Nicira, Inc.

Patent Trials and Appeals Board

Feb 26, 2021

2019006147 (P.T.A.B. Feb. 26, 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.
15/374,344 12/09/2016 Harold Vinson C. Lim N429 4798
152691 7590 02/26/2021
Setter Roche LLP
1860 Blake Street
Suite 100
Denver, CO 80202
EXAMINER
KAO, JUTAI
ART UNIT PAPER NUMBER
2473
NOTIFICATION DATE DELIVERY MODE
02/26/2021 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 HAROLD VINSON C. LIM
________________

Appeal 2019-006147
Application 15/374,344
Technology Center 2400
____________

Before JAMES R. HUGHES, 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 1–5, 7–13, and 15–20.2 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 VMware, Inc., and Nicira, Inc., as the
real parties in interest. Appeal Br. 2.
2 The Examiner has withdrawn the rejection of claims 6 and 14 under 35
U.S.C. § 103. Ans. 3. Therefore, claims 6 and 14 are not before us on appeal.
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STATEMENT OF THE CASE
Introduction
Appellant’s application relates to “enhanc[ing] packet capture in a
virtual switch.” Spec. ¶ 3. Claim 1 is illustrative of the appealed subject
matter and reads as follows:
1. A method of capturing packets of interest in a virtual
switch, the method comprising:
identifying a request to capture packets associated with
first packet attributes;
assigning one or more virtual ports to capture the packets
associated with the first packet attributes, wherein at least one
of the one or more virtual ports is coupled to a log file;
in response to the request to capture packets associated
with the first packet attributes, implementing a forwarding rule
in the virtual switch to forward the packets associated with the
first packet attributes to at least the one or more virtual ports,
wherein the forwarding rule is allocated a higher priority value
than one or more other forwarding rules associated with the
first packet attributes;
receiving a packet at the virtual switch;
determining whether the packet qualifies to be forwarded
to the one or more virtual ports based on the forwarding rule;
and
if the packet qualifies to be forwarded to the one or more
virtual ports, forwarding the packet to at least the one or more
virtual ports.
The Examiner’s Rejections
Claims 1‒5, 7, 9–13, 15, and 17–19 are rejected under 35 U.S.C.
§ 103 as unpatentable over Maier (US 2016/0021032 A1; Jan. 21, 2016),
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McFadden (US 8,336,029 B1; Dec. 18, 2012)), and Liao (US 2015/0172222
A1; Jun. 18, 2015).3 Final Act. 3‒10.
Claims 8, 16, and 20 are rejected under 35 U.S.C. § 103 as
unpatentable over Maier, McFadden, Liao, and Agarwal (US 2018/0152519
A1; May 31, 2018). Final Act. 12.

ANALYSIS
Appellant argues the Examiner errs in rejecting claim 1 for several
reasons. First, Appellant argues “the Examiner fails to identify any
suggestion in Maier of a particular type of request that can be construed as a
‘request to capture packets’ as set forth in claim 1.” Appeal Br. 7. Second,
Appellant argues McFadden’s “[d]etermining a port associated with a virtual
machine using log files is neither equivalent nor suggestive to coupling
virtual ports to a log file.” Id. at 8. Finally, Appellant argues Liao fails to
teach “implementation of a new forwarding rule with a higher priority value
than one or more other forwarding rules associated with the first packet
attributes.” Id.
Appellant has not persuaded us of Examiner error. First, the Examiner
finds, and we agree, that Maier teaches “identifying a request to capture
packets associated with first packet attributes,” as recited in claim 1. See
Final Action 3, Ans. 4–5. Specifically, Maier describes switch 130 in which
“[a] network packet received at one of the switch ports may be processed by
one or more of the modules in determining how to forward the network

3 Although the Examiner omits claim 17 from the statement of the rejection
based on Maier, McFadden, and Liao (see Final Action 3), the Examiner
analyzes claim 17 in the body of the rejection (see id. at 6–8, 10).
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packet.” Maier ¶ 86; Fig. 9. “[C]ontroller 18 may receive combined access
control list and network routing rules from a user as the network policy
rules” and “[c]ontroller 18 may provide forwarding rules implementing the
access control list policy rules and network routing rules (e.g., as flow table
entries) for implementation on module 140 of switches 130).” Id. ¶ 94. An
exemplary flow table 28 is shown in Maier’s Figure 4. A switch that uses
flow table 28 “compares the fields of the received packet to the fields of the
flow table entries in the flow table 28” (id. ¶ 55), and, if “there is a match
between the packet and a flow table entry, [the switch] may perform the
action that is associated with that flow table entry” (id. ¶ 57).
We agree with the Examiner that in Maier a “packet must first be
intercepted and examined, or in another word, captured, by the network
device in order to be analyzed against the forwarding rules to determine
actions to be taken on the received packet.” Ans. 5. Appellant has not shown
the term “capture” as recited in claim 1 requires any more than this. We have
not found an explicit definition of “capture” in the Specification, and
Appellant’s proffered definition—“intercepting a data packet that is crossing
or moving over a specific computer network” such that “it is stored
temporarily so that it can be analyzed” (Appeal Br. 7)—is exactly what
Maier’s switch does. Appellant has not specifically explained how Maier
could determine “that there is a match between the packet and a flow table
entry” (Maier ¶ 57) if the switch does not at least temporarily store the
packet to analyze it.
In the Reply Brief, Appellant argues that “[c]apturing all packets for
inspection as asserted by the Examiner and provided for in Maier is neither
equivalent nor suggestive to capturing packets associated with specific
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attributes.” Reply Br. 2. Appellant’s argument is not persuasive of Examiner
error. Claim 1 recites “identifying a request to capture packets associated
with first packet attributes.” But nothing in claim 1 precludes also capturing
packets with attributes other than “first packet attributes.” In any case, Maier
at least suggests that there are packets with attributes for which there is no
specific capture request, by providing that if “there is no match between the
fields of the packet and the corresponding fields of the flow table entries,
switch 14 may send the packet to controller server 18.” Maier, ¶ 56.
Second, the Examiner finds, and we agree, that McFadden teaches
“wherein at least one of the one or more virtual ports is coupled to a log
file.” See Final Act. 10, Ans. 5–6. McFadden describes “a method that
includes establishing a connection with one or more virtual machines using a
debugger protocol configured to communicate debug commands to
applications executed by the one or more virtual machines.” McFadden,
Code (57). In particular, McFadden describes a debug monitor that “can
negotiate connections between multiple debuggers and virtual machines” by
“automatically detect[ing] the ports that virtual machines are using and
connect a corresponding debugger to the appropriate port.” Id. at 3:33–39.
“These ports can be determined via a query of logs output by the virtual
machines using a log query process . . . .” Id. at 10:20–22. The broadest
reasonable interpretation of “coupled to a log file” encompasses an
association between a port and a log file such as that described in
McFadden, namely, where a virtual machine’s use of a port is recorded in a
log file.
In the Reply Brief, Appellant asserts “the Specification indicates, and
one of ordinary skill in the art would understand, that ‘coupling’ the virtual
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port to the log file is used to ensure that packets sent to the virtual port are
forwarded to the log file in a particular file path.” Reply Br. 3. The language
of claim 1, however, merely recites “wherein at least one of the one or more
virtual ports is coupled to a log file.” There is no further recitation limiting
the structure or function of the “log file.” Claim 1 does not recite that the
virtual port is coupled to the log file via a file path, or that packets sent to the
virtual port are forwarded to the log file. Accordingly, Appellant’s argument
is not commensurate with the scope of claim 1. Even if claim 1 were so
limited, McFadden teaches saving log information related to a particular
virtual machine in a log file. See, e.g., McFadden, 14:10‒60. Although
McFadden may not explicitly teach that the log file is associated with a
particular file path, an ordinarily skilled artisan would understand this
teaching to at least suggest that the file is stored at a particular location in the
file system represented by a file path.
Finally, the Examiner finds, and we agree, that Liao teaches “wherein
the forwarding rule is allocated a higher priority value than one or more
other forwarding rules associated with the first packet attributes.” See Final
Act. 10; Ans. 6–8. Liao describes a system comprising “a number of
interconnected Ethernet switches, a number of virtual switches running on
host machines, and a controller.” Liao ¶ 17. The controller “programs the
Ethernet switches and the virtual switches to forward traffic by the location-
based MAC addresses” of virtual machines. Id. Liao further describes that
“[t]he forwarding rules are ordered by their priorities.” ¶ 26.
Appellant argues that “Liao teaches the use of prioritized forwarding
rules in general,” and that “the prior art cited by the Examiner fails to
indicate that multiple forwarding rules may be associated with the same
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attributes at all, let alone prioritizing a new forwarding rule to capture
packets over other forwarding rules with the same attributes.” Appeal Br. 8.
Appellant’s argument is not persuasive of Examiner error. The Examiner
responds to Appellant’s argument by pointing to Liao’s Figure 3a (Ans. 6–
8), which shows, for instance, that rules 11 and 12 both apply to packets
where “VNI=3,” i.e., packets matching the particular ingress virtual network
interface 3 of virtual switch 106 of host machine 104. See id. ¶¶ 21, 25–27,
Fig. 3a. This disclosure meets the claim 1 limitation of a forwarding rule
with a higher priority value than at least one other forwarding rule associated
with a packet attribute because Liao’s rules 11 and 12 are ordered by priority
(see id. ¶ 26) and both rules relate to the same packet attribute “VNI=3” (see
id. Fig. 3a). Appellant does not specifically address Liao’s Figure 3a in the
Reply Brief. See generally Reply Br.
For these reasons, we sustain the obviousness rejection of claim 1. We
also sustain the obviousness rejection of independent claims 9 and 17, and
dependent claims 2–5, 7, 8, 10–13, 15, 16, and 18–20, for which Appellant
provides no separate arguments. See Appeal Br. 9‒10.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1‒5, 7, 9–
13, 15, 17–
19
103 Maier, McFadden,
Liao
1‒5, 7, 9–
13, 15, 17–
19

8, 16, 20 103 Maier, McFadden,
Liao, Agarwal
8, 16, 20
Overall
Outcome:
1–5, 7–13,
15–20

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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).

AFFIRMED