ARISTA NETWORKS, INC.

Patent Trials and Appeals Board

Apr 30, 2020

14592931 - (D) (P.T.A.B. Apr. 30, 2020)

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.
14/592,931 01/09/2015 Douglas Alan Gourlay 170383-003300US 6911
148194 7590 04/30/2020
Arista/CHWWA
1200 Smith St., 14th Floor
Houston, TX 77002
EXAMINER
KHAN, HASSAN ABDUR-RAHMAN
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
04/30/2020 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):
Dossa.IP@chamberlainlaw.com
Jeff.Guinn@chamberlainlaw.com
Patents@chamberlainlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte DOUGLAS ALAN GOURLAY and
KENNETH JAMES DUDA
____________________

Appeal 2018-006275
Application 14/592,931
Technology Center 2400
____________________

Before JOHN P. PINKERTON, NABEEL U. KHAN, and
JOYCE CRAIG, Administrative Patent Judges.

PINKERTON, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1, 3–9, 11–16, and 18–20, which are all of the
claims pending in the application. Claims 2, 10, and 17 are canceled. An
oral hearing was held in this case on April 14, 2020. 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 Arista
Networks, Inc. Appeal Br. 4.
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STATEMENT OF THE CASE
Introduction
Appellant generally describes the disclosed and claimed invention as
relating to the use of a universally unique identifier (UUID) of a virtual
machine (VM) for applying, by a network device, one or more network
policies (e.g., network access policies, access control lists, etc.) to packets
destined for or originating from a VM. Spec. ¶ 13.2
Independent claim 1, which is reproduced below, is illustrative of the
subject matter on appeal:
1. A method for maintaining persistent network policies for
a virtual machine (VM), the method comprising:
determining a name of the VM, wherein the VM is
executing on a first host connected to a first network device;
binding the name of the VM to a network policy for the
VM on the first network device;
acquiring from VM management software, using the name
of the VM, a universally unique identifier (UUID) of the VM;
associating the UUID to the network policy on the first
network device;
applying the network policy for the VM on the first
network device;
subscribing to receive notifications from the VM
management software of changes to the configuration of the VM
corresponding to the UUID;

2 Our Decision refers to the Final Office Action mailed June 29, 2017
(“Final Act.”), Appellant’s Appeal Brief filed Dec. 27, 2017 (“Appeal Br.”),
the Examiner’s Answer mailed Mar. 30, 2018 (“Ans.”), and the
Specification filed Jan. 9, 2015 (“Spec.”).
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receiving notification from the VM management software
of a configuration change made to the VM corresponding to the
UUID;
updating the network policy of the VM to reflect the
configuration change of the VM;
determining whether there is a second network device that
requires the network policy for the VM; and
distributing, by the first network device, the network
policy to the second network device.
Appeal Br. 15 (Claims App.).
Rejections on Appeal
Claims 8, 9, and 11–15 stand rejected under 35 U.S.C. § 101 because
the invention is directed to non-statutory subject matter of software per se.
Final Act. 2.
Claims 1, 3–9, 11–16, and 18–20 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Matsuoka et al. (US 2011/0238820 A1;
published Aug. 20, 2009) (“Matsuoka”) and Chen et al. (US 2014/0122672
A1; published Sept. 28, 2006) (“Chen”). Id. at 2–9.
ANALYSIS
Non-statutory Subject Matter Rejection
The Examiner finds that independent claim 8, and its dependent
claims 9 and 11–15, do not fall within one of the four categories of patent
eligible subject matter of 35 U.S.C. § 101 because they claim a system
“without reciting any non-transitory or hardware element in the body of the
claims.” Final Act. 2. Appellant contends that the Examiner erred because
claim 8 “explicitly recites multiple hardware elements of the claimed
system.” Appeal Br. 8–9.
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We agree with Appellant. Claim 8 is a system claim that recites, as
Appellant argues, “the VM is executing on a first host” and “VM
management software executing on a computing device.” Id. (emphasis
added). Citing paragraph 20 of the Specification, Appellant also argues that
the “first host” and “computing device” of claim 8 are physical, hardware
elements. Id. Paragraph 20 states:
the VM host (104) is a computing device configured to provide
computing resources for use by one or more VMs (e.g., VM
(106)). As used in this document, the term “computing device”
refers to a physical system capable of electronically processing
instructions.
Because the Specification describes the “VM host” as a “computing
device” and defines “computing device” as a “physical system,” we find that
claim 8 recites at least two physical, hardware elements—“first host” and
“computing device.” Thus, we agree with Appellant’s argument that claim 8
is directed to statutory subject matter, and “is not directed to ‘software, per
se.’” Accordingly, we do not sustain the Examiner’s rejection of claim 8,
and dependent claims 9 and 11–15, as being directed to non-statutory subject
matter under 35 U.S.C. § 101.
Section 103(a) Rejection
We have reviewed the Examiner’s rejection of claims 1, 3–9, 11–16,
and 18–20 in light of Appellant’s arguments in the Appeal Brief (see Appeal
Br. 11–14).3 Any other arguments Appellant could have made, but chose
not to make, are waived. See 37 C.F.R. § 41.37(c)(1)(iv). For the reasons
discussed below, Appellant’s arguments are not persuasive of error by the
Examiner. Unless otherwise indicated, we agree with, and adopt as our own,

3 Appellant did not file a reply brief.
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the Examiner’s findings of fact and conclusions as set forth in the Office
Action from which this appeal is taken (Final Act. 3–10) and in the Answer
(Ans. 4–7). We provide the following explanation for emphasis.
Appellant argues claims 1, 3–9, 11–16, and 18–20 as a group focusing
on independent claim 1. See Appeal Br. 11–14. We select claim 1 as
representative of the group of claims pursuant to our authority under
37 C.F.R. § 41.37(c)(1)(iv).
The Examiner rejects claim 1 under 35 U.S.C. § 103(a) for
obviousness over the combination of Matsuoka and Chen. Final Act. 3–5;
see also Ans. 4–7. Appellant argues that the Examiner erred because the
Examiner admits that Matsuoka fails to disclose the “determining,”
“distributing,” “binding,” and “acquiring” limitations of claim 1, and Chen
fails to disclose or render obvious these limitations.4 Appeal Br. 11–12.
1. “determining” and “distributing” Limitations
In particular, Appellant first argues that Chen fails to disclose or
render obvious the limitations of “determining whether there is a second
network device that requires the network policy for the VM” and
“distributing, by the first network device, the network policy to the second
network device.” Id. at 12. Appellant asserts that Chen is completely silent
with respect to these limitations and instead “Chen merely describes an
indirect method of network policy exchange.” Id. (citing Chen ¶¶ 112–143).
Appellant also asserts that the “indirect method of configuring a network
policy for a VM does not disclose sending a network policy associated with
a VM directly from a first network device to a second network device.” Id.

4 As discussed supra, Appellant also argues that Chen does not teach or
render obvious the “associating” limitation of claim 1.
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The Examiner cites two portions of Chen as teaching or suggesting
the “determining” and “distributing” limitations of claim 1. The Examiner
finds that paragraphs 4 and 5 of Chen teach that a user may create multiple
VMs on a server, and that the server (i.e., first network device) sends
network policy configuration information related to a newly created VM to a
network device (i.e., second network device), which then communicates it
with the newly created VM. Ans. 4; Final Act. 4–5. The Examiner also
finds that Chen teaches the migration of a VM and the synchronization of
the network policies between the first and the second devices. Id. (citing
Chen Figure 7; ¶¶ 112–143). The Examiner further finds that the limitation
of “distributing, by the first network device, the network policy to the
second network device” does not restrict the transfer of network policy
between only “two directly connected devices without any intermediary
network device,” and it would have been obvious to one of ordinary skill in
the art “to increase or decrease the number of intermediary network nodes in
the path between the two network connected devices.” Ans. 4–5.
We are not persuaded by Appellant’s arguments that the Examiner
erred. Both portions of Chen cited by the Examiner teach what Appellant
refers to as the “indirect method,” in which the first network device
distributes the network policy for the VM to an intermediary device that
distributes it to the second network device. However, Appellant’s argument
that Chen does not disclose sending a network policy associated with a VM
“directly” from a first network device to a second network device is not
persuasive because it is not commensurate with the scope of the claim. As
the Examiner finds, the “distributing” limitation does not recite sending a
network policy “directly” from a first network device to a second network
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device. Ans. 4–5. Thus, Appellant’s argument fails because it is not
commensurate with the scope of claim 1. See In re Self, 671 F.2d 1344,
1348 (CCPA 1982) (“[A]ppellant’s arguments fail from the outset because
. . . they are not based on limitations appearing in the claims.”). In addition,
as noted supra, Appellant has not persuasively rebutted the Examiner’s
finding that it would have been obvious to one of ordinary skill in the art “to
increase or decrease the number of intermediary network nodes in the path
between the two network connected devices.” Ans. 5.
2. “binding,” “acquiring,” and “associating” Limitations
Appellant also argues that Chen fails to disclose or render obvious the
limitations of “binding the name of the VM to a network policy for the VM
on the first network device” and after acquiring, using the name of the VM,
a universally unique identifier (UUID) of the VM, “associating the UUID to
the network policy on the first network device.” Appeal Br. 12–13.
Appellant asserts Chen merely describes that “a network policy may be
associated with a VNID (i.e., an identifier of a virtual network . . . not an
identifier of a specific VM),” and that based on the VM’s association with
the VNID, “an identifier of a VM may be added to a network policy of the
VNID.” Id. (citing Chen ¶ 49). Thus, according to Appellant, Chen only
teaches “creating an association between one type of identifier of a specific
VM with a network policy on a network device,” whereas claim 1 explicitly
recites that at least two identifiers of a specific virtual machine, the VM
name, and the VM’s UUID, are associated with the network policy on the
network device. Id. at 13.
We are not persuaded by Appellant’s argument because the Examiner
relies on the combination of Matsuoka and Chen as teaching or suggesting
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the “binding,” “acquiring,” and “associating” limitations of claim 1, and
Appellant’s arguments are directed only to Chen. See Final Act. 3; Ans. 6.
Non-obviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
The relevant inquiry is whether the claimed subject matter would have been
obvious to those of ordinary skill in the art in light of the combined
teachings of the references. See In re Keller, 642 F.2d 413, 425 (CCPA
1981).
Here, Appellant argues that Chen teaches associating only one type of
identifier of a specific VM with a network policy on a network device.
However, the Examiner relies on Matsuoka as teaching multiple identifiers
for a specific virtual machine, including the name of the VM and its
universally unique identifier (UUID). Ans. 6 (citing Matsuoka Fig. 3;
¶¶ 61–63). The Examiner relies on Chen as teaching “a mapping
relationship between a virtual machine (which is uniquely identified by an
identifier, e.g., VNID) and the network policy.” Id. (citing Chen Fig. 3;
¶¶ 49, 66–68). The Examiner also finds that it would have been obvious to a
person of ordinary skill, in view of Matsuoka and Chen, to use one or more
identifiers for a virtual machine, such as the name of the VM and the UUID
of the VM (as taught by Matsuoka), in association with the network policy
of the virtual machine (as taught by Chen). Id. Once again, Appellant did
not file a reply brief and has not rebutted the Examiner’s findings.
Accordingly, we are not persuaded the Examiner erred in (1) finding
that the cited references teach or suggest the disputed limitations of claim 1
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and (2) concluding that the combination of the teachings of Matsuoka and
Chen renders the subject matter of claim 1 obvious under 35 U.S.C.
§ 103(a). Thus, we sustain the Examiner’s rejection of claim 1, as well as
claims 3–9, 11–16, and 18–20.
CONCLUSION
We reverse the Examiner’s rejection of claims 8, 9, and 11–15 under
35 U.S.C. § 101 as being directed to non-statutory subject matter.
We affirm the Examiner’s rejection of claims 1, 3–9, 11–16, and 18–
20 under 35 U.S.C. § 103(a) as being unpatentable over Matsuoka and Chen.
Because we affirm at least one ground of rejection with respect to
each claim on appeal, the Examiner’s decision is affirmed. See 37 C.F.R.
§ 41.50(a)(1).
DECISION SUMMARY

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
8, 9, 11–15 101 Non-statutory
subject matter
8, 9, 11–15
1, 3–9, 11–
16, 18–20
103(a) Charrat, Kelley,
Shimbo
1, 3–9, 11–
16, 18–20

Overall
Outcome
1, 3–9, 11–
16, 18–20
8, 9, 11–15

TIME PERIOD FOR RESPONSE
No 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