Ex Parte Jain

Patent Trial and Appeal Board

Oct 10, 2018

14502857 (P.T.A.B. Oct. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/502,857 09/30/2014
47973 7590 10/12/2018
WORKMAN NYDEGGER/MICROSOFT
60 EAST SOUTH TEMPLE
SUITE 1000
SALT LAKE CITY, UT 84111
FIRST NAMED INVENTOR
Navendu Jain
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
13768.3261 3155
EXAMINER
KHAN, HASSAN ABDUR-RAHMAN
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
10/12/2018 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):
Docketing@wnlaw.com
usdocket@microsoft.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NA VENDU JAIN 1
Appeal2018-002104
Application 14/502,857
Technology Center 2400
Before ROBERT E. NAPPI, ST. JOHN COURTENAY III, and
SCOTT E. BAIN, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the rejection
of claims 1 through 20.
We REVERSE.
INVENTION
Appellant's invention relates to a technique for enabling network
governance of a datacenter which hosts a plurality of virtual machines. See
Abstract and paragraphs 1-5 of Appellant's Specification.
1 According to Appellant, the real party in interest is Microsoft Technology
Licensing, LLC. App. Br. 3.
Appeal2018-002104
Application 14/502,857
Claim 1 is illustrative of the invention and reproduced below:
1. A method, comprising:
receiving a bandwidth requirement specification for a
tenant, the tenant having one or more resource bundles; and
for an individual resource bundle of the one or
more resource bundles:
implementing an inbound queue associated with
the resource bundle, wherein a rate at which data is
received through the inbound queue is determined
according to the bandwidth requirement specification, the
inbound queue being utilized to receive data; and
implementing an outbound queue associated with
the resource bundle, wherein a rate at which data is sent
through the outbound queue is determined according to
the bandwidth requirement specification, the outbound
queue being utilized to send data.
App. Br. 21 (Claims Appendix).
REJECTIONS AT ISSUE
The Examiner has rejected claims 1, 2, 7, and 11 through 15 under
35 U.S.C. § I03(a) as unpatentable over Arroyo et al. (US 2013/0198740
Al, pub. Aug. 1, 2013) (hereinafter "Arroyo") and Bloom et al. (US
2015/0058474 Al, pub. Feb. 26, 2015) (hereinafter "Bloom"). Final Act. 3-
8.2
2 Throughout this opinion we refer to the Appeal Brief, filed July 5, 2017
(hereinafter "App. Br."), Reply Brief, filed December 19, 2017 (hereinafter
"Reply Br."), the Final Office Action, mailed December 1, 2016 (hereinafter
"Final Act."), and the Examiner's Answer, mailed on October 19, 2017
(hereinafter "Answer").
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Appeal2018-002104
Application 14/502,857
The Examiner has rejected claims 3 through 6 and 16 through 20
under 35 U.S.C. § I03(a) as unpatentable over Arroyo, Bloom, and Zhang
(US 2014/0258535 Al, pub. Sept. 11, 2014). Final Act. 8-16.
The Examiner has rejected claims 8 through 10 under 35 U.S.C.
§ I03(a) as unpatentable over Arroyo, Bloom, and Zuo et al. (US
2013/0298123 Al, pub. Nov. 7, 2013) (hereinafter "Zuo"). Final Act. 16-
18.
ANALYSIS
We have reviewed the Examiner's rejections in light of Appellant's
contentions that the Examiner has erred. Further, we have reviewed the
Examiner's response to Appellant's arguments. We agree with Appellant's
contention that the Examiner erred in rejecting independent claims 1, 11, and
16 under 35 U.S.C. § 103.
Rejection of independent claims 1 and 11 and dependent claims 2, 7,
and 12 through 15.
Appellant argues the Examiner erred in finding the combination of
Arroyo and Bloom teaches an inbound queue and outbound queue associated
with the resource bundle. App. Br. 12-15. Appellant argues the Examiner
has "merely concluded that 'the input/output to and from a virtual machine
require queues as an inherent feature."' App. Br. 14. Appellant argues that
a queue is a particular type of data structure and that there are other data
structures which may be used. Reply Br. 7. Further, Appellant asserts that
Bloom's teaching that enforcing performance metric may drop traffic further
demonstrates that a data structure to store incoming data ( a queue) is not
necessary. Reply Br. 7-8.
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Appeal2018-002104
Application 14/502,857
The Examiner, in response to Appellant's arguments, cites to Bloom
as showing queues are necessary for the input output functions of a
computing system to operate. Answer 3--4 ( citing Figs. lB-C, 6, and
paras. 12 through 19, 40, 44). Further, the Examiner finds "it is not possible
to implement the input and output data operations [in Bloom's system]
without providing the channels or queues for the data bits or data streams to
flow in the inbound or outbound directions." Answer 5.
We are persuaded of error by Appellant's arguments. Each of
independent claims 1 and 11 recites an inbound queue and an outbound
queue. While the use of the data structure of a queue is known ( as discussed
infra), the Examiner has not identified sufficient evidence to demonstrate
that the combination of Arroyo and Bloom necessarily requires the use of an
inbound and outbound queue as claimed. While Bloom teaches incoming
and outgoing data in a computer system, Bloom doesn't discuss use of
queues and the Examiner has not pointed to any evidence supporting his
finding that Bloom "must" have queues. Accordingly, because the Examiner
has not cited sufficient evidence supporting the rejection of independent
claims 1 and 11, we do not sustain the Examiner's rejection of claims 1, 2, 7,
and 11 through 15 under 35 U.S.C. § 103(a) as unpatentable over Arroyo
and Bloom.
Rejection of independent claim 16, and dependent claims 3 through 6
and 17 through 20
With respect to claim 16, Appellant's arguments are similar to those
discussed above with respect to claim 1 and additionally assert that Zhang
does not discuss the queues. App. Br. 16-17.
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Appeal2018-002104
Application 14/502,857
The Examiner's response to the rejection of claims is similar to those
discussed above. Answer 9-11.
Independent claim 16 similarly recites an inbound queue and
outbound queue. As discussed above, the Examiner has not provided
sufficient evidence to demonstrate that the combination of Arroyo and
Bloom necessarily requires the use of a several queues as claimed. Further,
the Examiner has not found that Zhang teaches use of several queues as
claimed. Accordingly, we do not sustain the Examiner's rejection of claims
3 through 6 and 16 through 20 under 35 U.S.C. § 103(a) as unpatentable
over Arroyo, Bloom, and Zhang.
Rejection of dependent claims 8 through 10
Appellant argues that rejection dependent claims 8 through 10 under
35 U.S.C. § 103(a) based upon Arroyo, Bloom, and Zuo is in error for the
same reasons as claim 1 from which they depend and that Zuo does not
remedy the deficiencies of the rejection of claim 1.
The Examiner has not shown that the additional teachings of Zuo
make up for the deficiencies in the rejection of independent claims 1, 11, and
16. We note that Zuo does teach the use of queues (see, e.g., para. 20,
discussing using queues when throttling data flow). However, the Examiner
has not made findings as to how these queues when combined with the
teachings of Arroyo and Bloom render the independent claims obvious. As
such, we do not have before us the issue of whether Zuo' s teaching of using
queues to throttle in combination with Arroyo and Bloom ( which discusses
throttling, see, e.g., paras. 67 and 68) is obvious. Accordingly, we do not
sustain the Examiner's rejections of claims 8 through 10.
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Appeal2018-002104
Application 14/502,857
DECISION
We reverse the Examiner's rejections of claims 1 through 20 under
35 U.S.C. § 103.
REVERSED
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