Nutanix, Inc.

Patent Trials and Appeals Board

Feb 16, 2022

2020005157 (P.T.A.B. Feb. 16, 2022)

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. 15/825,905 11/29/2017 Anand Jayaraman P266529.US.01 8763 27076 7590 02/16/2022 DORSEY & WHITNEY LLP - Seattle 701 Fifth Avenue, Suite 6100 Columbia Center Seattle, WA 98104 EXAMINER CHEN, QING ART UNIT PAPER NUMBER 2191 NOTIFICATION DATE DELIVERY MODE 02/16/2022 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): ip.docket.se@dorsey.com seattle.ip@dorsey.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ANAND JAYARAMAN, ARPIT SINGH, DANIEL SHUBIN, NIKHIL BHATIA, and PREETI UPENDRA MURTHY ___________ Appeal 2020-005157 Application 15/825,905 Technology Center 2100 ____________ Before ERIC B. CHEN, DAVID J. CUTITTA II, and MICHAEL J. ENGLE, Administrative Patent Judges. CHEN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2020-005157 Application 15/825,905 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The claims are directed to software upgrade of computing nodes of a distributed system. (Abstract.) Claim 1, reproduced below, is illustrative of the claimed subject matter, with disputed limitations in italics: 1. A distributed system comprising: a first upgrade manager hosted by a first computing node, the first upgrade manager configured to receive first differential upgrade data comprising selected packages for upgrade based on a comparison between existing packages hosted by the first computing node and packages of a software upgrade, and wherein the first upgrade manager is configured to upgrade packages based on the first differential upgrade data and restart selected services of the first plurality of services based on the first differential upgrade data; and a second upgrade manager hosted by a second computing node, the second upgrade manager configured to receive second differential upgrade data comprising second selected packages for upgrade, different from the first differential upgrade data, based on a comparison between existing packages hosted by the second computing node and the packages of the software upgrade, and wherein the second upgrade manager is configured to upgrade packages based on the second differential upgrade data and restart second selected 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 Nutanix, Inc. (Appeal Br. 3.) Appeal 2020-005157 Application 15/825,905 3 services of the second plurality of services based on the second differential upgrade data. REFERENCES Name Reference Date Rao US 2005/0071385 A1 Mar. 31, 2005 Kim US 2012/0102477 A1 Apr. 26, 2012 McDonald et al. US 2014/0173579 A1 June 19, 2014 Mantena et al. US 2016/0041819 A1 Feb. 11, 2016 REJECTIONS Claims 1-4, 7-10, 15, 16, 19, and 20 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mantena. Claims 5, 6, 11, 12, 14, 17, and 18 stand rejected under 35 U.S.C. § 103 as being unpatentable over Mantena and Rao. Claim 13 stands rejected under 35 U.S.C. § 103 as being unpatentable over Mantena, Rao, and McDonald.2 OPINION § 103 Rejection-Mantena We are unpersuaded by Appellant’s arguments (Appeal Br. 6-7; see also Reply Br. 2-3) that Mantena would not have rendered obvious independent claim 1, which includes the limitations “a first upgrade manager hosted by a first computing node, the first upgrade manager configured to receive first differential upgrade data” and “a second upgrade manager 2 Appellant does not present any arguments with respect to the rejections of dependent claims 5, 11-14, 17, and 18 under 35 U.S.C. § 103. Thus, any such potential arguments are deemed to be waived. Appeal 2020-005157 Application 15/825,905 4 hosted by a second computing node, the second upgrade manager configured to receive second differential upgrade data.” The Examiner found that update agent 425 of Mantena, which requests delta package 409 for uploading to service platform 421 and updates application instance 423, corresponds to the limitation “a first upgrade manager hosted by a first computing node, the first upgrade manager configured to receive . . . differential upgrade data.” (Final Act. 5.) The Examiner further found that user agent 435 of Mantena, which also requests delta package 409 for uploading to service platform 431 and updates application instance 433, corresponds to the limitation “a second upgrade manager hosted by a second computing node, the second upgrade manager configured to receive . . . differential upgrade.” (Id. at 6.) The Examiner also found that “if the Application Instances 423 and 433 run different previous versions then the delta packages are different” and accordingly, the Examiner concluded that the limitations “first differential upgrade data” and “second differential upgrade data” would have been obvious to one of ordinary skill in the art. (Id. at 7.) We agree with the Examiner’s findings and conclusions. Mantena relates to “computing hardware and software technology, and in particular, to updating service applications in data centers.” (¶ 1.) Mantena explains that “[s]ervice platform 421 and 431 are each representative of any physical or virtual computing system” and “capable of hosting . . . application instance[s] 423 and 433.” (¶ 47.) Mantena also explains that “[a] delta file represents the difference between two files and can be shipped as part of an update” (¶ 2) or “may be produced when a new version, patch, or other such change to a service application is created in a Appeal 2020-005157 Application 15/825,905 5 development environment” (¶ 6). Mantena further explains that “[d]elta package 409 may include a single delta file or multiple delta files, each of which may represent at least a difference between at least one file includ[ing] a newly developed version of service application 403 and previous versions” (¶ 37). As illustrated in Figure 4, Mantena also explains that: (i) update agent 425 requests delta package 409, which is downloaded to service platform 421 to update application instance 423 (¶ 41); and (ii) user agent 435 requests delta package 409, which is downloaded to service platform 431 to update application instance 433, which can either be in series or in parallel with updating application instance 423 (¶ 42). Thus, because delta package 409 of Mantena can be a single delta file or multiple delta files, in one embodiment of Mantena, update agent 425 requests delta package 409 with a single file, while service platform 431 requests delta package 409 with multiple files (or vice versa). Alternatively, a person of ordinary skill in the art would have recognized that it would have been “obvious to try” using a different delta package 409 for service platform 431 or service platform 431, because this configuration is one of a finite number of identified, predictable configurations. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“When there is a design need or market pressure to solve a problem and there are a finite number of identified, predictable solutions, a person of ordinary skill has good reason to pursue the known options within his or her technical grasp.”). Accordingly, Mantena teaches or would have rendered obvious the limitations “a first upgrade manager hosted by a first computing node, the first upgrade manager configured to receive first differential upgrade data” and “a second upgrade manager Appeal 2020-005157 Application 15/825,905 6 hosted by a second computing node, the second upgrade manager configured to receive second differential upgrade data.” Appellant presents the following similar arguments: (i) “[t]his disclosure of Mantena [that delta package can be a single delta file or multiple delta files] . . . only discloses providing the same delta package (409 in FIG. 4) to both the update agents 425 and 435, where the same delta package comprises multiple delta files” (Appeal Br. 6; see also Reply Br. 2- 3); (ii) “[a]lthough Mantena discloses the delta package having multiple delta files, in fact, Mantena repeatedly discloses providing the same delta package (409)” (Appeal Br. 7); and (iii) “the conclusion that the ‘delta file sent from Update Service 407 to Update Agent 425 is different than the delta file that is sent from Update Service 407 to Update Agent 435’ as asserted by the Examiner is in direct contradiction to Mantena’s disclosure . . . because it is the same delta package 409 that is downloaded to the service platforms 421 and 431” (id. (citation omitted)). However, rather than the same uniform delta package 409, Mantena explains that delta package 409 can include one or more delta files (¶ 27), and that each delta file can either be a new version, patch, or other such change to a service application (¶ 6). Thus, because the delta files in delta package 409 can be selected from a variety of options, it would have been obvious to one of ordinary skill in the art to differ delta package 409 for service platform 421 from delta package 409 for service platform 431. Therefore, we agree with the Examiner that Mantena would have rendered obvious independent claim 1, including the limitations “a first upgrade manager hosted by a first computing node, the first upgrade manager configured to receive first differential upgrade data” and “a second Appeal 2020-005157 Application 15/825,905 7 upgrade manager hosted by a second computing node, the second upgrade manager configured to receive second differential upgrade data.” Accordingly, we sustain the rejection of independent claim 1 under 35 U.S.C. § 103. Claims 2-4 and 7 depend from claim 1, and Appellant has not presented any additional substantive arguments with respect to these claims. Therefore, we sustain the rejection of claims 2-4 and 7 under 35 U.S.C. § 103, for the same reasons discussed with respect to independent claim 1. Independent claims 8 and 15 recite limitations similar to those discussed with respect to independent claim 1, and Appellant has not presented any additional substantive arguments with respect to these claims. We sustain the rejection of claims 8 and 15, as well as dependent claims 9, 10, 16, 19, and 20, for the same reasons discussed with respect to claim 1. § 103 Rejection-Mantena and Rao Although Appellant nominally argues the rejection of dependent claim 6 separately (Appeal Br. 8-10), the arguments presented do not point out with particularity or explain why the limitations of this dependent claim are separately patentable. Instead, Appellant argues the following: The para. 0059 of Rao simply discloses using an MDS checksum as a signature associated with an update package, and para. 027 of Rao discloses an XML wrapper for an update package. In other words, Rao discloses using checksum, as part of the signature of an update package in an XML wrapper (package container) of the update package. Thus, the checksum is not used in generating the content of the update package itself In particular, nothing in the cited paragraphs or any other portion of Rao teaches or suggests “compar[ing] a checksum of the upgrade configuration file with a checksum of the first Appeal 2020-005157 Application 15/825,905 8 configuration file to provide the first differential upgrade data,” as recited by Appellant’s claim 6. (Id. at 9.) Instead of presenting arguments pointing out with particularity how the limitations of claim 6 are distinguishable over Rao, Appellant merely summarizes Rao with a conclusory statement that Rao does not teach the features of this dependent claim. Accordingly, Appellant has not presented any substantive arguments with respect to dependent claim 6. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). We are not persuaded by these arguments for the reasons discussed with respect to claim 1, from which claim 6 depends. CONCLUSION The Examiner’s decision rejecting claims 1-20 under 35 U.S.C. § 103 is affirmed. DECISION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-4, 7-10, 15, 16, 19, 20 103 Mantena 1-4, 7-10, 15, 16, 19, 20 5, 6, 11, 12, 14, 17, 18 103 Mantena, Rao 5, 6, 11, 12, 14, 17, 18 13 103 Mantena, Rao, McDonald 13 Appeal 2020-005157 Application 15/825,905 9 Overall Outcome 1-20 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED