ZTE CorporationDownload PDFPatent Trials and Appeals BoardOct 8, 20212020004199 (P.T.A.B. Oct. 8, 2021) Copy Citation 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. 15/716,110 09/26/2017 Gregory Mirsky 009064-8117.US00 1031 97075 7590 10/08/2021 Perkins Coie LLP - SDO General PO Box 1247 Seattle, WA 98111-1247 EXAMINER CHANG, YU-WEN ART UNIT PAPER NUMBER 2413 NOTIFICATION DATE DELIVERY MODE 10/08/2021 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): patentprocurement@perkinscoie.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY MIRSKY Appeal 2020-004199 Application 15/716,110 Technology Center 2400 Before JEAN R. HOMERE, HUNG H. BUI, and PHILLIP A. BENNETT, Administrative Patent Judges. HOMERE, Administrative Patent Judge. DECISION ON APPEAL I. STATEMENT OF THE CASE1 Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 2, 5–25. Claims App. Claims 3 and 4 are cancelled. Id. Appeal Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to the Specification, filed Sept. 26, 2017 (“Spec.”); Final Office Action, mailed May 9, 2019 (“Final Act.”); Appeal Brief, filed Dec. 6, 2019 (“Appeal Br.”); Examiner’s Answer, mailed March 19, 2020 (“Ans.”); and Reply Brief, filed May 18, 2020 (“Reply Br.”). 2 “Appellant” refers to “Applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as ZTE Corp. Appeal Br. 1. Appeal 2020-004199 Application 15/716,110 2 II. CLAIMED SUBJECT MATTER According to Appellant, the claimed subject matter relates to a performance metric method and system for proactively measuring end-to- end latency and jitter in a multi-node network by using test packets to measure residence time (RT) at each node along various paths within the network, thereby proactively determining the shortest path with the lowest delay in the network. Spec. ¶¶ 1–5, 54. Figure 6, reproduced below, is useful for understanding the claimed subject matter: Figure 6 depicts test system 605 for directing test packets to one or more nodes within a multi-node network to measure residence time (RT) metrics of the test packets in the various nodes. Id. ¶ 3. Test system 605, shown in Appeal 2020-004199 Application 15/716,110 3 Figure 3, includes a test path computation module 315 to set an explicit path for MPLS-TE label-switched Path (LPS) using RSVP-TE protocol. Id. ¶ 56. In particular, test system 300 collects RT metrics reported in residence time database 330. Fig. 3. Service path computation module 325 of test system 605 uses RT database 330 to calculate delay and delay variation as part of TE path computation to subsequently determine the best path or set of paths with the lowest delay and delay variation to go from one node to another node. Id. ¶¶ 54, 55. Independent claim 1, with disputed limitations emphasized, is illustrative: 1. A method of packet communication, comprising: receiving, by a plurality of nodes, one or more test packets configured to traverse the plurality of nodes according to a list included in the one or more test packets, wherein the list comprises an ordered set of ingress interface identifiers and egress interface identifiers of the plurality of nodes, and wherein the ordered set indicates an order to be traversed by the one or more test packets; identifying, by each of the plurality of nodes, information indicative of a requested residence time measurement for the one or more test packets; reading, by each of the plurality of nodes, a first clock value as each test packet is passed thereto; reading, by each of the plurality of nodes, a second clock value as each test packet is passed therefrom; calculating, by the plurality of nodes, the residence time of each test packet as a function of the first clock value and the second clock value; and transmitting, to a computing device, a residence time metrics that includes the calculated residence time, wherein the residence time metrics is provided with the ingress and egress interface identifiers. Appeal 2020-004199 Application 15/716,110 4 Appeal Br. 13 (emphasis added). III. REFERENCES The Examiner relies upon the following references as evidence.3 Name Reference Date Bedrosian US 7,778,171 B2 Aug. 17, 2010 Le Pallec “Le Pallec’992” US 2014/0043992 A1 Feb. 13, 2014 Le Pallec “Le Pallec’922” US 2014/0092922 A1 Apr. 3, 2014 Nainar US 2018/0077051 A1 Mar. 15, 2018 Wood US 2018/0097725 A1 Apr. 5, 2018 IV. REJECTIONS The Examiner rejects claims 1, 2, and 5–25 as follows: Claims 1, 2, 7, 10–14, 18–21, and 25 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings of Le Pallec’992 and Wood. Final Act. 2–17 Claims 5, 6, 15, and 22 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings Le Pallec’992, Wood, Le Pallec’922, and Bedrosian. Id. at 7–10. Claims 8, 9, 16, 17, 23, and 24 stand rejected under 35 U.S.C. § 103 as unpatentable over the combined teachings Le Pallec’992, Wood, and Nainar. Id. at 10–11. 3 All reference citations are to the first named inventor only. Appeal 2020-004199 Application 15/716,110 5 V. ANALYSIS We consider Appellant’s arguments seriatim, as they are presented in the Appeal Brief, pages 5–12 and the Reply Brief, pages 2–5.4 We are unpersuaded by Appellant’s contentions. Except as otherwise indicated herein below, we adopt as our own the findings and reasons set forth in the Final Action, and the Examiner’s Answer in response to Appellant’s Appeal Brief.5 Final Act. 2–11; Ans. 3–6. However, we highlight and address specific arguments and findings for emphasis as follows. Appellant argues that the Examiner errs in finding that the combination of Le Pallec ’992 and Wood renders claim 1 unpatentable. Appeal Br. 5. In particular, Appellant argues that none of the cited references teaches or suggests a plurality of nodes calculating the RT of each of a plurality of received test packets as a function of their clock values while the test packets are passing through the nodes, as recited in independent claim 1. Id. According to Appellant, Le Pallec’992’s disclosure of “each traversed node i realizes the following operation” and “computing 4 We have considered in this Decision only those arguments Appellant actually raised in the Briefs. Arguments not made are forfeited. See 37 C.F.R. § 41.37(c)(1)(iv) (2017). 5 See ICON Health and Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1042 (Fed. Cir. 2017) (“As an initial matter, the PTAB was authorized to incorporate the Examiner’s findings.”); see also In re Brana, 51 F.3d 1560, 1564 n.13 (Fed. Cir. 1995) (upholding the PTAB’s findings, although it “did not expressly make any independent factual determinations or legal conclusions,” because it had expressly adopted the examiner’s findings). Appeal 2020-004199 Application 15/716,110 6 the packet residence time in node i” does not mean that each node calculates the RT, but instead teaches only one node performs such a calculation. Id. 6– 8 (citing Le Pallec’992 ¶¶ 96–102). Although Appellant acknowledges that the cited portions of Le Pallec’992 teach that each traversed node performs the operations of registering the timestamp of packet reception time, and calculating the RT value associated therewith, Appellant nonetheless argues that one of ordinary skill in the art would recognize that Le Pallec’992’s disclosure of the nodes performing the operations only when they have TTL (time to live) of 1 teaches only a single traversed node computes the RT because only that single node receives the timestamp message packet, and has a TTL value equal to 1. Id. at 8–10. Further, Appellant argues that Wood’s disclosure of path descriptors including ingress and egress labels does not teach RT metrics provided with ingress/egress interface identifiers. Id. at 11–12 (citing Wood ¶¶ 42). According to Appellant, the proposed combination of Le Pallec’992’s “timestamp reply message” taken in combination with Wood’s “path descriptor” teaches at best a network node sending a probe message with a resident time and a single ID such that the network nodes receive ingress/egress labels for each node. Id. at 12. Appellant’s arguments are not persuasive of reversible Examiner error. As correctly noted by the Examiner, Le Pallec’992 discloses a source node sending successive timestamp probe messages with a TTL =1 to an adjacent node, with a TTL = 2 to a next node, with a TTL=3 to a fourth node and so on. Final Act. 4 (citing Le Pallec’992 ¶¶ 95–99). As further correctly noted by the Examiner, Le Pallec’992 also discloses, upon reaching a destination node, sending a “Timestamp Reply” message to the source node. Id. (citing Le Pallec’992 ¶¶ 101, 102, 106.). Appeal 2020-004199 Application 15/716,110 7 We do not agree with Appellant that Le Pallec’992’s disclosure of TTL= 1 limits calculating RT metrics by a single node. Le Pallec’992 discloses that TTL starts at 1, and is incremented after each round trip until the destination is reached or until another stopping condition applies. Le Pallec’992 ¶ 93. Instead, an ordinarily-skilled artisan would understand Le Pallec’992’s disclosure of performing packet timestamp transmit registration to compute RT in each node if TTL=1 (then, computing RT for TTL equals to 2, 3, …n) as teaching that each of the traversed node in the network calculates the RT for a particular timestamp packet for a TTL that equals at least 1. Additionally, we agree with the Examiner that Wood’s disclosure of “path descriptors” including ingress and egress labels taken in combination with Le Pallec’992’s disclosure of a plurality of nodes calculating RT metrics for each timestamped message within each received packet and placing them Identifier fields teaches RT metrics provided with ingress/egress interface identifiers. Ans. 5 (citing Wood ¶ 42, Le Pallec’992 ¶¶ 68, 106).6 We find the Examiner’s proposed combination of Le Pallec’992 and Wood is no more than a simple arrangement of old elements with each performing the same function it had been known to perform, yielding no more than what one would expect from such an arrangement. See KSR, 550 U.S. at 416. Therefore, the ordinarily skilled artisan, being “a 6 “The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference. . . . Rather, the test is what the combined teachings of the references would have suggested to those of ordinary skill in the art.” Keller, 642 F.2d at 425. “The obviousness analysis cannot be confined by [the] formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of . . . the explicit content of issued patents.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Appeal 2020-004199 Application 15/716,110 8 person of ordinary creativity, not an automaton,” would have been able to fit the teachings of the cited references together like pieces of a puzzle to predictably result in plurality of nodes calculating RT metrics for each of a plurality of timestamped messages in received test packets, which are stored in fields with ingress/egress interface identifiers. Id. at 420–21. Because Appellant has not demonstrated that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art,” we agree with the Examiner that the proposed modification would have been within the purview of the ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). Ans. 5. Consequently, we are satisfied that, on this record, the Examiner has established that the combination of Le Pallec’992 and Wood teaches or suggests the disputed claim limitations. Because we are not persuaded of Examiner error, we sustain the Examiner’s rejection of claim 1 as unpatentable over the combination of Le Pallec’992 and Wood. Regarding the rejections of claims 2, 5–25, Appellant either does not present separate patentability arguments or reiterates substantially the same arguments as those discussed above for the patentability of claim 1. As such, claims 2 and 5–25 fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv). VI. CONCLUSION On this record, we affirm the Examiner’s rejections of claims 1, 2, and 5–25. Appeal 2020-004199 Application 15/716,110 9 VII. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 7, 10–14, 18–21, 25 103 Le Pallec’992, Wood 1, 2, 7, 10– 14, 18–21, 25 5, 6, 15, 22 103 Le Pallec’992, Wood, Le Pallec’922, Bedrosian 5, 6, 15, 22 8, 9, 16, 17, 23, 24 103 Le Pallec’992, Wood, Nainar 8, 9, 16, 17, 23, 24 Overall Outcome 1, 2, 5–25 VIII. 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation