ADAPTIVE SPECTRUM AND SIGNAL ALIGNMENT, INC.

Patent Trials and Appeals Board

Dec 9, 2020

2019003445 (P.T.A.B. Dec. 9, 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.
14/414,436 01/12/2015 Leonardo Dagum 20145-073US 4662
146571 7590 12/09/2020
North Weber & Baugh LLP - ASSIA
3260 Hillview Avenue, 1st Floor
Palo Alto, CA 94304
EXAMINER
MOORE JR, MICHAEL J
ART UNIT PAPER NUMBER
2467
NOTIFICATION DATE DELIVERY MODE
12/09/2020 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):
docket1@northweber.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LEONARDO DAGUM, PHILIP BEDNARZ,
MARC GOLDBURG, ARDAVAN MALEKI TEHRANI, and
WONJONG RHEE
Appeal 2019-003445
Application 14/414,436
Technology Center 2400
Before ERIC S. FRAHM, LARRY J. HUME, and
JAMES W. DEJMEK, Administrative Patent Judges.
HUME, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1–6, 8, 9, 11–19, 21–36, and 38–40,
which are all claims pending in the application. Appellant has canceled
claims 7, 10, 20, and 37. See Appeal Br. 14 et seq. (Claims App.). We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Adaptive Spectrum
Signal Alignment, Inc. Appeal Br. 3.
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Application 14/414,436

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STATEMENT OF THE CASE2
The claims are directed to a method and system for using a
downloadable agent for a communication system, device, or link. See Spec.
(Title). In particular, Appellant’s disclosed embodiments and claimed
invention relate to “a method performed by a downloadable agent for
collecting information associated with a communication device and then
sending the collected information to another machine for analysis.” Spec.
¶ 16.
Exemplary Claim
Claim 1, reproduced below, is illustrative of the subject matter on
Appeal (emphasis added to contested prior-art limitation):
1. A method performed by a downloadable agent, the
method comprising:
collecting WAN performance information, wherein the
downloadable agent is executable on a computing device
coupled to a LAN of a broadband subscriber, wherein the LAN
is coupled by another device to a WAN;
transmitting the WAN performance information to a
machine, wherein the machine is operable to:
store the WAN performance information m a
database associated with the machine,

2 Our decision relies upon Appellant’s Appeal Brief (“Appeal Br.,” filed
Oct. 26, 2018); Reply Brief (“Reply Br.,” filed Apr. 1, 2019); Examiner’s
Answer (“Ans.,” mailed Feb. 1, 2019); Final Office Action (“Final Act.,”
mailed Apr. 24, 2018); and the original Specification (“Spec.,” filed
Jan. 12, 2015) (ultimately claiming benefit of US , filed 61/671,672, filed
July 13, 2012).
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Application 14/414,436

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analyze the WAN performance information to
generate an analysis result, the analysis result comprises
at least throughput; and
report the analysis result to at least one of the
broadband subscriber and the broadband subscriber's
service provider; and
sending an on-demand change request associated with at
least one of throughput, or latency.
REFERENCES
The prior art relied upon by the Examiner as evidence is:
Name Reference Date
Zhao et al. (“Zhao”) US 2002/0174421 A1 Nov. 21, 2002
Burnette et al. (“Burnette”) US 2012/0244863 A1 Sept. 27, 2012
REJECTION
Claims 1–6, 8, 9, 11–19, 21–36, and 38–40 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over the combination of Zhao
and Burnette. Final Act. 3.
ISSUE
Appellant argues (Appeal Br. 10–13; Reply Br. 5–7) the Examiner’s
rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over the
combination of Zhao and Burnette is in error. These contentions present us
with the following issue:
Did the Examiner err in finding the cited prior art combination teaches
or suggests a method performed by a downloadable agent that includes, inter
alia, the limitation of “sending an on-demand change request associated with
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Application 14/414,436

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at least one of throughput, or latency,” as recited in claim 1, and as
commensurately recited in system claim 21?
PRINCIPLES OF LAW
The test for obviousness is what the combined teachings of the prior
art would have suggested to the hypothetical person of ordinary skill in the
art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
During prosecution, claims must be given their broadest reasonable
interpretation when reading claim language in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Am. Acad. of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Under this standard,
we interpret claim terms using “the broadest reasonable meaning of the
words in their ordinary usage as they would be understood by one of
ordinary skill in the art, taking into account whatever enlightenment by way
of definitions or otherwise that may be afforded by the written description
contained in the applicant’s specification.” In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
ANALYSIS
Based upon our review of the record, we find a preponderance of the
evidence supports particular arguments advanced by Appellant with respect
to claims 1–6, 8, 9, 11–19, 21–36, and 38–40 for the specific reasons
discussed below. We highlight and address specific findings and arguments
regarding claim 1 for emphasis as follows.
The Examiner finds Zhao teaches or suggests “the servicing of
received requests (change requests) from one or more clients 411-414 based
upon measured performance parameters (e.g. throughput, latency).” Final
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Application 14/414,436

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Act. 4 (citing Zhao ¶¶ 64, 110). The Examiner further finds that Zhao
teaches or suggests “the site monitor collects server latency data from the
received requests from one or more clients 411-414, where the server
latency data includes average, minimum and maximum server latency
values, which indicates how latency changes in time among the monitored
servers.” Ans. 4 (citing Zhao ¶ 110) (emphasis omitted).
Appellant contends the Examiner erred in finding Zhao’s teaching of
servicing a received request is equivalent to the limitation in claim 1 of
“sending an on-demand change request associated with at least one of
throughput, or latency.” Appeal Br. 11. Appellant further argues “[i]n
Zhao’s disclosure, the requests from the one or more clients, 411–414 are
requests for transmitting measured performance parameters, instead of on-
demand change requests.” Appeal Br. 12. “Zhao simply discloses
collect[ing] or process[ing] server latency data, instead of change request
associated with latency.” Id. “Zhao only discloses collecting server
latency data without even disclosing changing latency, no matter in the site
monitor, web server, or in client’s side.” Reply Br. 6.
We are persuaded by Appellant’s arguments,3 and agree that Zhao in
paragraph 64 merely discloses collecting and organizing information
regarding performance parameters, and does not teach or suggest providing a

3 Because we agree with at least one of the dispositive arguments advanced
by Appellant, we need not reach the merits of Appellant’s other arguments.
See Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423 (Fed. Cir. 1984)
(finding an administrative agency is at liberty to reach a decision based on “a
single dispositive issue”).
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change request associated with latency (or throughput). Specifically, in
Figure 5 of Zhao,
site monitor 401 is coupled to each of the site’s servers, 402–
404. Each of servers 402–404 may, at a given time, be servicing
requests from one or more clients, 411–414. According to the
present disclosure, performance parameters which are
measured at client sites 411–414 can be transmitted up through
the hierarchy to the respective servers 402–404. All of this
information can then be sent from the servers to site monitor
401, which can be used to organize the data according to
selected categories.
Zhao ¶ 64 (italics added for emphasis).
Accordingly, based upon the findings above, on this record, we are
persuaded of at least error in the Examiner’s reliance on the cited prior art
combination to teach or suggest the disputed limitation of claim 1, such that
we find error in the Examiner’s resulting legal conclusion of obviousness.
Therefore, we do not sustain the Examiner’s obviousness rejection of
independent claim 1 and independent claim 21, which recites the contested
limitation in commensurate form. For the same reasons, we do not sustain
the rejection of dependent claims 2–6, 8, 9, 11–19, 21–36, and 38–40, which
variously and ultimately depend from independent claims 1 and 21.
CONCLUSION
The Examiner erred with respect to the obviousness rejection of
claims 1–6, 8, 9, 11–19, 21–36, and 38–40 under 35 U.S.C. § 103(a) over
the cited prior art combination of record, and we do not sustain the rejection.
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DECISION SUMMARY

Claims
Rejected
35
U.S.C.
§
Basis /
References Affirmed Reversed
1–6, 8, 9, 11–19,
21–36, 38–40 103(a)
Obviousness
Zhao, Burnette
1–6, 8, 9, 11–19,
21–36, 38–40

REVERSED