VMWARE, INC.

Patent Trials and Appeals Board

Sep 22, 2020

2019003104 (P.T.A.B. Sep. 22, 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.
15/063,521 03/08/2016 RAJESH KHAZANCHI C421.03 6888
152606 7590 09/22/2020
Olympic Patent Works PLLC
4979 Admiral Street
Gig Harbor, WA 98332
EXAMINER
VU, TUAN A
ART UNIT PAPER NUMBER
2193
MAIL DATE DELIVERY MODE
09/22/2020 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 RAJESH KHAZANCHI, SERVESH SINGH, KIRAN SINGH,
RISHI SARAF and AGILA GOVINDARAJU
Appeal 2019-003104
Application 15/063,521
Technology Center 2100
Before ST. JOHN COURTENAY III, LARRY J. HUME, and
PHILLIP A. BENNETT, Administrative Patent Judges.
BENNETT, 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 1–20. 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. Appeal Br. 1.
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CLAIMED SUBJECT MATTER
The claims are directed to systems and methods for modularized
automated application release management subsystems. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. An automated-application-release-management
subsystem within a cloud-computing facility having multiple
servers, data-storage devices, and one or more internal
networks, the automated-application-release-management
subsystem comprising:
a dashboard user interface;
an automated-application-release-management controller;
an interface to a workflow-execution engine within the
cloud-computing facility;
an artifact-storage-and-management subsystem; and
a set of sets of descriptors, each descriptor including one
or more sets of routine and function entrypoints that the
automated-application-release-management controller calls in
response to callbacks from the workflow-execution engine,
each set of routine and/or function entrypoints describing
entrypoints within an external module, library, or subsystem,
and each descriptor corresponding to a type of task executed by
the automated-application release-management subsystem.
Appeal Br. 48 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Sites US 5,649,203 July 15, 1997
McVeigh et al. US 2007/0094248 A1 April 26, 2007
Muller US 2008/0244579 A1 Oct. 2, 2008
Kiriansky et al. US 2010/0011209 A1 Jan. 14, 2010
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Prahlad et al. US 2010/0332456 A1 Dec. 30, 2010
Muckenhuber et al. US 2011/0078673 A1 Mar. 31, 2011
Issa et al. US 7,930,201 B1 April 19, 2011
Krishnan et al. US 2013/0325789 A1 Dec. 5, 2013
Dvinsky et al. US 2015/0227362 A1 Aug. 13, 2015
REJECTIONS
Claims 1–20 stand rejected under 35 U.S.C. § 101 as being directed to
patent-ineligible subject matter. Final Act. 2–3.
Claims 1 and 2 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Muller, Krishnan, Prahlad, Dvinsky, McVeigh, Sites, and
Kiriansky. Final Act. 5.
Claims 3, 4, 8, and 9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Muller, Krishnan, Prahlad, Dvinsky, McVeigh, Sites,
Kiriansky, and Issa. Final Act. 12.
Claims 5–7 and 10–20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Muller, Krishnan, Prahlad, Dvinsky, McVeigh, Sites,
Kiriansky, Issa and Muckenhuber. Final Act. 15.
REJECTION UNDER 35 U.S.C. § 101
Standard for Patent Eligibility
In issues involving subject matter eligibility, our inquiry focuses on
whether the claims satisfy the two-step test set forth by the Supreme Court in
Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014). The Court
instructs us to “first determine whether the claims at issue are directed to a
patent-ineligible concept,” Id. at 218, and, in this case, the inquiry centers on
whether the claims are directed to an abstract idea. If the initial threshold is
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met, we then move to the second step, in which we “consider the elements of
each claim both individually and ‘as an ordered combination’ to determine
whether the additional elements ‘transform the nature of the claim’ into a
patent-eligible application.” Id. at 217–18 (quoting Mayo Collaborative
Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 79, 78 (2012)). The Court
describes the second step as a search for “an ‘“inventive concept”’—i.e., an
element or combination of elements that is ‘sufficient to ensure that the
patent in practice amounts to significantly more than a patent upon the
[ineligible concept] itself.’” Id. (quoting Mayo, 566 U.S. at 72–73).
The USPTO has published revised guidance on the application of
§ 101 consistent with Alice and subsequent Federal Circuit decisions.
USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50 (Jan. 7, 2019) (“Guidance”), updated by USPTO, October 2019
Update: Subject Matter Eligibility (available at https://www.uspto.gov/sites/
default/files/documents/peg_oct_2019_update.pdf) (“October 2019
Guidance Update”).
Under the 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 activity such as a fundamental economic
practice, or mental processes) (referred to Step 2A, prong 1 in
the Guidance); and
(2) additional elements that integrate the judicial exception into
a practical application (see MPEP § 2106.05(a)–(c), (e)–(h))
(referred to Step 2A, prong 2 in the Guidance).
See Guidance, 84 Fed. Reg. at 52–55. Only if a claim (1) recites a judicial
exception and (2) does not integrate that exception into a practical
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application, do we then move to Step 2B of the Guidance. There, we look to
whether the claim:
(3) adds a specific limitation beyond the judicial exception that
is 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.
See Guidance, 84 Fed. Reg. at 56.
Examiner’s Findings and Conclusions
The Examiner rejects claims 1–20 as being directed to a judicial
exception without significantly more. Final Act. 2–4; Ans. 2–7. Under Step
2A, prong 1, the Examiner determines claim 1 is directed to non-statutory
subject matter. Ans. 3. The Examiner determines claims 10 and 19 recite,
“respectively a method and computer-stored instructions for the action steps
of: storing, incorporating, accessing and calling. Per step 2A analysis, the
steps as recited when construed from the claim context do not direct
interpretation that these amount significantly more than a human sequences
of generic actions interactively carried out using a computer, which is
typical of a[n] Abstract Idea, defined by the courts.” Id.
Appellant’s Contentions
Appellant argues:
The Examiner cites only 35 U.S.C. §101 as authority for the
rejections, but 35 U.S.C. §101 does not mention software or
hardware, and most certainly does not stand for the proposition
that software is unpatentable or that hardware is required for
patentability. An automated-application-release-management
subsystem within a cloud computing facility it is clearly both a
machine and a manufacture and is clearly patentable subject
matter under 35 U.S.C. §101.
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Appeal Br. 19. Appellant further adds “the Examiner has failed to state a
prima facie 35 U.S.C. § 101 claim rejection.” Id.
Step 2A, Prong 1—The Judicial Exception
Applying the Guidance, we are persuaded the Examiner has erred in
rejecting claim 1 as being directed to patent-ineligible subject matter. The
Guidance instructs us first to determine whether any judicial exception to
patent eligibility is recited in the claim. The Guidance identifies three
judicially-excepted groupings of abstract ideas: (1) mathematical concepts,
(2) certain methods of organizing human activity such as fundamental
economic practices and commercial interactions (including . . . advertising,
marketing or sales activities or behaviors; business relations), and (3) mental
processes. See Guidance, 84 Fed. Reg. at 52, 54-55.
We agree with Appellant that the claims before us do not recite an
abstract idea within these groupings. The limitations of claim 1 recite a
series of computer elements that function as an automated application
release management controller. We discern no mathematical concepts
recited therein, nor does the Examiner find any such operations. We also do
not agree with the Examiner that the claims recite a commercial interaction.
The claims make no mention of any commercial practice or business-related
concept. Rather, the claims exclusively recite system components
performing application management functions. Nor do we find the functions
in claim 1 recite any limitations that may be performed practically as a
mental process. The claimed steps are not of the sort to be practically
performed by a human in their mind, as each relate to how an application
release management subsystem is rendered.
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Having determined that claims 1, 10, and 19 do not recite a judicial
exception, we conclude our analysis. . See Guidance, 84 Fed. Reg. at 54 (“If
the claim does not recite a judicial exception (a law of nature, natural
phenomenon, or subject matter within the enumerated groupings of abstract
ideas in Section I), then the claim is eligible at Prong One of revised Step
2A. This concludes the eligibility analysis, except in the rare circumstance
described below.”). We, therefore, do not sustain the rejection of claim 1,
nor of independent claims 10 and 19 and the remaining dependent claims.
REJECTIONS UNDER 35 U.S.C. § 103
The Examiner’s Findings and Conclusion of Obviousness
The Examiner rejects claim 1 as being unpatentable over Muller,
Krishnan, Prahlad, Dvinsky, McVeigh, Sites, and Kiriansky. Final Act. 5–
11. The Examiner finds that Muller generally teaches the preamble and the
first four limitations in the body of the claim. Final Act. 5–6. The Examiner
notes that although Muller teaches an automatic application management
subsystem, it does not explicitly disclose that the application management
subsystem is an “application release management subsystem,” nor does it
expressly teach that the system is “within a cloud-computing facility.” Final
Act. 6. The Examiner addresses these deficiencies relying on Krishnan and
Prahlad, finding that these references demonstrate that it was known to
provide management of applications within cloud computing networks.
Final Act. 6 (citing Krishnan ¶¶ 27, 34, 39, 43, 54, 93, 131; Prahlad ¶¶ 157,
158, 276–281, 307).
The Examiner further finds that Muller does not teach the limitation:
a set of sets of descriptors, each descriptor including one or
more sets of routine and function entrypoints that the
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automated-application-release-management controller calls in
response to callbacks from the workflow-execution engine,
each set of routine and/or function entrypoints describing
entrypoints within an external module, library, or subsystem,
and each descriptor corresponding to a type of task executed by
the automated-application release-management subsystem.
Final Act. 8. The Examiner finds limitation obvious in view of the
combined teachings of Prahlad and Dvinsky, which teach the use of call-
backs in support of management of assets or storage resources. Final Act. 9
(finding that the references show that “a callback mechanism being
associated with pointer information correlating an entity to be invoked
responsive to receiving a callback is a well-recognized practice.”). The
Examiner also relies on Sites and Kiriansky, which teach the configuration
of entry points of external functions (Sites) and the invocation of external
functions via callbacks (Kiriansky).
The Examiner reasons that a person of ordinary skill in the art would
have been motivated to combine the pertinent teachings of the references:
It would have been obvious at the time of the effective date of
the claimed invention for one of ordinary skill in the art to
implement callback in Muller so that information input
supporting the callback mechanism or layer in monitoring the
recorded entry points associated with the original code would
include sets of descriptors (as per Sites), each descriptor
including one or more sets of routine and function entry-points
which (per teachings of Krishnan, Prahlad, Dvinsky, McVeigh)
Muller's automated-application management controller calls in
response to callbacks, being a well-known mechanism and that
each set of routine and/or function entrypoints underlying a
intercepted callback would be entry-points within an external
module ( as in Sites), library (as in Kiriansky ), or subsystem (as
in Muller or Prahlad); because configuring callback interception
with declared pointer information pre-established by this well-
known mechanism enables external code identified by the
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pointer information to be enlisted for code transfer or execution
control switch, as that would preclude code from being invoked
by the original code ( at a recorded entry points as in Sites
original source code analyzer), the redirection (using this
callback intercepting at specific original code locations) to
external module or functions, subsystem procedure, such as
library per the protection approach by Kiriansky, and also
because structure input supporting the mapped entry points and
pointer redirection per this callback approach can be
transferrable as input file having descriptor information that
bears the same pointer information identifying a given external
function entry points at which the execution switch, or control
transfer ( as in Sites) is to execute – function transfer as in Sites
- in place of the original call sites being set by the callback
mechanism or declaration at their respective and predetermined
entry point; i.e. enabling callback to be highly flexible with this
type of manageable text form (with user friendly descriptor
format provision of text file) into a runtime callback monitoring
underlying a secure code execution as in Kiriansky.
Final Act. 10–11; see also Ans. 18–19 (providing similar reasoning).
Appellant’s Argument
No “automated-application-release management” in Prior Art
Appellant offers lengthy arguments against the rejection, but the
central contention Appellant makes is that none of the references “is in any
way, related to automated-application-release-management subsystems or to
management of application releases in a cloud-computing environment.” 2
Appeal Br. 29–36. In support, Appellant cites various passages from the
Specification describing an example of an “automated-application-release-
management subsystem within a cloud-computing facility.” Appeal Br. 24–
29. With respect to Muller, Appellant argues “Muller appears to be directed

2 Appellant argues the rejections under § 103 as a group, with claim 1 being
representative. Our decision with respect to claim 1, therefore, is dispositive
as to the remaining claims.
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to a system that allows a user to create virtual machines within some type of
computing facility.” Appeal Br. 29. Similarly, Appellant reproduces a
passage from Krishnan and argues “Krishnan discusses a document-control
system, an extract-transform-load framework, and various other types of
services, but nowhere mentions anything related to management of
application releases within a cloud-computing facility.” Appeal Br. 29.
We are not persuaded the Examiner erred in determining Muller and
Krishnan teach or suggest an “automated-application-release-management
subsystem” as recited in claim 1. Appellant’s argument intimates that the
meaning of “automated-application-release-management” is narrowly
confined to the exemplary embodiment provided in the Specification.
However, aside from quoting passages from the Specification, Appellant
does not offer any proposed definition for the phrase. Rather, Appellant’s
position appears to be that Muller and Krishnan do not teach systems having
all of the characteristics described in Appellant’s Specification, and
therefore cannot teach an “automated-application-release-management
subsystem,” as recited in claim 1.
In the Answer, the Examiner provides a detailed response (Ans. 7–21)
to Appellant’s argument, explaining that under its broadest reasonable
interpretation, an automated-application-release-management subsystem is
“a subsystem of a larger cloud-based infrastructure, including aspects of
application workflow provisioning and resources management” (Ans. 12),
and further explains the basis for concluding the recited “automated-
application-release-management subsystem” is obvious over the cited
references:
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[T]he claimed language (AARMS) [automated-application-
release-management subsystem] in its entirety in this case is
perceived – via BRI [broadest reasonable interpretation] – as a
subsystem (with no expressed dependency to a larger system that
bears . . . relationship to [a] cloud-computing facility (see
Prahlad, Krishnan, Dvinsky) and that includes automated
application, management and administering of application
resources (see Muller) such as release control (see McVeigh).
Ans. 13. Thus, the Examiner explains that under its broadest reasonable
interpretation, an “automated-application-release-management subsystem” is
a subsystem that automates application management, including application
distribution.
Appellant does not challenge the Examiner’s interpretation of
“automated-application-release-management subsystem,” nor does
Appellant provide any arguments countering the Examiner’s additional
explanation and proffered reasoning. Further, and as we noted above,
Appellant does not offer its own definition for this phrase. In the Reply
Brief, Appellant merely states:
The Examiner’s assertions and commentary with respect
to the Examiner's 35 U.S.C. § 103 rejections, which apparently
begin on page 8 of the Examiner's Answer, make even less sense
to Appellants’ representative that those made with respect to the
35 U.S.C. § 101 rejections. Rather than spend many pages of text
based on speculations and assumptions with regard to what the
Examiner may have meant by many of these assertions and
commentary, Appellants instead continue rely on the arguments
made in the Appeal Brief.
Reply Br. 7. Thus, the additional explanation and reasoning set forth in the
Answer, including the Examiner’s interpretation of “automated-application-
release-management subsystem” stands unchallenged in this record, and
Appellant has not sufficiently explained why the Examiner’s interpretation
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of “automated-application-release-management subsystem,” and the
applicability of the cited references is in error.
Appellant’s arguments in the Appeal Brief are all premised on an
unduly narrow interpretation of “automated-application-release-management
subsystem,” and the arguments distinguish the prior art based on that narrow
interpretation. Because we agree with the Examiner that the scope of
“automated-application-release-management subsystem” is not limited to the
embodiments described in the Specification, Appellant’s arguments are not
commensurate with the broadest reasonable interpretation of the argued
limitation.
Appellant’s Argument
No Motivation to Combine References
Appellant also contends the Examiner’s rationale for combining the
references is insufficient:
Appellants’ representative cannot even parse the statement, let
alone discern anything in the statement that would suggest any
way to combine these disparate references or any reason for one
skilled in the art to even consider the use of the disparate
references together, let alone to try to combine them. The
Examiner’s attempt to motivate the combination of unrelated
references falls short.
Appeal Br. 38.
However, we are not persuaded by Appellant’s argument because the
Examiner articulates reasoning for why it would have been obvious to
combine the teachings of the references:
It would have been obvious at the time of the effective date of
the claimed invention for one of ordinary skill in the art to
implement callback in Muller so that information input
supporting the callback mechanism or layer in monitoring the
recorded entry points associated with the original code would
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include sets of descriptors (as per Sites), each descriptor
including one or more sets of routine and function entry-points
which (per teachings of Krishnan, Prahlad, Dvinsky, McVeigh)
Muller's automated-application management controller calls in
response to callbacks, being a well-known mechanism and that
each set of routine and/or function entrypoints underlying a
intercepted callback would be entry-points within an external
module (as in Sites), library (as in Kiriansky), or subsystem (as
in Muller or Prahlad); because configuring callback interception
with declared pointer information pre-established by this well-
known mechanism enables external code identified by the
pointer information to be enlisted for code transfer or execution
control switch, as that would preclude code from being invoked
by the original code (at a recorded entry points as in Sites original
source code analyzer), the redirection (using this callback
intercepting at specific original code locations) to external
module or functions, subsystem procedure, such as library per
the protection approach by Kiriansky, and also because structure
input supporting the mapped entry points and pointer redirection
per this callback approach can be transferrable as input file
having descriptor information that bears the same pointer
information identifying a given external function entry points at
which the execution switch, or control transfer (as in Sites) is to
execute – function transfer as in Sites - in place of the original
call sites being set by the callback mechanism or declaration at
their respective and predetermined entry point; i.e. enabling
callback to be highly flexible with this type of manageable text
form (with user friendly descriptor format provision of text file)
into a runtime callback monitoring underlying a secure code
execution as in Kiriansky.
Final Act. 10–11, Ans. 18–19.
The standard for determining whether a claim is obvious is “an
expansive and flexible approach.” KSR Int'l Co. v. Teleflex, Inc., 550 U.S.
398, 415 (2007). Here, Appellant’s position appears to be that this reasoning
is unintelligible and therefore cannot support an obviousness rejection.
However, aside from asserting that it cannot be understood, Appellant does
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not address the reasoning in a substantive way. That is, Appellant does not
explain why the proffered reasoning is deficient; Appellant merely argues
that the reasoning “simply makes no sense from either a technical or
computational standpoint.” Appeal Br. 41. However, we find the proffered
reasoning to be reasonable and sufficiently grounded in evidence drawn
from the record to justify the combination. Specifically, we understand the
Examiner’s reasoning as a finding that combining the teachings of the
references is within the level of skill in the art and involves no more than
combining known technologies, as described in the various references, to
achieve predictable results. See KSR, 550 U.S. at 417. As such, Appellant’s
arguments are not persuasive of error.
Because we do not find Appellant’s arguments persuasive of
Examiner error, we sustain the rejection of claim 1 under 35 U.S.C. § 103.
We similarly sustain the rejection of independent claims 10 and 19 rejected
under 35 U.S.C. § 103. We also sustain the obviousness rejections of
dependent claims 2–9, 11–19, and 20, not argued separately.
CONCLUSION
We reverse the rejections of claims 1–20 under 35 U.S.C. § 101 as
being directed to patent-ineligible subject matter.
We affirm the rejection of claims 1 and 2 under 35 U.S.C. § 103 as
being unpatentable over Muller, Krishnan, Prahlad, Dvinsky, McVeigh,
Sites, and Kiriansky.
We affirm the rejection of claims 3, 4, 8, and 9 under 35 U.S.C. § 103
as being unpatentable over Muller, Krishnan, Prahlad, Dvinsky, McVeigh,
Sites, Kiriansky, and Issa.
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We affirm the rejection of claims 5–7 and 10–20 under 35 U.S.C.
§ 103 as being unpatentable over Muller, Krishnan, Prahlad, Dvinsky,
McVeigh, Sites, Kiriansky, Issa, and Muckenhuber.
Because we have affirmed at least one ground of rejection for each
claim on appeal, we affirm the Examiner's decision to reject the claims.
37 C.F.R. § 41.50(a)(1).
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–20 101 Eligibility 1–20
1, 2 103 Muller, Krishnan, Prahlad,
Dvinsky, McVeigh, Sites,
Kiriansky
1, 2
3, 4, 8, 9 103 Muller, Krishnan, Prahlad,
Dvinsky, McVeigh, Sites,
Kiriansky, Issa
3, 4, 8, 9
5–7, 10–
20
103 Muller, Krishnan, Prahlad,
Dvinsky, McVeigh, Sites,
Kiriansky, Issa,
Muckenhuber
5–7, 10–
20

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). See 37
C.F.R. § 41.50(f).
AFFIRMED