ASSIA SPE, LLC

Patent Trials and Appeals Board

Apr 23, 2021

2020005832 (P.T.A.B. Apr. 23, 2021)

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.
14/767,870 08/13/2015 Jeonghun NOH 20145-091US 7565
146571 7590 04/23/2021
North Weber & Baugh LLP - ASSIA
3260 Hillview Avenue, 1st Floor
Palo Alto, CA 94304
EXAMINER
KYEREME-TUAH, AKOSUA P
ART UNIT PAPER NUMBER
3623
NOTIFICATION DATE DELIVERY MODE
04/23/2021 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 JEONGHUN NOH, WOOYUL LEE,
MANISH AMDE, GEORGIOS GINIS and
YOUNGSIK KIM
___________

Appeal 2020-005832
Application 14/767,870
Technology Center 3600

____________

Before CARL W. WHITEHEAD JR., MICHAEL J. STRAUSS and
MICHAEL J. ENGLE, Administrative Patent Judges.

WHITEHEAD JR., Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE1
Appellant2 is appealing the final rejection of claims 21–32, 37–40, 57,
63, 65–70, 73 and 74 under 35 U.S.C. § 134(a). See Appeal Brief 14.

1 Rather than reiterate Appellant’s arguments and the Examiner’s
determinations, we refer to the Appeal Brief (filed April 24, 2020), the
Reply Brief (filed August 10, 2020), the Final Action (mailed December 31,
2019) and the Answer (mailed June 25, 2020), for the respective details.

2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies ASSIA SPE, LLC as the real party in interest. Appeal
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Claims 21, 57, 73, and 74 are independent. Claims 1–20, 33–36, 41–56, 58–
62, 64, 71 and 72 are cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
Introduction
According to Appellant, the claimed subject matter relates to
“networking, and more particularly to predicting customer churn in a
broadband network.” See Specification ¶ 1.

Representative Claim3
21. A method for computing a likelihood that a broadband
connection service will be terminated, comprising:
accessing, at a network management device that is coupled to at least
one of a connection line and a Wi–Fi device, data associated
with a broadband connection, the data comprising physical
connection data obtained from monitoring network devices for
a set of subscriber lines of a broadband connection provider;
based on the accessed data and data not directly related to a physical
characteristic of the broadband connection, determining, by one
or more processors, one or more variables representing
information relevant to identifying churners;

Brief 3.

3 Appellant’s arguments are directed towards independent claim 21. Appeal
Brief 12. Accordingly, we select independent claim 21 as the representative
claim. See 37 C.F.R. § 41.37(c)(1)(iv).
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assigning, by one or more processors, values to the one or more
variables based on a set of valuation rules;
generating, by one or more processors, subscriber line instances
associated with the set of subscriber lines, each subscriber line
instance comprising one or more assigned values and indicating
whether a broadband connection service for a subscriber line is
likely to be terminated;
using the one or more processors to build, based on machine learning
processing of the subscriber line instances, a churn predictor
that comprises a set of churn prediction models; and
using the churn predictor models to process the subscriber line
instances to generate a churn likelihood score for the broadband
connection service.

References
Name4 Reference Date
Selby US 2004/0039548 A1 February 26, 2004
Maga US 2007/0185867 A1 August 9, 2007
Croot US 2011/0191472 A1 August 4, 2011
Bhalla US 2013/0054306 A1 February 28, 2013
Backholm US 2013/0159511 A1 June 20, 2013
Anderson US 2013/0185245 A1 July 18, 2013
Kumar US 2014/0177544 A1 June 26, 2014

4 All reference citations are to the first named inventor only.

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Rejections on Appeal
Claims 21, 23–30, 32, 57, 73 and 74 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Kumar and Croot. Final Action 3–23.
Claim 22 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Kumar, Croot and Backholm. Final Action 23–24.
Claims 31 and 63 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kumar, Croot and Bhalla. Final Action 24–26 (See Final
Action 25 addressing dependent claim 63).
Claim 37 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Kumar, Croot and Maga. Final Action 26–28.
Claims 38–40 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kumar, Croot, Maga and Anderson. Final Action 28–31.
Claims 65 and 66 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kumar, Croot and Selby. Final Action 31–33.
Claims 67–70 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Kumar, Croot, Selby and Maga. Final Action 33–36.

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. We adopt as our own (1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner’s Answer in response to Appellant’s Appeal Brief, except where
noted.
We do not find Appellant’s argument that the Examiner failed to
“demonstrate that the cited references teach or suggest every claim
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limitation” persuasive of Examiner error. Appeal Brief 11. Appellant
contends:
In fact, the Kumar document is completely void of the words: 1)
accessing, 2) network management, management device, or
network management device, 3) connection line or Wi–Fi device,
4) broadband connection, 5) physical connection or physical
connection data, 6) monitoring network, network devices, or
monitoring network devices, 7) lines or subscriber lines, and 8)
broadband connection provider.

Appeal Brief 13.
We note that merely quoting or emphasizing claim language and
asserting it is different from prior art references is insufficient to constitute
an argument. See 37 C.F.R. § 41.37(c)(1)(iv) (2013) (“The arguments shall
explain why the examiner erred as to each ground of rejection contested by
appellant.” (Emphasis added.)). We find the Examiner maps the claim
limitations to the cited references. See Final Action 3–36.
We do not find Appellant’s argument that the “motivation of
‘analyz[ing] physical connections’ is merely a conclusory statement with no
explicit explanation or articulated reasoning with a rational underpinning” to
be persuasive of Examiner error. Appeal Brief 14 (emphasis omitted). We
note, the Specification discloses, “Network monitoring tool 322 collects
connection line and/or Wi–Fi (e.g., wireless network) data through network
management systems. Such systems are known in the art.” Specification
¶ 43; see Appeal Brief 7, 8. The Examiner provides an explicit description
of Croot’s teachings and articulates reasoning for modifying Kumar with
Croot’s teachings by providing some rational underpinning to support the
legal conclusion of obviousness. See Final Action 6; see also KSR Int’l. v.
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Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006)).
Appellant argues,
a showing that the claimed invention is merely a combination of
old elements in some unidentified ‘field of endeavor’ untethered
from an adequate explanation why a person of skill in the art
would, in fact, have had reason to combine the teachings of Croot
and Kumar in the manner set forth in the claims is insufficient to
establish a motivation or reason to combine.

Appeal Brief 16, 17.
Appellant further argues that “the Office’s lack of adequate
explanation and unsupported compatibility argument that the claims
represent nothing more than the predictable use of prior art elements that
could be combined, is insufficient to sustain a prima facie case for
obviousness in view of Croot and Kumar.” Appeal Brief 17. We do not
find Appellant’s arguments persuasive of Examiner error because, as we find
above, the Examiner provided an adequate explanation for why an artisan
would have combined Croot and Kumar thus establishing a prima facie case
for obviousness.
Appellant argues the rejection is improper because the Examiner has
failed to articulate a reason why the skilled artisan would reasonably expect
the proposed Kumar/Croot combination to result in success. See Appeal
Brief 18. Appellant’s argument does not persuade us of Examiner error
because establishing prima facie obviousness requires showing that one of
ordinary skill in the art would have had a reason or suggestion to modify or
combine the prior art and either predictability or a reasonable expectation of
success. See KSR 550 U.S. at 418. Here, because the relevant field of
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endeavor is predictable, the Examiner was not required to make a specific
finding regarding a reasonable expectation of success. See Specification
¶ 43; Appeal Brief 7, 8. The “determination of obviousness ‘does not
require absolute predictability of success . . . . [A]ll that is required is a
reasonable expectation of success.”’ Brown & Williamson Tobacco Corp. v.
Philip Morris Inc., 229 F.3d 1120, 1125 (Fed. Cir. 2000) (quoting In re
O’Farrell, 853 F.2d 894, 903–904 (Fed. Cir. 1988)). Furthermore,
“[t]he reasonable expectation of success requirement for obviousness does
not necessitate an absolute certainty for success.” Par Pharm., Inc. v. TWi
Pharms., Inc., 773 F.3d 1186, 1198 (Fed. Cir. 2014). Appellant does not
present persuasive argument or objective evidence to demonstrate that one
with ordinary skill in the art would not have had a reasonable expectation of
success in combining the teachings of Kumar and Croot.
Appellant contends, “Until the Office establishes a prima facie case,
Appellant is not under an obligation to rebut a rejection” but nonetheless
acknowledges the arguments that were presented throughout the prosecution
of the instant application. Appeal Brief 19. The Federal Circuit has
repeatedly noted that “the prima facie case is merely a procedural device that
enables an appropriate shift of the burden of production.” Hyatt v. Dudas,
492 F.3d 1365, 1369 (Fed. Cir. 2007) (citing In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992)). The Federal Circuit also has held that the USPTO
carries its procedural burden of establishing a prima facie case when its
rejection satisfies the requirements of 35 U.S.C. § 132 by notifying the
applicant of the reasons for rejection, “together with such information and
references as may be useful in judging of the propriety of continuing the
prosecution of [the] application.” In re Jung, 637 F.3d 1356, 1362 (Fed. Cir.
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2011) (quoting 35 U.S.C. § 132). Accordingly, the prima facie requirement
for the Office is to set forth the statutory basis of the rejection and other
information relied on, in a sufficiently articulate and informative manner as
to meet the notice requirement of § 132. Id.; see also Chester v. Miller, 906
F.2d 1574, 1578 (Fed. Cir. 1990) (explaining that § 132 “is violated when a
rejection is so uninformative that it prevents the applicant from recognizing
and seeking to counter the grounds for rejection”). For the reasons
discussed above, we determine that the Examiner has met the prima facie
requirement and provided sufficient details and explanation. Consequently,
we sustain the Examiner’s obviousness rejection of independent claim 21, as
well as, the obviousness rejections of claims 22–32, 37–40, 57, 63, 65–70,
73 and 74 not argued separately. See Appeal Brief 20.

CONCLUSION
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
21, 23–30,
32, 57, 73,
74
103 Kumar, Croot 21, 23–30,
32, 57, 73,
74

22 103 Kumar, Croot,
Backholm
22
31, 63 103 Kumar, Croot,
Bhalla
31, 63
37 103 Kumar, Croot,
Maga
37
38–40 103 Kumar, Croot,
Maga, Anderson
38–40
65, 66 103 Kumar, Croot,
Selby
65, 66
67–70 103 Kumar, Croot,
Selby, Maga
67–70
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Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
Overall
Outcome
21–32,
37–40, 57,
63, 65–70,
73, 74

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R.
§ 1.136(a)(1)(v).

AFFIRMED