EMC Corporation

Patent Trials and Appeals Board

May 19, 2021

2020001229 (P.T.A.B. May. 19, 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.
14/633,401 02/27/2015 Randolph A. Hodge EMCCP274C1 5263
24227 7590 05/19/2021
EMC IP HOLDING COMPANY LLC
176 SOUTH STREET
HOPKINTON, MA 01748
EXAMINER
AQUINO, WYNUEL S
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
05/19/2021 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):
Kevin_Henry2@Dell.com
deanna.santos@emc.com
jeannie.wu@emc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RANDOLPH A. HODGE, ALEX RANKOV,
PAVEL BALAN, ALEXEI NIKULIN, PAUL WARREN,
SRINIVASA RAO SUREDDI, and AHSON AHMAD
____________

Appeal 2020-001229
Application 14/633,401
Technology Center 2100
____________

Before KALYAN K. DESHPANDE, CHARLES J. BOUDREAU, and
SHARON FENICK, Administrative Patent Judges.

DESHPANDE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–26. We have jurisdiction under
35 U.S.C. § 6(b)(1).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies EMC Corporation as the real party in
interest. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
Appellant’s invention relates to deploying applications for electronic
record keeping using blueprints and templates. See Spec. ¶¶ 2, 18. A
blueprint “is a document issued by a supplier of a software framework that
describes aspects of the virtual environment” and “allows creation of the
virtual environment to be automated, reducing setup costs, and ensures that
there is a basic level of consistency between virtual environments, reducing
maintenance costs.” Id. ¶ 21. “After the blueprint is downloaded and
modified as desired, it is processed by software created by the software
supplier to build the foundation of the virtual environment called an
environment template.” Id.
Claims 1, 15, and 16 are independent. Claim 1, reproduced below, is
illustrative of the subject matter on appeal:
1. A system for recipe and blueprint-driven automated
application deployment, comprising:
a processor configured to:
receive a blueprint comprising: a description of computing
resources, computing software, and computing services required
for at least two virtual machines;
generate, using a first software tool, a first environment
template based at least in part on the blueprint and a first
environment template configuration, wherein the first
environmental template configuration includes configuration
information for a virtual machine cluster to be instantiated in
connection with a first environment;
instantiate, using a second software tool, the first
environment based at least in part on the first environment
template and a first environment configuration;
receive an application configuration comprising: an
application package that includes:
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a set of runtime software artifacts that can be
orchestrated and executed on an ongoing basis to perform
one or more desired enterprise tasks on a heterogeneous
virtual environment; and
a configuration of application parameters of the set
of runtime software artifacts;
deploy and install the application configuration at the first
environment for use by application developers;
generate, using the first software tool, a second
environment template based at least in part on the blueprint and
a second environment template configuration;
instantiate, using the second software tool, a second
environment based at least in part on the second environment
template and a second environment configuration; and
deploy and install a second application configuration
package at the second environment, which is different than the
first environment, for use by application testers.
Appeal Br. 17 (Claims App.).
REJECTIONS
The Examiner rejects claim 25 under 35 U.S.C. § 112(b) or pre-AIA
35 U.S.C. § 112, second paragraph, as being indefinite. Final Act. 3.
The Examiner rejects claims 1–6, 8–19, 22, 24, and 25 under
35 U.S.C. § 103(a) as being unpatentable over Winterfeldt,2 Vendrow,3 and
Dias.4 Final Act. 4–21.

2 Winterfeldt et al., US 2013/0232480 A1 (pub. Sept. 5, 2013).
3 Vendrow, US 8,335,851 B1 (iss. Dec. 18, 2012).
4 Dias et al., US 2008/0163194 A1 (pub. July 3, 2008).
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The Examiner rejects claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over Winterfeldt, Vendrow, Dias, and Morgan.5 Final
Act. 22–23.
The Examiner rejects claims 20, 21, and 26 under 35 U.S.C. § 103(a)
as being unpatentable over Winterfeldt, Vendrow, Dias, and Jacquin.6 Final
Act. 23–26.
The Examiner rejects claim 23 under 35 U.S.C. § 103(a) as being
unpatentable over Winterfeldt, Vendrow, Dias, and McLeod.7 Final
Act. 26–27.
OPINION
§ 112 Rejection
The Examiner rejects dependent claim 25 as being indefinite.
According to the Examiner, claim 25 “recites ‘the provisioned first
environment’ without provisioning an environment prior and therefore is
unclear.” Final Act. 3. Appellant does not provide any arguments with
respect to this rejection. Accordingly, we summarily sustain this rejection.
§ 103 Rejections
Independent Claims 1, 15, and 16
The Examiner relies on Winterfeldt as disclosing “receiv[ing] a
blueprint comprising: a description of computing resources, computing
software, and computing services required for at least two virtual machines,”

5 Morgan, US 2012/0311571 A1 (pub. Dec. 6, 2012).
6 Jacquin et al., US 2013/0232464 A1 (pub. Sept. 5, 2013).
7 McLeod et al., US 2013/0132950 A1 (pub. May 23, 2013).
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as recited in independent claims 1, 15, and 16. Final Act. 4 (citing
Winterfeldt ¶¶ 21–22); Ans. 31–32 (citing Winterfeldt ¶¶ 20–21, 23).
Appellant argues that “paragraph [0021] of Winterfeldt fails to disclose or
render obvious ‘a blueprint comprising: a description of computing
resources, computing software, and computing services required for at least
two virtual machines.’” Appeal Br. 10; see Reply Br. 4–5.
Appellant’s argument essentially consists of quoting a portion of
Winterfeldt cited by the Examiner and generally alleging that it fails to teach
or suggest the claim limitation. See Appeal Br. 9–10. This argument
amounts to no more than reciting the claim language and alleging that the
cited prior art references are deficient, which are not separate arguments for
patentability of the claims. See 37 C.F.R. § 41.37(c)(1)(iv) (“A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim.”); In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”); cf. In re
Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) (“It is not the
function of this court to examine the claims in greater detail than argued by
an appellant, looking for [patentable] distinctions over the prior art.”).
Although Appellant emphasizes “computing resources” and
“computing services required for at least two virtual machines” with
underlining in its recitation of the claim language (see Appeal Br. 10; Reply
Br. 5), Appellant does not explain how these limitations are not taught or
suggested by, for example, Winterfeldt’s disclosure that “[b]lueprint 126
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generally captures the structure of an application 108 as a collection of
application components executing on virtual computing resources”
(Winterfeldt ¶ 21), that “blueprint 126 . . . may specify a web application
(e.g., in the form of a Java web application archive or ‘WAR’ file
comprising . . . resource files)” (id.), and that “[c]loud computing platform
provider 110 provisions virtual computing resources (e.g., virtual machines,
or ‘VMs,’)” (id. ¶ 20).
Independent claims 1, 15, and 16 further recite “generat[ing] . . . a
first environment template based at least in part on the blueprint and a first
environment template configuration, wherein the first environmental
template configuration includes configuration information for a virtual
machine cluster to be instantiated in connection with a first environment.”
The Examiner relies on Winterfeldt as disclosing the recited “first
environment template configuration,” citing “blueprint, tasks, deployment
settings, [and] data of Winterfeldt.” Final Act. 2, 5 (citing Winterfeldt ¶ 23);
see Ans. 30–31. The Examiner then relies on Dias for the limitation of “the
first environmental template configuration includ[ing] configuration
information for a virtual machine cluster to be instantiated in connection
with a first environment.” Final Act. 2–3, 8 (citing Dias ¶¶ 34, 49); see
Ans. 29–30 (citing Dias ¶¶ 32, 34, 35, 47). Specifically, the Examiner maps
Dias’s “metadata information includ[ing] . . . external and internal virtual
machine image dependencies” (Dias ¶ 49) to the recited “configuration
information for a virtual machine cluster to be instantiated in connection
with a first environment.” Final Act. 2–3, 8. According to the Examiner, it
would have been obvious to one of ordinary skill in the art to
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apply the teachings of Dias with the teachings of Winterfeldt and
Vendrow in order to provide a system that explicitly [includes]
additional configuration details regarding the instantiation of the
VM cluster as taught by Winterfeldt. . . . to provide a system that
allows for configuration of a VM cluster based upon VM
dependencies of the overall services.
Id. at 8.
Appellant argues:
[Winterfeldt’s] “execution plan of tasks having a specified order
in which virtual computing resources are provisioned and
application components are installed” is different from “a first
environment template configuration, wherein the first
environmental template configuration includes configuration
information for a virtual machine cluster to be instantiated in
connection with a first environment.” The “execution plan” of
Winterfeld[t] pertaining to an order in which the virtual
computing resources to be provisioned and application
components are installed is different from “configuration
information” for a virtual machine cluster.
Appeal Br. 9 (quoting Winterfeldt ¶ 23); see Reply Br. 4. Appellant further
argues that Dias’s metadata is disclosed in the context of a “virtual software
resource template,” which, according to Appellant, “is different from the
presently recited ‘first environment template configuration.’” Appeal Br. 7
(citing Dias ¶ 48 (“In one example, a virtual software resource template is a
collection of one or more freeze-dried software stack(s) with associated
metadata.”)); Reply Br. 3. According to Appellant, Dias’s “virtual software
resource template” differs from the recited “first environment template
configuration” because “Dias equates the term ‘freeze-dried’ as [] meaning
pre-configured” and “the software is already configured in the freeze-dried
virtual software resource template of Dias.” Appeal Br. 8 (citing Dias ¶ 33);
Reply Br. 3.
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We are not persuaded by Appellant’s arguments because Appellant
attacks Winterfeldt and Dias individually, whereas the Examiner’s rejection
is based on Winterfeldt, Vendrow, and Dias. One cannot show
nonobviousness by attacking references individually where the rejection is
based upon a combination of references. In re Merck & Co., 800 F.2d 1091,
1097 (Fed. Cir. 1986). The test for obviousness is what the combined
teachings of the references would have suggested to one of ordinary skill in
the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). We agree with the
Examiner that the combination of Winterfeldt, Vendrow, and Dias, including
Winterfeldt’s deployment settings and execution plan of tasks and Dias’s
metadata including virtual machine image dependencies, teaches or suggests
a “first environmental template configuration includ[ing] configuration
information for a virtual machine cluster to be instantiated in connection
with a first environment” as claimed. See Final Act. 2–3, 5, 8–9;
Ans. 28–30. With respect to Appellant’s argument that “the software is
already configured in the freeze-dried virtual software resource template of
Dias” (Appeal Br. 8; Reply Br. 3), Appellant does not explain, and we do
not discern, why pre-configured software is inconsistent with the recited
“first environment template configuration.” While the “first environment
template” is generated based on the “first environment template
configuration” according to claim 1, the claim does not require that the first
environment template configuration be configured at any specific point in
time, as Appellant appears to argue.
The Examiner relies on Winterfeldt as disclosing “receiv[ing] an
application configuration comprising: an application package that includes: a
set of runtime software artifacts . . . and a configuration of application
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parameters of the set of runtime software artifacts,” as recited in independent
claims 1, 15, and 16. Final Act. 5 (citing Winterfeldt ¶¶ 21, 34, 37);
Ans. 32–33.
Appellant argues that paragraph 21 of Winterfeldt “appears to relate to
the blueprint and certain information contained in the blueprint that specifies
application properties,” and that paragraph 37 of Winterfeldt “appears to
relate to a separate step of receiving an input from an administrator – not
information that is contained within the blueprint.” Appeal Br. 11; Reply
Br. 5. According to Appellant, by relying on these different portions of the
reference, the Examiner “improperly conflates a manual input with an
administrator with information contained in the blueprint of Winterfeldt.”
Appeal Br. 11; Reply Br. 5.
We are not persuaded by Appellant’s argument. With respect to the
recited “application package that includes: a set of runtime software
artifacts,” we understand the Examiner to be relying on the “application
packages and their dependent middleware and operating systems”
and “application server and database components,” rather than the blueprint,
disclosed in paragraph 21 of Winterfeldt. See Final Act. 5; Ans. 32–33. We
agree with the Examiner that that disclosure, along with Winterfeldt’s
disclosure of administrator-specified “application components, such as
services and code components” and “properties of an application component
defin[ing] variables used in installation, configuration, and execution scripts
for an application component” (Winterfeldt ¶¶ 34, 37), teaches or suggests
“receiv[ing] an application configuration comprising: an application package
that includes: a set of runtime software artifacts . . . and a configuration of
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application parameters of the set of runtime software artifacts,” as claimed.
See Final Act. 5–6.
Dependent Claim 21
With respect to the limitation “the unique repository identifier is
assigned separate from the generation of the first environment template and
the generation of the second environment template,” as recited in dependent
claim 21, the Examiner cites Jacquin’s disclosure of creating “technical
bindings” and that “abstract bindings repository 62 is stored for later reuse
when one of its mapped abstract services is used in a later deployment.”
Final Act. 25–26 (quoting Jacquin ¶ 40). According to the Examiner,
Winterfeldt teaches a plan (i.e. template) is generated prior to
deploying applications upon a cluster of nodes. Jacquin teaches
during a deployment process of instantiating services, a binding
(i.e. repository identifier) is generated to map applications to a
particular repository. Therefore, because Winterfeldt teaches a
sequence of steps that generates plans followed by using the
plans to deploy environments, and Jacquin teaches during
deployment, a binding is assigned, it is obvious Winterfeldt
teaches the “repository identifier (i.e. Jacquin’s binding) is
assigned separate (i.e. subsequent from Winterfeldt’s plan
generation) from the generation of the first environment template
(i.e. Winterfeldt’s plan generation)”.
Ans. 33.
Appellant argues that “Jacquin discloses that the ‘corresponding
technical bindings’ are created during the ‘deployment process.’” Appeal
Br. 12. This sole statement, without elaboration, does not persuade us that
the Examiner erred in relying on Jacquin. See 37 C.F.R. § 41.37(c)(1)(iv);
In re Lovin, 652 F.3d at 1357.
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Dependent Claim 22
The Examiner relies on Winterfeldt as disclosing that “the description
of computing resources, computing software, and computing services
comprised in the blueprint includes a description of computing resources and
computing services required for an enterprise application to run on a
heterogeneous virtual environment,” as recited in dependent claim 22. Final
Act. 20 (citing Winterfeldt ¶ 20); Ans. 34 (citing Winterfeldt ¶¶ 21–23).
Appellant quotes paragraph 20 of Winterfeldt and argues, without
elaboration, that “Winterfeldt fails to disclose ‘the blueprint includes a
description of computing resources . . . required for an enterprise application
to run on a heterogeneous virtual environment’” and that “Winterfeldt fails
to disclose or render obvious ‘the blueprint includes a description of . . .
computing services . . . required for an enterprise application to run on a
heterogeneous virtual environment.’” Appeal Br. 13; Reply Br. 6.
As discussed above, this type of conclusory argument is unpersuasive.
See 37 C.F.R. § 41.37(c)(1)(iv); In re Lovin, 652 F.3d at 1357. Insomuch as
this argument corresponds to Appellant’s argument that Winterfeldt fails to
teach or suggest the corresponding limitation of independent claim 1 (see
Appeal Br. 9–10), that argument is also unpersuasive, as discussed above.
Dependent Claim 25
The Examiner relies on Winterfeldt as disclosing “storing the set of
runtime software artifacts at a corresponding location in the provisioned first
environment,” as recited in dependent claim 25. Final Act. 21 (citing
Winterfeldt ¶ 83); Ans. 34–35 (citing Winterfeldt ¶ 46, Fig. 6A).
Appellant argues that Winterfeldt’s “[p]aragraph [0083] merely
discloses that deployment agent configurations are unique to a virtual
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machine.” Appeal Br. 14. This sole statement does not persuade us that the
Examiner erred in relying on Winterfeldt. For example, Appellant does not
address the Examiner’s finding that Winterfeldt’s virtual machine having
specific deployment agent configurations corresponds to the recited
“corresponding location” at which the set of runtime software artifacts are
stored. See Final Act. 21. Appellant also does not address the Examiner’s
finding that Winterfeldt discloses “application components . . . deployed to
particular virtual servers” and “application components at corresponding
locations (i.e. load balancer, app_server, or database).” Ans. 34–35 (citing
Winterfeldt ¶ 46, Fig. 6A).
Dependent claim 26
The Examiner relies on Jacquin as disclosing that “the instantiating a
content repository comprises creating a unique content repository identifier
to be used in connection with the first environment or the second
environment,” as recited in dependent claim 26. Final Act. 26 (citing
Jacquin ¶ 40). Specifically, the Examiner finds that “Jacquin teaches during
a deployment process of instantiating services (i.e. first environment), a
binding (i.e. repository identifier) is generated to map applications to a
particular repository.” Ans. 35.
Appellant quotes paragraph 40 of Jacquin and makes a naked
assertion that “Jacquin does not disclose creating a unique content repository
identifier to be used in connection with the first environment or the second
environment.” Appeal Br. 15; Reply Br. 7. As discussed above, this type of
conclusory argument is unpersuasive. See 37 C.F.R. § 41.37(c)(1)(iv); In re
Lovin, 652 F.3d at 1357.
Appellant further argues that “Jacquin discloses that bindings are
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manually initialized, which is not scalable for the presently recited ‘blue-
print driven automated application deployment.’” Appeal Br. 15; Reply
Br. 7. This argument is not commensurate with the claim language, which
does not recite scalability, and Appellant does not otherwise explain how
Jacquin’s manually initialized abstract bindings repository (see Jacquin ¶ 40)
is inconsistent with the claimed “blueprint-driven automated application
deployment.” Thus, we are not persuaded that the Examiner erred.
Summary - § 103 rejections
Appellant has not shown error in the Examiner’s § 103 rejections of
independent claims 1, 15, and 16 and dependent claims 21, 22, 25, and 26.
Dependent claims 2–14, 17–20, 23, and 24 are not argued separately by
Appellant. Accordingly, we sustain the Examiner’s § 103 rejections of
claims 1–26.
CONCLUSION
The Examiner’s rejection of claim 25 under 35 U.S.C. § 112 is
affirmed.
The Examiner’s rejections of claims 1–26 under 35 U.S.C. § 103 are
affirmed.

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DECISION SUMMARY
In summary:

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).
AFFIRMED

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/
Basis Affirmed Reversed
25 112 Indefiniteness 25
1–6, 8–19,
22, 24, 25
103 Winterfeldt, Vendrow,
Dias
1–6, 8–19,
22, 24, 25

7 103 Winterfeldt, Vendrow,
Dias, Morgan
7
20, 21, 26 103 Winterfeldt, Vendrow,
Dias, Jacquin
20, 21, 26
23 103 Winterfeldt, Vendrow,
Dias, McLeod
23
Overall
Outcome
1–26