Ex Parte Chiou et alDownload PDFPatent Trial and Appeal BoardSep 22, 201412266196 (P.T.A.B. Sep. 22, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte GOU-SHIOW (AMY) CHIOU, LULIA A. BARAKAT, and BOB ARTMAN ____________________ Appeal 2012-006626 Application 12/266,196 Technology Center 2400 ____________________ Before: STEFAN STAICOVICI, LYNNE H. BROWNE, and THOMAS F. SMEGAL, Administrative Patent Judges. BROWNE, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1–20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. CLAIMED SUBJECT MATTER The claims are directed to a method, apparatus, and system for providing network analysis of a hybrid telephony network. Claims 1, 10, Appeal 2012-006626 Application 12/266,196 2 and 19 are independent. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method comprising: polling a plurality of nodes within a network for configuration information, wherein the nodes are configured to establish voice sessions; correlating the configuration information; and presenting a view of the nodes and associated circuits to a user for configuring one or more of the nodes based on the correlation. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Maiocco US 7,752,301 B1 July 6, 2010 Kosanovic US 2006/0221876 A1 Oct. 5, 2006 REJECTIONS1 1. Claims 10–18 stand rejected under 35 U.S.C. § 101 as being directed to non-statutory subject matter. 2. Claims 1, 3–10, and 12–19 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Kosanovic. 3. Claims 2, 11, and 20 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Kosanovic and Maiocco. 1 The rejection of claims 2, 11, and 20 under 35 U.S.C. § 112, second paragraph, has been withdrawn by the Examiner. Ans. 4. Appeal 2012-006626 Application 12/266,196 3 OPINION Non-Statutory Subject Matter The Examiner determined that claim 10 is directed to non-statutory subject matter because the subject matter of the claim is software or functional descriptive material, per se. See Non-Final Rej. (mailed October 1, 2010), 23. Appellants note that “claim 10 specifically recites ‘An apparatus’ including a data collection and analysis module and a presentation module.” Appeal Br. 4. Appellants argue that “no one of ordinary skill in the art would qualify an apparatus with a data collection and analysis module to include software.” Id. In support of this argument, Appellants note that “the ‘data collection and analysis module 201 collects data from switching elements ... and stores the collected information into the database 117 . . . [and] presentation module 205 messages the collected data and associated analysis for transmission to the user via . . . a web interface, such as a browser.’” Appeal Br. 5. In response to this argument, the Examiner correctly finds that the Specification states “The processes described herein for configuring a distributed switching system may be implemented via software, hardware (e.g., general processor, Digital Signal Processing (DSP) chip, an Application Specific Integrated Circuit (ASIC), Field Programmable Gate Arrays (FPGAs), etc.), firmware or a combination thereof.” Final Rej. 3, (quoting Spec. para. 42, ll. 14). Based on this finding, the Examiner concludes that the apparatus “of claim 10 is intend to cover ‘software’, functional descriptive material, per se” and thus is not directed to statutory subject matter. Id. Appeal 2012-006626 Application 12/266,196 4 Appellants do not identify any specific structures that perform the functions of collecting data, analyzing the data, storing the data in the database, and messaging the data to the user. The claims do not preclude performance of these functions by software, and the Examiner’s claim construction is consistent with the Specification. Thus, Appellants’ argument that “no one of ordinary skill in the art would qualify an apparatus with a data collection and analysis module to include software” (Appeal Br. 4) is not persuasive. A computer program (software), no matter its function, is nothing more than the representation of an algorithm or group of algorithms, conceptually no different from a list of steps written down with pencil and paper for execution by a human being. See Gottschalk v. Benson, 409 U.S. 63 (1972), 72. The Supreme Court has explained that “[a]bstract software code is an idea without physical embodiment,” i.e., an abstraction. Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). A claim that recites no more than software, logic or a data structure (i.e., an abstract idea) with no structural tie or functional interrelationship to an article of manufacture, machine, process or composition of matter does not fall within any statutory category and is not patentable subject matter. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994); see In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). The Examiner correctly determines that Appellants’ claim 10 does not recite any physical structure or machine, and is not tied to any particular machine, thus reciting software per se. For these reasons, we sustain the Examiner’s decision rejecting independent claim 10 as being directed to non-statutory subject matter. Claims 1118 depend from claim 10 and do not cure the deficiency in claim Appeal 2012-006626 Application 12/266,196 5 10. Accordingly, we also sustain the Examiner’s decision rejecting claims 1118 as being directed to non-statutory subject matter. Anticipation Appellants argue claims 1, 3–10, and 12–19 together. See Appeal Br. 4 and 7–10. We select independent claim 1 as the illustrative claim and claims 3–10 and 12–19 stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(vii) (2011). The Examiner finds that Kosanovic discloses each and every limitation of independent claim 1. In particular, the Examiner finds that Kosanovic discloses “presenting a view of the nodes and associated circuits to a user for configuring one or more of the nodes based on the correlation.” Ans. 5 (citing Kosanovic, paras. 69, 24, 4, and 46). Appellants argue that “there is simply no disclosure or suggestion anywhere in Kosanovic et al. of presenting a view of the nodes and associated circuits.” Appeal Br. 8. Appellant further argues that: at best, Kosanovic et al. teaches that trends of operational performance may be viewed, in any combination, and the legs of the VOIP [i.e., Voice Over Internet Protocol] network may be looked up so that errors may be analyzed. And further, that the quality of the VOIP network can be monitored. However, Kosanovic et al. fails to teach, disclose or suggest anything even close to “presenting a view of the nodes and associated circuits.” Id. It appears that Appellants are narrowly construing claim 1 to require presenting a view of all of the nodes and associated circuits; however, claim 1 is not so limited. Appellants do not explain why viewing the combinations described by Kosanovic does not meet the claim limitation of “presenting a view of the nodes and associated circuits.” Appeal Br. 14, Clms. App. Appeal 2012-006626 Application 12/266,196 6 (emphasis added). Thus, Appellants do not apprised us of error in the rejection of independent claim 1. For these reasons, we sustain the Examiner’s decision rejecting claim 1, and claims 3–10 and 12–19 which fall therewith. Obviousness The Examiner finds that the combined teachings of Kosanovic and Maiocco render claims 2, 11, and 20 obvious. In particular, the Examiner finds that Maiocco teaches “receiving input from the user specifying a first level of granularity associated with components and circuits corresponding to the nodes.” Ans. 10 (citing Maiocco, col. 44, ll. 15–25, col. 57, ll. 35– 452, and col. 2, ll. 52–60). Appellants note that “the granularity that this portion of Maiocco et al. describes is associated with time, not ‘components and circuits corresponding to the nodes.’” Reply Br. 3. Appellants argue that “[t]he Examiner has presented no evidence on this record that an artisan would understand that the description of level of granularity associated with time in Maiocco et al. is the same as “level of granularity associated with components and circuits corresponding to the nodes.” Id. The Examiner appears to have misread the Maiocco reference. In Maiocco the “Average, Maximum, and Minimum” and the “Accounts, Users and Permissions” are separate sections of the reference. Maiocco, col. 47, ll. 3544. The Examiner does not explain how these sections relate to each other and it is not readily apparent that they do in a manner that would 2 The Examiner clarifies that he “has also cited wrong column number and instead of column 57, lines 35–45, it is column 47, lines 35–45 that teaches a first level of granularity.” Ans. 13 Appeal 2012-006626 Application 12/266,196 7 render the subject matter of claims 2, 11, and 20 obvious to one of ordinary skill in the art. Thus, Appellants’ argument is persuasive. For this reason, we do not sustain the Examiner’s decision rejecting claims 2, 11, and 20. DECISION The Examiner’s decision rejecting claims 10–18 under 35 U.S.C. § 101 is AFFIRMED. The Examiner’s decision rejecting claims 1, 3–10, and 12–19 under 35 U.S.C. § 102(b) is AFFIRMED. The Examiner’s decision rejecting claims 2, 11, and 20 under 35 U.S.C. § 103(a) is REVERSED. 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-IN-PART llw Copy with citationCopy as parenthetical citation