INTEL CORPORATION

Patent Trials and Appeals Board

Dec 15, 2021

2020005982 (P.T.A.B. Dec. 15, 2021)

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.
15/279,380 09/28/2016 MARK GRAY P97956/1020P97956 1059
57035 7590 12/15/2021
KACVINSKY DAISAK BLUNI PLLC
2601 Weston Parkway
Suite 103
Cary, NC 27513
EXAMINER
GHAFFARI, ABU Z
ART UNIT PAPER NUMBER
2195
NOTIFICATION DATE DELIVERY MODE
12/15/2021 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):
INTEL@kdbfirm.com
docketing@kdbfirm.com
kpotts@kdbfirm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK GRAY, ANDREW CUNNINGHAM,
CHRIS MACNAMARA, JOHN BROWNE,
PIERRE LAURENT, and ALEXANDER LECKEY
Appeal 2020-005982
Application 15/279,380
Technology Center 2100
Before MICHAEL J. STRAUSS, MINN CHUNG, and
CHRISTA P. ZADO, Administrative Patent Judges.
ZADO, 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 1–8, 10–17, and 19–25. Claims 9 and
18 have been cancelled. Appeal Br. 13, 16. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as Intel Corporation. Appeal
Br. 2.
Appeal 2020-005982
Application 15/279,380
2
CLAIMED SUBJECT MATTER
The instant application relates to determining latency and jitter when
packets are communicated between network interfaces. Spec. ¶ 12.
Claim 1, reproduced below with claim language at issue italicized, illustrates
the claimed subject matter:
1. An apparatus, comprising:
memory;
processing circuitry coupled with the memory; and
logic, at least partially implemented by the processing circuitry,
the logic to:
cause communication of one or more tracer packets between one
or more virtual network interfaces and one or more physical
network interfaces through a virtual machine monitor, the one or
more tracer packets transmitted between active session packets,
the active session packets to be transmitted or received by a
virtual network function (VNF) application executed by a virtual
machine via the one or more virtual network interfaces;
determine a latency value or a jitter value for the virtual machine
monitor based, at least in part, on the one or more tracer packets
communicated through the virtual machine monitor;
perform a corrective action when the latency value or the jitter
value exceeds a respective parameter value for the latency value
or the jitter value; and
remove the one or more tracer packets before delivery of the one
or more tracer packets to the VNF application executed by the
virtual machine via the one or more virtual network interfaces.
Appeal Br. 12 (Claims App.).
Appeal 2020-005982
Application 15/279,380
3
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Damola US 2012/0304175 A1 Nov. 29, 2012
Matthews US 2014/0211639 A1 July 31, 2014
Astigarraga US 2015/0286416 A1 Oct. 8, 2015
Sobania US 2017/0237629 A1 Aug. 17, 2017

REJECTIONS
The claims stand rejected as follows:
Claims Rejected 35 U.S.C.
§
References/Basis
1–8, 10–17, 19–25 112(b) Indefiniteness
1–4, 6–8, 10–13, 15–
17, 19–21, 23–25
103 Damola, Matthews, Sobania
5, 14, 22 103 Damola, Matthews, Sobania,
Astigarraga

OPINION
Background
The instant application relates to determining latency and jitter when
packets are communicated between network interfaces. Spec. ¶ 12. Latency
is based on the difference between when a packet is sent by one network
interface and when it is received by another. Id. ¶ 13. Jitter is variation in
latency, and may be based on historical latency measurements. Id.
The Specification more specifically addresses latency and jitter
between a network interface and a virtual network interface, wherein a
virtual machine monitor sits between the network interface and virtual
network interface. See, e.g., id. Fig. 1A (Network Interface 106, Virtual
Appeal 2020-005982
Application 15/279,380
4
Machine Monitor 110, Virtual Network Interface 126). Virtual Machine
Monitor 110 (VMM 110) monitors packets communicated through it in
order to determine real-time, average, and mean latency, and jitter, caused at
least in part by the virtual environment. Id. ¶¶ 29, 31. Monitoring is
performed by generating tracer packets at either network interface 106 or
virtual network interface 126, and communicating the tracer
packets between the two interfaces. Id. ¶ 31.
In order to obtain accurate latency and jitter data, the Specification
discloses inserting the tracer packets into real communication paths
traversed by session packets. Id. ¶ 34. However, in order to ensure the
tracing packets are non-intrusive, e.g., do not impact overall system
throughput during active sessions, the tracer packets are removed before a
final stage of virtual network interface 126 before delivery to an application.
Id.
Discussion
1. Indefiniteness
We reverse the Examiner’s rejection of claims 1–8, 10–17, and 19–25
as being indefinite under 35 U.S.C. § 112(b). In the Final Action, the
Examiner rejected the claims on the grounds that certain claim language “is
not clearly understood.” Final Act. 3. The Examiner specified the following
claim language: 1) “Claim 1 recites before one or more tracer packets
exiting the processing circuitry,” and 2) “Claim 2 recites a final stage of the
one or more virtual network interface.” Id. The Examiner also found that
“[c]laims 10 and 19 recite elements of claim 1 and have similar deficiency as
claim 1.” Id.
After the Final Action, Appellant amended the claims by deleting the
claim language at issue. Specifically, Appellant deleted “the one or more
Appeal 2020-005982
Application 15/279,380
5
tracer packets exiting the processing circuitry” from claim 1, and similar
recitations from claims 10 and 19. Applicant Amendment after Final
(Dec. 27, 2019). Appellant also deleted “a final stage of” from claim 2. Id.
In an Advisory Action, the Examiner entered the claim amendments.
Advisory Action (Jan. 15, 2020). However, the Examiner did not expressly
withdraw the indefiniteness rejection. Id. Specifically, the Examiner made
no reference to the rejection under § 112(b). Id. But, the Examiner
suggested that the only remaining rejections were those made under § 103,
stating that the amendment did not place the claims in condition for
allowance because the claims are taught by the cited prior art. Id.
Despite the suggestion in the Advisory Action that the § 112(b)
rejection had been withdrawn, in the Answer in this appeal the Examiner
states that the indefiniteness rejection is applicable to the appealed claims.
Ans. 3.
Because the language that serves the basis of the rejection under
§ 112(b) has been deleted from the claims, we conclude there is no basis to
sustain the rejection. Therefore, we reverse the rejection of claims 1–8, 10–
17, and 19–25 as being indefinite under 35 U.S.C. § 112(b).
2. Obviousness
Appellant argues that the Examiner has not shown the prior art
teaches or suggests the following recitation of independent claim 1 (and
similar recitations of independent claims 10 and 19): “remove the one or
more tracer packets before delivery of the one or more tracer packets to the
VNF application executed by the virtual machine via the one or more virtual
network interfaces.” Appeal Br. 7–10. Appellant submits we should
therefore reverse the rejections of claims 1–8, 10–17, and 19–25 as obvious
Appeal 2020-005982
Application 15/279,380
6
under 35 U.S.C. § 103. Id. For reasons that follow, we affirm the
obviousness rejections.
The Examiner finds that the combination of Matthews and Sobania
teaches the claim recitation at issue. Specifically, the Examiner finds that
Matthews teaches removing tracer packets before delivery of the tracer
packets to an application. Final Act. 6. The Examiner acknowledges that
Matthews does not disclose a VNF application, but finds that Sobania does.
Id. at 7–8. We adopt the Examiner’s findings and conclusions regarding the
claim limitation at issue in rendering this decision. Final Act. 3–8; Ans. 5–
17.
Appellant submits that Matthews does not teach or suggest removing
tracer packets before delivery of the tracer packets to an application. Appeal
Br. 8 (arguing that Matthews’ generic teaching of network tracing controls
“does not teach the . . . claim language specifying to ‘remove the one or
more tracer packets’”). According to Appellant, Matthews discloses
stopping or terminating tracing, which Appellant argues is distinguishable
from removing tracer packets. Id. at 8–9. However, Appellant has not
presented argument and/or evidence that adequately supports the assertion
that terminating or stopping tracer packets falls outside the scope of the
phrase “removing” packets. For example, Appellant asserts:
Matthews simply concludes that the tracing may be “terminated”
or “stop[ped].” However, “terminating” or “stopping” tracing is
different than the claim limitations specifying to “remove the one
or more tracer packets.”
Therefore, even if Matthews determines to “terminate” tracing,
Matthews is silent regarding any operations that are performed
in association with such a determination. As such, Matthews
does not teach what would happen to a “tracing packet” that is
being processed and/or in transit when tracing is terminated. For
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Application 15/279,380
7
example, as stated above, Matthews may implement a “hop-
based constraint” that limits the “tracing operation to the first ‘n’
consecutive hops.” Id. ¶ [0039]. However, Matthews is silent as
to what would occur to a “tracing packet” that has not reached
the final (or nth) hop, e.g., is at any device before the final
hop/device (or is in transit and has not reached the final
hop/device). As such, Matthews does not teach the claimed
“remove the one or more tracer packets.”
Appeal Br. 8. As can be seen above, Appellant’s assertion is conclusory,
failing to identify evidence in the Specification and/or file history supporting
a claim interpretation that distinguishes Matthews’ termination from
removing packets.
The onus is on Appellant to identify evidence and support in the
record for its argument, and we need not consider evidence and argument
not presented by Appellant. Nonetheless, we have reviewed the record in
light of Appellant’s assertion that terminating a trace (thereby stopping
tracer packets from being forwarded) is distinguishable from removing
tracer packets. We find no basis in the claim language or the Specification
that supports the alleged distinction asserted by Appellant.
As found by the Examiner, the claim language recites “removing” one
or more tracer packets, without further reciting the requirements of the
process of removing. Ans. 13. The Specification does not provide further
insight into the process of removing packets. Id. The Specification simply
states that tracer packets may be removed before delivery to an application.
Id. (citing Spec. ¶¶ 34, 41). For example, the Specification provides that
“the [tracer] packets may be removed before a final stage of the virtual
network interfaces 126 before delivery to an application or passed through to
an application. In some instances, the packets may be removed before
exiting the processing circuitry 102.” Spec. ¶ 34. The Specification also
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Application 15/279,380
8
states that “[t]he tracer packets may also be removed at different points of
the communications pipeline.” Id. ¶ 41. Accordingly, we find no disclosure
in the claims or Specification that narrows the meaning of the term
“remove” in the manner asserted by Appellant.
As discussed above, the Specification does not expressly define the
term “remove” and Appellant presents nothing in the prosecution history
that narrows the meaning of this term. Therefore, we accord the phrase
“remove the one or more tracer packets” its plain and ordinary meaning as
understood by a person of ordinary skill at the time of invention. According
to the Examiner, a skilled artisan at the time of invention would have
recognized that among the many known techniques of tracing, removing a
tracer packet could be accomplished by collecting, rerouting, dropping, or
rejecting the packet:
One of ordinary skills in the art, before the effective filing date
of the claim invention, would have recognized that among many
known method of tracing include either adding/modifying the
flag/data-field in existing packet/data stream (Matthews [0054]
[0023], Sobania [0003] [0021]) and/or adding a specific new
tracer packet (Matthews [0029]) into the data stream. In a case,
where tracing is generated by adding/modifying the existing
packets of the data stream, merely resetting the flag or modifying
the data-field of the modified packet will stop/remove tracing,
and in case where tracing is entirely new tracer packet added in
the data stream, removing of the tracer packet is to either
collect/reroute/drop/ reject the tracer packets (Matthews [0022]
[0030] [0040]). In either method, the effect is there is no
transmission of tracer packets beyond the point of removal/
stoppage/dropping/collection/deleting of the tracer packets
which is same effect as removing of the tracer packets before
delivery of the packet to the virtual network function as in the
instant invention. Based on such understanding of one of
ordinary skills in the art, it can be inferred that stopping tracing
(or rejecting tracer packets) before the delivery of the tracer
Appeal 2020-005982
Application 15/279,380
9
packets taught by the cited art (as explained above in response
with respect to point to a) is equivalent to the removing the tracer
packets and would produce the same result of removing the tracer
packets.
Ans. 13–14. We credit the Examiner’s findings as to the understanding a
skilled artisan would have had regarding the meaning of removing a packet.
Appellant has not given any argument or evidence that contradicts the
Examiner’s findings. Furthermore, in view of the Examiner’s explanation,
Matthew’s disclosure of terminating or stopping tracing at least suggests
removing a tracer packet.
For the foregoing reasons, we are not persuaded the Examiner erred in
finding the combination of prior art teaches or suggests the claim language
at issue.
CONCLUSION
The Examiner’s rejection of claims 1–8, 10–17, and 19–25 as being
indefinite under § 112(b) is reversed. The Examiner’s rejections of
claims 1–8, 10–17, and 19–25 as obvious under § 103 are affirmed.
Because we affirm at least one ground of rejection for each claim on
appeal, we affirm the Examiner’s decision to reject claims 1–8, 10–17, and
19–25. See 37 C.F.R. § 41.50(a)(1).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1–8, 10–17,
19–25
112(b) Indefiniteness 1–8, 10–17,
19–25
Appeal 2020-005982
Application 15/279,380
10
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1–4, 6–8,
10–13, 15–
17, 19–21,
23–25
103 Damola,
Matthews,
Sobania
1–4, 6–8,
10–13, 15–
17, 19–21,
23–25

5, 14, 22 103 Damola,
Matthews,
Sobania,
Astigarraga
5, 14, 22
Overall
Outcome
1–8, 10–17,
19–25

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED