Ex Parte Melander et al

Patent Trial and Appeal Board

Dec 17, 2018

14385614 (P.T.A.B. Dec. 17, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/385,614 09/16/2014 Bob Melander
113648 7590 12/19/2018
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
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.
Olll-136-2/P37173 US2 5880
EXAMINER
DASCOMB, JACOB D
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
12/19/2018 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):
Mailroom@ppblaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BOB MELANDER,
ENRIQUE EDUARDO FERNANDEZ CASADO,
HAREESH PUTHALATH, AZIMEH SEFIDCON,
and VINA Y Y ADHA V
Appeal2018-005077
Application 14/385,614
Technology Center 2100
Before DAVID M. KOHUT, ERIC B. CHEN, and
MATTHEW R. CLEMENTS, Administrative Patent Judges.
CHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the final rejection of
claims 1, 2, and 5-19. Claims 3 and 4 have been cancelled. We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
Appeal2018-005077
Application 14/3 85,614
STATEMENT OF THE CASE
Appellants' invention relates to communications among networks in a
cloud server. (Abstract.)
Claim 1 is exemplary, with disputed limitations in italics:
1. A cloud server system having a cloud server configured
to facilitate communication among plural networks established in the
cloud server, the cloud server comprising:
hardware components, of the cloud server, configured to
process and store information;
a hypervisor configured to run on the hardware components
and also configured to provide hypervisor virtualization by providing
a virtual platform in a kernel space of the cloud server;
a first virtual machine running on the virtual platform in a user
space of the cloud server;
a first L2 aaS network connected to the first virtual machine, the
first L2aaS network being located in the kernel space of the cloud
server;
a second virtual machine running on the virtual platform in the
user space of the cloud server;
a second L2aaS network connected to the second virtual
machine, the second L2aaS network being located in the kernel space
of the cloud server; and
a virtual router located in the kernel space and connected to the
first L2aaS network and the second L2aaS network of the cloud
server,
wherein the virtual router is configured to provide router
functionality between the first and second L2aaS networks such that
communications between the first and second L2aaS networks occur
in the kernel space and the communications are not distributed in
both the kernel space and the user space,
wherein, in addition to the hypervisor virtualization, a
container-based virtualization is implemented on the hardware
components and the virtual router corresponds to a single container
of the container-based virtualization and not the hypervisor
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virtualization, and wherein the first and second virtual machines
correspond to the hypervisor virtualization.
Claims 1, 5-15, and 17-19 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Brendel (US 8,660,129 Bl; Feb. 25, 2014), Marino
(US 9,154,327 Bl; Oct. 6, 2015), and Reed (US 2013/0044759 Al; Feb. 21,
2013).
Claims 2 and 16 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Brendel, Marino, Reed, and Rathore (M. Siraj Rathore
et al., Peiformance Evaluation of Open Virtual Routers, IEEE Globecom
2010 Workshop on Network of the Future 288-93 (2010)).
ANALYSIS
§ 103 Rejection-Brendel, Marino, and Reed
First, we are unpersuaded by Appellants' arguments (App. Br. 9-10)
that the combination of Brendel, Marino, and Reed would not have rendered
obvious independent claim 1, which includes the limitation "cloud server
comprising ... a hypervisor ... a first virtual machine ... a first L2aaS
network ... a second virtual machine ... a second L2aaS network ... a
virtual router."
The Examiner found that: (i) physical host 12 of Brendel having a
virtualization host ( e.g., hypervisor), as illustrated in Figure 1; (ii) cloud
server 108 of Brendel, as illustrated in Figure 2, which includes VM
nodes 14; and (iii) VM node 302 of Brendel, as illustrated in Figure 7,
collectively correspond to the limitation "cloud server comprising ... a
hypervisor ... a first virtual machine ... a first L2aaS network ... a second
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virtual machine ... a second L2aaS network ... a virtual router." (Ans. 13-
14; see also Final Act. 3-5.) We agree with the Examiner's findings.
Brendel relates to a "virtual router [that] connects two or more virtual
networks." (Abstract.) Figure 1 of Brendel illustrates a prior-art hybrid
cloud network ( col. 2, 1. 18), which includes "physical node 12, and other
dedicated servers that run a virtualization host (vHost or hypervisor)
software" (col. 2, 11. 23-25), such that "[t]he virtualization host software
runs several virtual-machine nodes, VM nodes 14, which can each run
applications to service client requests from Internet 100" ( col. 2, 11. 27-29).
Because Figure 1 of Brendel illustrates physical node 12 including a
hypervisor, Brendel teaches the limitation "hypervisor."
Figure 5 of Brendel illustrates "nodes on two virtual networks that are
connected by a virtual router" (col. 8, 11. 21-22), including virtual network
VNl (i.e., "VIRTUAL LA YER-2 NETWORK VNl" in Figure 5), virtual
network VN2 (i.e., "VIRTUAL LA YER-2 NETWORK VN2" in Figure 5),
and virtual router 330. Because Figure 5 of Brendel illustrates virtual
network VNl, virtual network VN2, and virtual router 330, Brendel teaches
the limitations "a first L2aaS network," "a second L2aaS network," and "a
virtual router," respectively.
Figure 2 of Brendel illustrates "a hybrid cloud network with overlaid
user configurable virtual layer-2 networks," (col. 4, 11. 21-22), including VM
nodes 14 (i.e., "NODE 6" and "NODE 7" in Figure 2) on cloud-computing
provider 108 (col. 4, 11. 38-39). Figure 7 of Brendel illustrates "virtual-
networking daemons and shims added to each node on the virtual network"
and further explains that "[ n ]ode 302 can be any node on the virtual
network, such as physical node 12, hosted physical nodes 13, or VM
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nodes 14." (Col. 9, 11. 56-60.) Thus, because Brendel explains that each
VM node 14 located on cloud-computing provider 108, as illustrated in
Figure 2, is interchangeable with node 302, as illustrated in Figure 7,
Brendel teaches the limitations "a first virtual machine" and "a second
virtual machine."
Appellants argue that "[ a ]lthough Brendel discloses that ' [ n ]ode 302
can be located at on premises location 104, hosted-server location 106, or
cloud-computing provider 108 (Fig. 2),' it is never suggested that node 302
is a cloud server comprising all of the features of Appellant's independent
claim 1." (App. Br. 9--10.) Appellants do not explain, however, the alleged
distinction between being a "node ... located at ... cloud-computing
provider 108," as Brendel teaches, and being "a cloud server." As found by
the Examiner, Brendel explains that "[ n ]ode 302 can be any node on the
virtual network, such as ... VM nodes 14." (Col. 9, 11. 55-57.) Moreover,
the Examiner also cited to the features of Figures 1, 2, 5, and 7. (Ans. 13-
14; see also Final Act. 3-5.) We agree with the Examiner that Brendel's
teaching of a node located at cloud-computing provider 108 teaches node
302 is a "cloud server." Appellants have not presented any arguments or
evidence as to why the Examiner's findings with respect to Figures 1, 2, 5,
and 7 of Brendel are improper.
Thus, we agree with the Examiner that the combination of Brendel,
Marino, and Reed would have rendered obvious independent claim 1, which
includes the limitation "cloud server comprising ... a hypervisor ... a first
virtual machine ... a first L2aaS network ... a second virtual machine ... a
second L2aaS network ... a virtual router."
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Second, we are unpersuaded by Appellants' arguments (App. Br. 10;
see also Reply Br. 1-2) that the combination of Brendel, Marino, and Reed
would not have rendered obvious independent claim 1, which includes the
limitations "communications between the first and second L2aaS networks
occur in the kernel space and the communications are not distributed in both
the kernel space and the user space" and "a virtual router located in the
kernel space."
The Examiner found that Figure 5 of Brendel, which illustrates virtual
network VNl and virtual network VN2, and Figure 7 of Brendel, which
illustrates switch table in kernel space, collectively correspond to the
limitations "communications between the first and second L2aaS networks
occur in the kernel space and the communications are not distributed in both
the kernel space and the user space" and "a virtual router located in the
kernel space." (Ans. 15.) We agree with the Examiner's findings.
As discussed previously, Figure 5 of Brendel illustrates "nodes on two
virtual networks that are connected by a virtual router" (col. 8, 11. 21-22),
including virtual network VNl (i.e., "VIRTUAL LA YER-2 NETWORK
VNl" in Figure 5) and virtual network VN2 (i.e., "VIRTUAL LA YER-2
NETWORK VN2" in Figure 5). Figure 5 further illustrates that virtual
network VNl and virtual network VN2 include VNl switch table 50 and
VN2 switch table 50, and virtual router 330. Figure 7 illustrates that VNl
switch table 50 and VN2 switch table 50 are in kernel space. Because
Figure 7 illustrates that VNl switch table 50 and VN2 switch table 50, both
of which are associated with virtual network VNl and virtual network VN2,
are in kernel space, Brendel teaches the limitation "communications between
the first and second L2aaS networks occur in the kernel space and the
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communications are not distributed in both the kernel space and the user
space." Similarly, because Figure 7 illustrates that VNl switch table 50 and
VN2 switch table 50, both of which are associated with virtual router 330,
are in kernel space, Brendel teaches the limitation "a virtual router located in
the kernel space."
Appellants argue that:
as discussed in Brendel, "[ w ]hile VN switch tables 50, 350 have
been described as being in the kernel space, one or more tables
could be located in the user space .... " "Likewise shim 44 could
be in the user space rather than in the kernel space." Hence,
Brendel does not seem to be concerned whether the user space or
the kernel space is used, unlike Appellant's disclosure and
claimed combinations.
(App. Br. 10 (emphases and citations omitted); see also Reply Br. 1-2.)
Although Brendel explains that in an alternate embodiment, VN switch
tables 50, 350 or shim 44 could be in the user space, rather than kernel
space, such alternate embodiment is not a "teaching away" because Brendel
does not "criticize, discredit, or otherwise discourage" the use of VN switch
tables 50, 350 or shim 44 in kernel space. In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004).
Thus, we agree with the Examiner that the combination of Brendel,
Marino, and Reed would have rendered obvious independent claim 1, which
includes the limitations "communications between the first and second
L2aaS networks occur in the kernel space and the communications are not
distributed in both the kernel space and the user space" and "a virtual router
located in the kernel space."
Third, we are unpersuaded by Appellants' arguments (App. Br. 11)
that the combination of Brendel, Marino, and Reed would not have rendered
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obvious independent claim 1, which includes the limitation "a hypervisor
configured to run on the hardware components and also configured to
provide hypervisor virtualization by providing a virtual platform in a kernel
space."
The Examiner found that physical host 12 having a virtualization host
(e.g., hypervisor), as illustrated in Figure 1 of Brendel, corresponds to the
limitation "a hypervisor configured to run on the hardware components and
also configured to provide hypervisor virtualization by providing a virtual
platform in a kernel space." (Ans. 16.) We agree with the Examiner's
findings.
As discussed previously, Figure 1 of Brendel illustrates a prior-art
hybrid cloud network (col. 2, 1. 18), which includes "physical node 12, and
other dedicated servers that run a virtualization host (vHost or hypervisor)
software" (col. 2, 11. 23-25), such that "[t]he virtualization host software
runs several virtual-machine nodes, VM nodes 14, which can each run
applications to service client requests from Internet 100" ( col. 2, 11. 27-29).
Brendel explains that "each node has its virtual network management
daemon 46 over-write its local switch table, VN switch table 50 ... in the
kernel space." (Col. 12, 11. 38--40.) Because Brendel explains that physical
node 12 runs a virtualization host (hypervisor), and each node has network
management daemon 46 that overwrites VN switch table 50 in the kernel
space, Brendel teaches the limitation "a hypervisor configured to run on the
hardware components and also configured to provide hypervisor
virtualization by providing a virtual platform in a kernel space."
Appellants argue that "[i]n neither [Brendel nor Marino] is there a
discussion of the hypervisor being in the kernel space" and accordingly,
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"neither Marino, nor Brendel, disclose, 'a hypervisor configured to run on
the hardware components and also configured to provide hypervisor
virtualization by providing a virtual platform in a kernel space."' (App. Br.
11.) However, Appellants' arguments are not commensurate in scope with
the claim 1, because the claim does not require the hypervisor to be in kernel
space. Instead, claim 1 recites "a hypervisor ... configured to provide
hypervisor virtualization by providing a virtual platform in a kernel space of
the cloud server," which is broad enough to encompass the hypervisor from
Figure 1 of Brendel.
Thus, we agree with the Examiner that the combination of Brendel,
Marino, and Reed would have rendered obvious independent claim 1, which
includes the limitation "a hypervisor configured to run on the hardware
components and also configured to provide hypervisor virtualization by
providing a virtual platform in a kernel space."
Last, we are unpersuaded by Appellants' arguments (App. Br. 12-13;
see also Reply Br. 3) that the combination of Brendel, Marino, and Reed
would not have rendered obvious independent claim 1, which includes the
limitation "in addition to the hypervisor virtualization, a container based
virtualization is implemented on the hardware components and the virtual
router corresponds to a single container of the container based virtualization
and not the hypervisor."
The Examiner found that physical host 12 of Brendel, having a
virtualization host (e.g., hypervisor), as illustrated in Figure 1, corresponds
to the limitation "in addition to the hypervisor virtualization." (Ans. 17 .)
The Examiner further found that non-global container (130) of Reed, as
illustrated in Figures 2A-2E, corresponds to the limitation "a container
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based virtualization is implemented on the hardware components and the
virtual router corresponds to a single container of the container based
virtualization and not the hypervisor virtualization." (Id.) The Examiner
concluded that:
[i]t would have been obvious ... to have applied the known
technique of a container-based virtualization ... implemented on
the hardware components and the virtual router corresponds to a
single container of the container-based virtualization and not the
hypervisor virtualization, as taught by Reed, in the same way to
the hardware hosting the first and second L2aaS networks, as
taught by Brendel.
(Final Act. 6; see also Ans. 17.) We agree with the Examiner's findings and
conclusions.
Reed relates to routing packets. (Abstract.) Figures 2A-2E of Reed
illustrates non-global containers (130) which "may include a router (132)
operatively connected to a virtual network stack (VNS) (134)." (i-f 34.)
Reed explains that "[e]ach of the global container (120) ... may be an
isolated execution environment." (i-f 26.) Because Reed explains that non-
global containers (130) include router (132) and VNS (134), Reed teaches
the limitation "a container based virtualization is implemented on the
hardware components and the virtual router corresponds to a single
container of the container based virtualization." Moreover, because Reed
explains that each global container (120) is in an isolated execution
environment, Reed teaches the limitation "a container based virtualization is
implemented ... and not the hypervisor virtualization."
Appellants argue that "because Reed does not disclose 'a hypervisor
virtualization' does not mean that it teaches the subject matter of Appellant's
independent claims 1, 18, and 19." (App. Br. 12-13; see also Reply Br. 3.)
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However, the Examiner cited to Brendel, rather than Reed, for teaching the
limitation "in addition to the hypervisor virtualization." (Ans. 17.)
Appellants have not presented any arguments or evidence as to why the
Examiner's findings with respect to Brendel are improper.
Appellants also argue that "Reed does not disclose 'a single
container,' as recited in Appellant's claims" because "as shown in Fig. lB,
there are multiple non-global containers 130 within the global container
120." (App. Br. 13.) However, the Examiner cited to the Figures 2A-2E
embodiment of Reed, rather than the Figure lB embodiment of Reed.
(Ans. 17 .) Appellants have not presented any arguments or evidence as to
why the Examiner's findings with respect to Figures 2A-2E of Reed are
improper.
Appellants further argue that "Brendel' s virtual router would not be
replaced by Reed's router, because it would not enable communication
between a 'first' and 'second L2aaS network,' where the 'communications
between the first and second L2aaS networks occur in the kernel space,' as
recited." (Reply Br. 3.) However, the Examiner cited to Brendel for
teaching the limitation "hypervisor virtualization" and cited to Reed for
teaching the limitation "container." (Ans. 17.) In other words, the
Examiner's proposed modification was not based upon replacing virtual
router 330 of Brendel with router host 110 of Reed.
Thus, we agree with the Examiner that the combination of Brendel,
Marino, and Reed would have rendered obvious independent claim 1, which
includes the limitation "in addition to the hypervisor virtualization, a
container based virtualization is implemented on the hardware components
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and the virtual router corresponds to a single container of the container
based virtualization and not the hypervisor."
Accordingly, we sustain the rejection of independent claim 1 under 35
U.S.C. § 103(a). Claims 5-15 and 17 depend from claim 1, and Appellants
have not presented any additional substantive arguments with respect to
these claims. (App. Br. 13-14.) Therefore, we sustain the rejection of
claims 5-15 and 17 under 35 U.S.C. § 103(a), for the same reasons
discussed with respect to independent claim 1.
Independent claims 18 and 19 recite limitations similar to those
discussed with respect to independent claim 1, and Appellants have not
presented any additional substantive arguments with respect to these claims.
We sustain the rejection of claims 18 and 19 for the same reasons discussed
with respect to claim 1.
§ 103 Rejection-Brendel, Marino, Reed, and Rathore
Although Appellants nominally argue the rejection of dependent
claims 2 and 16 separately (App. Br. 14), the arguments presented do not
point out with particularity or explain why the limitations of these dependent
claims are separately patentable. Instead, Appellants argue that "dependent
claims 2 and 16 are also allowable over Brendel, Marino, Reed, and/or
Rathore, as Rathore does not cure the deficiencies of Brendel, Marino,
and/or Reed." (Id.) We are not persuaded by these arguments for the
reasons discussed with respect to claim 1, from which claims 2 and 16
depend. Accordingly, we sustain this rejection.
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DECISION
The Examiner's decision rejecting claims 1, 2, and 5-19 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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