Ex Parte Kuc

Patent Trial and Appeal Board

Mar 18, 2015

11268419 (P.T.A.B. Mar. 18, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ZENON KUC
____________

Appeal 2012-012520
Application 11/268,419
Technology Center 2400
____________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-012520
Application 11/268,419

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1–15 and 19. (Final Rejection mailed Oct. 13, 2011,
page 2, "Final Rej.").
1
Claims 16–18 and 20 were canceled. (Amendment
filed July 12, 2011, pages 4–5). We have jurisdiction under 35 U.S.C.
§ 6(b).
We Affirm.
INVENTION
This invention relates to determining “transmission latency in network
devices.” (Title). Independent claim 1, reproduced below, is representative
of the claimed subject matter:
1. A method for determining a transmission latency in a
switching device that is intermediary between a transmitting

1
Claims 8 and 9 are pending and appealed. (See Final Rej., p. 2, mailed
Oct. 13; 2011; Notice of Appeal dated Jan. 13, 2012, p. 1: “Applicant hereby
appeals to the Board of Patent Appeals and Interferences from the last
decision of the examiner.”). In the Appeal Brief, page 3, Appellant states
that an amendment to cancel claims 8 and 9 would be concurrently
submitted with the Appeal Brief. Indeed, the “Claim Appendix” to the
Appeal Brief indicates that claims 8 and 9 have been cancelled. (App. Br.
17). However, we find no concurrent amendment canceling claims 8 and 9
of record, nor is there any record of the Examiner considering an amendment
cancelling claims 8 and 9. To the extent the “Claim Appendix” to the
Appeal Brief may be considered as a separate paper submitted to cancel
claims 8 and 9 pursuant to 37 C.F.R. § 41.33(b)(1) (“To cancel claims,
where such cancellation does not affect the scope of any other pending claim
in the proceeding”), we note the guidance of MPEP 1206, Rev. 9, August
2012: “Examiners must respond to all amendments filed after appeal has
been taken and prior to termination of the appeal.” Here, there is no entry in
the record (PTOL-304 form) which indicates the Examiner has entered any
amendment cancelling claims 8 and 9, which therefore remaining pending
and before us on appeal.
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network device and a recipient network device, the method
comprising:
[a] receiving a plurality of data packets in the switching device;
[b] [b1] determining a packet age value for each received
packet within the switching device, [b2] the packet age value
being a time difference between an egress time and an ingress
time for a corresponding packet while residing within the
switching device;
[c] generating at least one latency value from a plurality of the
determined packet age values within the switching device;
[d] determining, within the switching device, the transmission
latency of the switching device based on the at least one
generated latency value;
[e] storing the transmission latency of the switching device
within the switching device; and
[f] [f1] providing the transmission latency of the switching
device to a remote source [f2] in response to receipt of a polling
request from the remote source.

REJECTIONS
R1. Claims 1–3, 6, 8–13, 15, and 19 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and suggestions of
Chen (U.S. Patent No. 5,793,976), Lloyd (U.S. Patent No. 7,336,613 B2)
and Miller (U.S. Patent No. 6,247,058 B1).
R2. Claims 4 and 14 stand rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Chen, Lloyd,
Miller, and Clark (U.S. Publication No. 2004/0225916 A1).
R3. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Chen, Lloyd,
Miller, and Stolyar (U.S. Patent No. 6,590,890 B1).
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R4. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combined teachings and suggestions of Chen, Lloyd,
Miller, and Quarterman (U.S. Publication No. 2002/0099816 A1).

GROUPING OF CLAIMS
Based on Appellant's arguments, we decide the appeal of the subject
claims below based on the following representative claims:
Rejection of claims: on the basis of representative claim:
R1. Claims 1–3, 6, 8–13, 15, and 19
(App. Br. 8–11).
1
R2. Claim 4 and 14 (App. Br.12–13) 4
R3. Claim 5 (App. Br. 13–14) Individually
R4. Claim 7 (App. Br. 14–15) Individually
See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
2

ANALYSIS
Regarding representative claim 1, the Examiner presents a modified
rejection R1 in the “Response to Argument” section of the Answer. (Ans.
22–29). Regarding dependent claims 4, 5, 7, and 14, the Examiner
acknowledges error in the final rejections of these claims (Ans. 29–31), and

2
Appellant filed a Notice of Appeal on January 13, 2012. The date of filing
the Notice of Appeal determines which set of rules applies to an Ex Parte
appeal. If a Notice of Appeal is filed prior to January 23, 2012, then the
2004 version of the Board Rules last published in the 2011 edition of Title
37 of the Code of Federal Regulations (37 C.F.R. § 41.1 et seq.) applies to
the appeal. See also Manual of Patent Examining Procedure (MPEP) 8
th

ed., Rev. 8, July 2010.
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the Examiner presents an alternative basis for rejections R2–R4 in the
“Response to Argument” section of the Answer. (Id.).
Appellant did not file a petition under 37 C.F.R. § 1.181 to the
Technology Center Director requesting that the Examiner’s modified
rejections in the Answer be designated as a new ground of rejection. See
MPEP § 1207.03(b). Instead, Appellant responds to the Examiner’s
modified rejections in the Reply Brief. Given this record, we limit our
review of the rejections on appeal to: (1) the Examiner’s final modified
position in the Answer (22–31), and (2) Appellant’s arguments in the Reply
Brief in response to the Examiner’s final position.
After reviewing the record, we understand the Examiner’s mapping of
the limitations recited in claim 1 to correspond to the claim chart shown
below:
Claim 1 Reference
1. A method for determining a
transmission latency in a switching
device that is intermediary between a
transmitting network device and a
recipient network device, the method
comprising:

[a] receiving a plurality of data packets in
the switching device;
Chen col. 4, ll. 41–56; Ans. 3
[b] [b1] determining a packet age value
for each received packet within the
switching device, [b2] the packet age
value being a time difference between an
egress time and an ingress time for a
corresponding packet while residing
within the switching device;
Miller's latency of a packet, col.
7, ll. 9–40, col. 8, ll. 8–20, and
col. 12, ll. 16–28; Ans. 28–29;
Chen Fig. 2; col. 4, ll. 41–65;
"measure the difference between
the arrival time and the departure
time of any packet at that
switch."; Ans. 3, 28–29;
[c] generating at least one latency value
from a plurality of the determined packet
Miller's latency statistics of
network device, (e.g., average
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age values within the switching device; latency); col. 7, ll. 9–40, col. 8,
ll. 8–20, and col. 12, ll. 16–28;
Fig. 4; Ans. 5, 27–28,.
[d] determining, within the switching
device, the transmission latency of the
switching device based on the at least
one generated latency value;
Miller's latency statistics of a
network device teach or suggest
the claimed " transmission
latency"; Miller col. 7, ll. 9–40,
col. 8, ll. 8–20, and col. 12, ll.
16–28; Fig. 4; Ans. 5, 27–28.
(For claim construction that
"transmission latency" includes
"one generated latency value,"
see Ans. 23, ll. 5–10)
[e] storing the transmission latency of the
switching device within the switching
device; and
Miller Fig. 4, col. 7, ll. 9–15, col.
8, ll. 8–20, col. 12, ll. 16–28,
Ans. 5.
[f] [f1] providing the transmission
latency of the switching device to a
remote source [f2] in response to receipt
of a polling request from the remote
source.
[f1] Miller Fig. 4, col. 7, ll. 9–15,
col. 8, ll. 8–20, col. 12, ll. 16–28,
Ans. 5.
[f2] Lloyd's Ping or traceroute,
col. 11, ll. 8–30; Ans. 4.

(See Ans. 27–29; Miller teaches or suggests claim 1 limitations [b]-[f][f1];
Reply Br. 6–8; App. Br. 10–11).
R1. Representative Claim 1
Regarding Claim 1, limitations [b], [c], and [d], we specifically rely
upon the Examiner’s findings regarding Miller and Chen in the Answer,
pages 3 and 27–29.
Claim 1 recites, in pertinent part:
[b] [b1] determining a packet age value for each received
packet within the switching device, [b2] the packet age value
being a time difference between an egress time and an ingress
time for a corresponding packet while residing within the
switching device;
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[c] generating at least one latency value from a plurality of the
determined packet age values within the switching device;
[d] determining, within the switching device, the transmission
latency of the switching device based on the at least one
generated latency value;
Limitation [b]
Regarding the contested limitation [b2] "egress time," Appellant
contends Miller does not teach determining a "packet age value" using a
packet "egress time" because "there is no description or suggestion of any
usage of information pertaining to the egress time within the N-port network
device (86) of Miller." (Emphasis added; App. Br. 11).
We find this contention unpersuasive because Appellant does not
address the Examiner’s specific findings regarding the teachings and
suggestions of Miller and Chen. (Ans. 3, 27–28). The Examiner finds
Millers' description of measuring a packet's latency (i.e., the time spent in
the network device, as the packet is transmitted) using the packet's time
stamp, would have taught or suggested limitation [b2]: "package age value
being a time difference between an egress time and an ingress time."
(Emphasis added; Ans. 29; Miller col. 12, ll. 16–28; Ans. 27–29).
We find Miller's description of measuring and collecting a variety of
statistics regarding the “latency of packets processed by the network device”
would have suggested the contested [b2] "egress time" because the packet's
latency (device processing time) is the difference between the ingress and
egress packet times ("egresses") with respect to the network device. (Miller
col. 12, ll. 21–24).
The Examiner also finds Chen teaches or suggests limitation [b2]
"package age value" (delay) as calculated using the difference between a
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departure time ("egress time") and arrival time ("ingress time"). (Ans. 3,
27–28; Chen col. 4, ll. 57–59). Given this evidence, we are not persuaded
the Examiner erred in finding Chen and Miller each teach or suggest the
contested [b2] limitation "egress time."
Limitations [c] and [d]
Regarding contested claim 1 limitations [c] and [d], Appellant
contends: “the transmission latency determined by the apparatus of Miller is
the latency of packets received at a port of the apparatus, and not the
transmission latency of a switching device. Miller, col. 12, ll. 16-28.”
(Emphasis added; Reply Br. 7).
Appellant’s contention is unpersuasive because it is based on an
erroneous premise that Miller’s apparatus is not a switching device. (Id.).
We conclude the broadest reasonable interpretation of “switching device”
includes Miller’s network device because Miller’s device forwards
(“switches”) packets to different ports. (Miller Fig. 4, network device 86;
col. 7, ll. 24–26). The Examiner additionally finds Chen’s switch teaches
the claimed “switching device.” (Ans. 3; Chen col. 4, ll. 57–65). We note
the Examiner’s rejection is based on the combined teachings and suggestions
of the cited references.
We agree with the Examiner's finding that Miller’s latency statistics
(e.g., mean latency) would have taught or suggested contested limitation [c]
("one latency value") because Miller's statistics are generated using the
latency of the packets ("package age values"). (Miller col. 7, ll. 9–40, col. 8,
ll. 8–20, and col. 12, ll. 16–28; Ans. 5, 27–28; Miller Fig. 4).
Regarding contested limitation [d], we conclude the broadest
reasonable interpretation of [d] “transmission latency” is a transmission
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latency having any nexus, or association (even an attenuated one) to the
recited “one generated latency value” because limitation [d] recites: “the
transmission latency . . . based on the at least one generated latency value."
(Emphasis added). Thus, we conclude contested limitation [d] does not
preclude the recited "transmission latency of the switching device" from
being equal to the value of "one generated latency value." (See Ans. 23, ll.
5–10).
Moreover, Appellant fails to cite to a specific definition of
“transmission latency” in the Specification to support a more narrow
interpretation.
3
Applying this broad but reasonable claim interpretation, we
find Miller's latency statistics ([c] and [d] "at least one generated latency
value") would have taught or suggested limitation [d] (“transmission
latency”) because the broadest reasonable interpretation of limitation [d]
“transmission latency” includes “one generated latency value.” (See Ans.
23, ll. 5–10). For these reasons, on this record, we are not persuaded the
Examiner erred.

3
Any special meaning assigned to a term "must be sufficiently clear in the
specification that any departure from common usage would be so understood
by a person of experience in the field of the invention." Multiform
Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see
also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381
(Fed. Cir. 2008) ("A patentee may act as its own lexicographer and assign to
a term a unique definition that is different from its ordinary and customary
meaning; however, a patentee must clearly express that intent in the written
description.").
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Limitation [f]
Claim 1 further recites, in pertinent part: [f] [f1] "providing the
transmission latency of the switching device to a remote source [f2] in
response to receipt of a polling request from the remote source."
Appellant contends Lloyd's pinging and “trace routes” may be used to
determine the latency of an entire path, not the claimed [f1] "transmission
latency of the switching device . . . ." (Reply Br. 6–7; App. Br. 10; claim 1).
This contention is unpersuasive for the following reasons: (1) The
Examiner relies upon Lloyd’s general teaching of a ping which requests
latency information from a remote user as teaching or suggesting limitation
[f2] “in response to . . . a polling request from the remote source.”
(Ans. 27), (2) The Examiner relies upon Miller's latency statistics of the
"switching device" as teaching or suggesting limitation [f1] (“the
transmission latency of the switching device”), as also recited in limitation
[d]. (See discussion above regarding limitation [d]; see also Ans. 23, 28–
29).
It would have been obvious to one of ordinary skill in the art to send
the latency statistics of Miller ("transmission latency") in response to the
ping taught by Lloyd ("polling request") , because we find this is merely a
combination of known practices, when combined using known methods, that
would have produced a predictable result.
4
Miller teaches various statistics
regarding packet latency would be desired by a user. (Miller, col.12, ll.24-
28; see also Lloyd, col. 11, ll. 8–30; Ans. 4).

4
“The combination of familiar elements according to known methods is
likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007).
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For these reasons, on this record, we sustain rejection R1 of
representative claim 1, and the grouped claims which fall therewith. (See
Supra, Grouping of claims).

R2. CLAIM 4 AND 14, R3. CLAIM 5, AND R4. CLAIM 7
Claim 4 recites "[t]he method of claim 1, wherein the at least one
latency value comprises a minimum latency value of the plurality of the
determined packet age values."
Claim 5 recites "[t]he method of claim 1, wherein the at least one
latency value comprises a maximum latency value of the plurality of the
determined packet age values."
Claim 7 recites "[t]he method of claim 1, wherein the at least one
latency value comprises a median latency value of the plurality of the
determined packet age values."
The Examiner, as set forth on pages 19–21 of the Final Rejection,
acknowledges that neither Chen, Lloyd, nor Miller teaches or suggests
“minimum latency,” “maximum latency,” and/or “median latency” values,
and instead relies on Clark, Stolyar, and Quarterman, respectively. (Ans.
19–22).
In the Appeal Brief, Appellant contends that Clark, Stolyar and
Quarterman in combination with Chen, Lloyd and Miller do not teach or
suggest the contested limitations. (App. Br. 12–14).
In the “Response to Arguments” section of the Answer, the Examiner
abandons his prior position which was based on Clark, Stolyar, and
Quarterman. (Ans. 29–31). The Examiner shifts position and finds Miller
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suggests the claim 4, 5, and 7 limitations of “minimum latency,” “maximum
latency,” “median latency” values because:
“Miller specifically discloses a [statistics] unit [104, Fig. 4]
within the switching device for collecting different kind[s] of
[statistics] for the switching device, the [statistics] defined as
average delay, delay variation, variance, etc. [A person of ]
ordinary skill in the art[,] from the teaching[s] of[,] Miller can
easily include measuring additional [statistics] to include
maximum and minimum delays such that the bounds can be
determined. An explicit reference is simply not required to
demonstrate that the teachings of Miller can be further modified
to include additional statistical measures.”
(Ans. 29).
Appellant fails to address and rebut these new findings by the
Examiner in the Reply Brief. Nor did Appellant file a petition under 37
C.F.R. § 1.181 to the Technology Center Director requesting that the
Examiner’s modified rejections in the Answer be designated a new ground
of rejection, as discussed above. See MPEP § 1207.03(b). Arguments not
made are considered waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
Therefore, on this record, we sustain the Examiner’s rejection R2 of
representative claim 4 and of grouped claim 14, which falls therewith. (See
Grouping of Claims, Supra). For the same reasons pertaining to waiver, we
also sustain rejection R3 of claim 5 and rejection R4 of claim 7.

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DECISION
We affirm the Examiner's rejections R1, R2, R3, and R4 of
claims 1–15, and 19 under § 103.
No time for taking any action connected with this appeal may be
extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 41.50(f).

AFFIRMED

kis