Ex Parte Acharya et al

Board of Patent Appeals and Interferences

Mar 22, 2012

10853422 (B.P.A.I. Mar. 22, 2012)

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.
10/853,422 05/25/2004 Swarup Acharya 21-8-8-10 4461
7590 03/23/2012
Ryan, Mason & Lewis, LLP
90 Forest Avenue
Locust Valley, NY 11560
EXAMINER
CHRISS, ANDREW W
ART UNIT PAPER NUMBER
2472
MAIL DATE DELIVERY MODE
03/23/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SWARUP ACHARYA, BHAWNA GUPTA,
PANKAJ RISBOOD, and ANURAG SRIVASTAVA
____________

Appeal 2010-000267
Application 10/853,422
Technology Center 2400
____________

Before HOWARD B. BLANKENSHIP, CAROLYN D. THOMAS, and
ANDREW J. DILLON, Administrative Patent Judges.

DILLON, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-7, 9-12, and 14-20. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm.

Appeal 2010-000267
Application 10/853,422

2
STATEMENT OF THE CASE
Appellants’ invention is directed to a method, apparatus, and
computer program product for link delay determination using virtually
concatenated groups for each identified pair of nodes for a given link to
determine the delay for that particular link. See Spec. 21, Abstract.

Claim 1 is illustrative, with key disputed limitations emphasized:
1. A processor-implemented method of determining link
delay in a network comprising a plurality of nodes, the method
comprising the steps of:

identifying pairs of nodes associated with a given link;

for each of the identified pairs, setting up a virtually-
concatenated group between the nodes of that pair;

utilizing the virtually-concatenated groups to make delay
measurements; and

processing the delay measurements to determine delay of
the given link.

The Examiner relies on the following as evidence of unpatentability:
Gusella US 5,408,465 Apr. 18, 1995
Yehuda US 2002/0090009 A1 July 11, 2002
Beshai US 2004/0114539 A1 June 17, 2004
(filed Dec. 11, 2002)
Gupta US 2004/0213268 A1 Oct. 28, 2004
(filed Apr. 22, 2003)
Russell US 6,917,630 B1 July 12, 2005

Appeal 2010-000267
Application 10/853,422

3
THE REJECTIONS
1. The Examiner rejected claims 14 and 15 under 35 U.S.C. § 112,
second paragraph, as failing to particularly point out and distinctly claim the
subject matter which the Appellants regard as the invention. Ans. 3.1
2. The Examiner rejected claims 1-7 and 9-12 under 35 U.S.C.
§ 103(a) as unpatentable over Russell and Yehuda. Ans. 3-7.
3. The Examiner rejected claims 14 and 15 under 35 U.S.C. §
103(a) as unpatentable over Russell, Yehuda, and Beshai. Ans. 8.
4. The Examiner rejected claim 16 under 35 U.S.C. § 103(a) as
unpatentable over Russell, Yehuda, and Gusella. Ans. 8-9.
5. The Examiner rejected claims 17 and 18 under 35 U.S.C. §
103(a) as unpatentable over Russell, Yehuda, and Gupta. Ans. 9-10.
6. The Examiner rejected claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Russell, Yehuda, Beshai, and Gupta. Ans. 11.
7. The Examiner rejected claim 20 under 35 U.S.C. § 103(a) as
unpatentable over Russell, Yehuda, and Gusella. Ans. 11-12.

ISSUES
1. Under § 112, has the Examiner erred in rejecting claims 14 and
15, as vague and indefinite?
2. Under § 103, has the Examiner erred in rejecting claims 1-7 and
9-12 by finding that Russell and Yehuda show or suggest a process for
determining link delay in a network utilizing virtually-concatenated groups?

1 Throughout this opinion, we refer to the Appeal Brief filed March 23,
2009, the Examiner’s Answer mailed June 23, 2009, and the Reply Brief
filed August 24, 2009.
Appeal 2010-000267
Application 10/853,422

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3. Under § 103, has the Examiner erred in rejecting claims 14 and
15 by finding that Russell, Yehuda, and Beshai show or suggest the
process for determining link delay in a network with virtually-concatenated
groups by configuring a first node to send designated information that is
substantially the same as that received from a second node wherein the delay
is determined as a function of a round-trip delay measurement?
4. Under § 103, has the Examiner erred in rejecting claim 16 by
finding that Russell, Yehuda, and Gusella show or suggest the process for
determining link delay in a network with virtually-concatenated groups
wherein the delay is calculated utilizing software running on a processor of
at least one node of the network?
5. Under § 103, has the Examiner erred in rejecting claims 17 and
18 by finding that Russell, Yehuda, and Gupta show or suggest an apparatus
for determining link delay in a network by measuring delay utilizing
virtually-concatenated groups?
6. Under § 103, has the Examiner erred in rejecting claim 19 by
finding that Russell, Yehuda, Beshai, and Gupta show or suggest an
apparatus for determining link delay in a network by measuring delay
utilizing virtually-concatenated groups and then centrally calculating that
delay?
7. Under § 103, has the Examiner erred in rejecting claim 20 by
finding that Russell, Yehuda, and Gusella show or suggest a software
implemented process for determining link delay in a network by measuring
delay utilizing virtually-concatenated groups?

Appeal 2010-000267
Application 10/853,422

5
FINDINGS OF FACT
We find that the following enumerated findings of fact (FF) are
supported by at least a preponderance of the evidence. Ethicon, Inc. v.
Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general
evidentiary standard for proceedings before the Office).
1. Russell discloses transmitting data across a network in a plurality
of virtually concatenated containers. Russell, Abstract.
2. Russell discloses that the virtually concatenated containers
experience different transmission delays by virtue of different
paths through the network. For example, Russell discloses that one
container may travel from a second node to the destination third
node, while a second container may travel to the destination third
node via a fourth node. Russell, col. 11, ll. 1-28. Russell also
discloses path trace bytes which identify portions of the data
stream. Russell, col. 12, ll. 56-67.
3. Yehuda discloses a fragmented data stream of virtually
concatenated data frames which experience different delay times
and must be re-assembled at the terminal network element.
Yehuda, ¶¶[0065-66].
4. Beshai discloses measuring the delay experienced between nodes
in a network by measuring the time differential delay at each
intermediate node. Beshai, ¶¶[0179-85].
5. Gupta discloses a delay compensation apparatus 206 which is
utilized to compensate for delay in a virtual concatenated network.
Gupta, ¶[0031].

Appeal 2010-000267
Application 10/853,422

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ANALYSIS
The § 112, Second Paragraph Rejection
Appellants argue that the use of the phrase “substantially the same”
does not render claim 14 vague or indefinite, noting that the terminology is
frequently utilized in patent applications in order to accommodate minor
variations that may be appropriate to secure the invention. App. Br. 8.
We find that in this particular application those having ordinary skill
in this art would not find this terminology vague or indefinite. Specifically,
we find that information which is “substantially the same” is easily
recognized as such and is therefore neither vague nor indefinite. In matters
of delay determination, the volume and complexity of data will impact data
transmission and it necessarily follows that data must merely be of similar
volume and complexity to be “substantially the same.”
We are therefore persuaded that the Examiner erred in rejecting claim
14 and claim 15, which depends therefrom, under the second paragraph of
§112.
The Rejection of Claims 1-7 and 9-12
Based upon Appellants’ arguments, we decide the rejection of these
claims based upon claim 1.
Appellants argue that Russell merely teaches that packets routed over
different paths between a given pair of nodes may experience different
delays and that Russell fails to disclose setting up virtually-concatenated
groups for each pair of nodes. Appellants further argue that Yehuda, while
disclosing virtual concatenation and delay measurements, only teaches the
measurement of differential delay between members of a single virtually-
Appeal 2010-000267
Application 10/853,422

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concatenated group, rather than the measurement of delay of multiple
virtually-concatenated groups. App. Br. 9, Reply Br. 2-3.
The Examiner finds that while Russell discloses multiple pairs of
nodes and the use of virtual containers (i.e. virtual concatenation of frame-
based data), and acknowledges the differential delay experienced by the
virtual containers over different paths, Russell does not disclose the
calculation of that delay. However, the Examiner finds that Yehuda,
directed to the same field of endeavour, discloses the measurement of delay
differences between two fragments of virtual containers traveling over
different paths. Ans. 3-4.
We find that Russell discloses the transmission of data across a
network in virtual containers, and acknowledges the delay associated
therewith. (FF1, FF2). Further, we find that Yehuda discloses the
determination of various delay times in order to reassemble the data. (FF3).
We therefore find the Examiner’s argument persuasive and we find
that determining the delay experienced between fragments of a virtual
container between various nodes is at least suggestive of determining the
delay associated with multiple virtual containers between nodes.
Consequently, we find the Examiner did not err in rejecting claims 1-7
and 9-12 under §103 as unpatentable over Russell and Yehuda.
The Rejection of Claims 14 and 15
Appellants argue that the combination of Russell, Yehuda, and Beshai
fails to show or suggest the determination of the delay for a given virtually
concatenated group by configuring a first node associated with the group to
send designated information which is substantially the same as the
information received from a second node associated with the group as a
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Application 10/853,422

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function of a round trip delay measurement made using the designated
information, as set forth in claim 14. App. Br. 15, Reply Br. 6.
Further, the Appellants argue that the cited references fail to show or
suggest that the designated information comprises frame indicator bits. App.
Br. 16, Reply Br. 6.The Examiner finds that Beshai discloses the
transmission of identical information from one node to the next node which
includes a timing signal associated with that information, such that the
cumulative (round trip) delay may be calculated. The Examiner also finds
that Russell discloses stream identification data sent in association with the
virtual container data. Ans. 8
We find that Beshai discloses the timing of data packets as they are
transmitted from node to node. (FF4). Additionally, we find that Russell
discloses path trace bytes which may be utilized to identify portions of the
data. (FF2).
Consequently we concur with the Examiner’s finding and we are not
persuaded of error in the Examiner’s rejection of claims 14 and 15.
The Rejection of Claims 16-20
Appellants argue that the Examiner’s rejection of claims 16-20 is not
well founded for the reasons argued above with respect to claim 1, urging
that the additional references cited do not address the argued deficiencies of
Russell and Yehuda, set forth above.
For the reasons we set forth above we find the Examiner did not err in
rejecting claims 16-20.
Appeal 2010-000267
Application 10/853,422

9
CONCLUSION
The Examiner erred in rejecting claims 14 and 15 as vague and
indefinite under §112, second paragraph; however, the Examiner did not err
in rejecting claims 1-7, 9-12, and 14-20 under § 103.

ORDER
The Examiner’s decision rejecting claims 1-7, 9-12, and 14-20 is
affirmed.
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).

AFFIRMED

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