Avaya Inc.

Patent Trials and Appeals Board

Mar 28, 2022

2021001934 (P.T.A.B. Mar. 28, 2022)

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. 15/284,094 10/03/2016 John Lynch 648.0240 9966 93379 7590 03/28/2022 Setter Roche LLP 1860 Blake Street Suite 100 Denver, CO 80202 EXAMINER ESMAEILIAN, MAJID ART UNIT PAPER NUMBER 2477 NOTIFICATION DATE DELIVERY MODE 03/28/2022 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): pair_avaya@firsttofile.com sarah@setterroche.com uspto@setterroche.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN LYNCH, PAUL HAIG, and CHRIS McARTHUR Appeal 2021-001934 Application 15/284,094 Technology Center 2400 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and NABEEL U. KHAN, Administrative Patent Judges. KHAN, 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. Claims App. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Avaya Inc. Appeal Br. 2. Appeal 2021-001934 Application 15/284,094 2 CLAIMED SUBJECT MATTER Appellant describes the claimed subject matter as follows: Embodiments disclosed herein provide systems, methods, and computer readable media for synchronizing a media codec between network elements of a media communication session. In a particular embodiment, a method provides designating a first network element to be a static-clock network element during the media communication session and designating at least a second network element to be a dynamic-clock network element during the media communication session. The method further provides determining that a difference in clock speed exists between a second clock speed for the media codec at the second network element and a first clock speed for the media codec at the first network element. Also, the method provides adjusting the second clock speed to account for the difference in clock speed. Abstr. Claim 1, reproduced below with annotations indicating the disputed limitations, illustrates the claimed subject matter: 1. A method for synchronizing a media codec between network elements of a media communication session, the method comprising: after initiation of the media communication session between a first network element and at least a second network element, designating the first network element to be a static-clock network element during the media communication session and designating at least the second network element to be a dynamic- clock network element during the media communication session, wherein real-time user communications are exchanged between the first network element and at least the second network element during the media communication session, and wherein the real-time user communications comprise media encoded using the media codec; determining that a difference in clock speed exists between a second clock speed for the media codec at the second Appeal 2021-001934 Application 15/284,094 3 network element and a first clock speed for the media codec at the first network element; and adjusting the second clock speed to account for the difference in clock speed. Appeal Br. 13 (Claims App.). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Kumar US 6,006,253 Dec. 21, 1999 Rietschel US 7,710,941 B2 May 4, 2010 Thi US 2002/0061012 A1 May 23, 2002 Wong US 2010/0111113 A1 May 6, 2010 Gillon US 2016/0330108 A1 Nov. 10, 2016 REJECTIONS 1. Claims 1, 6-9, and 11-16 stand rejected under 35 U.S.C. § 103 as unpatentable over Wong, Rietschel, and Gillon. Final Act. 5-24. 2. Claims 2-5, and 17-20 stand rejected under 35 U.S.C. § 103 as unpatentable over Wong, Rietschel, Gillon, and Thi. Final Act. 24-32. 3. Claim 10 stands rejected under 35 U.S.C. § 103 as unpatentable over Wong, Rietschel, Gillon, and Kumar. Final Act. 24-32. OPINION Claims 1, 11, and 16 Claim 1 recites in relevant part: after initiation of the media communication session between a first network element and at least a second network element, designating the first network element to be a static- clock network element during the media communication session and designating at least the second network element to be a Appeal 2021-001934 Application 15/284,094 4 dynamic-clock network element during the media communication session. Appeal Br. 13 (Claims App.). The Examiner finds Wong’s Master Node teaches the claimed static- clock network element and Wong’s slave nodes as the claimed dynamic- clock network elements. Final Act. 5-6 (citing Wong ¶¶ 36, 65). The Examiner finds that in Wong, a monitoring entity monitors communication between various network nodes and that the monitoring entity is capable of sending a report identifying all slave nodes experiencing timing problems, and identifying all slave nodes for which a new master node is required. Final Act. 5 (citing Wong ¶ 65). The Examiner finds that therefore “[i]t is understood that a master and slave network element can be determined and/or designated for need of timing adjustment, after network nodes are already communicating with one another.” Final Act. 5 (emphasis omitted); see Ans. 34. Appellant argues “Wong fails to disclose nodes that are capable of being designated a static-clock network element or a dynamic-clock network element after initiation of a media communication session.” Appeal Br. 4 (emphasis added). Appellant argues that in Wong, master and slave nodes have different schematics and thus their role as master and slave is determined by their schematics and cannot be designated at any time, let alone designated after initiation of a media communication session. Appeal Br. 4 (citing Wong Figs. 2, 3). According to Appellant, “any master/slave designation in Wong occurs independently of a communication session . . . . ” Appeal Br. 5. We are unpersuaded by Appellant’s arguments. Initially, we note that Appellant does not dispute that Wong’s master node and slave node teach Appeal 2021-001934 Application 15/284,094 5 the claimed static-clock and dynamic-clock network elements. Instead, Appellant argues that in Wong the nodes are not capable of being designated as static-clock and dynamic-clock network elements after the initiation of the communication session. Appeal Br. 4. The Examiner finds that if certain slave nodes have timing problems after initiation of the communication session, Wong is able to select (i.e., designate) a new master node from which the slave nodes receive timing information. Wong ¶¶ 45, 65. We determine that, in light of this teaching from Wong, it would have been obvious to designate master and slave nodes after the initiation of the communication session. Appellant argues that the role of Wong’s nodes as master and slave are dictated by their schematics and thus the designation cannot occur after initiation of the media session. This argument is not commensurate with the scope of the claim, which does not preclude designation of network elements before initiation of the communication session. The claim only requires that a designation occur after initiation. Thus, even if Wong designates the master and slave nodes based on their schematics before the initiation of the communication session, such designation is not precluded by the claim. Moreover, that designation of roles as master and slave continues after the communication session is initiated, until, as explained above, a new master node is selected due to timing problems. Appellant next argues that the Examiner fails to provide reasoning as to why a designation of master and slave elements in Wong would occur after Gillon’s session has been initiated. Appeal Br. 6. Appellant argues that because packet switched networks are not designed for network-wide synchronization delaying the designation of a master node in Wong until Appeal 2021-001934 Application 15/284,094 6 after the initiation of the communication session would handicap the nodes in Wong from performing their intended function of network-wide synchronization. Appeal Br. 6 (citing Wong ¶¶ 5, 27). We are unpersuaded by Appellant’s argument. The argument assumes that the designation of network elements as master or slave in the Wong- Dillon combination only occurs after the communication session is initiated. As we explained above, the claim does not preclude designation of network elements as master and slave (static-clock and dynamic-clock respectively) before the initiation of the session. Thus, there need not be a delay of the designation of these network elements until after the initiation of the communication session. Appellant argues that it would not make sense to combine Wong with Gillon because Gillon runs natively over packet networks and therefore its communication session would not use Wong’s TDM pseudowires. Appeal Br. 6 (citing Wong ¶ 6; Gillon ¶¶ 22-23). We are unpersuaded by this argument. The Examiner relies on Gillon to teach a real-time media communication session. Final Act. 8-9 (citing Gillon ¶ 24). Appellant does not explain why Gillon’s communication session, which Appellant admits runs over packet networks could not use Wong’s pseudowires which are described as being packet-based paths. Wong ¶ 4. Accordingly, we sustain the Examiner’s rejection of independent claim 1. We also sustain the Examiner’s rejection of independent claims 11 and 16 which Appellant argues together with claim 1. Appeal Br. 7. Finally, we sustain the Examiner’s rejections of dependent claims 4, 5, 9, 10, 15, 19, and 20, which Appellant does not argue separately. Appeal 2021-001934 Application 15/284,094 7 Claims 6 and 12 Claim 6 depends from claim 1 and recites “wherein designating the first network element to be the static-clock network element comprises: determining that the first clock speed comprises a most accurate clock speed relative to clock speeds of other network elements on the media communication session.” Appeal Br. 14 (Claims App.). Claim 12 recites a similar limitation. Appeal Br. 16 (Claims App.). Appellant argues that claim 6 requires the determination “that the first clock speed comprises a most accurate clock speed” be made after initiation of the media communication session. Appellant acknowledges that Wong’s master clock has a highly accurate reference clock compared to the slave nodes, but that this is simply a statement of fact and that Wong knows which nodes will be master nodes prior to the connection of those nodes to the network. Appeal Br. 7. We are unpersuaded by Appellant’s argument. The Examiner finds that Wong’s master nodes have a highly accurate reference clock while its slave nodes have less accurate reference clocks. Final Act. 9 (citing Wong ¶ 36). As we explained with regard to claim 1, in Wong, when timing problems occur with the slave nodes and a new master node is selected from which to receive timing information and this selection occurs after the communication session has been initiated. It would be understood by one of ordinary skill in the art that this selection of the master node from which to receive timing information is done partly because the master node has a more accurate clock. Thus, the selection of the master node would include a determination that the master node’s clock is more accurate than the slave node’s clocks. Appeal 2021-001934 Application 15/284,094 8 Accordingly, we sustain the Examiner’s rejection of claim 6 and of claim 12 which was argued together with claim 6. Appeal Br. 7-8. Claims 7 and 13 Claim 7 depends from claim 1 and recites: at a time after designating the first network element to be the static-clock network element, determining that the first clock speed no longer comprises the most accurate clock speed; designating the first network element as a dynamic-clock network element; and designating another network element now having the most accurate clock speed to be the static-clock network element. Appeal Br. 14 (Claims App.). Claim 13 indirectly depends from claim 11 and recites a similar limitation. Appeal Br. 16 (Claims App.). The Examiner finds, as done for claim 6, that Wong teaches that a master node has a highly accurate reference clock, while slave nodes have less accurate reference clocks. Final Act. 10 (citing Wong ¶ 36). The Examiner concludes that because it is understood that a master node is designated as such due to its accurate reference clock, another node with a more accurate reference clock can be designated a master node. Final Act. 10. Appellant argues that “Wong does not disclose that it is even possible for a master node to be re-designated as a slave node.” Appeal Br. 8-9. We agree with Appellant. Wong teaches that master nodes have more accurate clocks than slave nodes (Wong ¶ 36), but we do not discern from the relied upon portions of Wong, that Wong discloses that a master node (i.e., the first network element) be designated as a dynamic-clock network element if its clock no longer comprises the most accurate clock speed. Appeal 2021-001934 Application 15/284,094 9 Accordingly, we do not sustain the Examiner’s rejection of claim 7 and of claim 13 for which the Examiner made the same findings. See Final Act. 17-18. Claims 8 and 14 Claim 8 depends from claim 1 and recites wherein the first network element comprises a first endpoint to the media communication session that is operated by a first user, the second network element comprises a second endpoint to the media communication session that is operated by a second user, and the media communication session is initiated by a conference system that provides real-time media communication services to the first network element and at least the second network element. Appeal Br. 14 (Claims App.). Claim 14 depends from claim 11 and recites a similar limitation. Appeal Br. 16 (Claims App.). The Examiner relies on Gillon that teaches the exchange of real-time media between various network elements such as video conferencing. Final Act. 11 (citing Gillon ¶¶ 24, 46, Figs. 1, 2). Appellant argues [e]ven if Gillon disclosed the endpoints required by claim 1, it does not make sense for the nodes in Wong to be endpoints operated by users. As already discussed above, the nodes in Wong allow TDM communications to traverse packet network 105. Effectively, the nodes bridge the packet network and the TDM network. Neither Gillon nor Wong even suggests that a bridge between two types of networks (i.e., a node in Wong) would be a user operated endpoint on a communication session, as required by claim 8. Appeal Br. 9. We are unpersuaded by Appellant’s arguments. The Examiner relies on Gillon for teaching that the endpoints of the video conferencing session Appeal 2021-001934 Application 15/284,094 10 would be user operated. Ans. 36 (citing Gillon Fig. 1 (depicting two end direct devices that communicate with each other)). Appellant’s arguments directed at Wong’s bridging of two networks does not address the Examiner’s findings. Accordingly, we sustain the Examiner’s rejection of claim 8 and of claim 14 which was argued together with claim 8. See Appeal Br. 10. Claim 2 and 17 Claim 2 depends from claim 1 and recites wherein determining that the difference in clock speed exists comprises: at the second network element, receiving a plurality of data packets for the media communication session from the first network element; calculating an average frequency in which the plurality of data packets is received; and determining that a difference in frequency exists between the average frequency and a frequency of the first clock speed. Appeal Br. 13 (Claims App.). Claim 17 depends from claim 16 and recites a similar limitation. Appeal Br. 17 (Claims App.). The Examiner relies on Wong as teaching most of the limitations of claim 2. For example, the Examiner finds Wong teaches data packets being sent between slave nodes and master node and determining a difference between average frequency and frequency of the first clock speed. Final Act. 24-25 (citing Wong ¶¶ 29, 67). The Examiner acknowledges, however, that Wong does not teach “calculating an average frequency in which the plurality of data packets is received.” For this limitation, the Examiner relies on Thi, which the Examiner finds teaches a low pass filter that averages frame arrival rates. Final Act. 25 (citing Thi ¶ 338). Appeal 2021-001934 Application 15/284,094 11 Appellant argues “[w]hile Thi may disclose frame arrival rates, a frame is not a packet and Thi does not suggest that a frame is considered a data packet therein. Therefore, Thi fails to disclose calculating an average frequency in which the plurality of data packets is received, as required by claim 2.” Appeal Br. 10. We are unpersuaded by Appellant’s argument because it does not address the totality of the Examiner’s findings. The Examiner relies on Wong for teaching that data packets are sent and received. Final Act. 24 (citing Wong ¶ 29). The Examiner relies on Thi for teaching averaging frame arrival rates. Final Act. 25 (citing Thi ¶ 338). The fact that Thi’s teachings of calculating an average arrival rate are directed to frames rather than data packets does not show that those teachings could not be applied to data packets. The combination of references, and especially Wong and Thi, therefore teaches “calculating an average frequency in which the plurality of data packets is received.” Accordingly, we sustain the Examiner’s rejection of claim 2 and of claim 17 which Appellant argues together with claim 2. Appellant also makes the same arguments for claims 3 and 18. See Appeal Br. 11 (“Based on the preceding remarks[, i.e., those made for claim 2], the Applicant respectfully submits that Wong, Rietschel, Gillon, and Thi, alone and in combination, fail to teach or suggest all the limitations of claim 3.”) Thus, we also sustain the Examiner’s rejection of claims 3 and 18. CONCLUSION The Examiner’s rejections of claims 1-6, 8-12, and 14-20 are affirmed. The Examiner’s rejection of claims 7 and 13 is reversed. Appeal 2021-001934 Application 15/284,094 12 DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6-9, 11-16 103 Wong, Rietschel, Gillon 1, 6, 8, 9, 11, 12, 14-16 7, 13 2-5, 17-20 103 Wong, Rietschel, Gillon, Thi 2-5, 17-20 10 103 Wong, Rietschel, Gillon, Kumar 10 Overall Outcome 1-6, 8-12, 14-20 7, 13 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) (2019). AFFIRMED IN PART