Ex Parte HSI et alDownload PDFPatent Trial and Appeal BoardFeb 5, 201311691281 (P.T.A.B. Feb. 5, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 1 ___________ 2 3 BEFORE THE PATENT TRIAL AND APPEAL BOARD 4 ___________ 5 6 Ex parte TEH-LI HSI, ALBERT J. SAWYER, CHOKRI TRABELSI, 7 and YANG YANG 8 ___________ 9 10 Appeal 2011-003683 11 Application 11/691,281 12 Technology Center 3600 13 ___________ 14 15 16 Before ANTON W. FETTING, BIBHU R. MOHANTY, and 17 MICHAEL W. KIM, Administrative Patent Judges. 18 FETTING, Administrative Patent Judge. 19 DECISION ON APPEAL 20 Appeal 2011-003683 Application 11/691,281 2 STATEMENT OF THE CASE1 1 1 Our decision will make reference to the Appellants’ Appeal Brief (“App. Br.,” filed June 11, 2010) and the Examiner’s Answer (“Ans.,” mailed September 1, 2010). Teh-Li Hsi, Albert J. Sawyer, Chokri Trabelsi, and Yang Yang 2 (Appellants) seek review under 35 U.S.C. § 134 of a final rejection of 3 claims 10-21, the only claims pending in the application on appeal. We have 4 jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 5 The Appellants invented a way of billing for quality of service 6 applications by determining at least one parameter indicative of resource 7 usage of at least one first quality of service application by comparing at least 8 one resource used by the first quality of service application(s) to at least one 9 resource used by a second quality of service application and providing 10 information indicative of at least one cost associated with the first quality of 11 service application( s) based on the comparison and at least one cost 12 associated with the second quality of service application. (Specification 13 5:10-17). 14 An understanding of the invention can be derived from a reading of 15 exemplary claim 10, which is reproduced below [bracketed matter and some 16 paragraphing added]. 17 10. A method for implementation in a wireless 18 communication system, comprising: 19 [1] calculating, 20 in the wireless communication system, 21 resource usage 22 of a reference application 23 in meeting a reference quality-of-service (QoS) 24 during wireless communication 25 in the wireless communication system; 26 Appeal 2011-003683 Application 11/691,281 3 [2] setting a reference billing rate 1 based on the resource usage 2 of the reference application 3 in meeting the reference QoS; 4 [3] calculating, 5 in the wireless communication system, 6 resource usage 7 of a target application 8 in meeting a target QoS 9 during wireless communication 10 in the wireless communication system; 11 and 12 [4] setting a target billing rate 13 for the resource usage 14 of the target application 15 in meeting the target QoS 16 based on 17 the reference billing rate 18 and 19 a ratio 20 of the resource usage of the target 21 application 22 to 23 the resource usage of the reference 24 application. 25 26 The Examiner relies upon the following prior art: 27 Liebowitz US 5,812,545 Sep. 22, 1998 28 Claims 10 - 21 stand rejected under 35 U.S.C. § 102(b) as anticipated by 29 Liebowitz. 30 ISSUES 31 The issue of anticipation turns primarily on whether Liebowitz describes 32 computing a billing rate as the ratio of two observed sets of usage data as in 33 limitation [4]. 34 Appeal 2011-003683 Application 11/691,281 4 FACTS PERTINENT TO THE ISSUES 1 The following enumerated Findings of Fact (FF) are believed to be 2 supported by a preponderance of the evidence. 3 Facts Related to the Prior Art 4 Liebowitz 5 01. Liebowitz is directed to satellite communication systems and 6 earth station terminals configured to provide full mesh, 7 multimedia, bi-directional communication with other terminals in 8 a network, having dynamic bandwidth allocation, broadcast and 9 multicast capability, and voice, data and video integration using a 10 plurality of protocols. Liebowitz 1:10-17. 11 02. The rate tables 194 comprise flat rates, usage rates for voice 12 data and video services, promotional rates and customized rate 13 tables according to countries or customer accounts. Flat rates can 14 include, for example, access fees for a terminal or port, installation 15 fees, maintenance fees, administration fees, or other services for 16 which a flat rate is charged. Rates for voice calls are preferably 17 specified in minutes on a bill. Two sets of rates for voice calls are 18 provided based on the quality of calls such as calls using 8 or 16 19 Kbps circuits. The rates also vary, depending on whether voice 20 calls are prime or non-prime time calls. Data services are billed 21 by CIR and EIR. Rate tables for CIR services support multiple 22 data rates between 0 Kbps to T1 rates. The EIR rates are based on 23 the CIR as a base price, and then vary according to the block of 24 kilo-characters (Kchar) transmitted provided bandwidth was 25 available. For example, EIR rates for a 9.6 Kbps CIR differ from 26 Appeal 2011-003683 Application 11/691,281 5 that of a T1 CIR for the same amount of access bandwidth used. 1 The access bandwidth is billed based on blocks of kilo-characters. 2 The EIR rates also take into account the time of day (i.e., prime 3 and non-prime hours). Video services are specified on a bill in 4 terms of minutes and factor in time of day. Customized rate tables 5 can be created by operators to accommodate operating costs in 6 different countries or to extend advantages to preferred customers. 7 Customized rate tables reflecting promotional rates can also be 8 used in lieu of default rate tables. Liebowitz 19:13-39. 9 ANALYSIS 10 We are persuaded by the Appellants’ argument that Liebowitz fails to 11 describe the limitations of the sole independent claim. The Examiner cites 12 Liebowitz 19:13-39, which does state that “EIR rates for a 9.6 Kbps CIR 13 differ from that of a T1 CIR for the same amount of access bandwidth used. 14 The access bandwidth is billed based on blocks of kilo-characters,” but this 15 fails to describe the claim 10 limitation [4] of “setting a target billing rate for 16 the resource usage of the target application in meeting the target QoS based 17 on the reference billing rate and a ratio of the resource usage of the target 18 application to the resource usage of the reference application.” No ratio is 19 shown as being computed or used by Liebowitz. 20 The Examiner appears to be finding that whatever rate factor Liebowitz 21 uses is a ratio in the sense two numbers can be found whose quotient would 22 be the rate factor, as any arbitrary number would be, but merely being equal 23 to a ratio is not the same as having been computed as a ratio. The claim 24 requires computing a billing rate as the ratio of actual usage data, which we 25 cannot find in Liebowitz. 26 Appeal 2011-003683 Application 11/691,281 6 CONCLUSIONS OF LAW 1 The rejection of claims 10 - 21 under 35 U.S.C. § 102(b) as anticipated 2 by Liebowitz is improper. 3 DECISION 4 The rejection of claims 10-21 is reversed. 5 6 REVERSED 7 8 Klh 9 Copy with citationCopy as parenthetical citation