Raghu, Jagannath N. et al.

Patent Trials and Appeals Board

Jan 9, 2020

15094219 - (D) (P.T.A.B. Jan. 9, 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.
15/094,219 04/08/2016 Jagannath N. Raghu B185.C1 7606
152606 7590 01/09/2020
VMWare - OPW
P.O. Box 4277
Seattle, WA 98194
EXAMINER
DASCOMB, JACOB D
ART UNIT PAPER NUMBER
2199
MAIL DATE DELIVERY MODE
01/09/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAGANNATH N. RAGHU, MANJUNATH BANDI, and
ANIRUDH AGARWAL
Appeal 2019-001011
Application 15/094,219
Technology Center 2100
Before ST. JOHN COURTENAY III, KRISTEN L. DROESCH, and
BETH Z. SHAW, Administrative Patent Judges.
SHAW, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–7, 10–16, 19, and 20. Final Act. 1.
The Examiner withdrew the rejections of claims 8, 9, 17, and 18. See Ans.
26. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

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. Appeal Br. 1.
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Application 15/094,219
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CLAIMED SUBJECT MATTER
The claims are directed to migration of virtual machines and virtual
applications between cloud-computing facilities. Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A cloud-connector subsystem that provides a stretch-deploy
operation for moving one or more virtual execution
environments between cloud-computing facilities, the cloud-
connector subsystem comprising:
cloud-connector nodes associated with each of a source
and a target cloud-computing facility; and
a cloud-connector server that includes one or more
processors, one or more memories, one or more data-storage
devices, and computer instructions that, when executed on the
one or more processors, control the cloud-connector server to
provide, in cooperation with the cloud-connector nodes, a
stretch-deploy operation that extends a first local virtual network
within the source cloud-computing facility to the target cloud-
computing facility, forming an extended local virtual network;
and
moves one or more virtual execution environments from
executing on the source cloud-computing facility and
communicating with other computational entities through the
extended local virtual network using one or more network
addresses to executing on the target cloud-computing facility and
communicating with other computational entities through the
extended local virtual network using the same one or more
network addresses.
REFERENCES
The prior art relied upon by the Examiner is:
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Application 15/094,219
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Dow
Brand
Pang
Morgan
US 2009/0064136 A1
US 2011/0276713 A1
US 2012/0137287 A1
US 2012/0311154 A1
Mar. 5, 2009
Nov. 10, 2011
May 31, 2012
Dec. 6, 2012
Costa-Requena US 2007/0168458 A1 July 19, 2007
Gehrmann US 2013/0097296 A1 Apr. 18, 2013
REJECTIONS
Claims 10, 11, 14, and 19 are rejected under 35 U.S.C. § 102(a)(1) as
being anticipated by Pang.
Claims 1, 2, and 5 are rejected under 35 U.S.C. § 103 as being
unpatentable over Morgan, Brand, and Pang.
Claims 3 and 4 are rejected under 35 U.S.C. § 103 as being
unpatentable over Morgan, Brand, and Pang, and Costa-Requena.
Claim 6 is rejected under 35 U.S.C. § 103 as being unpatentable over
Morgan, Brand, and Pang, and Dow, and Gehrmann.
Claim 7 is rejected under 35 U.S.C. § 103 as being unpatentable over
Morgan, Brand, and Pang, and Dow, and Gehrmann, and Costa-Requena.
Claims 12, 13, 16, and 20 are rejected under 35 U.S.C. § 103 as being
unpatentable over Pang and Costa-Requena.
Claim 15 is rejected under 35 U.S.C. § 103 as being unpatentable over
Pang, Dow, and Gehrmann.
The Examiner provisionally rejected claims 1–20 on the ground of
nonstatutory double patenting. Final Act. 4. Appellant argues in the Reply
Brief that a Terminal Disclaimer filed during prosecution is properly signed.
Reply Br. 2. Rather than by appeal to the Patent Trial and Appeal Board,
however, such an issue should have been settled by petition to the Director
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Application 15/094,219
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of the U.S. Patent and Trademark Office. See 37 C.F.R. § 1.181(a)(1);
M.P.E.P. § 1002.
OPINION
We have reviewed Appellant’s arguments in the Briefs, the
Examiner’s rejection, and the Examiner’s response to Appellant’s
arguments.

102 Rejection
Appellant argues the Examiner erred in rejecting claims 10, 11, 14,
and 19 under 35 U.S.C. § 102(a)(1) as being anticipated by Pang. In
particular, Appellant argues that paragraph 29 of Pang does not disclose
“where the one or more virtual execution environments are connected to the
extended virtual network and use the same local and global network
addresses used in the source cloud-computing facility.” Appeal Br. 16.
Instead, Appellant argues, Pang discusses the fact that the hypervisor
automatically routes traffic incoming from remote client computers to the
virtual machine. Id.
The Examiner finds Pang discloses “a seamless migration of the VM
110a to the server 230B for the game clients 215 without interruption and
without requiring the game clients 215 to connect to a different IP address.”
Pang ¶ 29; Ans. 30. However, the Examiner has not sufficiently explained
how this cited portion of Pang discloses the use of “the same local and
global network addresses used in the source cloud-computing facility,” as
recited in claim 10 (emphasis added). In the Final Rejection, the Examiner
reads the claimed global address on the IP address disclosed in Pang , but
does not sufficiently explain how Pang discloses that the virtual execution
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environments use the same local network addresses used in the source
cloud-computing facility. Accordingly, the Examiner’s interpretation runs
counter to existing claim construction principles. See Bicon, Inc. v.
Straumann Co., 441 F.3d. 945, 950 (Fed. Cir. 2006) (claims are interpreted
with an eye toward giving effect to all terms in the claim); see also Tex.
Instruments Inc. v. U. S. Int’l Trade Comm’n, 988 F.2d 1165, 1171 (Fed.
Cir. 1993) (explaining claim language cannot be mere surplusage, an express
limitation cannot be read out of the claim).
Thus, on this record, we do not sustain the rejection of claim 10 as
anticipated by Pang. For the same reasons, we also do not sustain the
anticipation rejection of claims, 11, 14, and 19.
Claims 12, 13, 15, 16, and 20
We also do not sustain the rejections of claims 12, 13, 15, 16, and 20
under 35 U.S.C. § 103 because they depend, directly or indirectly, from one
of independent claims 10 and 19 and because the Examiner does not find the
references used to reject these dependent claims overcomes the deficiency of
Pang discussed above with respect to claim 10.

103 Rejections
Claim 1
Appellant argues Morgan teaches nothing about cloud-connector
nodes or cloud-connector servers. Appeal Br. 27. As the Examiner explains,
however, the claimed “cloud-connector nodes” are taught by Morgan
because Morgan teaches entities that provide services that are distributed
across multiple clouds (Ans. 24), and Morgan’s server within a cloud
teaches the claimed cloud connector server, while Morgan’s network
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elements 106 teach the claimed cloud-connector nodes. Ans. 25 (citing
Morgan, Figs. 1 2.)
We find a preponderance of the evidence supports the Examiner’s
findings, because, although Morgan does not explicitly use the term “cloud-
connector,” under the broadest reasonable interpretation of “cloud-connector
node,” Morgan’s network elements 106 teach or suggest the cloud connector
nodes.2 In the Reply Brief, Appellant argues “cloud-connector nodes
cooperate with cloud-connector servers to provide services distributed across
multiple clouds, rather than providing them alone.” Reply Br. 11. This
argument is unavailing because the Examiner did not state that the claimed
cloud-connector nodes, or Morgan’s network elements, provide services
“alone.”
The Examiner also relied on Brand to teach the explicit phrase “cloud-
connector.” Ans. 35 (citing Brand ¶ 20 “a plurality of cloud connectors 310
that facilitate connections between the device 220 and storage devices 320-1
to 320-P (e.g., disk drives and/or SAN/NAS devices) as well as connections
to third parties cloud storage providers 330-1 to 330-S (e.g., Amazon Web
Services, Nirvanix, etc.)”). Appellant argues that Brand’s cloud-connector
means “something entirely different” than the claimed phrases “cloud-

2 We note there is no requirement in an obviousness analysis for the prior art
to “contain a description of the subject matter of the appealed claim in
ipsissimis verbis.” In re May, 574 F.2d 1082, 1090 (CCPA 1978).
Moreover, “the question under 35 USC 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made.” Merck & Co. v.
Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (emphasis added)
(quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also MPEP
§ 2123.

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connector node” and “cloud-connector server” because Brand’s “cloud
connectors connect client devices with data centers” and Brand “does not
teach an element that connects a plurality of clouds.” Reply Br. 12, 13.
Appellant’s arguments regarding Brand’s individual shortcomings in
this regard are unavailing because, although the Examiner relies on Brand to
teach “cloud-connector” elements, the Examiner does not rely on Brand
solely to teach the claimed “cloud-connector node” and “cloud-connector
server,” but rather, relies on the prior art collectively, e.g., the combination
of Morgan (as discussed above) and Brand. Final Act. 13, 14; Ans. 34, 35.
Therefore, Appellant’s arguments do not show nonobviousness where, as
here, the rejection is based on the cited references’ collective teachings. See
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Appellant additionally argues the migration of workloads taught by
Morgan “does not imply migration of virtual execution environments”
because workload is a task that can be transferred from one computer system
to another without transferring a virtual execution environment that executes
the task. Appeal Br. at 29; Reply Br. 13–14. Morgan teaches that an
administrator or other user can initiate a tool “to manage the migration
policies and parameters that will be used to evaluate the potential migration
of one or more workloads 200 executed in or supported by a set of virtual
machines 116 operated by a user or users in the set of host clouds 142.”
Morgan ¶ 53; Ans. 35, 36. The Examiner also finds that Pang teaches
migrating a virtual execution environment. Ans. 36 (citing Pang, Abstract).
We are not persuaded the Examiner erred, because Pang teaches the “first
server migrates the VM to the second server.” Pang, Abstract.
Therefore, we find a preponderance of the evidence supports the
Examiner’s findings that the combination of Morgan, Brand, and Pang
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teaches or suggests the operation that “moves one or more virtual execution
environments from executing on the source cloud computing facility and
communicating with other computational entities through the extended local
virtual network using one or more network addresses to executing on the
target cloud-computing facility and communicating with other
computational entities through the extended local virtual network using the
same one or more network addresses,” as recited in claim 1.
Appellant also argues Pang does not “address maintaining internal-
virtual-network addresses for virtual machines moved from one hosting
point to another.” Reply Br. 16. We are not persuaded by this argument
because Pang discloses “a seamless migration of the VM 11Oa to the server
230B for the game clients 215 without interruption and without requiring the
game clients 215 to connect to a different IP address.” Pang ¶ 29. Therefore,
we find Pang teaches or suggests “using the same one or more network
addresses,” as recited in claim 1.
Accordingly, we are not persuaded of error in the rejection of claim 1.
Therefore, we sustain the rejection of claim 1.
Dependent Claim 6
Appellant argues Dow and Gehrmann fail to teach “determining that
those components of the cloud-computing facility used in the stretch-deploy
operation are present, configured, and licensed,” and “determining that the
cloud-computing facility has sufficient storage capacity for instantiating a
temporary virtual application,” as recited in dependent claim 6. Appeal Br.
31. We are not persuaded by these arguments because, as the Examiner
finds, Dow teaches “determining that those components of the cloud-
computing facility used in the stretch-deploy operation are present,
configured” and “determining that the cloud-computing facility has
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sufficient storage capacity for instantiating a temporary virtual application,”
in paragraph 33. Ans. 38, 39. Gerhmann teaches “determining that those
components of the cloud-computing facility used in the stretch-deploy
operation are” licensed in paragraph 38. Id. (citing Morgan ¶ 38 (“resource
license”)). Accordingly, we are not persuaded of error in the rejection of
claim 6. Therefore, we sustain the rejection of claim 6.
Dependent Claim 7
Appellant generally argues with respect to claim 7 that Costa-Requena
is unrelated to cloud-computing facilities, migration of virtual machines, or
stretch-deploy operations. Appeal Br. 32. We are not persuaded by this
argument because mere attorney arguments and conclusory statements that
are unsupported by factual evidence are entitled to little probative value. In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what
seems to follow from common experience is just attorney argument and not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness.”); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir.
1984). Moreover, we find a preponderance of the evidence supports the
Examiner’s findings and explanations in the Answer regarding Costa-
Requena. See Ans. 39–40 (“Costa-Requena teaches that VPNs are secure
communication tunnels (¶ 44, “the remote access device may use for
instance VPN/SSL (Secure Sockets Layer) and/or VPN/IPSEc (Internet
security) tunneling for the remote access”)).
Accordingly, we also sustain the rejection of claim 7.

CONCLUSION
The Examiner’s rejections are affirmed-in-part.
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More specifically, we reverse the rejection of claims 10, 11, 14, and
19 under 35 U.S.C. § 102(a)(1) as being anticipated by Pang.
We affirm the rejection of claims 1, 2, and 5 under 35 U.S.C. § 103 as
being unpatentable over Morgan, Brand, and Pang.
We affirm the rejection of claims 3 and 4 under 35 U.S.C. § 103 as
being unpatentable over Morgan, Brand, and Pang, and Costa-Requena.
We affirm the rejection of claim 6 under 35 U.S.C. § 103 as being
unpatentable over Morgan, Brand, and Pang, and Dow, and Gehrmann.
We affirm the rejection of claim 7 under 35 U.S.C. § 103 as being
unpatentable over Morgan, Brand, and Pang, and Dow, and Gehrmann, and
Costa-Requena.
We reverse the rejection of claims 12, 13, 16, and 20 under 35 U.S.C.
§ 103 as being unpatentable over Pang and Costa-Requena.
We reverse the rejection of claim 15 under 35 U.S.C. § 103 as being
unpatentable over Pang, Dow, and Gehrmann.

DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
10, 11, 14,
19
102 Pang 10, 11,
14, 19
1, 2, 5 103 Morgan, Brand, Pang 1, 2, 5
3, 4 103 Morgan, Brand, Pang,
Costa-Requena
3, 4
6 103 Morgan, Brand, Pang,
Dow, Gehrmann
6
Appeal 2019-001011
Application 15/094,219
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Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
7 103 Morgan, Brand, Pang,
Dow, Gehrmann,
Costa-Requena
7
12, 13, 16,
20
103 Pang, Costa-Requena 12, 13,
16, 20
15 103 Pang, Dow,
Gerhmann
15
Overall
Outcome
1–7 10–16,
19, 20

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART