Ex Parte HASS et al

Patent Trial and Appeal Board

Jul 18, 2016

13084516 (P.T.A.B. Jul. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/084,516 04/11/2011 David T. HASS
49579 7590 07118/2016
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK A VENUE, N.W.
WASHINGTON, DC 20005
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.
4875.1670005 1250
EXAMINER
PEZZLO, JOHN
ART UNIT PAPER NUMBER
2465
MAILDATE DELIVERY MODE
07/18/2016 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
Exparte DAVID T. HASS and ABBAS RASHID
Appeal2015-001271
Application 13/084,516
Technology Center 2400
Before JOHN A. JEFFERY, BRADLEY W. BAUMEISTER, and
DENISE M. POTHIER, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 31-38, 40-43, and 45--48. 1 Claims 1-30, 39, and 44
have been canceled. App. Br. 16-18, Claims App'x. We have jurisdiction
under 35 U.S.C. § 6(b). We affirm.
1 Throughout this opinion, we refer to (1) the Appeal Brief (App. Br.) filed
July 3, 2014; (2) the Examiner's Answer (Ans.) mailed August 20, 2014;
and (3) the Reply Brief (Reply Br.) filed October 20, 2014.
Appeal2015-001271
Application 13/084,516
INVENTION
Appellants' invention operates on packets for computer and
telecommunication applications. See Spec. i-f 2. The invention uses a
packet-ordering device (POD) to order packets received by a network
interface from different threads before sending the packets to the network.
Id. i-fi-1136-37; Figs. 6C-D. If the first packet in the order never arrives in
the POD, the system enters a deadlock, waiting for the non-arriving packet.
Id. i-f 138. To solve this problem, one embodiment drops the non-arriving
packet once a time-out counter has expired. Id.
Claim 31, reproduced below with our emphasis, is representative of
claims 31, 33, 35-38, 40-43, and 46-482:
31. A processor, comprising:
a packet processing system to execute a plurality of
threads to process packets;
a packet distribution engine to: receive a plurality of
packets in a first order;
assign packet descriptors to respective packets of said
plurality of packets, the packet descriptors comprising
respective sequence numbers;
provide the respective packets to a memory; and
distribute the packet descriptors to threads of the packet
processing system without moving the respective packets from
the memory; and
a packet ordering device to receive the packet descriptors
from the packet processing system in a second order different
from the first order and to establish an order for distributing the
respective packets to a networking output based, at least in part,
upon the respective sequence numbers of the packet descriptors,
2 Appellants argue the independent claims 31 and 41 together. App. Br. 10
n.1. Claims 33, 35-38, 40, 42, 43, and 46-48 are not argued separately.
App. Br. 14. Accordingly, we select claim 31 as representative. 37 C.F.R.
§ 41.37(c)(l)(iv).
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Application 13/084,516
wherein the packet ordering device is configured to drop
a packet descriptor after a timeout counter expires such that the
order established by the packet ordering device for distributing
the respective packets to the networking output does not include
the packet associated with the dropped packet descriptor, and
the next packet descriptor in the first order replaces the dropped
packet descriptor.
The Examiner relies on the following as evidence of unpatentability:
Ni
Lindsay
Greenblat
Hooper
Potter
US 2002/0122387 Al
US 2003/0028633 Al
US 2003/0212830 Al
US 2004/0252686 Al
US 2006/0200825 Al
THE REJECTIONS
Sept. 5, 2002
Feb. 6,2003
Nov. 13, 2003
Dec. 16, 2004
Sept. 7, 2006
Claims 31, 33, 35-38, 40-43, and 46-48 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Potter, Hooper, and Ni. Ans. 2---6.
Claims 32, 34, and 45 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Potter, Hooper, Ni,3 Greenblat, and Lindsay. Ans. 6.
THE OBVIOUSNESS REJECTION OVER POTTER, HOOPER, AND NI
Contentions
The Examiner finds that Potter discloses every recited element of
claim 31 except for the packet descriptors and time-out counter, but cites
Hooper and Ni as teaching these features. Ans. 2-5. Of particular
relevance, the Examiner finds that Ni discloses a timer that predicts a delay
3 Although the Examiner rejects the parent claims of claims 32, 34, and 45
using Ni (id. at 2---6), the Examiner omits Ni from the rejection's heading of
these claims. See Ans. 6. We treat the Examiner's omission of Ni in the
rejection's heading as a harmless clerical error.
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Application 13/084,516
and drops specific delayed packets as corresponding to the recited "time-out
counter." Final Act. 4 (citing Ni i-fi-1 42--43); see also Ans. 4. In the
Answer's "Response to Arguments" section, the Examiner alternatively
finds that Ni's "maximum time interval" is the recited time-out counter. See
Ans. 7-8 (citing Ni i-fi-17, 10, 19, 24, 32-33).
Appellants argue that Ni lacks the recited time-out counter.
App. Br. 11-12. According to Appellants, Ni drops packets based on a
complex prediction, not a time-out counter as recited. Id.
Issue
Under§ 103, has the Examiner erred in rejecting claim 31 by finding
that Ni would have taught or suggested "a packet order device [] configured
to drop a packet descriptor after a time-out counter expires"?
Analysis
We begin by noting that the Examiner's initially articulated position
in the rejection is different from the position later articulated in the Answer's
Response to Arguments section. Accord App. Br. 12. In the initial
rejection, the Examiner finds that Ni discloses a timer. Final Act. 4; see also
Ans. 4. By using the term "timer" in this context, we understand the
Examiner to mean Ni's discussion concerning a timer in paragraphs 42 and
43. Final Act. 4 (citing Ni i-fi-1 42--43); see also Ans. 4.
But in responding to Appellants' arguments, the Examiner cites other
paragraphs and points to Ni's "maximum time interval." See Ans. 7-8
(citing Ni i-fi-17, 10, 19, 24, 32-33). Appellants note that the Examiner
presents an alternative reason for rejecting claim 31. App. Br. 12. In
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Application 13/084,516
particular, Appellants point to the Examiner's position described in the
Second Advisory Action, which is repeated in the Answer's "Response to
Arguments" section. Compare Ans. 7-8 with Adv. Act. 2, mailed April 9,
2014. Appellants then provide additional arguments against this second
position based on Ni's "maximum time interval." See App. Br.
12-14; see also Reply Br. 2-5.
To the extent that the Examiner articulates a new position in the
Answer's "Response to Arguments" section (Ans. 7-8) that differs from that
articulated in the rejection (Final Act. 4; Ans. 4), we confine our discussion
to the Examiner's position as articulated in the rejection because the appeal
was taken from that position.
Turning to the merits of that position, claim 31 recites in part, "a time-
out counter" and more particularly, a POD "configured to drop a packet
descriptor after a time-out counter expires." Construing this claim in light of
the disclosure, both Appellants and the Examiner agree that the Specification
only mentions a time-out counter twice. Reply Br. 4 (citing Spec. i-f 138).
That is, paragraph 13 8' s embodiment is the only disclosed example of a
time-out counter. See id.; Spec. i-f 138. Although this example informs our
interpretation, the example does not provide a clear intent to deviate from
the plain meaning of the term "counter." And here, we agree with
Appellants that the plain meaning of "counter" requires that the recited
"time-out counter" counts or performs counting. Reply Br. 4.
Given this interpretation, we are unpersuaded that the Examiner erred
in finding that Ni's timer corresponds to a time-out counter. Ans. 4. Ni
discloses three types of traffic: voice, video, and best effort. Ni i-f 20. Each
type has a maximum-transmission-interval requirement-i.e., the maximum
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allowable time between successive transmissions of packets of the same
type. Id. i-f 24, cited in App. Br. 13 and Reply Br. 4. Ni's switch (e.g., 100)
schedules these packets for transmission. Id., Fig. 1. In particular, the
switch uses a queue (e.g., 111) to order the packets in a first-in-first-out
(FIFO) sequence. Id. i-f 20, Figs. 1, 4 and i-f 42, cited in Ans. 4. To help meet
the system's timeliness goals, flow control module 126 determines when to
drop packets from the queue. See Ni i-fi-142--43; Fig. 1.
In one embodiment, Ni's slot timer 160 predicts the time it takes to
transfer a packet. When the system knowingly transmits a packet that will
delay the next packet (e.g., voice or video), module 126 provides instruction
to drop the packet. Id. Ni uses an aging function, for instance, to drop all
packets with a next-service time-stamp older than the current "slot time."
Id. i-f 42. Ni's next-service time is "the latest allowable time that a packet ...
should be transmitted from the queue" before the type's transmission
interval requirement is violated. Id. i-f 24.
To carry out the above-described process, Ni's slot timer must count
time. See id. i-fi-1 42--44. That is, to determine (a) the next service time and
(b) whether to drop packets with older next-service time-stamps, some
aspect of time (e.g., minutes, seconds, or some other time increment) must
be calculated. See id. Here, Ni also updates the slot timer after a packet is
transmitted. See, e.g., id. i-f 43; see also id. i-f 44. Moreover, Ni explains that
the current slot time is compared to a value representing time-the next-
service time discussed in Ni. Id. i-f 42. So like a counter, Ni's slot timer
updates its value over time in response to the passage of events. See
id. i-fi-142--44. Accordingly, the Examiner's finding that Ni's paragraphs 42
and 43 teach a counter (see Final Act. 4; Ans. 4) is reasonable.
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Furthermore, the Examiner did not err in finding that Ni's timer
expires (see Final Act. 4). Ni's next-service time represents the latest
allowable time that a packet should be transmitted before the transmission
interval requirement is violated. Id. i-f 24. So, when the next service time is
older than the current slot time (id. i-f 42, cited in Final Act. 4), the next
service time in essence has expired for that packet. Thus, in addition to Ni
predicting the time that it takes to transfer a packet and whether packets will
be delayed as argued by Appellants (App. Br. 11-12), at least a component
of Ni's timer suggests determining whether to drop packets based on a
counter that has expired. See Ni i-fi-124, 42. Accordingly, we are
unpersuaded that Ni lacks a "time-out counter," as recited. See App. Br. 11-
12; Reply Br. 4.
Because we find that the Examiner did not err in concluding that the
recited time-out counter reads on Ni's discussion at paragraphs 42 and 43
(Final Act. 4), we need not reach Appellants' additional arguments regarding
Ni's "maximum time interval." See App. Br. 12-14; see also Reply Br. 2-5.
However, as discussed above, although not a counter by itself, the maximum
interval time is a component used to determine the next service time (see Ni
i-f 24), which is used in the aging function to determine when to drop packets
(id. i-f 42). We therefore disagree that the maximum time interval is not
involved in dropping packets as argued. See App. Br. 13.
For the foregoing reasons, Appellants have not persuaded us of error
in the rejection of representative claim 31, or in the rejection of claims 33,
35-38, 40-43, 46-48, which are not argued separately.
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Application 13/084,516
THE OBVIOUSNESS REJECTION OVER POTTER JR., HOOPER, NI,
GREENBLAT, AND LINDSAY
Claims 32, 34, and 45 depend from claims 31 and 41. In arguing
against the rejection of claims 32, 34, and 45, Appellants refer to the
arguments presented for claim 31. See App. Br. 14-15. Appellants further
note that the additional references of Greenblat and Lindsay do not cure the
deficiencies of Potter, Hooper, and Ni. Id. at 15. The issues before us, then,
are the same as those in connection with claim 31, and we refer Appellants
to our previous discussion. We sustain this rejection for the above-discussed
reasons and need not address the alleged deficiencies of Greenblat and
Lindsay.
CONCLUSION
The Examiner did not err in rejecting claims 31-38, 40-43, and 45--48
under§ 103.
DECISION
The Examiner's decision rejecting claims 31-38, 40-43, and 45--48 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l )(iv).
AFFIRMED
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