1) obtaining the IP address from switch device A, but switch device A is outside of server A; and (2) while the context identifiers may be assigned to a VM using DHCP, this is merely a process of an initial assignment of an IP address for the VM, not supplying the assigned IP address to the VM upon a subsequent request for the assigned IP address. Appeal Br. 13–14; Reply Br. 7. Appellant argues Nataraja and Devireddy are in different fields of endeavor, which Appellant asserts means that they cannot be combined properly. Appeal Br. 13–14. We agree with the Examiner’s two findings, which Appellant does not rebut directly. Compare Reply Br. (lacking a direct argument pertaining to the Examiner’s two theories of unpatentability); Appeal Br. (lacking a direct argument pertaining to the Examiner’s two theories of unpatentability), with Ans. 6–7. In particular, we agree that, within Nataraja’s rack 102(1), Nataraja teaches routing table database 212 stores IP addresses that are assigned to virtual machines 110 and rack 102 (i.e., host device) includes switch device A 106(a) and server A 104(a), which teaches the limitation “supplying the assigned IP address stored in the data store to the particular VM without relying on any server outside the host device to provide the assigned IP address” recited in claim 1. Ans. 5–7 (citing Nataraja ¶¶ 15–29, Fig. 1); Final Act. 4 (citing Nataraja ¶¶ 15, 29). We also agree that even if a skilled artisan were to interpret Nataraja’s switch device A 106(a) as being outside of server, Nataraja’s switch device A 106(a) is not itself a server and, Appeal 2021-000097 Application 14/135,565 6 therefore, the third limitation is met. Ans. 7. In addition, we disagree with Appellant’s argument that Nataraja and Devireddy are in different fields of endeavor, which Appellant asserts means that they cannot be combined properly. Appeal Br. 13–14. We note that Appellant’s argument uses the incorrect test when analyzing field of endeavor/analogous art. The correct standard is that a reference “qualifies as prior art for an obviousness determination under § 103 only when it is analogous to the claimed invention.” In re Klein, 647 F.3d 1343, 1348 (Fed. Cir. 2011) (emphasis added). That is, we do not compare Nataraja with Devireddy. Rather, we compare the present case’s claims with Nataraja and Devireddy. Moreover, we find the Examiner has set forth sufficient “articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). In particular, we agree with the Examiner that a person having ordinary skill in the art would have combined Nataraja and Devireddy to support a highly scalable elastic model to ensure that resources are utilized efficiently such that they can be provisioned on-demand. Final Act. 5 (citing Devireddy ¶ 2). Appellant does not argue claims 2–4, 6, 8–14, 16, 18, 19, and 21 separately with particularity. Appeal Br. 9–16. Accordingly, we sustain the Examiner’s rejection of: (1) independent claims 1, 11, and 21; and (2) dependent claims 2–4, 6, 8–10, 12–14, 16, 18, and 19 under 35 U.S.C. § 103. We have only considered those arguments that Appellant actually raised in the Briefs. Arguments Appellant could have made, but chose not to Appeal 2021-000097 Application 14/135,565 7 make, in the Briefs have not been considered and are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION 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. § 1.136(a)(1)(iv). AFFIRMED Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 9, 11– 14, 19, 21 103 Nataraja, Devireddy 1–4, 9, 11– 14, 19, 21 10 103 Nataraja, Devireddy, Alladi 10 6, 8, 16, 18 103 Nataraja, Devireddy, Khosravi 6, 8, 16, 18 Overall Outcome 1–4, 6, 8– 14, 16, 18, 19, 21