Ex Parte Eskicioglu et al

Patent Trial and Appeal Board

Sep 30, 2016

13217809 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/217,809 08/25/2011
76614 7590
Terry W. Kramer, Esq.
Kramer & Amado, P.C.
330 John Carlyle Street
3rd Floor
Alexandria, VA 22314
10/04/2016
FIRST NAMED INVENTOR
Suat R. Eskicioglu
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
ALC 3741 6701
EXAMINER
AVELLINO, JOSEPH E
ART UNIT PAPER NUMBER
2454
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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):
mail@krameramado.com
ipsnarocp@alcatel-lucent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUAT R. ESKICIOGLU and NAUSHEEN NAZ
Appeal2015-000748
Application 13/217 ,809
Technology Center 2400
Before KAL YANK. DESHPANDE, DAVID M. KOHUT, and
JUSTIN T. ARBES, Administrative Patent Judges.
ARBES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1-20, the only claims pending in the application on appeal. We have
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ). 1
1 Our decision will make reference to Appellants' Appeal Brief ("App. Br.,"
filed June 27, 2014) and Reply Brief ("Reply Br.," filed September 3, 2014),
and the Examiner's Answer ("Ans.," mailed August 7, 2014) and Final
Office Action ("Final Act.," mailed May 2, 2014).
Appeal2015-000748
Application 13/217,809
We AFFIRM-fN-PART and enter a NEW GROU-ND OF
REJECTION under 37 C.F.R. § 41.50(b).
INVENTION
Appellants' invention is directed to a method and computer-readable
medium that determine latency in a communication network by
timestamping messages. Spec. i-fi-1 6, 16.
Claims 1 and 3 recite:
1. A method at a network element for measunng
signaling plane delay in a communication network, the method
compnsmg:
receiving a message at said network element;
determining if the received message contains a probe
session indicator; and
when the received message contains the probe session
indicator, logging the received message at the network element
and adding a timestamp to the received message.
3. The method of claim 2, wherein said indicator
comprises an International Mobile Subscriber Identity (IMSI)
identifying a probe session.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Lin US 2006/0153091 Al July 13, 2006
Miller US 7, 796,526 B2 Sept. 14, 2010
Stewart US 7,987,257 Bl July 26, 2011
Ludwig US 2012/0106355 Al May 3, 2012
(application filed on
June 10, 2009)
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REJECTIONS
Claims 1, 9-11, 19, and 20 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Stewart. Final Act. 3-5; Ans. 2-3.
Claims 2-7 and 12-17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Stewart and Lin. Final Act. 5-7; Ans. 3-6.
Claims 8 and 18 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Stewart, Lin, and Miller. Final Act. 7-8; Ans. 6-7.
ISSUES
Appellants argue that the Examiner's rejections of claims 1-20 are in
error. App. Br. 5-16; Reply Br. 1---6. These arguments present us with the
following issues:
(1) Did the Examiner err in finding that Stewart discloses
"when the received message contains the probe session
indicator, . . . adding a timestamp to the received
message," as recited in independent claims 1 and 11?
(2) Did the Examiner err in finding that Stewart renders
obvious the limitation that "said indicator comprises an
International Mobile Subscriber Identity (IMSI)
identifying a probe session," as recited in dependent
claims 3 and 13?
(3) Did the Examiner err in finding that the combination of
Stewart and Miller teaches "determining said receipt of
said probe session indicator in a hardware layer of said
network element," as recited in dependent claim 8 and
similarly recited in dependent claim 18?
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ANALYSIS
Claims 1, 2, 6, 7, 9--12, 16, 17, 19, and 202
Independent claims 1 and 11 recite "when the received message
contains the probe session indicator, logging the received message at the
network element and adding a timestamp to the received message." The
Examiner finds that Stewart teaches probes (messages) that contain probe
session indicators, citing Figure 2 and the following disclosure from Stewart:
Upon receiving a peiformance probe, the second network
device returns a response that includes the received
performance probe and an additional timestamp indicating the
time at which the performance probe was received. The
probing device processes the response to maintain network
performance information. In particular, the probing device
updates performance information based on the time at which
the original probe was sent, the time at which the probe was
received by the second network device, and a time at which the
response was received by the probing device. Additionally, the
probing device may use the collected performance information
to compute performance statistics such as the delay from the
first network device to each of the other network devices, the
delay from the other network devices to the first network
device, the roundtrip delay, average delays (both ways and
roundtrip ), maximum delays, mm1mum delays, jitter,
throughput, and packet loss. In this manner, the probing device
monitors network performance characteristics between the
probing device and the second network device. Moreover, as
the probing device may send sets of probes having different
QoS [Quality of Service] levels, the relationship of the network
performance characteristics and various QoS levels may be
monitored.
2 Claims 1, 9--11, 19, and 20 stand rejected under 35 U.S.C. § 102(e) as
being anticipated by Stewart. Claims 2, 6, 7, 12, 16, and 17 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Stewart and Lin.
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Application 13/217,809
Stewart, col. 2, 11. 42-64; see Final Act. 2--4; Ans. 2. The Examiner further
finds that "[i]t is clear that Stewart's receiving network device recognizes
what constitutes a performance probe because the same network device also
receives at least one other type of message during the establishment of [a]
performance community." Ans. 7 (citing Stewart, col. 2, 11. 10-20, col. 4,
11. 58---62).
Appellants acknowledge that Stewart discloses adding a timestamp to
a received message, but argue that the Examiner erred because rather than
"selectively" adding a timestamp based on a message containing a probe
session indicator, Stewart always adds a timestamp. App. Br. 6; Reply Br.
1-2. We are not persuaded of error by the Examiner. Claims 1 and 11 recite
adding a timestamp "when" the received message contains a probe session
indicator. They do not recite adding a timestamp only when the received
message contains a probe session indicator, and are silent as to what happens
when the received message does not contain a probe session indicator. In
other words, the claims do not preclude adding a timestamp to a message
that does not contain a probe session indicator. Giving the claims their
broadest reasonable interpretation in light of the Specification, the claim
language requires only receiving a message that contains a probe session
indicator and adding a timestamp when that occurs. We agree with the
Examiner that Stewart discloses doing so. See Final Act. 2--4; Ans. 2.
Further, even if the claims precluded adding a timestamp for all received
messages, as Appellants contend, we agree with the Examiner that Stewart's
network device receives other types of messages in connection with
establishing the performance community, for which timestamps are not
added. See Ans. 7; Stewart, col. 2, 11. 10-20, col. 4, 11. 58---62.
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Accordingly, we sustain the Examiner's rejection of independent
claims 1 and 11, as well as the rejections of dependent claims 2, 6, 7, 9, 10,
12, 16, 17, 19, and 20, which Appellants do not argue separately. See App.
Br. 7, 13.
Claims 3-5 and 13-15
Claims 3 and 13 recite that "said indicator comprises an International
Mobile Subscriber Identity (IMSI) identifying a probe session."
The Examiner acknowledges that Stewart does not teach explicitly an
identifier that comprises an IMSI, but finds that an IMSI may be used in
place of Stewart's Border Gateway Protocol (BGP) community value
because "it serves the same purpose as long as the receiving devices
recognize the identifier and follow a pre-defined procedure when receiv[ing]
message[s]/packets associated with the identifier." Final Act. 5---6. The
Examiner further cites Ludwig as teaching the use of "IMSI information as a
monitoring identifier," but does not include Ludwig in the rejection of
claims 3 and 13, which is based only on the combination of Stewart and Lin.
Id. at 3; Ans. 7-8.
Appellants argue, and we agree, that the Examiner appears to rely on
Ludwig, in combination with Stewart and Lin, as teaching the disputed
limitation without formally including Ludwig as part of the rejection or
explaining sufficiently the particular combination of teachings from the
various references. See App. Br. 9; Reply Br. 2--4. Thus, the Examiner fails
to make a prima facie case of obviousness for claims 3 and 13. Accordingly,
we do not sustain the Examiner's rejection of claims 3 and 13 as
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unpatentable over Stewart and Lin, or the rejection of claims 4, 5, 14, and
15, which depend from claims 3 and 13, respectively.
New Ground of Rejection for Claims 3 and 13
Although we agree with Appellants that the rejection of claims 3 and
13 based on the combination of Stewart and Lin is deficient, we find that it
would have been obvious to a person of ordinary skill in the art, based on the
teachings of Ludwig, to modify Stewart's system to use an IMSI identifying
a probe session as a probe session indicator. Ludwig, like Stewart, is
directed to monitoring the performance of a communication network that
can include mobile devices. See Ludwig, Abstract, i-f 1; Stewart, Abstract,
col. 1, 11. 12-13, col. 5, 11. 5-9. Ludwig monitors network performance by
using monitoring bearer 54 (connected to terminal equipment 10) to carry
data traffic that is to be monitored, and collecting and evaluating the data
traffic. Ludwig i-fi-130-32, 37--40, Figs. 1, 2. The monitoring process may be
initiated by a triggering event as well as the "assigning of data packets to the
monitoring bearer," where data packets are assigned "if they relate to a
terminal having a certain identifier, e.g. a certain International Mobile
Subscriber Identity (IMSI)." Id. i-f 42. In that circumstance, the presence of
the IMSI would indicate that a monitoring session is taking place with
respect to the identified terminal. See id. A person of ordinary skill in the
art at the time of Appellants' invention would have found it obvious to
modify the performance probes of Stewart to use an IMSI, as taught by
Ludwig, because doing so would utilize a value (IMSI) that is already in use
in the mobile network and would allow the probe session to be more
specifically tailored to a particular terminal (as opposed to a generic probe
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session identifier, such as a single bit, for example). See KSR Int? Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007).
We designate our analysis to be a new ground of rejection of claims 3
and 13 under 35 U.S.C. § 103(a) as unpatentable over Stewart, Lin, and
Ludwig, pursuant to 37 C.F.R. § 41.50(b). We leave to the Examiner to
consider whether claims 4, 5, 14, or 15, which depend from claims 3 and 13,
respectively, are patentable over the combination of Stewart, Lin, and
Ludwig (and any other references).
Claims 8 and 18
Claim 8 recites "determining said receipt of said probe session
indicator in a hardware layer of said network element." Claim 18 recites a
similar limitation.
Appellants contend that the Examiner fails to cite any particular prior
art reference as teaching the disputed limitation. App. Br. 14--16; Reply Br.
6. Appellants' argument is not persuasive because it fails to address the
specific findings of the Examiner based on the combination of Stewart and
Miller. The Examiner acknowledges that Stewart does not teach explicitly
that determining the receipt of the probe session indicator takes place in a
"hardware layer" of the network element, but finds that in the seven-layer
Open Systems Interconnection (OSI) model, "higher layer headers and data
are encapsulated in lower layer header[s], wherein [the] physical layer is the
lowest layer ... [and] communication packets are directly transferring
between network devices." Final Act. 8; Ans. 6. As support, the Examiner
cites Miller's disclosure of signal measurement and testing of various
parameters, such as "delay," at the physical layer. Ans. 8-9; see Miller,
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col. 2, 11. 4--25 ("signal level measurements and other related physical layer
measurements still provide useful information in troubleshooting and
analyzing network performance"). According to the Examiner, it would
have been obvious based on Miller to perform the recited determination at
the physical layer because
timestamp differences measured from the physical layers of two
network nodes could reflect more accurate propagation delays
between the network nodes. This is because the measured
value would exclude the encapsulation and de-capsulation
processes occur[ing] within each node in accordance with the
popular OSI (Open System Interconnection) model. Since
Stewart's performance probe involves different QoS levels, it is
more likely than not that an ordinary skilled artisan would make
use of physical layer timestamps to provide accurate
performance measurement that reflects higher QoS demand.
Ans. 8-9. As such, the Examiner relies on a combination of Stewart's
teaching of determining the receipt of a probe session indicator (without
specifying the layer at which the determination is made) and Miller's
teaching of the advantageous use of the hardware layer in a network element
to assess network performance. Id. Appellants do not explain sufficiently
why the Examiner's findings regarding these combined teachings of the
references are incorrect. See App. Br. 14--16; Reply Br. 5---6.
Further, to the extent Appellants allege error in the Examiner's use of
the phrase "more likely than not" in the Answer, we are not persuaded. See
Reply Br. 6. As explained above, Stewart does not specify the layer at
which it determines the receipt of a probe session indicator, and the
Examiner's statement that "[s]ince Stewart's performance probe involves
different QoS levels, it is more likely than not that an ordinary skilled artisan
would make use of physical layer timestamps to provide accurate
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performance measurement that reflects higher QoS demand" merely
provides additional explanation for why a person of ordinary skill in the art
would have considered performing the determination at the hardware layer
based on the combined teachings of Stewart and Miller.
Accordingly, we sustain the Examiner's rejection of dependent claims
8and18.
CONCLUSION
Appellants have not persuaded us of error in the Examiner's decision
to reject claims 1, 9--11, 19, and 20 as being anticipated by Stewart under
35 U.S.C. § 102(e).
Appellants have not persuaded us of error in the Examiner's decision
to reject claims 2, 6, 7, 12, 16, and 17 as being unpatentable over Stewart
and Lin under 35 U.S.C. § 103(a).
Appellants have persuaded us of error in the Examiner's decision to
reject claims 3-5 and 13-15 as being unpatentable over Stewart and Lin
under 35 U.S.C. § 103(a). We enter a new ground of rejection for claims 3
and 13 under 37 C.F.R. § 41.50(b). Claims 3 and 13 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Stewart, Lin, and Ludwig.
Appellants have not persuaded us of error in the Examiner's decision
to reject claims 8 and 18 as being unpatentable over Stewart, Lin, and Miller
under 35 U.S.C. § 103(a).
DECISION
For the above reasons, the Examiner's decision to reject claims 1, 2,
6-12, and 16-20 is affirmed, and the Examiner's decision to reject claims
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3-5 and 13-15 is reversed. We newly reject claims 3 and 13 under
35 U.S.C. § 103(a) as being unpatentable over Stewart, Lin, and Ludwig.
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides that "[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review." Section 41.50(b) also provides:
When the Board enters such a non-final decision, the
appellant, within two months from the date of the decision,
must exercise one of the following two options with respect to
the new ground of rejection to avoid termination of the appeal
as to the rejected claims:
( 1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner; overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant[ s] may again appeal to the Board pursuant to
this subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
37 C.F.R. § 41.50(b)
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