Ex Parte Stolyar

Patent Trial and Appeal Board

Mar 11, 2013

11073513 (P.T.A.B. Mar. 11, 2013)

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.
11/073,513 03/07/2005 Aleksandr Stolyar 100.2553 9544
46266 7590 03/12/2013
PRIEST & GOLDSTEIN, PLLC
5015 SOUTHPARK DR
SUITE 230
DURHAM, NC 27713
EXAMINER
SWEARINGEN, JEFFREY R
ART UNIT PAPER NUMBER
2445
MAIL DATE DELIVERY MODE
03/12/2013 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
____________

Ex parte ALEKSANDR STOLYAR
____________

Appeal 2010-009880
Application 11/073,513
Technology Center 2400
____________

Before JOSEPH F. RUGGIERO, BRUCE R. WINSOR, and
DANIEL N. FISHMAN, Administrative Patent Judges.

FISHMAN, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 1-8. App. Br. 1.
1
We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

1
Throughout this opinion, we refer to: (1) the Appeal Brief (“App. Br.”)
filed October 13, 2009 as amended December 3, 2009; (2) the Examiner’s
Answer (“Ans.”) mailed April 19, 2010 as modified by the Miscellaneous
Communication mailed May 26, 2010; (3) the Reply Brief (“Reply Br.”)
filed June 16, 2010; and (4) the Specification (“Spec.”) filed March 7, 2005
as amended October 22, 2008.
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Application 11/073,513

2
STATEMENT OF THE CASE
The Invention
Appellant’s invention relates to setting and resetting a network traffic
service rate for one or more queues of a network router and setting and
resetting of a power consumption level for the router. See generally Spec. 1.
Claims 1, 3, and 7 are reproduced below and are illustrative of the
claims on appeal:
1. A method, comprising:
setting a new network traffic service rate to be provided for
traffic passing into and out of one or more queues of a router and a
new power consumption level for the router, said one or more queues
being configured to store data packets awaiting transmission from the
router, the step of setting being based on a service rate of the one or
more queues and a power consumption level of the router; and
resetting a new network traffic service rate for traffic passing
into and out of the one or more queues of the router and a new power
consumption level of the router, the step of resetting being based on a
service rate of the one or more queues and a power consumption level
of the router; and
wherein the step of setting and the step of resetting are based
differently on the power consumption level of the router.
3. The method of claim 1, wherein the step of setting includes
selecting a vector from a set, the vector defining a service rate for the
one or more queues of the router and a power consumption level of
the router.
7. The method of claim 1, further comprising:
receiving at the router a value of a length of a queue in a
network node, the network node being configured to store data
packets received from the router in the queue in the network node.
The Examiner relies on the following as evidence of unpatentability:
Denkert US 6,374,117 B1 Apr. 16, 2002
Official Notice

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The Examiner relies on the following as evidence to assist in
interpreting Denkert, but not as evidence of unpatentability:
Grosdidier US 2002/0159386 A1 Oct. 31, 2002
Meier US 2006/0126504 A1 June 15, 2006

The Rejection
Claims 1-8 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Denkert and Official Notice. Ans. 3-5.
2

Only those arguments actually made by Appellant have been
considered in this decision. Arguments that Appellant did not make in the
Briefs have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2010).

ISSUES
(1) Has the Examiner erred in finding that Denkert teaches setting and
resetting of network traffic service rate of a router based on a
service rate and a power consumption level of the router as recited
in claim 1?

2
The Examiner’s “Grounds of Rejection” (Ans. 3-5) repeats the rejections
of the Final Office Action mailed May 27, 2009 wherein the Examiner
applied the combination of Denkert and Official Notice to reject claim 1.
The “Response to Argument” section of the Examiner’s Answer does not
rely on Official Notice in clarifying the rejection of claim 1. The “Response
to Argument” section also clarifies the rejection of claims 2-8. Appellants
have not timely filed a petition asserting that the Examiner’s Answer raised
undesignated new grounds of rejection. See 37 C.F.R. § 1.181(a) (2010); see
also MPEP §§ 1002.02(d)(2), 1207.03 (IV) (8th Ed., Rev. 8, July. 2010). We
therefore analyze the positions of the Examiner and Appellant based on
Appellant’s Briefs and the Examiner’s Answer.
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(2) Has the Examiner erred in finding that Denkert teaches that setting
and resetting as recited in claim 1 is based on an instantaneous
power usage rate of the router as recited in claim 2?
(3) Has the Examiner erred in finding that Denkert teaches that setting
as recited in claim 1 includes selecting a vector from a set where
the vector defines a service rate and a power consumption level of
the router as recited in claims 3-6?
(4) Has the Examiner erred in finding that Denkert teaches receiving a
queue length value from a network node as recited in claims 7 and
8?
ISSUE 1 (CLAIM 1)
DOES DENKERT TEACH SETTING AND RESETTING A NETWORK TRAFFIC
SERVICE RATE?
We begin our analysis by determining the broadest reasonable
interpretation of “service rate” as used in the claims. Claims are not to be
read in a vacuum, but must be given their broadest reasonable interpretation
in light of the Specification as it would be interpreted by ordinary artisans.
Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) (en banc).
“For claim construction purposes, the description may act as a sort of
dictionary, which explains the invention and may define terms used in the
claims.” Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir.
1995). “The caveat is that any special definition given to a word must be
clearly defined in the specification.” Id. at 980. We note that the
Specification provides no persuasive special definition of Appellant’s
intended meaning of “service rate” or “network traffic service rate.” The
Examiner explains that the duration of time packets spend buffered in a
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device for transmission to another device (referred to in Denkert variously
as: “queue delay” or “queue time”) is a measure of “network traffic service
rate” (or simply the “service rate”) as recited in the claims. Ans. 7. The
Examiner notes other references as background material to support the
interpretation of “queue delay.” The Examiner concludes that “queue delay”
as taught in Denkert is a measure of performance of a network device that is
affected by changes in power consumption in a manner similar to Quality of
Service (QoS) and throughput addressed by Denkert and the other
references. (See Ans. 7-8 discussing Meier and Grosdidier without relying
on their teachings in the rejection). The Examiner summarizes this
interpretation of “queue delay” stating:
These concepts of delay, throughput, and QoS are interrelated
and are simply different ways to measure network traffic, where
a high queue delay (long time per packet) would undoubtedly
lower throughput (low number of packets being transmitted per
time), for example. These concepts are well known in the art,
and their interrelation would have been expected by one of
ordinary skill in the art at the time of the invention.
Ans. 8. We agree and find that “service rate” and “network traffic service
rate”, according to their broadest reasonable interpretation, consistent with
the use of the phrases in the Specification and the claims, read on Denkert’s
“queue delay” as a measure of throughput or performance of a network
device in buffering and transmitting packets of information. Ans. 7-8.
Applying this definition of “service rate” in claim 1 the Examiner
finds Denkert teaches the setting step as changing the transmit power (power
consumption) to cause a change in the queue delay (service rate). Ans. 9. In
like manner, the Examiner finds Denkert teaches the resetting step as the
same as the setting step where at column 5, lines 10-11, Denkert discusses
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performing a power control algorithm (i.e., to adjust transmit power) for
every transmit burst (e.g., repeated setting/resetting each time a transmit
burst is commenced). Ans. 9-10. Lastly, the Examiner finds that the setting
step and the resetting step are based differently on power levels are taught in
Denkert at column 5, lines 21-28 as different delays requiring different
power levels for transmission. Ans. 10. We agree.
Appellant argues that Denkert does not teach setting or resetting of a
service rate that takes into account “traffic passing into one or more
queues” but rather accounts only for traffic passing out of a queue. Reply Br.
3 (emphasis in original). We find this argument unpersuasive. The claimed
queues store received packet data in a queue for eventual transmission from
the router to another device. (See, e.g., Spec. 1). Denkert similarly receives
packets, stores them in a queue, and eventually transmits the packets to
another device. (See, e.g., Denkert col. 3, ll. 12-27). In both cases, packets
are received and stored into a queue for eventual transmission out of the
queue to another device. Thus, we find Denkert teaches setting and resetting
network traffic service rates for “traffic passing into and out of one or more
queues.”
In view of the above discussion, we are unpersuaded of error in the
Examiner’s rejection of claim 1.
ISSUE 2 (CLAIM 2)
DOES DENKERT TEACH SETTING AND RESETTING BASED ON AN
INSTANTANEOUS POWER USAGE RATE?
Claim 2 depends from claim 1 and includes the additional limitation
“wherein the step of setting and the step of resetting are based on an
instantaneous power usage rate in said router.” The Examiner explains the
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rejection of claim 2 citing Denkert column 4, lines 44-58 and column 6, lines
55-61 as teaching an increase in transmit power which, in turn, requires
knowledge of the present (instantaneous) power usage of the device. Ans.
14. We agree. Appellant’s Reply Brief does not respond with specificity to
the Examiner’s explanation. Rather, Appellant merely asserts that the
Examiner’s “analysis of the dependent claims is superficial at best.” Reply
Br. 6. We find this unsupported assertion unpersuasive. Mere lawyer’s
arguments and conclusory statements that are unsupported by factual
evidence are entitled to little probative value. In re Geisler, 116 F.3d 1465,
1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from common
experience is just attorney argument and not the kind of factual evidence that
is required to rebut a prima facie case of obviousness.”)
In view of the above discussion, we are unpersuaded of error in the
Examiner’s rejection of claim 2.
ISSUE 3 (CLAIMS 3-6)
DOES DENKERT TEACH THAT SETTING INCLUDES SELECTING A VECTOR FROM
A SET?
Claim 3 depends from claim 1 and includes the additional limitation
“wherein the step of setting includes selecting a vector from a set, the vector
defining a service rate for the one or more queues of the router and a power
consumption level of the router.” The Examiner explains Denkert teaches
selecting a vector at column 2, line 57 through column 3, line 5. Ans. 14.
Appellant argues that Denkert is silent with respect to “selecting a vector
from a set” and we agree.
“Vector” as used in the Specification refers to an element of data that
specifies multiple values (see, e.g., Spec. 7 referring to a “vector of two
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rates”). We find this usage of the term “vector” consistent with its customary
and ordinary meaning as evidenced by a dictionary definition of vector as:
“a one-dimensional array—a set of items arranged in a single column or
row.” Microsoft Computer Dictionary, Microsoft Press, p. 548, (2002).
Denkert arguably teaches a “vector” in that two elements may be
specified (i.e., a “vector” comprising a queue delay threshold and a transmit
power) to set or reset the transmit power to thereby set or reset the queue
delay. Regardless, nothing in Denkert teaches or reasonably suggests
“selecting” such a vector from a set. The plain meaning of the verb “select”
is clear from a dictionary: “to take by preference from a number or group :
pick out : choose.” Webster’s Seventh Collegiate Dictionary, G. & C.
Merriam Co., p. 782 (1967). Thus, selecting from a set requires that there be
multiple vectors from which to take, pick out, or choose (i.e., multiple
vectors from which to “select”). Denkert neither teaches nor reasonably
suggests such a step of selecting a vector from a set.
In view of the above discussion, we are persuaded of error in the
Examiner’s rejection of claim 3 and claims 4-6 dependent from claim 3 and
therefore will not sustain the rejection of claims 3-6.
ISSUE 4 (CLAIMS 7 AND 8)
DOES DENKERT TEACH RECEIVING A QUEUE LENGTH VALUE FROM A
NETWORK NODE?
Claim 7 depends from claim 1 and includes the additional limitation
“receiving at the router a value of a length of a queue in a network node, the
network node being configured to store data packets received from the router
in the queue in the network node.” The Examiner explains that Denkert
teaches this limitation at column 5, lines 55-58 as including a number of
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buffered packets (i.e., a queue length) in the decision block that determines
whether to alter (i.e., set or reset) the transmit power. Ans. 14-15. Appellant
argues generally that Denkert fails to teach such a limitation. Reply Br. 6-7.
Because claim 7 recites that the network node receives and stores data
packets from the router, we construe the recited network node to be separate
from the recited router. We agree that Denkert fails to teach or reasonably
suggest receiving a queue length from a network node separate from the
router. Denkert teaches determining a queue length (number of
packets/buffers) for a queue within that device (i.e., within that intermediate
node). Denkert, col. 5, ll. 40-65. Denkert fails to teach or reasonably suggest
receiving such a queue length value from a separate node for a queue length
of a queue in that separate node.
In view of the above discussion, we are persuaded of error in the
Examiner’s rejection of claim 7 and 8 dependent from claim 7 and therefore
will not sustain the rejection of claims 7 and 8.

CONCLUSION
We conclude the Examiner erred in rejecting claims 3-8 but did not
err in rejecting claims 1 and 2. Accordingly, we sustain the rejection of
claims 1 and 2 and we do not sustain the rejection of claims 3-8.

DECISION
The Examiner’s rejection of claims 1 and 2 is affirmed and the
Examiner’s rejection of claims 3-8 is reversed.

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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) (2010).

AFFIRMED-IN-PART

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