Ex Parte Oliver et al

Patent Trial and Appeal Board

Dec 13, 2018

14067596 (P.T.A.B. Dec. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/067,596 10/30/2013
133681 7590 12/17/2018
Mannava & Kang, P.C.
3201 Jermantown Road
Suite 525
Fairfax, VA 22030
FIRST NAMED INVENTOR
Kevin J. Oliver
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.
1095.0012 3989
EXAMINER
ALAM, MUSHFIKH I
ART UNIT PAPER NUMBER
2426
NOTIFICATION DATE DELIVERY MODE
12/17/2018 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):
docketing@mannavakang.com
dmitry.brant@viavisolutions.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN J. OLIVER, KOJI OKAMOTO,
GREGORY W. MASSEY, and WALTER MILLER
Appeal2018-002072
Application 14/067 ,596
Technology Center 2400
Before JUSTIN BUSCH, CATHERINE SHIANG, and
STEVEN M. AMUNDSON, Administrative Patent Judges.
AMUNDSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 seek our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1-5, 7-14, and 16-20, i.e., all pending claims. We have
jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the real party in interest as Viavi Solutions Inc.
App. Br. 3.
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Application 14/067 ,596
STATEMENT OF THE CASE
The Invention
According to the Specification, the invention concerns "a method and
system for locating ingress noise in a cable network utilizing customer
premises equipment." Spec. ,r 2. 2 The Specification explains that a test
system ( 1) "measures the signal quality in the upstream path and in
dependence upon a noise level being above a predetermined limit,"
(2) "polls a plurality of terminal equipment devices [customer premises
equipment] to return a downstream signal quality measurement," and
(3) "analyzes the downstream signal quality measurements to locate an
ingress source contributing to the noise." Id. Abstract; see id. ,r,r 19--21.
Exemplary Claim
Independent claim 1 exemplifies the claims at issue and reads as
follows:
1. A method of locating ingress in a cable network
compnsmg:
measuring signal quality in an upstream path of the cable
network using a test system;
analyzing upstream signal quality measurements using
the test system to determine whether noise in the upstream path
is above a predetermined limit;
transmitting an instruction signal to a plurality of
terminal equipment devices using the test system in response to
the noise being above the predetermined limit, the instruction
signal including a request for each terminal equipment device in
2 This decision uses the following abbreviations: "Spec." for the
Specification, filed October 30, 2013; "Final Act." for the Final Office
Action, mailed February 19, 2016; "App. Br." for the Appeal Brief, filed
February 24, 2017; "Ans." for the Examiner's Answer, mailed October 5,
2017; and "Reply Br." for the Reply Brief, filed November 27, 2017.
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Application 14/067 ,596
the plurality of terminal equipment devices to transmit an
indication as to whether at least one of a signal level, a noise
level, and a signal-to-noise ratio is outside of a predetermined
range for a predetermined time of a downstream signal to the
test system;
receiving, by the test system, an indication from at least
one of the plurality of terminal equipment devices that at least
one of a signal level, a noise level, and a signal-to-noise ratio of
a downstream signal is outside of a predetermined range for a
predetermined time for the terminal equipment device; and
analyzing the received at least one indication with the test
system to locate an ingress source contributing to the noise.
App. Br. 21 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
As evidence ofunpatentability under 35 U.S.C. § 103, the Examiner
relies on the following prior art:
Nakamura et al. ("Nakamura") US 2002/0197053 Al
Nishi de et al. ("Nishide") US 2009/0007210 A 1
Emerson et al. ("Emerson") US 2010/0319021 A 1
Shafer US 2011/0258677 Al
The Rejections on Appeal
Dec. 26, 2002
Jan. 1, 2009
Dec. 16, 2010
Oct. 20, 2011
Claims 1, 2, 4, 7, 8, 10, 11, 13, 16, 17, 19, and 20 stand rejected under
35 U.S.C. § 103 as unpatentable over Nishide and Nakamura. Final
Act. 2-5.
Claims 3, 5, 12, and 14 stand rejected under 35 U.S.C. § 103 as
unpatentable over Nishide, Nakamura, and Shafer. Final Act. 5---6.
Claims 9 and 18 stand rejected under 35 U.S.C. § 103 as unpatentable
over Nishide, Nakamura, and Emerson. Final Act. 6-7.
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Application 14/067 ,596
ANALYSIS
We have reviewed the rejections in light of Appellants' arguments
that the Examiner erred. For the reasons explained below, we concur with
the Examiner's conclusions concerning unpatentability under§ 103. We
adopt the Examiner's findings and reasoning in the Final Office Action
(Final Act. 2-7) and Answer (Ans. 5-11). We add the following to address
and emphasize specific findings and arguments.
The§ 103 Rejection of Claims 1, 2, 4, 7, 8, 10, 11, 13, 16, 17, 19, and 20
CLAIM 1: AN "INSTRUCTION SIGNAL INCLUDING A REQUEST FOR
EACH TERMINAL EQUIPMENT DEVICE" TO TRANSMIT AN "INDICATION"
Appellants argue that the Examiner erred in rejecting claim 1 because
Nishide and Nakamura do not teach or suggest the following limitation in
claim 1:
the instruction signal including a request for each terminal
equipment device in the plurality of terminal equipment devices
to transmit an indication as to whether at least one of a signal
level, a noise level, and a signal-to-noise ratio is outside of a
predetermined range for a predetermined time of a downstream
signal to the test system.
See App. Br. 7-12; Reply Br. 4---6.
Specifically, Appellants assert that claim 1 differs from Nishide
because (1) "in Nishide, it is the cable-modem processing unit 42 of the fault
detection server 10 that collects measurement values from the cable modems
and determines whether a fluctuation in transmission levels has changed,"
and (2) "Nishide fails to disclose that an instruction signal as recited in
independent claim 1 is transmitted to a cable modem." App. Br. 10
( emphasis omitted). Appellants contend that "the instruction signal recited
in independent claim 1 does not include a request for the terminal equipment
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Application 14/067 ,596
devices to simply transmit 'information regarding the signal level,"' and
instead "the request is for an indication as to whether at least one of a signal
level ... is outside of a predetermined range." Reply Br. 5 ( emphasis
omitted).
Appellants' arguments do not persuade us of Examiner error because
they rest on an unduly narrow interpretation of claim 1. See Ans. 5-6, 11.
"[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification." In re Hyatt,
211 F.3d 1367, 1372 (Fed. Cir. 2000).
Here, claim 1 requires a "request" for an "indication" rather than a
"determination," i.e., an "indication" whether a parameter "is outside of a
predetermined range for a predetermined time." App. Br. 21 (Claims App.).
According to the Specification, an "indication" encompasses a signal
measurement, a noise measurement, or a SIN measurement. See Spec.
,r,r 18, 41--42, 44--46, 48--49, Abstract, Figs. 1-3. The Specification explains
that (1) customer-premises equipment typically monitors "downstream
parameters" by making "signal, noise, and/or SIN measurements" and
(2) the equipment then sends the measurements as feedback to a test system.
Id. ,r,r 42, 44--46, 49. For example, the "signal level" in the feedback
indicates "signal quality." Id. ,r,r 45--46. Further, "the feedback includes the
noise level." Id. ,r 42.
Additionally, claim 2 depends from claim 1 and specifies that "each
indication is an indication of a signal level." App. Br. 21 (Claims App.).
A signal measurement "is an indication of a signal level" according to
claim 2. Thus, claim 2 reinforces the Specification's explanation that an
"indication" encompasses a signal measurement.
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Application 14/067 ,596
Nishide discloses a fault-detection server including a quality-
monitoring unit and a cable-modem processing unit. Nishide ,r,r 83-84,
90-100, Figs. IA-IB; see id. ,r,r 9-12; Final Act. 2-3. Nishide's fault-
detection server corresponds to claim 1 's "test system." See Final Act. 2-3;
Ans. 5-7.
Nishide's cable-modem processing unit polls cable modems to collect
measurements from them, e.g., downstream signal levels. Nishide
,r,r 90-100, Figs. 8A-8B, 9; see id. ,r,r 54, 57; Final Act. 3; Ans. 5---6, 9.
As the Examiner correctly finds, "a polling function is ... a request for
information to be returned" by the polled devices, and "[ t ]he polling
function ofNishide is ... a request for each terminal to provide information
regarding the signal level." Ans. 6, 9. Consistent with the Examiner's
finding, the Specification explains that a test system "polls a plurality of
terminal equipment devices [ customer-premises equipment or cable
modems] to return a downstream signal quality measurement." Spec.
Abstract; see id. ,r,r 21, 42--44, 47.
Hence, Nishide teaches or suggests an "instruction signal including a
request for each terminal equipment device ... to transmit an indication"
whether a parameter "is outside of a predetermined range for a
predetermined time" according to claim 1. See Final Act. 3; Ans. 5---6, 9; see
also Nishide ,r,r 83-84, 90-100, Figs. 8A-8B, 9.
CLAIM 1: "RECEIVING" AN "INDICATION" THAT AP ARAMETER "Is
OUTSIDE OF A PREDETERMINED RANGE FOR A PREDETERMINED TIME"
Appellants argue that the Examiner erred in rejecting claim 1 because
Nishide and Nakamura do not teach or suggest the following limitation in
claim 1:
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Application 14/067 ,596
receiving, by the test system, an indication from at least one of
the plurality of terminal equipment devices that at least one of a
signal level, a noise level, and a signal-to-noise ratio of a
downstream signal is outside of a predetermined range for a
predetermined time for the terminal equipment device.
See App. Br. 12-15; Reply Br. 7-8.
Specifically, Appellants assert that Nishide's cable-modem processing
unit "merely receives measurement values from the cable modems and does
not receive indications from the cable modems as to whether at least one of a
signal level, a noise level, and a signal-to-noise ratio of a downstream signal
to the cable modems is outside of a predetermined range." App. Br. 13
( emphasis omitted). Appellants also assert that "Nishide does not disclose
that the cable modems compare" any parameter to "any predetermined
range." Id. In addition, Appellants contend that "Nakamura fails to disclose
'at least one of a signal level, a noise level, and a signal-to-noise ratio is
outside of a predetermined range for a predetermined time."' Id. at 14.
According to Appellants, "the 'start' and 'end' positions discussed in th[ e]
cited paragraph of Nakamura do not pertain to some predetermined time
over which a feature is compared, but instead, track the actual times at which
noise levels exceed a noise level threshold." Id. at 15.
Appellants' arguments do not persuade us of Examiner error because
they attack the references individually, while the Examiner relies on the
combined disclosures in the references to reject claim 1. See Final Act. 2--4;
Ans. 9, 11. Where a rejection rests on the combined disclosures in the
references, an appellant cannot establish nonobviousness by attacking the
references individually. See In re Merck & Co., 800 F.2d 1091, 1097
(Fed. Cir. 1986). Here, the combined disclosures in Nishide and Nakamura
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Application 14/067 ,596
teach or suggest "receiving ... an indication ... that at least one of a signal
level, a noise level, and a signal-to-noise ratio of a downstream signal is
outside of a predetermined range for a predetermined time" according to
claim 1. See Final Act. 2--4; Ans. 5---6, 9, 11.
As explained above, an "indication" encompasses a signal
measurement, a noise measurement, or a SIN measurement. See Spec.
,r,r 18, 41--42, 44--46, 48--49, Abstract, Figs. 1-3. Nishide discloses that the
quality-monitoring unit monitors SIN measurements to detect a decrease in
transmission quality due to ingress noise. Nishide ,r 83; see Final Act. 2.
The quality-monitoring unit detects a decrease in transmission quality by
repeatedly obtaining a particular signal's SIN ratio during a predetermined
decision time T2, e.g., every second during a 20-second interval. Nishide
,r,r 83-84, Fig. 3; see id. ,r,r 12, 14, 52, 63. The quality-monitoring unit then
determines how many SIN ratios obtained during the predetermined decision
time T2 exceed a predetermined SIN ratio threshold TH. Id. ,r,r 83-84; see
id. ,r,r 12, 14, 52. Based on that determination, the quality-monitoring unit
analyzes whether transmission quality has decreased. Id. ,r,r 83-84; see id.
,r,r 12, 14, 52. Nishide explains the analysis as follows:
A ratio of a number B of the detected SIN ratios equal to or
smaller than the predetermined SIN threshold with respect to a
total number A of the detected SIN ratios obtained over the
decision time T2 (B/ A) is then calculated. When this calculated
ratio (B/ A) exceeds a predetermined threshold ratio C, a
decrease in upstream transmission quality is detected.
Id. ,I 83.
Nishide's predetermined SIN ratio threshold TH corresponds to
claim 1 's "predetermined range," and Nishide's predetermined decision time
T2 corresponds to claim 1 's "predetermined time."
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In addition, Nakamura discloses determining how long a measurement
exceeds a predetermined range. See Final Act. 3 (citing Nakamura ,r 103);
Ans. 11. In Nakamura, a detection unit determines how long a waveform
decreases below a lower threshold THs and increases above an upper
threshold THn. Nakamura ,r,r 102-103, Fig. 2. Hence, Nakamura teaches or
suggests three predetermined ranges, i.e., values below THs, values between
THs and THn, and values above THn.
Thus, the combined disclosures in Nishide and Nakamura teach or
suggest "receiving ... an indication ... that at least one of a signal level, a
noise level, and a signal-to-noise ratio of a downstream signal is outside of a
predetermined range for a predetermined time" according to claim 1. See
Final Act. 2--4; Ans. 5---6, 9, 11; see also Nishide ,r,r 9-12, 14, 52, 83-84,
Fig. 3; Nakamura ,r,r 102-103, Fig. 2.
Appellants' assertion that "Nishide does not disclose that the cable
modems compare" any parameter to "any predetermined range" does not
distinguish claim 1 from Nishide. Claim 1 does not require that a terminal
equipment device, e.g., a cable modem, compare measurements. App.
Br. 21 (Claims App.). Instead, claim 1 specifies that a test system analyzes
an "indication" received from a terminal equipment device, e.g., a cable
modem, to "locate an ingress source contributing to the noise." Id.
SUMMARY FOR CLAIM 1
For the reasons discussed above, Appellants' arguments have not
persuaded us that the Examiner erred in rejecting claim 1 under § 103.
Thus, we sustain the § 103 rejection of claim 1.
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INDEPENDENT CLAIMS 10 AND 20 AND
DEPENDENT CLAIMS 2, 4, 7, 8, 11, 13, 16, 17, AND 19
Appellants do not argue patentability separately for independent
claims 10 and 20 or dependent claims 2, 4, 7, 8, 11, 13, 16, 17, and 19. App.
Br. 7-16; Reply Br. 4--8. Thus, we sustain the§ 103 rejection of claims 2, 4,
7, 8, 10, 11, 13, 16, 17, 19, and 20 for the same reasons as claim 1. See
37 C.F.R. § 4I.37(c)(l)(iv).
The§ 103 Rejections of Claims 3, 5, 9, 12, 14, and 18
Claims 3, 5, and 9 depend indirectly from claim 1, while claims 12,
14, and 18 depend indirectly from claim 10. For these dependent claims,
Appellants assert that the additionally cited secondary references to Shafer
and Emerson do not disclose the disputed limitations discussed above. App.
Br. 16-19. For the reasons discussed above, however, we agree with the
Examiner that the combined disclosures in Nishi de and Nakamura teach or
suggest the disputed limitations. Therefore, Appellants' assertions about
Shafer and Emerson do not persuade us of Examiner error. Hence, we
sustain the§ 103 rejections of dependent claims 3, 5, 9, 12, 14, and 18 for
the same reasons as the independent claims. See 37 C.F.R. § 4I.37(c)(l)(iv).
DECISION
We affirm the Examiner's decision to reject claims 1-5, 7-14, and
16-20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv). See
37 C.F.R. § 4I.50(f).
AFFIRMED
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