Ex Parte Ganichev et al

Patent Trial and Appeal Board

Jun 28, 2018

15012718 (P.T.A.B. Jun. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/012,718 02/01/2016
109858 7590 07/02/2018
VMware, Inc.
3401 Hillview A venue
Palo Alto, CA 94304
FIRST NAMED INVENTOR
Igor Ganichev
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.
N040.Cl (NCRA.P0129C) 5454
EXAMINER
SEFCHECK, GREGORY B
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
07/02/2018 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):
ipadmin@vmware.com
ipteam@vmware.com
mail@adelillp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte IGOR GANI CHEV, P ANKAJ THAKKAR,
PAUL FAZZONE, TEEMU KOPONEN, and
DANIEL J. WENDLANDT
Appeal 2017-011377
Application 15/012,718
Technology Center 2400
Before JUSTIN BUSCH, JOYCE CRAIG, and STEVEN M. AMUNDSON,
Administrative Patent Judges.
BUSCH, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants appeal from the
Examiner's decision to reject claims 30-32, 34--36, and 38-51, which
constitute all the claims pending in this application. We have jurisdiction
over the pending claims under 35 U.S.C. § 6(b ).
We reverse.
CLAIMED SUBJECT MATTER
Appellants' invention generally relates to a method for tracing the
physical path a packet flow takes in a virtual network. Spec. ,r,r 30-36.
Claim 30 is exemplary and reads as follows:
Appeal2017-011377
Application 15/012,718
30. For a network controller that manages a plurality of managed
forwarding elements (MFEs) operating at a plurality of hosts, a method
compnsmg:
at the network controller, receiving a request to trace a specified
packet having a particular source on a logical forwarding element
implemented by the MFEs;
at the network controller, defining data for a packet according to
the packet specification, the data defined for the packet comprising an
indicator that the packet is for a trace operation;
inserting the defined packet data into a MFE associated with the
particular source in order for the MFE to process the packet data as
though receiving a packet from the particular source; and
receiving a plurality of messages at the network controller, sent
to the network controller from a set of at least two of the MFEs that
process the packet data, regarding operations performed on the packet
data by the MFEs.
REJECTION
Claims 30-32, 34--36, and 38-51 stand rejected under 35 U.S.C. § 102
as anticipated byNakil (US 8,750,288 B2; June 10, 2014). Final Act. 3---6.
ANALYSIS
The Examiner finds Nakil discloses every element recited in each of
the claims. See Final Act. 3---6. Of particular relevance to this Appeal, the
Examiner finds Nakil's virtual network controller (VNC) 22 discloses the
recited network controller, Nakil's servers 12A-N and switches 16A-N,
18A-M disclose the recited managed forwarding elements (MFEs ). Id. at 3.
The Examiner further finds portions of N akil' s method for tracing a physical
network path traversed by a packet flow discloses the recited step of
"receiving a plurality of messages at the network controller, sent ... from a
set of at least two of the MFEs that process the packet data." Id. at 4. The
Examiner also finds Nakil discloses VNC 22 "maintains a direct
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Application 15/012,718
communication presence with each of the network elements" and "VNC 22
functions as a distributed network controller present within each of the
servers." Ans. 6 (citing Nakil 12:1-26, Figs. 1-2, 4--5).
Appellants argue N akil does not anticipate independent claim 3 0
because Nakil fails to disclose the recited step of "receiving a plurality of
messages at the network controller, sent to the network controller from a set
of at least two of the MF Es that process the packet data, regarding
operations performed on the packet data by the MFEs." App. Br. 8; Reply
Br. 2--4. Appellants contend Nakil's server 12A is the only element that
communicates with Nakil's VNC 22 and, therefore, Nakil fails to disclose at
least two MFEs that processed the flow trace packet sending multiple
messages to the network controller, as required by claim 30. App. Br. 8.
Appellants assert that, other than server 12A, N akil' s various network
elements the Examiner finds disclose the recited MFEs only "send ICMP
time exceeded messages to the server 12a (which clearly does not
correspond to the claimed network controller)." Id. Essentially, Appellants
argue the plurality of messages sent by multiple MFEs are received at server
12A rather than at VNC 22 and VNC 22 receives only a single message from
server 12A-i.e., a different network element receives the recited messages.
The Examiner responds that Appellants "narrowly characterized the
disclosure ofNakil as well as their own claim language rather than applying
a broadest reasonable interpretation." Ans. 5. We note that we do not apply
the broadest reasonable interpretation to prior-art references. Rather, with
respect to anticipation rejections, we merely review the reference to
determine what a person of ordinary skill in the art would have understood
the reference to disclose. Cf In re Benno, 768 F.2d 1340, 1346 (Fed.
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Application 15/012,718
Cir. 1985) ("The scope of a patent's claims determines what infringes the
patent; it is no measure of what it discloses."); In re Heck, 699 F.2d 1331,
1332-33 (Fed. Cir. 1983) ("The use of patents as references is not limited to
what the patentees describe as their own inventions or to the problems with
which they are concerned. They are part of the literature of the art, relevant
for all they contain." (quoting In re Lemelson, 397 F.2d 1006, 1009 (CCPA
1968))). With respect to Appellants' claim language, the Examiner does not
identify specific limitations that Appellants allegedly characterize too
narrowly.
N akil relates to "techniques are described for determining a physical
network path taken by packets of a network packet flow." Nakil, Abstract.
Nakil discloses VNC 22 sending request 29A to server 12A's VN agent 35A
to determine a physical network path traversed by packets of a particular
packet flow that server 12A has allocated. Id. 6:23-26. Server 12A's VN
agent 35A sends the request to server 12A's flow trace module (FTM) 48 in
virtual switch 30A, which builds flow trace packet 45A with a time-to-live
(TTL) set to 1 and a field of the packet header set to indicate that the packet
is a flow trace packet. Id. at 6:26-39, 9:39--41, 9:44--54.
The first element in the physical network path (TOR switch 16A)
receives packet 45A, decrements the TTL from 1 to O and, because the TTL
is now 0, returns ICMP (Internet Control Message Protocol) Time Exceeded
message 47A to FTM 48. Id. at 6:35--48, 9:54--61. ICMP time Exceeded
message 4 7 A "has a source IP address of TOR switch 16A and a destination
IP address that is the source IP address of flow trace packet 45A ( e.g., the IP
address of virtual machine 36 VMl)." Id. at 9:62-10:3. Nakil creates and
sends second packet 45B with a TTL value of 2 to TOR switch 16A, which
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Application 15/012,718
decrements the TTL value to 1 and forwards the packet to the second
element in the physical network path ( e.g., chassis switch 18M), which
decrements the TTL value to O and, accordingly, returns ICMP Time
Exceeded message 47B to server 12A. Id. at 10:6-16.
Nakil's server 12A continues generating new trace flow packets until
it receives a confirmation message ( e.g., an ICMP Echo Reply message)
indicating that the trace flow packet reached its ultimate destination. Id. at
10:20-25. As a result, server 12A receives an ICMP Time Exceeded
message from each physical network element in the packet flow' s physical
network path. Id. at 10:25-28. When server 12A's FTM 48 receives a
confirmation message, it builds a list of the physical network elements the
packet flow traversed by aggregating the source network addresses in the
ICMP Time Exceeded messages and sends the list to VCN 22 in reply 29B.
Id. at 10:28-32.
Nakil's elements that the Examiner finds disclose the recited MFEs
(i.e., switches 16A-16N and 18A-18M) send ICMP Timeout Exceeded
messages to server 12A, which the Examiner finds is equivalent to one of
the recited MFEs. Server 12A eventually sends a single message (response
29B) to VNC 22 that includes a list identifying the physical route taken by
the packet flow. The Examiner does not find that Nakil's server 12A
discloses the recited network controller and the Examiner has not
demonstrated that Nakil's MFEs send the recited messages to VNC 22. A
claim is anticipated only if each and every element as set forth in the claim is
found, either expressly or inherently described, in a single prior art
reference. Verdegaal Bros. v. Union Oil Co. of Cal., 814 F .2d 628, 631
(Fed. Cir. 1987). Therefore, we agree with Appellants that the Examiner has
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not shown Nakil discloses "receiving a plurality of messages at the network
controller, sent to the network controller from a set of at least two of the
MFEs that process the packet data, regarding operations performed on the
packet data by the MFEs," as recited in independent claim 30 because the
MFEs the Examiner identifies in Nakil (i.e., switches 16A-16N, 18A-18M)
do not send messages to VNC 22.
Accordingly, constrained by this record, we do not sustain the
Examiner's rejection of independent claim 30 under 35 U.S.C. § 102 as
anticipated by Nakil for the reasons discussed above. Nor do we sustain the
Examiner's rejection of independent claim 41, which recites similar
limitations and which Appellants argue is patentable for similar reasons.
App. Br. 10-12. Claims 31, 32, 34--36, 38--40, and42-51, which ultimately
depend from one of claims 30 and 41 and incorporate the limitations therein,
stand with their independent claims. Because our determination is
dispositive of this appeal, we do not address Appellants' other arguments.
See, e.g., Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
( explaining that an administrative agency may render a decision based on "a
single dispositive issue").
DECISION
We reverse the Examiner's decision rejecting claims 30-32, 34--36,
and 38-51.
REVERSED
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