Jeroen Van Bemmel

Patent Trials and Appeals Board

Aug 1, 2019

14256040 - (D) (P.T.A.B. Aug. 1, 2019)

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.
14/256,040 04/18/2014 Jeroen van Bemmel 815035-US-NP 3460
46304 7590 08/01/2019
RYAN, MASON & LEWIS, LLP
48 South Service Road
Suite 100
Melville, NY 11747
EXAMINER
WILLIAMS, CLAYTON R
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
08/01/2019 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):
Nokia.IPR@nokia.com
jbr@rml-law.com
nyoffice@rml-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JEROEN VAN BEMMEL
____________________

Appeal 2018-003813
Application No. 14/256,0401
Technology Center 2400
____________________

Before JOSEPH L. DIXON, MARC S. HOFF, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

HOFF, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a Final Rejection of
claims 1–21 and 23–25.2 We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Appellant’s invention concerns topology-aware packet forwarding
techniques for use in a communication network. Spec. 1. The disclosed
method comprises forwarding one or more packets from a first addressable

1 Appellant states that the real party in interest is Alcatel-Lucent Canada Inc.
App. Br. 1.
2 Claim 22 has been cancelled.
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computing element to at least a second addressable computing element
based on a topology-aware address assigned to the second addressable
computing element. The topology-aware address comprises a set of
identifiers representing one or more topology attributes associated with the
second addressable computing element. Spec. 1–2. The topology-aware
address comprises at least one indication used to control a number of
different destination virtual machines having one or more specified physical
topology attributes. Said physical topology attributes are defined relative to
corresponding specified physical topology attributes of a locality of the first
computing element. Spec. 8.
Claim 1 is reproduced below:
1. A method comprising,
forwarding one or more packets from a first addressable computing
element to at least a second addressable computing element based on a
topology-aware address assigned to the second addressable computing
element;
wherein the topology-aware address comprises a set of identifiers
representing one or more topology attributes associated with the second
addressable computing element;
wherein the first addressable computing element comprises a first
virtual machine and the second addressable computing element comprises a
second virtual machine;
wherein the topology-aware address comprises at least one indication
used to control a number of different destination virtual machines having
one or more specified physical topology attributes that the one or more
packets are forwarded to, the number of different destination virtual
machines being greater than one;
wherein the one or more specified physical topology attributes are
defined relative to corresponding specified physical topology attributes of a
locality of the first addressable computing element; and
wherein the method is performed by at least one processing device
comprising a processor coupled to a memory.

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REFERENCES

Head et al. US 2011/0185064 A1 July 28, 2011
(hereinafter “Head”)
Yang et al. US 2012/0236761 A1 Sept. 20, 2012
(hereinafter “Yang”)
Hu et al. US 2012/0243403 A1 Sept. 27, 2012
(hereinafter “Hu”)
Keesara US 2012/0243539 A1 Sept. 27, 2012
Kalyanaraman et al. US 2013/0198355 A1 Aug. 1, 2013
(hereinafter “Kalyanaraman”)
Sivasubramanian et al. US 8,560,646 B1 Oct. 15, 2013
(hereinafter “Sivasubramanian”)
Chin et al. US 2014/0089484 A1 Mar. 27, 2014
(hereinafter “Chin”)
Fischer et al. US 2015/0135178 A1 May 14, 2015
(hereinafter “Fischer”)
Kashyap et al. US 2015/0195137 A1 July 9, 2015
(hereinafter “Kashyap”)

REJECTIONS
Claims 1–21 and 23–25 stand rejected under 35 U.S.C. § 101 as being
directed to patent-ineligible subject matter.
Claims 1, 2, 4, 5, 10, 13, 16–18, and 24 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Hu, Chin, and Sivasubramanian.
Claims 3, 19, and 25 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hu, Chin, Sivasubramanian, and Kalyanaraman.
Claims 6–9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hu, Chin, Sivasubramanian, and Kashyap.
Claim 11 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Hu, Chin, Sivasubramanian, and Yang.
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Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Hu, Chin, Sivasubramanian, and Keesara.
Claims 14 and 15 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Hu, Chin, Sivasubramanian, and Head.
Claims 20 and 23 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Head, Fischer, and Sivasubramanian.
Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Head, Fischer, Sivasubramanian, and Hu.
Throughout this decision, we make reference to the Appeal Brief
(“App. Br.,” filed Oct. 3, 2017), the Reply Brief (“Reply Br.,” filed Feb. 26,
2018), and the Examiner’s Answer (“Ans.,” mailed Dec. 28, 2017) for their
respective details.

ISSUES
1. Is the claimed invention directed to an abstract idea?
2. Does the combination of Hu, Chin, and Sivasubramanian disclose
or fairly suggest forwarding one or more packets from a first addressable
computing element to a second addressable computing element based on a
topology-aware address, wherein the topology-aware address comprises at
least one indication used to control a number of different destination virtual
machines having one or more specified physical topology attributes, wherein
the one or more specified physical topology attributes are defined relative to
corresponding specified physical topology attributes of a locality of the first
addressable computing element?
3. Does the combination of Head, Fischer, and Sivasubramanian
disclose or fairly suggest instantiating an addressable computing element at
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a designated topological location in a computing system, wherein the
designated topological location comprises a location having one or more
specified physical topology attributes defined relative to corresponding
physical topology attributes of a locality of the first virtual machine?

PRINCIPLES OF LAW
An invention is patent eligible if it claims a “new and useful process,
machine, manufacture, or composition of matter.” 35 U.S.C. § 101.
However, the Supreme Court has long interpreted 35 U.S.C. § 101 to
include implicit exceptions: “[l]aws of nature, natural phenomena, and
abstract ideas” are not patentable. See, e.g., Alice Corp. v. CLS Bank Int’l,
573 U.S. 208, 216 (2014).
In determining whether a claim falls within an excluded category,
we are guided by the Supreme Court’s two-step framework, described in
Mayo and Alice. Alice, 573 U.S. at 217–18 (citing Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In
accordance with that framework, we first determine what concept the
claim is “directed to.” See Alice, at 219 (“On their face, the claims before
us are drawn to the concept of intermediated settlement, i.e., the use of a
third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561
U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain
the basic concept of hedging, or protecting against risk.”).
Concepts determined to be abstract ideas, and thus patent ineligible,
include certain methods of organizing human activity, such as fundamental
economic practices (Alice, at 219–20; Bilski, 561 U.S. at 611);
mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978));
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and mental processes (Gottschalk v. Benson, 409 U.S. 63, 69 (1972)).
Concepts determined to be patent eligible include physical and chemical
processes, such as “molding rubber products” (Diamond v. Diehr, 450
U.S. 175, 192 (1981)); “tanning, dyeing, making water-proof cloth,
vulcanizing India rubber, smelting ores” (id. at 184 n.7 (quoting Corning
v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour
(Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785
(1876))).
In Diehr, the claim at issue recited a mathematical formula, but the
Supreme Court held that “[a] claim drawn to subject matter otherwise
statutory does not become nonstatutory simply because it uses a
mathematical formula.” Diehr, 450 at 176; see also id. at 192 (“We view
respondents’ claims as nothing more than a process for molding rubber
products and not as an attempt to patent a mathematical formula.”).
Having said that, the Supreme Court also indicated that a claim “seeking
patent protection for that formula in the abstract . . . is not accorded the
protection of our patent laws, . . . and this principle cannot be
circumvented by attempting to limit the use of the formula to a particular
technological environment.” Id. (citing Benson and Flook); see, e.g., id. at
187 (“It is now commonplace that an application of a law of nature or
mathematical formula to a known structure or process may well be
deserving of patent protection.”).
If the claim is “directed to” an abstract idea, we turn to the second
step of the Alice and Mayo framework, where “we must examine the
elements of the claim to determine whether it contains an ‘inventive
concept’ sufficient to ‘transform’ the claimed abstract idea into a patent-
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eligible application.” Alice, at 221 (quotation marks omitted). “A claim
that recites an abstract idea must include ‘additional features’ to ensure
‘that the [claim] is more than a drafting effort designed to monopolize the
[abstract idea].’” Id. (quoting Mayo, 566 U.S. at 77). “[M]erely requir[ing]
generic computer implementation[] fail[s] to transform that abstract idea
into a patent-eligible invention.” Id.
The PTO recently published revised guidance on the application of
§ 101. USPTO’s Memorandum, 2019 Revised Patent Subject Matter
Eligibility Guidance, 84 Fed. Reg. 50 (January 7, 2019) (“Memorandum”).
Under that guidance, we first look to whether the claim recites:

(1) any judicial exceptions, including certain groupings of abstract
ideas (i.e., mathematical concepts, certain methods of organizing
human interactions such as a fundamental economic practice, or
mental processes); and
(2) additional elements that integrate the judicial exception into a
practical application (see MPEP § 2106.05(a)–(c), (e)–(h)).
Only if a claim (1) recites a judicial exception and (2) does not
integrate that exception into a practical application, do we then look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
are not “well-understood, routine, conventional” in the field
(see MPEP § 2106.05(d)); or
(4) simply appends well-understood, routine, conventional
activities previously known to the industry, specified at a high
level of generality, to the judicial exception.
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See Memorandum, 84 Fed. Reg. at 52.

ANALYSIS
SECTION 101 REJECTION
The first step in our subject-matter-eligibility analysis is to determine
whether the claimed invention is directed to a judicial exception, to wit, an
abstract idea. Under the Memorandum, we analyze the claimed invention to
determine whether it is directed to (a) mathematical concepts, (b) certain
methods of organizing human activity, and/or (c) mental processes. An
invention that is deemed not to be directed to one of the enumerated
groupings of subject matter will not be considered to be patent ineligible. Id.
The Examiner concluded that the claimed invention is directed to a
patent-ineligible “idea of itself[,] to [the] extent that routing of packets based
on an address is claimed.” Final Act. 3. The Examiner found that the claims
recite collecting/receiving data (i.e., packets received from a first
addressable computing element), analyzing data (determine to which second
addressable computing element(s) the packets should be forwarded), and
delivering the packets to the determined second addressable computing
elements. Final Act. 7.
We do not agree with the Examiner that the independent claims (1, 17,
20, and 24) recite an “idea of itself.” Method claim 1 recites forwarding one
or more packets to at least a second addressable computing element based on
a topology-aware address assigned to said second addressable computing
element. The topology-aware address comprises a set of identifiers
representing one or more topology attributes associated with the second
addressable computing element, and comprises at least one indication used
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to control a number of different destination virtual machines. The one or
more specified physical topology attributes are defined relative to
corresponding specified physical topology attributes of a locality of the first
addressable computing element. Method claim 20 generates an instruction to
instantiate an addressable computing element at a designated topological
location in a computing system, that location having one or more specified
physical topology attributes defined relative to corresponding physical
topology attributes of a locality of the first virtual machine. Apparatus claim
17 recites a processor configured to forward packets based on a topology-
aware address such as that recited in claim 1. Claim 24 recites a network
comprising a plurality of virtual machines, in which packets are forwarded
from a first virtual machine to at least a second virtual machine based on a
topology-aware address such as that recited in claim 1.
We thus find that independent method claims 1 and 20 recite
affirmative steps (of, at minimum, forwarding data packets based on a
topology-aware address) to be performed. Independent claim 17 recites a
processor that performs functions (address-based packet forwarding)
analogous to the steps recited in claim 1. Independent claim 24 recites a
network in which functions are performed (address-based packet
forwarding) analogous to the steps recited in claim 1.
The Examiner’s analogy to Electric Power Group and Classen fails to
establish that the claims under appeal represent an uninstantiated concept,
plan, or scheme. Ans. 2; Final Act. 3. The Examiner determines that the
“claims are directed to abstract ideas of Classen and Electric Power Group
at least to [the] extent that the claims perform categorical matching of
topology attributes with matching computing elements in a network.” Ans.
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2. The Examiner fails, however, to rebut Appellant’s argument that the
claims recite the “concrete step of ‘forwarding’ packets.” Id.; App. Br. 7.
We next consider whether the claims constitute a “mental process.”
To answer this question, we consider whether the claimed steps or functions,
but for any generic components recited, could be performed mentally by a
person. We find that a person could not mentally, or with pencil and paper,
forward (data) packets from a first addressable computing element to at least
a second addressable computing element based on a topology-aware address.
We, therefore, determine that the claimed invention is not directed to a
mental process.
The Memorandum includes “[c]ertain methods of organizing human
activity” as a category of abstract idea to which an invention may be
directed. Memorandum 52. Examples of such methods include “fundamental
economic principles or practices (including hedging, insurance, mitigating
risk); commercial or legal interactions (including agreements in the form of
contracts; legal obligations; advertising, marketing or sales activities or
behaviors; business relations); managing personal behavior or relationships
or interactions between people (including social activities, teaching, and
following rules or instructions).”3 Id. Having considered these sub-

3 Alice, at 219–20 (concluding that use of a third party to mediate settlement
risk is a “fundamental economic practice” and thus an
abstract idea); id. (describing the concept of risk hedging identified as an
abstract idea in Bilski as “a method of organizing human activity”); Bilski,
561 U.S. at 611–612 (concluding that hedging is a “fundamental economic
practice” and therefore an abstract idea); Bancorp Servs. LLC v. Sun Life
Assur. Co., 687 F.3d 1266, 1280 (Fed. Cir. 2012) (concluding that
“managing a stable value protected life insurance policy by performing
calculations and manipulating the results” is an abstract idea (citation
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categories in the Memorandum, we find that the claimed invention is not
directed to fundamental economic principles or practices; to commercial or

omitted)); Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d
1372, 1378–79 (Fed. Cir. 2017) (holding that concept of “local processing of
payments for remotely purchased goods” is a “fundamental economic
practice, which Alice made clear is, without more, outside the patent
system.”); OIP Techs., Inc. v. Amazon.com, Inc., 788 F.3d 1359, 1362–63
(Fed. Cir. 2015) (concluding that claimed concept of “offer-based price
optimization” is an abstract idea “similar to other ‘fundamental economic
concepts’ found to be abstract ideas by the Supreme Court and this court”);
buySAFE, Inc. v. Google, Inc., 765 F.3d. 1350, 1355 (Fed. Cir. 2014)
(holding that concept of “creating a contractual relationship—a ‘transaction
performance guaranty’” is an abstract idea); In re Comiskey, 554 F.3d 967,
981 (Fed. Cir. 2009) (claims directed to “resolving a legal dispute between
two parties by the decision of a human arbitrator” are ineligible);
Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed. Cir. 2014)
(holding that claim “describ[ing] only the abstract idea of showing an
advertisement before delivering free content” is patent ineligible); In re
Ferguson, 558 F.3d 1359, 1364 (Fed. Cir. 2009) (holding methods “directed
to organizing business or legal relationships in the structuring of a sales
force (or marketing company)” to be ineligible); Credit Acceptance v.
Westlake Servs., 859 F.3d 1044, 1054 (Fed. Cir. 2017) (“The Board
determined that the claims are directed to the abstract idea of ‘processing an
application for financing a purchase.’ . . . We agree.”); Interval Licensing,
LLC v. AOL, Inc., 896 F.3d 1344, 1345 (Fed. Cir. 2018) (concluding that
“[s]tanding alone, the act of providing someone an additional set of
information without disrupting the ongoing provision of an initial set of
information is an abstract idea,” observing that the district court “pointed to
the nontechnical human activity of passing a note to a person who is in the
middle of a meeting or conversation as further illustrating the basic,
longstanding practice that is the focus of the [patent ineligible] claimed
invention.”); Voter Verified, Inc. v. Election Sys. & Software, LLC, 887 F.3d
1376, 1385 (Fed. Cir. 2018) (finding the concept of “voting, verifying the
vote, and submitting the vote for tabulation,” a “fundamental activity” that
humans have performed for hundreds of years, to be an abstract idea); In re
Smith, 815 F.3d 816, 818 (Fed. Cir. 2016) (concluding that “[a]pplicants’
claims, directed to rules for conducting a wagering game” are abstract).
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legal interactions; to legal obligations; to advertising/marketing/sales
activities; to business relations; or to managing personal behavior or
relationships or interactions between people. As a result, we determine that
the claimed invention under appeal is not directed to one of certain methods
of organizing human activity that has previously been found to constitute an
abstract idea.
Last, we consider whether the claims are directed to mathematical
concepts – mathematical relationships, mathematical formulas or equations,
or mathematical calculations. Memorandum, 84 Fed. Reg. at 52. Finding no
such mathematical concepts recited in the claims, we conclude that the
claimed invention is not directed to the “mathematical concepts” category of
abstract ideas.
We conclude that the claimed invention is not directed to any of the
categories of abstract ideas enumerated in the Memorandum. Therefore, we
conclude that the claims are directed to patent-eligible subject matter. We do
not sustain the Examiner’s § 101 rejection of claims 1–21 and 23–25.

OBVIOUSNESS REJECTION OF CLAIMS 1, 2, 4, 5, 10, 13, 16–18, AND 24
The Examiner admits that Hu and Chin do not disclose the claimed
topology-aware address, and finds that Sivasubramanian discloses a
topology-aware address that comprises one or more specified physical
topology attributes that the one or more packets are forwarded to, and that
the physical topology attributes are defined relative to corresponding
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specified physical topology attributes of a locality of the first addressable
computing element. Ans. 13; Final Act. 13.
We do not agree with the Examiner that the combination of references
discloses or suggests forwarding one or more packets based on a topology-
aware address, the topology-aware address comprising a set of identifiers
representing one or more topology attributes, the topology-aware address
comprising at least one indication used to control a number of different
destination virtual machines having one or more specified physical topology
attributes, those physical topology attributes being defined relative to
corresponding specified physical topology attributes of a locality of the first
addressable computing element, as independent claims 1, 17, and 24 require.
The Examiner relies on disclosures found in columns 5 and 6 of
Sivasubramanian. “[A] network node moniker in use with a managed
computer network for a client enables the client to specify a particular
textual string for a particular computing node that is meaningful to that
client.” Sivasubramanian, col. 5:21–25. Sivasubramanian then discloses a
non-exclusive list of possible bases for network node monikers: “a
geographical location of the computing node, a network topological location
of the computing node . . . , a functionality of the associated computing
node, an organizational or other affiliation with in the client for the
computing node.” Id. at col. 5:27–31. “Particular network node monikers . . .
may be specified in various manners, including to be defined by the client,
or in some embodiments by the configurable network service . . . . As one
example, a client may specify a particular network node moniker to be used
with one or more particular computing nodes, or may instead define one or
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more network node monikers to be assigned to particular computing nodes
by the configurable network service.” Sivasubramanian, col. 6:5–23.
While Sivasubramanian mentions the possibility that a client may
choose to specify a textual string name for a computing node that may
happen to correspond to a network topological location of that computing
node, we do not agree that Sivasubramanian’s disclosure corresponds to the
specific “topology-aware address” limitations of claim 1. We find that
Sivasubramanian discloses that a client has the option to choose a network
moniker that corresponds to a topological location, but does not disclose a
topology-aware address that is assigned to an addressable computing
element. We further find that Sivasubramanian does not disclose such an
address that controls “a number of different destination virtual machines
having one or more specified physical topology attributes that the one or
more packets are forwarded to,” and that those attributes are defined relative
to corresponding specified physical topology attributes of a locality of the
first addressable computing element, as independent claims 1, 17, and 24
recite.
Appellant argues, and we agree, that Sivasubramanian “appears to
describe network node monikers that are assigned a textual string ‘that is
meaningful’ to the client specifying the monikers.” Reply Br. 8;
Sivasubramanian col. 5:21–31. We further agree with Appellant that
“Sivasubramanian, as well as Hu and Chin, are devoid of any reference to
forwarding packets from a first addressable computing element using a
topology-aware address including specified physical attributes defined
relative to corresponding physical topology attributes of a locality of the first
addressable computing element,” as claim 1 recites. Id. We, therefore, find
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that Sivasubramanian fails to disclose all of the limitations concerning the
“topology-aware address” as argued by Appellant.
Independent claim 17 also recites a topology-aware address that
comprises a set of identifiers representing one or more topology attributes,
and further comprises at least one indication used to control a number of
different destination virtual machines having one or more specified physical
topology attributes, those attributes being defined relative to corresponding
specified physical topology attributes of a locality of the first addressable
computing element. Sivasubramanian, for the reasons discussed supra, fails
to disclose these limitations concerning the claimed “topology-aware
address.”
Independent claim 24, like claims 1 and 17, recites a topology-aware
address that comprises a set of identifiers representing one or more specified
physical topology attributes, and further comprises at least one indication
used to control a number of different destination virtual machines having
one or more specified topology attributes, those specified topology attributes
being defined relative to corresponding specified physical topology
attributes of a locality of the first addressable computing element.
Sivasubramanian, for the reasons discussed supra, fails to disclose these
limitations concerning the claimed “topology-aware address.”
As a consequence of our finding that Hu, Chin, and Sivasubramanian
fails to disclose or suggest all the elements of independent claims 1, 17, and
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24, we do not sustain the Examiner’s § 103 rejection of claims 1, 2, 4, 5, 10,
13, 16–18, and 24.

OBVIOUSNESS REJECTION OF CLAIMS 3, 6–9, 11, 12, 14, 15, 19, AND 25
Claim 3 depends from independent claim 1; claim 19 depends from
independent claim 17; and claim 25 depends from independent claim 24.
We have reviewed Kalyanaraman, and we find that it does not remedy
the deficiencies of Hu, Chin, and Sivasubramanian discussed supra.
Accordingly, we do not sustain the Examiner’s § 103 rejection of claims 3,
19, and 25, for the reasons given supra with respect to claims 1, 17, and 24.
Claims 6–9 depend from independent claim 1. We have reviewed
Kashyap, and we find that Kashyap does not remedy the deficiencies of Hu,
Chin, and Sivasubramanian discussed supra. Accordingly, we do not sustain
the Examiner’s § 103 rejection of claims 6–9, for the reasons given supra
with respect to claim 1.
Claims 11, 12, 14, and 15 all depend from independent claim 1. We
have reviewed Yang, Keesara, and Head, and we find that these references
do not remedy the deficiencies of Hu, Chin, and Sivasubramanian, discussed
supra with respect to claim 1. Accordingly, we do not sustain the
Examiner’s § 103 rejection of claims 11, 12, 14, and 15, for the reasons
given supra with respect to claim 1.

OBVIOUSNESS REJECTION OF CLAIMS 20, 21, AND 23
Independent claim 20 recites generating an instruction, from an
application program, to instantiate an addressable computing element at a
designated topological location in a computing system, said location
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comprising a location having one or more specified physical topology
attributes defined relative to corresponding physical attributes of a locality
of the first virtual machine (which implements the application program).
The Examiner admits that Head and Fischer do not disclose the
limitations regarding physical topology attributes. Final Act. 28. The
Examiner again finds, as with independent claims 1, 17, and 24, that
Sivasubramanian discloses the topological location and topology attributes
limitations because “Sivasubramanian discloses an assigned network
moniker may be based on geographical location.” Ans. 18; Final Act. 30–31;
Sivasubramanian col. 5:21–31. We do not agree with the Examiner’s
finding. We are not persuaded that the disclosure of Sivasubramanian, that a
client may specify a textual string that is meaningful to that client,
corresponds to the specific limitations of claim 20 regarding topological
locations. Rather, we agree with Appellant’s argument that Sivasubramanian
does not “describe or contemplate a designated topological location which
comprises a location having one or more specified physical topology
attributes that are defined relative to corresponding physical topology
attributes of a locality of a first virtual machine.” Reply Br. 13.
Thus, we find that the combination of Head, Fischer, and
Sivasubramanian does not disclose or suggest all the limitations of claims 20
and 23. We do not sustain the Examiner’s § 103 rejection.
We have reviewed Hu and we find that it does not remedy the
deficiencies of Head, Fischer, and Sivasubramanian noted supra. Therefore,
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we do not sustain the Examiner’s § 103 rejection of claim 21, dependent
from claim 20.
CONCLUSIONS
1. The claimed invention is not directed to an abstract idea.
2. The combination of Hu, Chin, and Sivasubramanian does not
disclose or fairly suggest forwarding one or more packets from a first
addressable computing element to a second addressable computing element
based on a topology-aware address, wherein the topology-aware address
comprises at least one indication used to control a number of different
destination virtual machines having one or more specified physical topology
attributes, wherein the one or more specified physical topology attributes are
defined relative to corresponding specified physical topology attributes of a
locality of the first addressable computing element.
3. The combination of Head, Fischer, and Sivasubramanian does not
disclose or fairly suggest instantiating an addressable computing element at
a designated topological location in a computing system, wherein the
designated topological location comprises a location having one or more
specified physical topology attributes defined relative to corresponding
physical topology attributes of a locality of the first virtual machine.

ORDER
The Examiner’s decision to reject claims 1–21 and 23–25 under
35 U.S.C. § 101 is reversed.

REVERSED