Nicira, Inc.

Patent Trials and Appeals Board

Dec 14, 2020

2019004882 (P.T.A.B. Dec. 14, 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.
15/006,072 01/25/2016 Bolt Zhang N227 (NCRA.P0370) 9600
109858 7590 12/14/2020
ADELI LLP
P.O. Box 516
Pacific Palisades, CA 90272
EXAMINER
DAILEY, THOMAS J
ART UNIT PAPER NUMBER
2452
NOTIFICATION DATE DELIVERY MODE
12/14/2020 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):
ipadmin@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 BOLT ZHANG, JIANJUN SHEN, JIANWEI MA,
DONGHAI HAN, RAM D. SINGH, and FRANK PAN
____________

Appeal 2019-004882
Application 15/006,072
Technology Center 2400
____________

Before JOSEPH L. DIXON, MAHSHID D. SAADAT, and
DONNA M. PRAISS, Administrative Patent Judges.

SAADAT, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–22 and 25–27, which are all the
claims pending in this application.2 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(a). Appellant identifies the real party in interest as
VMware, Inc. and Nicira, Inc. Appeal Br. 2.
2 Claims 23 and 24 have been canceled previously.
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STATEMENT OF THE CASE
Introduction
Appellant’s disclosure relates to utilizing virtualization software, such
as a hypervisor, to “provide a high level interface that a network
administrator can utilize to send a uniform set of commands to configure a
logical network and the associated devices and services without being aware
of the particular network utilization software that is used by different hosts
on the logical network.” See Spec. ¶¶ 4, 6. Claim 1 is illustrative of the
invention and reads as follows:
1. A method of defining a virtual network across a
plurality of physical hosts, at least two hosts utilizing network
virtualization software provided by two different vendors, each
host hosting a set of data compute nodes (DCNs) for one or
more tenants, the method comprising:
at an agent at a host, receiving a command from a
network controller, the command comprising (i) an
identification of a resource associated with a tenant logical
network and used by a DCN executing on the host and (ii) an
action to perform on the identified resource;
at the agent, determining a network virtualization
software utilized by the host;
at the agent, translating the received action into a set of
configuration commands compatible with the network
virtualization software utilized by the host; and
sending the configuration commands to a network
configuration interface on the host to perform the action on the
identified resource.
Appeal Br. 31 (Claims Appendix).
The Examiner’s Rejection
Claims 1–22 and 25–27 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Zhang (US 2015/0249574 A1; publ. Sept. 3, 2015),
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Gokhale (US 2015/0082300 A1; publ. Mar. 19, 2015), and Nilakantan (US
2015/0195129 A1; publ. July 9, 2015). See Final Act. 3–7.
ANALYSIS
INDEPENDENT CLAIMS
In rejecting claim 1, the Examiner relies on Zhang as disclosing the
recited method of defining a virtual network across a plurality of physical
hosts including the steps of “receiving a command from a network
controller,” “translating the received action into a set of configuration
commands,” and “sending the configuration commands to a network
configuration interface.” Final Act. 3 (citing Zhang Abstract, ¶¶ 23, 29, 36–
38). The Examiner further finds Gokhale discloses “determining a network
virtualization software utilized by the host” and concludes the combination
would have been obvious to one of ordinary skill in the art “in order to
create a system that can work with a broader array of software.” Final Act. 4
(citing Gokhale ¶¶ 24, 25). The Examiner additionally relies on Nilakantan
as disclosing “receiving a command from a network controller, the
command comprising (i) an identification [of] a resource associated with a
tenant logical network and used by a DCN executing on the host and (ii) an
action to perform on the identified resource.” Final Act. 4 (citing Nilakantan
Fig. 6 and its corresponding description). The Examiner finds the
combination would have been obvious to one of ordinary skill in the art
because virtualized resources can be managed “more effectively and with
greater control.” Final Act. 5.
Appellant contends the concepts disclosed in Zhang, Gokhale, and
Nilakantan are not the same as the instant claims that “relate to an agent on
the host, which hosts a set of DCNs for one or more tenants, that receives
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commands from a network controller and translates them for the network
virtualization software utilized by the host.” Appeal Br. 13. Appellant
argues the applied references are unrelated to the above-mentioned aspects
of the claims in that
Zhang relates to translating commands between applications
controlled by application developers and physical controllers
that manage separate physical nodes hosting virtual nodes of a
virtual network. Gokhale relates to enabling communication
between an application on a virtual server and underlying
hardware that is not virtualized on the server. Nilakantan is
silent regarding an agent translating commands from a network
controller.
Id. Appellant’s specific arguments are addressed below.
First Argument
Appellant argues the cited references fail to teach or suggest the
recited “at an agent on a host, (1) receiving a command from a network
controller that includes an action and (2) translating the received action into
a set of configuration commands compatible with the network virtualization
software utilized by the host.” Appeal Br. 13. According to Appellant, the
cited portions of Zhang in the Abstract, Figures 1 and 4, and paragraphs 23,
29, and 36–38 “describe a controller receiving a request from an application,
parsing the request into objects that are recognizable by an internal API of
the controller, and, according to the internal objects, transmitting commands
to manage a virtual network implemented at a set of separate physical
nodes.” Appeal Br. 13–14. In particular, Appellant argues Zhang’s physical
network controller (PNC) performs commands from the virtual network
controller (VNC) on the virtual network or translates “requests from the
applications at the PNC instead of at the VNC,” but fails to describe “an
agent on a host receiving a command from a network controller and
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translating an action of the command to be compatible with the network
virtualization software utilized by the host.” Appeal Br. 14 (citing Zhang
¶¶ 26–29, 49). Appellant also argues that Gokhale and Nilakantan “are also
silent regarding an agent on a host translating an action received from a
network controller into configuration commands compatible with a network
virtualization software utilized by the host.” Id.
In response, the Examiner refers to Zhang’s paragraph 36 as
disclosing that “network controller passes commands to a parser 428 (‘an
agent at a host’),” which “may be a component of the VNC” and allowing
the VNC pass commands to the parser or the agent at the host. Ans. 3–4
(citing Zhang Fig. 4, ¶ 36). The Examiner explains that the broadest
reasonable interpretation of the claim term “an agent at a host” does not
“limit[s] the agent from not being part of the network controller, i.e. Zhang’s
VNC, because it can still pass commands internally (especially considering
these elements are software).” Ans. 4.
We agree with the Examiner’s findings and conclusion. Contrary to
Appellant’s argument that “Zhang is silent regarding a single host on
which both the VNC parser and virtual nodes execute” (Reply Br. 2), the
claims are not so limited. First, nothing in the claim precludes a host having
a controller and an agent present in one component, because the claim
describes the host and the agent based on their recited functions. Second,
the broadest reasonable interpretation of the claim does not require a single
host, but allows for the host to comprise a distributed system. Third,
Zhang’s paragraph 36 describes the communication from application 410 to
network controller 420, which may be implemented as VNC 240 (in Figure
2) or controller 320 (in Figure 3) that passes commands to parser 428 via
execution module 426. Zhang ¶ 35. Parser 428 (equated with the recited
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agent at a host) translates the received commands into VNC objects that are
understandable and compatible by the internal VNC. Zhang ¶ 36.
Therefore, Zhang discloses the disputed limitations and their corresponding
functions.
Second Argument
Appellant contends that adding Gokhale to Zhang does not teach or
suggest the recited receiving a command including an action, determining a
network virtualization software utilized by the host, and translating the
received action into a set of commands compatible with the network
virtualization software. Appeal Br. 15–16. In addition to the arguments
raised against Zhang, as discussed above, Appellant asserts Gokhale was
relied on as disclosing “a module in a guest operating system receiving a
request from an application also in the guest operating system and
determining the virtual server (e.g., hypervisor) used by the host on which
the guest operating system executes.” Appeal Br. 16–17 (citing Gokhale
Figs. 2–3, 6, Abstract, ¶¶ 6, 7, 20–25). Appellant specifically argues “a
virtual server hosting a guest operating system (as described in Gokhale) is
not a controller with a parser and internal API (as described in Zhang), and
does not reasonably correspond to such a controller.” Appeal Br. 17.
The Examiner responds by stating that the rejection is based on the
combination of the references such that the features of Gokhale does not
need to be bodily incorporated into the structure disclosed by Zhang. Ans. 5
(citing In re Keller, 642 F.2d 413 (CCPA 1981); In re Merck & Co., Inc.,
800 F.2d 1091 (Fed. Cir. 1986)). The Examiner further explains:
With regard to this particular limitation, above in reply to
(1) it has been established that Zhang discloses an action
received from a network controller can be translated into
commands compatible with the network virtualization software.
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Zhang, with regard to this limitation, simply does not disclose
determining a network virtualization software utilized by a host
prior to the translation. In other words, Zhang is silent with
regards to how the parser knows what codes to translate to
respective objects, see [0036], but it the nonetheless
accomplishes this task. Gokhale is relied upon to fill in the
gaps and discloses an agent at a host, determining a network
virtualization software utilized by the host ([0024]-[0025],
particularly, “In one embodiment, such an interface is packaged
as a software module installed on the virtual machine 202.
When the software module is installed and initialized on the
virtual machine 202, the software module detects the type of the
underlying virtual server and loads a corresponding sub-
module (e.g., a set of classes) that is implemented particularly
for the virtual server,” Gokhale’s “software module” reading
on “an agent on a host,” (“a host” being the physical host of
Gokhale’s virtual server; that is, the module is on the virtual
machine which is on the virtual server on a physical host) and
the software of virtual server reading on at least part of
“virtualization software” of which the type is explicitly
detected.
Ans. 5–6 (emphasis added). The Examiner also determines that, based on
the broadest reasonable interpretation of the claim terms discussed above,
the proposed combination would have been obvious “because none of these
elements necessarily are separate entities but actually layered within each
other since they are not physical elements but rather software constructs and
combining them to one of ordinary skill in the art would be routine.” Ans. 6.
We agree with the Examiner’s findings regarding the teachings of
Gokhale and how combining those teachings with Zhang teaches or suggests
the recited “at the agent, determining a network virtualization software
utilized by the host.” As correctly found by the Examiner, Gokhale’s
disclosure addresses the problem of using different virtualization software
vendors and determining the necessary changes to the software source code
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that makes it compatible with the received commands. See Gokhale ¶ 24.
By detecting the underlying virtual server and the software used by it,
Gokhale’s software module provides a compatible sub-module that allows
the used application communicate with the underlying virtual server or the
network virtualization software. See Gokhale ¶ 25. We also agree with the
Examiner that the combination would have enabled Zhang to determine the
host’s network virtualization software that the action in the received
command needs to be translated or converted to, as suggested by Gokhale.
Third Argument
Appellant contends Zhang lacks any disclosure related to the recited
“at an agent on a host, translating an action received from a network
controller” wherein “each host hosts a set of DCNs for one or more tenants.”
Appeal Br. 18. Appellant points to Figures 1 and 2 of Zhang and asserts that
the disclosed “physical network nodes and the physical network controller
are separate devices” and “not a DCN hosted for one or more tenants (i.e., of
the virtual network).” Appeal Br. 19.
The Examiner responds by reiterating Zhang’s disclosure in Figure 1
and paragraph 25 with respect to physical network nodes or hosts hosting
different virtual nodes (DCNs) on two different virtual networks 110 and
120, which is consistent with Appellant’s disclosure in paragraph 221 of the
instant Specification. Ans. 7. Additionally, the Examiner explains “virtual
machines are merely one example of data compute nodes (DCNs) or data
compute end nodes, also referred to as addressable nodes” and “DCNs may
include non-virtualized physical hosts, virtual machines, containers that run
on top of a host operating system without the need for a hypervisor or
separate operating system, and hypervisor kernel network interface
modules.” Id. (citing Spec. ¶ 221).
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We agree with the Examiner’s analysis of Zhang and observe that the
recited “host hosting a set of data compute nodes (DCNs) for one or more
tenants” appears only in the claim preamble without further limiting the
recited functions of the agent at a host, such as receiving a command
(including an action), determining a network virtualization software,
translating the received action, and sending the configuration commands to
an interface. That is, the Examiner’s mapping of the claim limitations to the
cited portions of Zhang based on the recited functions is reasonable and
supported by evidence, as specified in the Final Action and the Answer.
There is no ipsissimis verbis test for determining whether a reference
discloses a claim element, i.e., identity of terminology is not required. In re
Bond, 910 F.2d 831, 832 (Fed. Cir. 1990).
Fourth Argument
Appellant contends the Examiner’s reliance on Nilakantan as
disclosing the recited “at an agent on a host, receiving and translating a
command from a network controller that includes (1) an identification of a
resource associated with a tenant logical network and used by a DCN
executing on the host and (2) an action to perform on the identified
resource” is in error. Appeal Br. 20. According to Appellant, although
“Nilakantan describes a network controller that configures network elements
(e.g., a virtual switch) on the hypervisor of a host computer,” a generic
hypervisor cannot be construed as an agent for receiving commands. Id.
(citing Nilakantan ¶ 31). Appellant also asserts “[t]he hypervisor in
Nilakantan is a virtual environment for hosting software constructs, such as
a virtual machine or agents,” but is “unrelated to agents on hosts for
receiving commands.” Id.
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The Examiner responds by referring to the decisions in In re Keller
and In re Merck and further explains that Zhang and Gokhale are relied on
as disclosing that a received action is translated by an agent into commands
compatible with the determined network virtualization software on the host.
Ans. 8. The Examiner further explains
Nilakantan is relied upon to fill in the gaps and discloses at an
agent at a host, receiving a command at an agent at a host,
receiving a command from a network controller, the command
comprising (i) an identification a resource associated with a
tenant logical network and used by a DCN executing on the
host and (ii) an action to perform on the identified resource
(Fig. 2, label 202 (“network controller”), Fig. 6 labels 206
(“host”), 500 (“DCN”), 502 (“agent”), 504 (“resource”) and
[0031], particularly, “The method 700 proceeds to block 708
where the controller creates virtual ports in the virtual switches
corresponding to each VLAN to which the persona requires
access. At this block, the controller 202 may also create port
groups in the virtual switches to define the attributes of the
virtual ports”).
Ans. 8–9. The Examiner also states that combining the references would
have been obvious and within the knowledge of ordinary skill in the art
“without the need to add any of the functionality of Nilakantan’s hypervisor
to Zhang’s parser aside from receiving a certain type of command, i.e. a
command identifying a virtual switch and an action for that switch.” Ans. 9.
We agree with the Examiner’s finding that the combination of
Nilakantan’s hypervisor as the recited agent that receives a command from a
network controller (Final Act. 4–5; Ans. 8–9 (citing Nilakantan Figs. 2, 6,
¶ 31)) and Gokhale’s agent determining the software utilized by the host
(Final Act. 4; Ans. 5–6 (citing Gokhale ¶¶ 24, 25)) with Zhang’s virtual
network (Final Act. 3–4; Ans. 3–4 (citing Zhang ¶¶ 23, 36)) teaches or
suggests the recited method of claim 1. “The combination of familiar
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elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int'l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007). Additionally, we are not persuaded that combining
the respective familiar elements of the cited references in the manner
proffered by the Examiner would have been “uniquely challenging or
difficult for one of ordinary skill in the art” at the time of Appellant’s
invention. Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162
(Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Conclusion
In view of our analysis above, we are unpersuaded of Examiner error
in rejecting claim 1, as well as independent claims 9 and 17 which are
argued with claim 1.
DEPENDENT CLAIMS
Appellant contends patentability of dependent claims based on the
same arguments presented for the independent claims and add the following
additional arguments.
Claims 2, 10, and 18
Appellant contends the applied references do not “discuss a host,
hosting DCNs for one or more tenants, receiving a command from a network
controller that is not compatible with the network virtualization software
used by the host.” Appeal Br. 22. Appellant restates the arguments raised
above (see restated arguments above in section under “Third Argument”)
and asserts that “the network controllers of Zhang are explicitly compatible
with the network virtualization software used by the physical nodes hosting
the virtual nodes of Zhang.” Appeal Br. 22–23. According to Appellant, the
other applied prior art references are also silent with respect to this feature.
Appeal Br. 23.
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In response, the Examiner explains “[b]y the fact that Zhang needs to
translate the commands in [0036], it is clear that the command from a
network controller is not compatible with the network virtualization software
used by the host and therefore the bounds of the claim are at[sic] suggested
by at least Zhang” and adds that “Gokhale discloses ensuring commands are
compatible with different virtualization software types.” Ans. 10.
We agree with the Examiner’s findings and conclusion and further
rely on our analysis of Zhang with respect to translating or converting the
VNDL codes to make them understandable by a VNC internal API. See
Zhang ¶ 36.
Claims 3, 11, and 19
Appellant contends the applied references do not “discuss an agent on
a host and a network controller that communicate through an API that is
independent of the network virtualization software used by the host.”
Appeal Br. 23. Appellant further argues “[t]he API of Zhang, however, is
provided by the network controller and varies based on the network
controller” and the Examiner’s mapping of the network controller of Zhang
as the network virtualization software shows that “the API of Zhang is not
independent of the identified network virtualization software at all, but is
instead explicitly dependent on and provided by the network virtualization
software.” Appeal Br. 24. According to Appellant, the other applied prior
art references are also silent with respect to this feature. Id.
In response, the Examiner restates that
Zhang discloses an agent on host. Zhang further discloses the
agent and virtual network controller communicate through an
application programming interface (API) that is independent of
the network virtualization software used by each of the plurality
of the hosts in [0036], see particularly, “During parsing, the
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VNDL codes may be translated or converted into internal
objects 430, which are understandable by a VNC internal API
432 in the network controller 420.” The VNC internal API is
independent of “the network virtualization software” given the
breadth of the term “network virtualization software” and any
software the VNC interfaces with outside of the bounds of the
VNC would read on it, e.g. the software constructs running the
virtual nodes and creating the virtual network pictured in Fig. 1
of Zhang.
Ans. 11.
We agree with the Examiner’s findings and analysis. Additionally,
we disagree with Appellant’s assertion that the Examiner has mapped the
network controller of Zhang as the network virtualization software and
observe that the Examiner has properly identified network controller 420 of
Zhang as including an agent that receives requests or commands that are
translated or converted by parser 428. See Ans. 3–4 (citing Zhang Fig. 4,
¶ 36); see also our analysis above in section under “First Argument”).
Claims 7 and 15
Appellant contends the applied references do not teach or suggest the
following:
[A]n agent on a host, which hosts a set of virtual machines or
containers on top of an operating system for one or more
tenants, receiving a command from a network controller and
translating an action of the command into a set of configuration
commands compatible with the network virtualization software
utilized by the host.
Appeal Br. 25. Appellant also argues Zhang is silent regrading a virtual
machine or container and merely discloses physical network controllers and
physical network nodes using controller modules and web servers for
performing controller services for a virtual network, which “is not a virtual
machine or container hosted for one or more tenants.” Appeal Br. 25–26.
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With respect to Gokhale, Appellant asserts the disclosed application in
paragraphs 20–25 is not a network controller. Appeal Br. 26.
In response, the Examiner reiterates that Zhang discloses a DCN on a
host, whereas “Nilakantan discloses a DCN is one of a virtual machine and a
container that runs on top of an operating system of the host (Zhang, [0036]
and Gokhale, [0025].” Ans. 11. Additionally, the Examiner explains that
Zhang’s virtual nodes meet the recited “DCN being a container that runs on
top of an operating system of the host” where the “physical network nodes
111–125 in Fig. 1 run operating system above the virtual nodes in order to
actually have a functioning system.” Ans. 12.
We are unpersuaded by Appellant’s arguments and instead agree with
the Examiner’s findings and conclusions. As stated by the Examiner,
although some of the nodes are in the physical network, Zhang arranges the
virtual nodes 111–125 as a virtual network which run on top of an operating
system of the host to expand networking functionalities. See Zhang Fig.1,
¶¶ 23–25; see also Spec. ¶ 221. As such, the proposed combination teaches
or suggests the recited DCN being at least a virtual machine running on top
of the operating system of the host or the physical layer of the network.
Claims 8 and 16
Appellant contends the applied references do not “discuss first and
second hosts, hosting DCNs for a tenant and with different network
virtualization software, receiving a command from a network controller and
translating the command into different sets of configuration commands for
the different network virtualization software.” Appeal Br. 27. Appellant
specifically argues that Zhang is silent regarding the physical nodes,
Gokhale is silent regarding network controllers, and Nilakantan is silent
regarding different network virtualization software on different hosts. Id.
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In response, the Examiner refers to the findings and explanations
provided for the arguments addressed above and adds the following:
That is, Zhang discloses first and second hosts, hosting DCNs
for a tenant receiving a command from a network controller and
translating the command into different sets of configuration
commands for the network virtualization software (see Fig. 1,
[0025], and [0036]) and Gokhale discloses determining
between different network virtualization software ([0023]-
[0025]) and thus the combination of Zhang, Gokhale, and
Nilakantan suggests the argued language.
Ans. 12.
We are unpersuaded by Appellant’s arguments. Additionally, we
agree with the Examiner findings in the Final Action and the Examiner’s
mapping of the claimed features to the teachings of the applied references
and adopt them as our own. See Final Act. 6; Ans. 12. We also refer to our
analysis above regarding Zhang’s hosting virtual nodes of the virtual
network, Gokhale’s determining the network virtualization software used by
the host, and Nilakantan’s network virtualization software on different hosts
to establish absence of error in the Examiner’s rejection.
Claim 27
Appellant contends the applied references do not discuss that the
claimed “action is a monitor command and, at the claimed agent, receiving a
first notification from the claimed network configuration interface,
generating a second notification in a format recognizable by the claimed
network controller, and sending the notification to the network controller.”
Appeal Br. 28.
The Examiner reiterates the previously discussed findings with respect
to “monitor command,” “a first notification,” generating a second
notification recognizable by the “network controller,” and “sending the
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notification” and determines that Nilakantan’s paragraph 18 discloses a
status notification for the identified source. Final Act. 7. Additionally, the
Examiner finds the following:
The hosts 206 and 208 are communicatively coupled to the
controller 202 via a dedicated system control network through
which the controller may issue commands, monitor, and deploy
personas to the hosts” and thus notifications would be essential
in any sort of monitoring scenario including event and status
notifications and they would have to pass through the
hypervisor (“agent” see in reply to (4)) given the outlined
structure (see Figs. 2 and 4 of Nilakantan) and the example real
world hypervisors (e.g. VMWare ESX, Microsoft Hyper-V, and
Xen) as stated in [0018].
Ans. 13.
We agree with the Examiner’s findings in the Final Action and the
Answer, including the mapping of the claimed features to the teachings of
the applied references and adopt them as our own. In view of these findings
and our analysis above regarding the teachings of the references, we are
unpersuaded of error in the Examiner’s rejection of claim 27.
Remaining Claims
No separate arguments are presented for the remaining dependent
claims, therefore we sustain their rejections for the reasons stated with
respect to independent claims 1, 9, and 17.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–22, 25–
27
103 Zhang, Gokhale,
Nilakantan
1–22, 25–
27

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FINALITY AND 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). See
37 C.F.R. § 41.50(f).
AFFIRMED