Ex Parte Fanson

Patent Trial and Appeal Board

Jul 31, 2017

13870853 (P.T.A.B. Jul. 31, 2017)

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.
13/870,853 04/25/2013 John Fanson ECSI 42 CON 2638
92768 7590 07/31/2017
Murray IP Consulting Inc
1750 Courtwood Cres, Suite 308
Ottawa, ON K2C 2B5
CANADA
EXAMINER
NOORISTANY, SULAIMAN
ART UNIT PAPER NUMBER
2415
MAIL DATE DELIVERY MODE
07/31/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN FANSON
Appeal 2017-003173
Application 13/870,8531
Technology Center 2400
Before MAHSHID D. SAADAT, JOHNNY A. KUMAR, and
JAMES W. DEJMEK, Administrative Patent Judges.
DEJMEK, Administrative Patent Judge.
DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 17—32. Appellant has canceled claims 1—16. App. Br. 13. We have
jurisdiction over the remaining pending claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellant identifies Edgewater Computer Systems Inc. as the real party in
interest. App. Br. 2.
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Application 13/870,853
STATEMENT OF THE CASE
Introduction
Appellant’s disclosed invention is directed to managing a network
running a set of hard real-time applications. Spec. Abstract. According to
the Specification, a hard real-time application is one wherein “a message is
transmitted and successfully received over the network prior to a certain
known deadline and with [a] sufficient degree of certainty.” Spec. 11.
Thus, certain parameters and operating characteristics of the network (e.g.,
minimum data rate and a maximum packet error rate) must be guaranteed
under all operating conditions. Spec. 11. The Specification (and
Appellant’s claims) refer to the aggregate rates of these parameters to
guarantee performance under all operating conditions as a set of predefined
network requirements (PNRs). Spec. 11. In a disclosed method,
performance of the network is measured consistent with a monitoring
schedule. Spec. 19. “[WJhenever the current network performance exceeds
the PNRs by predefined amounts, . . . the physical layer of the network [is
adjusted] by selecting a set of dynamic modulation parameters (DMP’s) to
increase the bandwidth availability within the network.” Spec. 19.
Claim 17 is representative of the subject matter on appeal and is
reproduced below with the disputed limitations emphasized in italics'.
17. Within a network, a data communication method comprising:
i. for a set of hard real-time applications with an associated
set of predefined network requirements (PNR),
configuring a plurality of data modems within the physical
layer of the network with a set of static modulation
parameters (SMPs) to guarantee the PNRs are met at
worst-case operating conditions for the network;
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ii. measuring the current network performance within the
network based on a given network performance
monitoring schedule; and
iii. whenever the current network performance exceeds the
PNRs by predefined amounts, adjusting the plurality of
data modems within the physical layer of the network by
selecting a set of dynamic modulation parameters
(DMP ’s) to increase the bandwidth availability within the
network.
The Examiner’s Rejections
1. Claims 17—23 and 25—32 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Applicant’s Admitted Prior Art
(“AAPA”); Heidari-Bateni et al. (US 2006/0239272 Al; Oct. 26, 2006)
(“Heidari-Bateni”); and Gockler et al. (US 6,185,202 Bl; Feb. 6, 2001)
(“Gockler”). Final Act. 2—9.
2. Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over AAPA, Heidari-Bateni, Gockler, and Moffatt (US
2008/0043859 Al; Feb. 21, 2008). Final Act. 9-10.
ANALYSIS2
Appellant argues the Examiner erred in finding Heidari-Bateni or
Gockler, either individually or in combination, teaches or suggests the last
limitation (i.e., denoted by iii.) recited in claim 17. App. Br. 5—12; Reply
Br. 3—6. As an initial matter, we note this limitation—i.e., “adjusting the
2 Throughout this Decision, we have considered the Appeal Brief, filed
April 12, 2016 (“App. Br.”); the Reply Brief, filed December 19, 2016
(“Reply Br.”); the Examiner’s Answer, mailed October 19, 2016 (“Ans.”);
and the Final Office Action, mailed October 13, 2015 (“Final Act.”), from
which this Appeal is taken.
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plurality of data modems within the physical layer of the network by
selecting a set of dynamic modulation parameters (DMP’s) to increase the
bandwidth availability within the network”—is a conditional limitation that
is performed “whenever the current network performance exceeds the PNRs
by predefined amounts.” In other words, if the current network performance
were never to exceed the predefined network requirements by a predefined
amount, the plurality of data modems within the physical layer would not be
adjusted; rather, the data modems would remain configured with a set of
static modulation parameters to guarantee the predefined network
requirements are met under a worst-case operating condition for the
network.
As an initial matter of claim construction, and regarding the
conditional “whenever the current network performance exceeds the PNRs
by predefined amounts” step of method claim 17, we note that conditional
steps employed in a method claim need not be found in the prior art if, under
the broadest reasonable construction, the method need not invoke the steps.
Ex parte Schulhauser, No. 2013-007847, 2016 WL 6277792, at *3—6 (PTAB
April 28, 2016) (concluding the broadest reasonable interpretation of a claim
encompassed situations in which conditional method steps “need not be
reached”) (precedential). Because the broadest reasonable interpretation of
the claim does not require performing the conditional method steps at issue,
the Examiner does not need to present evidence of obviousness for these
steps. See Schulhauser, 2016 WL 6277792, at *4 (“The Examiner did not
need to present evidence of the obviousness of the remaining method steps
of claim 1 that are not required to be performed under a broadest reasonable
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interpretation of the claim.”); see also Ex parte Katz, No. 2010-006083,
2011 WL 514314, at *A-5 (BPAI Jan. 27, 2011).3
Applying this reasoning here, we conclude the condition precedent
(“whenever the current network performance exceeds the PNRs by
predefined amounts”) of method claim 17 is not positively recited as
actually occurring, under a broad but reasonable interpretation.
Regarding the second step of “measuring the current network
performance within the network based on a given network performance
monitoring schedule,” the Examiner finds AAPA teaches this limitation.
Final Act. 3.4 In particular, the Examiner finds the disclosure within AAPA
of the current network performance as a metric indicative of the data rate
and bit error rate for each node pair in the network at a given point in time,
which is assumed to be substantially constant for a given period of time (at
which point it is measured again) teaches measuring the current network
performance on a given performance monitoring schedule. Final Act. 3.
Additionally, the Examiner finds Heidari-Bateni also teaches this
limitation. Final Act. 4 (citing Heidari-Bateni H 1, 36, 53). Heidari-Bateni
discloses “the network can be monitored in real time or near real time based
3 See also Applera Corp. v. Illumina, Inc., 375 F. App’x 12, 21 (Fed. Cir.
2010) (unpublished) (affirming a district court’s interpretation of a method
claim as including a step that need not be practiced if the condition for
practicing the step is not met); Cybersettle, Inc. v. Nat’l Arbitration Forum,
Inc., 243 F. App’x 603, 607 (Fed. Cir. 2007) (unpublished) (“It is of course
true that method steps may be contingent. If the condition for performing a
contingent step is not satisfied, the performance recited by the step need not
be carried out in order for the claimed method to be performed.”).
4 The Examiner cites to the second paragraph of Appellant’s Specification,
but actually quotes from the third paragraph.
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on factors such as, for example, current channel loading, network
performance, or other factors.” Heidari-Bateni | 53. Further, the Examiner
finds Heidari-Bateni’s disclosure of scheduling windows (e.g., beacon
periods) wherein “scheduling or other housekeeping chores in other network
configurations” teaches the network performance may be monitored (i.e.,
measured) on a given performance monitoring schedule. Final Act. 4.
Appellant asserts the monitoring disclosed by Heidari-Bateni is being
performed at a higher layer within the OSI model as opposed to the physical
layer conditions that must be monitored. App. Br. 7. Specifically, Appellant
argues the conditions monitored by Heidari-Bateni include (i) whether the
network is near capacity; (ii) whether a device is operating out of
conformance with network parameters; and (iii) whether the current
defragmentation policies are acceptable. App. Br. 7. Appellant alleges
“Heidari-Bateni is concerned with the allocation of time slots across devices
in the network, it is not concerned with the physical layer configuration or
adjustment of the data modems in the network.” App. Br. 7.
First, we note Appellant does not dispute the Examiner’s findings that
AAPA teaches the second limitation of claim 17. Further, regarding
Appellant’s allegations that Heidari-Bateni is not concerned with physical
layer configurations, we are unpersuaded of Examiner error. It is well
settled that mere attorney arguments and conclusory statements, which are
unsupported by factual evidence, are entitled to little probative value. In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974) (attorney argument is not evidence).
Additionally, Appellant does not persuasively argue or support the allegation
that monitoring whether a device is operating out of conformance with
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network parameters does not teach or suggest “measuring the current
network performance,” as claimed.
Regarding the configuring (and adjusting) of a plurality of data
modems within the physical layer of the network recited in the first
limitation of claim 17, the Examiner finds Gockler teaches adjusting the
transmission parameters in modems in which both the central station and
subscriber station are equipped in such a way that the bandwidth of the
available radio channel is optimally utilized. Final Act. 5 (quoting Gockler,
Abstract and citing Gockler, col. 1,11. 15—17, Fig. 1).
Appellant argues:
Gockler is completely unrelated to the present invention as
defined in claim 17. Gockler is not concerned with
implementing hard real-time applications and does not concern
itself with predefined network requirements (PNRs) that must be
guaranteed to be met for hard real-time applications at worse-
case operating conditions for the network. Gockler is focused on
optimally utilizing channel bandwidth when the number of
transmission channels changes.
App. Br. 9. Further, Appellant argues Gockler fails to teach or suggest
“configuring a plurality of data modems within the physical layer of the
network with a set of static modulation parameters (SMPs) to guarantee the
PNRs are met at worst-case operating conditions for the network,” as recited
in the first limitation of claim 17. App. Br. 9. Additionally, Appellant
contends that one of ordinary skill in the art would not have been motivated
to consider using the teachings and suggestions of Gockler because the
problem being solved is different. App. Br. 9.
Our reviewing court guides it is irrelevant that the prior art and the
present invention may have different purposes. See Nat 7 Steel Car, Ltd. v.
Canadian Pac. Ry., Ltd., 357 F.3d 1319, 1339 (Fed. Cir. 2004) (“A finding
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that two inventions were designed to resolve different problems ... is
insufficient to demonstrate that one invention teaches away from another.”).
That is, it is sufficient that references suggest doing what Appellant did,
although the Appellant’s particular purpose was different from that of the
references. In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983) (citing In re
Gershon, 372 F.2d 535, 538—39 (CCPA 1967)). “Obviousness is not to be
determined on the basis of purpose alone.” In re Graf, 343 F.2d 774, 111
(CCPA 1965).
Additionally, non-obviousness cannot be established by attacking
references individually where, as here, the ground of unpatentability is based
upon the teachings of a combination of references. In re Keller, 642 F.2d
413, 426 (CCPA 1981). Rather, the test for obviousness is whether the
combination of references, taken as a whole, would have suggested the
patentee’s invention to a person having ordinary skill in the art. In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
We are unpersuaded of Examiner error because Appellant’s
arguments are not responsive to the Examiner’s rejection and attack the
references individually, whereas the Examiner’s rejection relies on, inter
alia, the combined teachings of AAPA and Gockler. The Examiner finds
(and Appellant does not dispute) AAPA teaches configuring the physical
layer of the network with a set of static modulation to guarantee the
predefined network requirements are met under worst-case operating
conditions. Final Act. 2 (citing AAPA (i.e., Spec.) 12). The Examiner finds
Gockler, in combination with AAPA, teaches the physical network
configuration may be accomplished by configuring a plurality of data
modems. Final Act. 5. The Examiner further finds, and we agree, “it would
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have been obvious to one ordinary skill in art when the invention was made
to modify AAPA’s invention in order to make the frequency spectrum
available and be utilized as optimally as possible (col. 1, lines 15—17), as
taught by [Gockler].” Final Act. 5.
Appellant also argues the combination of references would not result
in the claimed invention. App. Br. 10—12. Specifically, Appellant posits if
the system of AAPA, in which hard real-time applications are implements
within a data network to achieve predefined network requirements and
further including a plurality of data modems within the physical layer
configured with static modulation parameters to guarantee the predefined
network requirements are met under worst-case operating conditions, were
combined with Heidari-Bateni’s system for defragmenting channel
bandwidth for improved network utilization, the combined network would
monitor higher layer network conditions and trigger defragmentation
processes in response to the monitored conditions. App. Br. 11. Further,
Appellant asserts, by further combining the system of AAPA and Heidari-
Bateni with Gockler, Gockler’s adjusting of transmission parameters would
be in response to Heidari-Bateni’s monitoring of higher network layers to
determine when to initiate defragmentation processes. App. Br. 11.
As discussed above, non-obviousness cannot be established by
attacking references individually where the Examiner’s rejection is based
upon the teachings of a combination of references. Keller, 642 F.2d at 426.
Additionally, the test for obviousness is not whether the features of one
reference may be bodily incorporated into another reference. In re Bozek,
416 F.2d 1385, 1390, 57 CCPA 713, 719, 163 USPQ 545, 549-50 (1969); In
re Mapelsden, 329 F.2d321, 322, 51 CCPA 1123, 1126, 141 USPQ 30, 32
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(1964). Rather, we look to see whether combined teachings render the
claimed subject matter obvious. Application of Wood, 599 F. 2d 1032, 1037
(CCPA 1979).
Here, we agree with the Examiner that an ordinarily skilled artisan
would have found it obvious to modify the physical layer network of AAPA,
configured to guarantee the predefined network requirements associated
with a set of hard real-time applications are met under a worst-case
operating condition with the configuration / adjustment of data modems
within the physical layer of the network (as taught by Gockler) and the
monitoring approach of Heidari-Bateni to improve the coordination of
communication channel activities and better optimize the use of the
available frequency spectrum. Final Act. 4—5. Appellant does not
persuasively rebut the Examiner’s findings and rationale.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claim 17. For
similar reasons, we sustain the Examiner’s rejections of claims 18—32, which
depend therefrom and were not argued separately. See App. Br. 12
DECISION
We affirm the Examiner’s decision rejecting claims 17—32.
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.
§ 41.50(f).
AFFIRMED
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