Stephen Sohn et al.

Patent Trials and Appeals Board

Dec 22, 2020

2019005589 (P.T.A.B. Dec. 22, 2020)

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.
15/246,635 08/25/2016 Stephen Sohn 047262-0448330 5980
909 7590 12/22/2020
Pillsbury Winthrop Shaw Pittman, LLP
PO Box 10500
McLean, VA 22102
EXAMINER
WILCOX, JAMES J
ART UNIT PAPER NUMBER
2439
NOTIFICATION DATE DELIVERY MODE
12/22/2020 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):
docket_ip@pillsburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte STEPHEN SOHN and SCOTT RYE

Appeal 2019-005589
Application 15/246,635
Technology Center 2400

Before, ALLEN R. MACDONALD, JEAN R. HOMERE, and
ADAM J. PYONIN, Administrative Patent Judges.
HOMERE, Administrative Patent Judge.

DECISION ON APPEAL
I. STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s rejection of claims 1–20, all of the claims pending.2 Appeal Br.
2. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 We refer to the Specification filed Aug. 25, 2016 (“Spec.”); the Final
Office Action, mailed Sep. 14, 2018 (“Final Act.”); the Appeal Brief, filed
Jan. 38, 2019 (“Appeal Br.”); the Examiner’s Answer, mailed May 14, 2019
(“Ans.”); and the Reply Brief, filed July 15, 2019 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the inventive entity, referenced
above, as the real party-in-interest. Appeal Br. 2.
Appeal 2019-005589
Application 15/246,635

2
II. CLAIMED SUBJECT MATTER
According to Appellant, the claimed subject matter relates to a
protective distribution system (PDS) and method for facilitating sensor-
based shutdown upon detecting intrusion in a fiber optic cable of a
communications network. Spec. ¶¶ 2, 3. PDS (100) aims at distinguishing
nuisance alarms to filter out accidental or environment disturbances from
actual intrusion attempts of the fiber optics cable, thereby improving the
accuracy of sensor-based detection of intrusion attempts therein. Id. ¶¶ 24,
29.
Figure 1, reproduced and discussed below, is useful for
understanding the claimed subject matter:

Figure 1 illustrates PDS (100) utilizing multiple-threshold-based conditions
to shutdown network data flow to communications endpoints proximate to
detected disturbances on the fiber optic cable. Spec. ¶¶ 6, 62–67.
Appeal 2019-005589
Application 15/246,635

3
In particular, upon receiving, via one or more sensors in the fiber optic
transmission line, a number of disturbances (e.g., vibrations or changes in
frequency, acoustic, signal propagation distance) that exceed a
predetermined threshold within a preset time period, a network switch
shutdowns network data flow to one or more endpoints proximate to the
detected disturbances. Id. ¶¶ 52– 54.
Claims 1, 12, and 20 are independent. Claim 1, reproduced below
with disputed limitations emphasized, is illustrative:
1. A method for facilitating sensor-based shutdown of
network data flow, the method comprising:
monitoring a physical information transmission line;
detecting, via one or more sensors, a disturbance on the
physical information transmission line, wherein the detected
disturbance does not exceed a first preset threshold for
triggering a network data flow shutdown response;
determining, responsive to the detection via the one or
more sensors, a count for a number of disturbances within a
preset time period that do not exceed the first preset threshold;
determining whether the count, for the number of
disturbances that do not exceed the first preset threshold,
exceeds a second preset threshold, wherein the second preset
threshold corresponds to a preset number of allowable
disturbances within the preset time period; and
causing shutdown of network data flow to one or more
network endpoints proximate to the detected disturbance on the
physical transmission line responsive to a determination that the
count exceeds the second preset threshold.

Appeal Br. 14 (Claims App.).

Appeal 2019-005589
Application 15/246,635

4
III. REFERENCES
The Examiner relies upon the following references.3
Name Reference Date
Vigil An Evaluation of
Fiber Optic Intrusion
Detection Systems in
Interior Applications
March, 1994
Hamedi US 2006/0031446 A1 Feb. 9, 2006
Nelson US 2007/0280591 A1 Dec. 6, 2007
Beliles US2008/0025229 A1 Jan. 31, 2008
Smith US 2014/0109182 A1 Apr. 17, 2014
Sohn’758 US 9,160,758 B2 Oct. 13, 2015
Sohn’999 US 9,455,999 B2 Sept. 27, 2016
IV. REJECTIONS4
The Examiner rejects claims 1–20 as follows:
Claims 1–20 stand rejected under obviousness-type double patenting
as being unpatentable over claims 1–18 of Sohn’758. Final Act. 13.
Claims 1–20 stand rejected under obviousness-type double patenting
as being unpatentable over claims 1–18 of Sohn’999. Id. at 13–14.
Claims 1–7, 8–13, 15, 16, and 18–20 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over the combined teachings of Smith and Vigil.
Id. at 15–29.
Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combined teachings of Smith, Vigil, and Hamedi. Id. at 29–30.

3 All reference citations are to the first named inventor only.
4 The Examiner withdrew the patent eligibility rejection previously entered
against claims 1–20. Ans. 3.
Appeal 2019-005589
Application 15/246,635

5
Claim 14 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combined teachings of Smith, Vigil, and Nelson. Id. at 30–31.
Claim 17 stands rejected under 35 U.S.C. § 103 as being unpatentable
over the combined teachings of Smith, Vigil, and Beliles. Id. at 31–33.
V. ANALYSIS
We consider Appellant’s arguments in the order they are presented in
the Appeal Brief, pages 11–12 and the Reply Brief, pages 1–6.5
1. Double Patenting Rejections
Because Appellant has not presented any arguments to rebut the
Examiner’s double patenting rejections, we summarily affirm the rejections
of claims 1–20.
2. Obviousness Rejections
Appellant argues that the Examiner erred in finding that the
combination of Smith and Vigil teaches or suggests “determining… a count
for a number of disturbances within a preset time period that do not exceed
the first preset threshold”, as recited in independent claims 1, 12, and 20.
Appeal Br. 11, Reply Br. 2. In particular, Appellant argues that Smith’s
disclosure of detecting sounds and a baseline does not teach the disputed
limitations. Reply Br. 2–3 (citing Smith ¶ 46). According to Appellant,
Smith discloses using sounds (including the intensity thereof) to distinguish
between unauthorized physical accesses and disturbances from natural
phenomena (e.g., rain, hail, thunder), as opposed to determining a count for
a number of disturbances. Id. at 3. Further, Appellant argues that Smith’s

5 We have considered in this Decision only those arguments Appellant
actually raised in the Briefs. Arguments not made are waived. See
37 C.F.R. § 41.37(c)(1)(iv) (2014).
Appeal 2019-005589
Application 15/246,635

6
disclosure of a communication gateway comparing activities on a
communication port within a preset time to a baseline to detect unauthorized
access does not teach activities that do not exceed the baseline. Id. at 3–4
(Smith ¶ 51). Additionally, Appellant argues that Vigil’s disclosure of a
count of a number of threshold crossings (i.e., a number of times a threshold
is exceeded) to distinguish between an intruder and natural phenomena does
not cure the noted deficiencies of Smith. Id. at 4–5, Appeal Br. 11–12 (Vigil
at 8, Fig. 2). These arguments are not persuasive of reversible Examiner
error.
As a preliminary matter, consistent with the Specification, we note
that the disputed claim limitation of determining whether the number of
disturbances within a preset time do not exceed a preset threshold relates to
determining that the number of disturbances is not indicative of an intrusion
or unauthorized access, but it is instead indicative of a natural phenomenon.
Spec. ¶¶ 24, 29, and 52. Therefore, we agree with the Examiner that Smith’s
disclosure of using sounds as disturbances along with a baseline to
distinguish instances of unauthorized access from those of natural
phenomena teaches or suggests determining whether said disturbances do
not exceed a predetermined threshold within a preset time (i.e., the
disturbance is a natural phenomenon, no shutdown is required). Ans. 6–7.
We further agree with the Examiner that Vigil’s disclosure of a count of a
number of threshold crossings (i.e., a number of times a threshold is
exceeded) would further complement Smith’s teachings to distinguish
between an intruder and natural phenomena. Id. at 8. We find that the
proposed combination of the cited teachings of Smith and Vigil is no more
than a simple arrangement of old elements with each performing the same
Appeal 2019-005589
Application 15/246,635

7
function it had been known to perform, yielding no more than what one
would expect from such an arrangement. See KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007). Therefore, the ordinarily skilled artisan, being “a
person of ordinary creativity, not an automaton,” would have been able to fit
the teachings of the cited references together like pieces of a puzzle to
predictably achieve a communications gateway distinguishing nuisance
alarms to filter out accidental or environment disturbances from actual
intrusion attempts in communications ports of a fiber optics cable, thereby
improving the accuracy of sensor-based detection of intrusion attempts
therein. Because Appellant has not demonstrated that the Examiner’s
proffered combination would have been “uniquely challenging or difficult
for one of ordinary skill in the art,” we agree with the Examiner that the
proposed modification would have been within the capabilities of the
ordinarily skilled artisan. See Leapfrog Enters., Inc. v. Fisher-Price, Inc.,
485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418).
Consequently, we are satisfied that, on this record, that the combination of
Smith and Vigil would have taught or at least suggested the disputed
limitations as discussed above. Accordingly, we are not persuaded of error
in the Examiner’s rejection of claims 1, 12, and 20 over the combined
teachings of Smith and Vigil.
Regarding the rejection of claims 2–11 and 13–19, Appellant has not
presented separate patentability arguments or has reiterated substantially the
same arguments as those previously discussed for the patentability of claims
1, 12, and 20. As such, claims 2–11, and 13–19 fall therewith. See
37 C.F.R. § 41.37(c)(1)(iv).

Appeal 2019-005589
Application 15/246,635

8
VI. CONCLUSION
We affirm the Examiner’s rejections of claims 1–20.

VII. DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–20 Double Patenting Sohn’758 1–20
1–20 Double Patenting Sohn’999 1–20
1–7, 8–13,
15, 16, 18–
20
103 Smith, Vigil 1–7, 8–13, 15, 16, 18–20
8 103 Smith, Vigil, Hamedi 8
14 103 Smith, Vigil, Nelson 14
17 103 Smith, Vigil, Beliles 17
Overall
Outcome 1–20

No time period for taking any subsequent action in connection
with this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED