Ex Parte HUMPHREY et al

Patent Trial and Appeal Board

Oct 30, 2018

15129121 (P.T.A.B. Oct. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/129, 121 09/26/2016
23117 7590 11/01/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Leslie D HUMPHREY
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RYM-36-2600 8968
EXAMINER
MAI,KEVINS
ART UNIT PAPER NUMBER
2456
NOTIFICATION DATE DELIVERY MODE
11/01/2018 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LESLIE D. HUMPHREY, IAN E. HORSLEY, and ANDREW D.
WALLACE 1
Appeal2018-009213
Application 15/129,121 2
Technology Center 2400
Before ELENI MANTIS MERCADER, JAMES R. HUGHES, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
HUGHES, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants seek our review under 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 1-15, which constitute all the claims
1 Appellants identify British Telecommunications Public Limited
Company as the real party in interest. See Appeal Br. 3.
2 The application on appeal has an effective filing date of March 31, 2014.
Therefore, the Leahy-Smith America Invents Act (AIA) amendments to the
U.S. Code(§§ 102, 103) are applicable. See Manual of Patent Examining
Procedure (MPEP) § 2159. 02 (The amended sections "apply to any patent
application that contains or contained at any time a claim to a claimed
invention that has an effective filing date that is on or after March 16,
2013.").
Appeal2018-009213
Application 15/129,121
pending in this application. Final Act. 1-2. 3 We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
Appellants 'Invention
The invention at issue on appeal generally concerns data
communication and, more particularly, controlling Digital Subscriber Line
("DSL") connections. Spec. 1 :4--5. Appellants' claims recite a Dynamic
Line Management (DLM) system, a Digital Subscriber Line (DSL)
transceiver (apparatus), and a method of controlling a DSL connection
between two DSL transceiver units utilizing an external DLM system. In the
delineated method steps, the external DLM system applies a first line
profile-which specifies a first virtual noise template, which further
specifies a first set of frequency dependent virtual noise levels for the DSL
connection-to a DSL transceiver unit. The method configures a parameter
for the DSL connection based on the first set of frequency dependent virtual
noise levels. When necessary, the external DLM system applies a second
line profile to the DSL transceiver unit-where the second line profile
specifies a second virtual noise template, which further specifies a second
set of frequency dependent virtual noise levels for the DSL connection
distinct from the first set of frequency dependent virtual noise levels. The
method reconfigures the parameter for the DSL connection based on the
3 We refer to Appellants' Specification ("Spec.") filed Sept. 26, 2016
(claiming benefit ofEPO 14250062.8 filed March 31, 2014) and Appeal
Brief ("Appeal Br.") filed Apr. 12, 2018. We also refer to the Final Office
Action ("Final Act.") mailed Sept. 8, 2017; and Examiner's Answer
("Ans.") mailed July 27, 2018.
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Application 15/129,121
second set of frequency dependent virtual noise levels. Spec. 3:24---6: 10;
Abstract.
Illustrative Claim
Independent claim 1, reproduced below, further illustrates the
invention:
1. A method of controlling a Digital Subscriber Line,
DSL, connection between a first and second DSL transceiver unit
by an external Dynamic Line Management, DLM, system, the
method comprising the steps of:
the external DLM system applying a first line profile to a
DSL transceiver unit, the first line profile specifying a first
virtual noise template for the DSL connection, wherein the first
virtual noise template specifies a first set of frequency dependent
virtual noise levels for the DSL connection;
configuring a parameter for the DSL connection based on
the first set of frequency dependent virtual noise levels;
the external DLM system applying a second line profile to
the DSL transceiver unit, the second line profile specifying a
second virtual noise template for the DSL connection, wherein
the second virtual noise template specifies a second set of
frequency dependent virtual noise levels for the DSL connection
which is distinct to the first set of frequency dependent virtual
noise levels; and
reconfiguring the parameter for the DSL connection based
on the second set of frequency dependent virtual noise levels.
Rejections on Appeal
1. The Examiner rejects claims 1-15 under 3 5 U.S. C. § 101 as
being directed to patent-ineligible subject matter. See Final Act. 4.
2. The Examiner rejects claims 1-15 under 35 U.S.C. § 103 as
being unpatentable over Kerpez et al. (US 2015/0146767 Al, published May
28, 2015 (claiming benefit of PCT/USI2/36388 filed May 3, 2012))
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Application 15/129,121
("Kerpez"), and Cendrillon et al. (US 2010/0254442 Al, published Oct. 7,
2010) ("Cendrillon"). See Final Act. 5.
ISSUES
Based upon our review of the record, Appellants' contentions, and the
Examiner's findings and conclusions, the issues before us follow:
1. Did the Examiner err in determining Appellants' claims were
directed to patent-ineligible subject matter under 35 U.S.C. § 101?
2. Did the Examiner err in finding the combination of Kerpez and
Cendrillon would have taught or suggested:
the external DLM system applying a second line profile to
the DSL transceiver unit, the second line profile specifying a
second virtual noise template for the DSL connection, wherein
the second virtual noise template specifies a second set of
frequency dependent virtual noise levels for the DSL connection
which is distinct to the first set of frequency dependent virtual
noise levels; and
reconfiguring the parameter for the DSL connection based
on the second set of frequency dependent virtual noise levels
( claim 1 ), within the meaning of Appellants' claim 1 and the commensurate
limitations of claims 8 and 14?
ANALYSIS
Patent eligibility under 35 USC §101
The Examiner provides the same reasoning for rejecting independent
claim 1 and independent claims 8 and 14, and rejects representative claim 1
under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter.
Final Act. 4; Ans. 3. Specifically, the Examiner rejects claim 1 as being
directed to patent-ineligible subject matter-the abstract idea of "migration
or transitioning of settings" (Final Act. 4 }-and determines claim 1 does not
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Application 15/129,121
"include additional elements that are sufficient to amount to significantly
more than the [ abstract idea] because they appear to be generic computers
performing generic functions" (Final Act. 4). Appellants contend, inter alia,
that claim 1 ( and the other pending claims) are not directed to an abstract
idea because the Examiner's interpretation of the claims is incorrect-that
the Examiner describes the "claim[ s] at a high level of abstraction untethered
from the language of the claim when determining the focus of the claimed
invention" (Appeal Br. 11). See Appeal Br. 11-12. Appellants also contend
the claims provide an improvement in computer technology. See Appeal Br.
8-11.
Appellants' arguments raise the dispositive issue of whether the
claims are directed to an abstract idea and additional issues with respect the
§ 101 rejection. We find the Examiner has overgeneralized the claims in
formulating the rejection. Further, we find the Examiner provides little
analysis and factual support for the§ 101 rejection and does not address the
issues raised by Appellants' contentions. See Final Act. 4; Ans. 3.
We agree with Appellants that the Examiner's rejection was
formulated at too high of a level of abstraction. The purported abstract idea
"migration or transitioning of settings" (Final Act. 4) does not correlate well
with the express language of independent claim 1, which recites "applying a
... line profile ... specifying a ... virtual noise template ... [that further]
specifies a second set of frequency dependent virtual noise levels for the
DSL connection" and "reconfiguring [a] parameter for the DSL connection
based on the second set of frequency dependent virtual noise levels"
(claim 1). Further, the Examiner's rejection (see Final Act. 4; Ans. 3) does
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Application 15/129,121
not address Appellants' contentions regarding an improvement in computer
technology (with respect to step 1 and step 2 of the Alice/Mayo analysis).
Appellants' claim 1 requires, at the least, configuring and
reconfiguring DSL connection parameters based on distinct sets of
frequency dependent virtual noise levels. See Appeal Br. 17 (Claim
Appendix, claim 1 ). In the instant claim, the focus is not merely on
"migration or transitioning of settings" (Final Act. 4 ). Thus, we agree with
Appellants that claim 1 is not directed to the Examiner's proposed abstract
idea, as set out in the first step of the Alice/Mayo eligibility analysis.
Consequently, we are constrained by the record before us to conclude
that the Examiner erred in determining Appellants' claim 1 was directed to
patent-ineligible subject matter under 35 U.S.C. § 101. Independent claims
8 and 14 include limitations of commensurate scope. Claims 2-7, 9-13, and
15 depend on claims 1, 8, and 14, respectively. Accordingly, we reverse the
Examiner's rejection under§ 101 of claims 1-15.
The Obviousness Rejection under 35 US.C. §103
The Examiner rejects independent claim 1 (as well as independent
claims 8 and 14) as being obvious in view of Kerpez and Cendrillon. See
Final Act. 4--8; Ans. 3-5. Appellants contend that Kerpez and Cendrillon do
not teach the disputed limitations of claim 1. See Appeal Br. 12-16.
Specifically, Appellants contend, inter alia, that neither Kerpez nor
Cendrillon describe an external DLM system applying line profiles including
a set of frequency dependent virtual noise levels. See id.
We agree with Appellants that the Examiner-cited portions of Kerpez
and Cendrillon do not describe an external DLM system applying a set of
frequency dependent virtual noise levels ( and configuring or reconfiguring
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DSL connection parameters based on the virtual noise levels. See Appeal
Br. 12-16. In particular we agree with Appellants that different entities
apply different information to configure DSL connections. In Kerpez, the
Network Management System (NMS, 116) and/or Management Device
( 170) (see Kerpez ,r,r 51, 65), i.e., external DLM system, changes the profile
settings. See Kerpez ,r,r 67, 71. Kerpez does not describe sets of frequency
dependent virtual noise levels. Cendrillon describes virtual noise magnitude
templates across a range of frequencies ( Cendrillon ,r 41 ), but the templates
are "applied" by an internal (rather than external) system. The digital
subscriber line multiplexer (DSLAM) at the central office (CO) stores
virtual noise templates and line profiles and configures DSL connections.
See Cendrillon ,r,r 36, 38; Appeal Br. 14. At best Cendrillon describes
configuring a DSL connection based on a virtual noise template. Cendrillon
does not describe an external system reconfiguring a DSL connection
parameter based on a second, different virtual noise template. The Examiner
does not sufficiently explain how the cited portions of Kerpez and
Cendrillon teach or suggest these features. As explained by Appellants,
nothing in the cited collective teachings of Kerpez and Cendrillon would
have suggested an external DLM system reconfiguring a parameter for the
DSL connection based on a distinct second set of frequency dependent
virtual noise levels (supra). Further, as further pointed out by Appellants, it
is also unclear how the cited portions of Kerpez and Cendrillon would be
combined to teach the disputed feature. See Appeal Br. 12-16.
Consequently, we are constrained by the record before us to find that
the Examiner erred in finding that the combination of Kerpez and Cendrillon
renders obvious Appellants' claim 1. Independent claims 8 and 14 include
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limitations of commensurate scope. Claims 2-7, 9-13, and 15 depend on
and stand with claims 1, 8, and 14, respectively.
CONCLUSIONS
Appellants have persuasively shown the Examiner erred in rejecting
claims 1-15 under 35 U.S.C. § 101.
Appellants have persuasively shown the Examiner erred in rejecting
claims 1-15 under 35 U.S.C. § 103.
DECISION
We reverse the Examiner's rejections of claims 1-15.
REVERSED
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