Ex parte ABDELMONEM et al.

Board of Patent Appeals and Interferences

Jul 9, 1998

08263903 (B.P.A.I. Jul. 9, 1998)

Application for patent filed June 20, 1994. According to1
the appellants, this application is a continuation of Application
07/810,072, filed December 19, 1991.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is not
binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte AHMED H. ABDELMONEM and
ROBERT J.T. MORRIS
_____________
Appeal No. 95-4609
Application 08/263,9031
______________
ON BRIEF
_______________
Before JERRY SMITH, BARRETT and TORCZON, Administrative Patent
Judges.
JERRY SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 95-4609
Application 08/263,903
2
This is a decision on the appeal under 35 U.S.C. § 134
from the examiner's rejection of claims 1-7, which constitute all
the claims in the application.
The disclosed invention pertains to a method and
apparatus for predicting errors or failures in a communications
network. Measurements of failures during different, non-uniform
length intervals are determined by averaging the number of
failures during multiple uniform intervals. A neural network is
used to predict errors or failures based on these measurements.
Representative claim 1 is reproduced as follows:
1. A method for predicting errors or failures (i.e.,
“non-performances”) in a system for transmitting information
across a communications channel in accordance with non-
performances measured during periodic intervals, comprising the
steps of:
determining the number of non-performances occurring
during each of a plurality of non-uniform length, non-performance
measurement intervals by computing the average of the non-
performances over multiple uniform intervals;
selectively weighting the non-performance number for each
non-uniform interval;
summing the selectively weighted non-performance numbers
for the non-uniform intervals and applying a sigmoid function to
yield a set of intermediate values;
selectively weighting the intermediate values;
summing the selectively weighted intermediate values and
applying a sigmoid function to yield a set of predicted values
and;
Appeal No. 95-4609
Application 08/263,903
3
comparing the predicted values to threshold values and
raising an alarm if any predicted value exceeds a corresponding
threshold value.
The examiner relies on the following references:
Downes et al. (Downes) 4,769,761 Sep. 06, 1988
Filkin 5,046,020 Sep. 03, 1991
Chinnaswamy et al. 5,062,055 Oct. 29, 1991
(Chinnaswamy)
Bell et al. (Bell) 5,223,827 June 29, 1993
(filed May 23, 1991)
Claims 1-7 stand rejected under 35 U.S.C. § 103. As
evidence of obviousness the examiner offers Downes in view of
Chinnaswamy, Filkin and Bell.
Rather than repeat the arguments of appellants or the
examiner, we make reference to the brief and the answer for the
respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejection advanced by the examiner and the evidence
of obviousness relied upon by the examiner as support for the
rejection. We have, likewise, reviewed and taken into
consideration, in reaching our decision, the appellants'
arguments set forth in the brief along with the examiner's
rationale in support of the rejection and arguments in rebuttal
set forth in the examiner's answer.
Appeal No. 95-4609
Application 08/263,903
4
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in the
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in
claims 1-7. Accordingly, we reverse.
Appellants have indicated that for purposes of this
appeal the claims will all stand or fall together as a single
group [brief, page 2]. Consistent with this indication
appellants have made no separate arguments with respect to any of
the claims on appeal. Therefore, all the claims before us will
stand or fall together. Note In re King, 801 F.2d 1324, 1325,
231 USPQ 136, 137 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989,
991, 217 USPQ 1, 3 (Fed. Cir. 1983). Accordingly, we will only
consider the rejection against independent claim 1 as
representative of all the claims on appeal.
In rejecting claims under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
Appeal No. 95-4609
Application 08/263,903
5
having ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to arrive
at the claimed invention. Such reason must stem from some
teaching, suggestion or implication in the prior art as a whole
or knowledge generally available to one having ordinary skill in
the art. Uniroyal Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044,
1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert. denied, 488 U.S. 825
(1988); Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281, 293, 227 USPQ 657, 664 (Fed. Cir. 1985), cert.
denied, 475 U.S. 1017 (1986); ACS Hospital Systems, Inc. v.
Montefiore Hospital, 732 F.2d 1572, 1577, 221 USPQ 929, 933 (Fed.
Cir. 1984). These showings by the examiner are an essential part
of complying with the burden of presenting a prima facie case of
obviousness. Note In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d
1443, 1444 (Fed. Cir. 1992).
The examiner has made a reasonable effort to point out
the teachings of the applied prior art references, to identify
the differences between claim 1 and the applied prior art, and to
explain why the invention of claim 1 would have resulted from an
obvious modification of the applied prior art [final rejection,
pages 2-5]. Appellants respond to the rejection by noting two
Appeal No. 95-4609
Application 08/263,903
6
main deficiencies in the prior art combination applied by the
examiner.
Appellants’ first noted deficiency is that none of the
applied prior art teaches the step of “determining the number of
non-performances occurring during each of a plurality of non-
uniform length, non-performance measurement intervals by
computing the average of the non-performances over multiple
uniform intervals” [brief, pages 5-7]. It would be useful to
consider what this step means in relationship to the disclosed
invention.
The specification uses the example of fifteen minutes,
one hour, four hours and twenty-four hours as the plurality of
non-uniform length, non-performance measurement intervals. The
uniform interval in the disclosed example is fifteen minutes.
The step quoted above means that the number of failures measured
during a fifteen minute interval is used to compute an average
number of failures over the one hour, four hour and twenty-four
hour measurement intervals. Thus, the actual number of failures
measured during one interval is used to compute the average
number of failures over a plurality of different intervals. This
technique is said to reduce the effects of noise when compared to
Appeal No. 95-4609
Application 08/263,903
7
the technique of taking actual measurements of failures over each
of the non-uniform length intervals [specification, page 4].
Downes teaches a method and apparatus for generally
monitoring and predicting errors in a communications network.
Chinnaswamy teaches a performance monitoring device in which
measurements taken over a minor interval are averaged over a
major interval. For example, Chinnaswamy teaches taking
measurements every five seconds and maintaining a running average
of these measurements over a two minute interval [column 8].
Chinnaswamy does not disclose using the five second measurements
to compute a moving average over a plurality of different major
intervals. Bell teaches an event monitoring system in which non-
uniform measurement intervals are considered. Bell actually
counts the number of events occurring during each of these non-
uniform intervals. Filkin is cited only for the teachings
related to the features of a neural network. The examiner’s
rejection basically relies on using a plurality of major
intervals from Chinnaswamy, as suggested by Bell, in the Downes
communications network. The examiner observes that this would
provide greater versatility to the Downes device.
The critical point in considering the examiner’s
rejection is appellants’ argument that even if the applied prior
Appeal No. 95-4609
Application 08/263,903
8
art is combined exactly as proposed by the examiner, the
invention of appellants’ claim 1 does not result. Specifically,
appellants argue that adding more major intervals in Chinnaswamy
would not result in the determination of non-performances
occurring during each of these different major intervals by
averaging the non-performances over multiple minor intervals. In
other words, Chinnaswamy would determine an average over a four
minute interval, for example, by averaging all the measurements
over the four minute interval rather than computing the average
based on a smaller number of the measurements. Thus, each major
interval in Chinnaswamy would have its own actual measurement as
opposed to a computation based on a smaller number of
measurements. We agree with appellants.
Although the language of the determining step of claim 1
is broad and is possibly subject to varying interpretations, the
examiner has never indicated that this step is being interpreted
in any manner other than what is intended by appellants. Thus,
it appears that the examiner has correctly recognized that the
determining step of claim 1 requires that a count of multiple
uniform intervals (minor intervals) be used to compute an average
of the counts over non-uniform intervals (major intervals). We
Appeal No. 95-4609
Application 08/263,903
9
note that computing the average of the non-performances over
multiple uniform intervals is not the same as counting the non-
performances over the multiple uniform intervals.
It should first be observed that the portion of
Chinnaswamy relied on does not deal with counting the number of
non-performances at all. Chinnaswamy teaches computing the
average value of a measured parameter over a longer interval.
Thus, actual measurements must be made over every minor interval
and a moving average of the measurement computed for each major
interval. If this technique were applied to counting the number
of non-performances rather than measuring parameter values, it
would suggest counting the number of non-performances over each
major interval as opposed to using a single count to determine
the number of non-performances over all the non-uniform
intervals. Although the determining step of claim 1 is subject
to broad interpretation, we agree with appellants that none of
the applied prior art references teaches the thrust of
appellants’ invention which is to use a single number from a
uniform interval to compute a plurality of average numbers over a
plurality of non-uniform intervals.
Appeal No. 95-4609
Application 08/263,903
10
Since we agree with appellants that the examiner’s
proposed combination of references still lacks the requisite
teaching of the determining step of claim 1, we do not sustain
the rejection of claim 1 as proposed by the examiner. Since all
the claims stand or fall together, we do not sustain the
rejection of any of claims 1-7. Therefore, the decision of the
examiner rejecting claims 1-7 is reversed.
We note that the examiner has indicated that because
appellants had proposed amendments to the claims to overcome the
prior art rejection that they have admitted that “the prior art
does read on the claimed invention” [answer, page 5]. We simply
observe that an applicant is not estopped from changing his
strategy during the course of good faith prosecution before the
examiner. A willingness to amend the claims does not prevent
appellants from challenging the rejection as they have done here.
Appeal No. 95-4609
Application 08/263,903
11
REVERSED
)
JERRY SMITH )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
LEE E. BARRETT )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
RICHARD TORCZON )
Administrative Patent Judge )
S.H. Dworetsky
AT&T BELL LABORATORIES
Appeal No. 95-4609
Application 08/263,903
12
600 Mountain Avenue
P. O. Box 636
Murray Hill, NJ 07974-0636