Bugenhagen, Michael K.

Patent Trials and Appeals Board

Feb 3, 2020

13302051 - (D) (P.T.A.B. Feb. 3, 2020)

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.
13/302,051 11/22/2011 Michael K. Bugenhagen 1323-US-U1 1042
83809 7590 02/03/2020
CenturyLink Intellectual Property LLC
Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
KIM, HEE SOO
ART UNIT PAPER NUMBER
2457
NOTIFICATION DATE DELIVERY MODE
02/03/2020 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):
patent.docketing@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL K. BUGENHAGEN
____________________

Appeal 2019-000946
Application 13/302,051
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, MIRIAM L. QUINN, and
DAVID J. CUTITTA II, Administrative Patent Judges.

MacDONALD, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–11, 18–20, and 22–30. Claims 2
and 21 have been cancelled, and claims 12–17 have been withdrawn from
consideration. Appeal Br. 29–32. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 Appellant identifies the real party in interest as Century Link Intellectual
Property LLC. Appeal Br. 3.
Appeal 2019-000946
Application 13/302,051

2
CLAIMED SUBJECT MATTER
Claim 29 is illustrative of the claimed subject matter (reproduced
in-part with emphasis, formatting, and bracketed material added):
29. A method, comprising:
[A.] Maintaining . . . a class of service state for a connection
. . . ;
[B.] Receiving, from the customer device, configuration
information for configuring the class of service state;
[C.] Modifying the class of service state in response to
receiving the configuration information;
[D.] Determining one or more network performance statistics
pertaining to network performance between the customer
device and at least one other network point, . . . ;
[E.] Providing, to a customer associated with the customer
device, the one or more network performance statistics;
[F.] Receiving, from the customer, a request to run an
application over a network session;
[G.] Providing, to the customer device, a busy indicator if
network conditions indicate that insufficient bandwidth
exists to satisfy the request, wherein the busy indicator
further includes an explanation of network conditions
that prevented operation of the requested action, wherein
the explanation includes an indication of a number of
computing applications or devices that are currently using
a broadband connection;
[H.] Generating an alarm based on user input specifying
which network conditions should generate an alert,
wherein the network conditions comprise at least one of
network utilization of the broadband connection exceeding
a specified threshold portion of an overall bandwidth,
insufficient bandwidth, or a packet loss condition; and
[I.] Based on a determination that packet loss is occurring,
sending a notification to the customer, wherein the
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notification includes an indication that the request to run
the application over the network session cannot be
performed due to the packet loss.
REFERENCES2
The prior art relied upon by the Examiner is:
Name Reference Date
Goto US 2007/0025237 A1 Feb. 1, 2007
Molen US 2008/0089237 A1 Apr. 17, 2008
Schryer US 2008/0279112 A1 Nov. 13, 2008
Rahman US 2009/0116379 A1 May 7, 2009
Yang US 2010/0246436 A1 Sept. 30, 2010
Singhal US 2011/0249572 A1 Oct. 13, 2011

REJECTIONS
The Examiner rejects claims 1, 3, 5–11, 18, 19, 22–24, 29, and 30
under 35 U.S.C. § 103(a) as being unpatentable over the combination of
Molen, Yang, Rahman, Schryer, Goto, and Singhal. Final Act. 2–13. We
select claim 29 as the representative claim for this rejection. Appellant does
not argue separate patentability for claims 1, 3, 5–11, 18, 19, 22–24, and 30.
The Examiner rejects claims 4, 20, and 25–28 under 35 U.S.C.
§ 103(a) as being unpatentable over Molen, Yang, Rahman, Schryer, Goto,
and Singhal in various combinations with other references. Final Act. 13–
18. Appellant does not present arguments for claims 4, 20, and 25–28.
Thus, the rejections of these claims turn on our decision as to claim 29.

2 All citations herein to patent and pre-grant publication references are by
reference to the first named inventor only.
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Except for our ultimate decision, we do not address claims 1, 3–11,
18–20, 22–28, and 30 further herein.

OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
Appeal Brief and Reply Brief arguments.
The Examiner and Appellant have treated the term “and” throughout
the claims as meaning “and,” not “and/or.” This restrictive reading is
contrary to Appellant’s instruction that “use of the terms ‘and’ and ‘or’
means ‘and/or’ unless otherwise indicated.” Spec. ¶ 27. This Opinion is
based on treating the claims using the restrictive reading of “and” which is
subsumed within the actual broader reading of “and/or.”
A.
Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 29 under 35 U.S.C. § 103(a).
The Examiner fails to establish that [the] cited references
teach or suggest “providing, to the customer device, a busy
indicator if network conditions indicate that insufficient
bandwidth exists to satisfy the request, wherein the busy
indicator further includes an explanation of network conditions
that prevented operation of the requested action, wherein the
explanation includes an indication of a number of computing
applications or devices that are currently using a broadband
connection,” as required by pending claim 29.
Appeal Br. 21 (additional emphasis added).
Appellant further argues as follows:3

3 We read the “clearly teaches” language quoted here as –renders obvious–.
As the Appellant acknowledges the rejection is based on the claimed
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The Examiner asserts that Schryer, in combination with
Rahman, “clearly teaches that an indicator is provided to the user
when network conditions indicate that insufficient bandwidth
exists to satisfy the request, including an explanation of network
conditions that prevented operation of the requested action, and
an indication of a number of computing applications or devices
that are currently using a broadband connection.” Examiner’s
Answer, p. 4. However, this is not the case.
Rahman discloses that “[i]n response to the insufficient
bandwidth notification, the multimedia receiver provides an
indicator to the viewer that the selected channel is not available
for presentation due to insufficient bandwidth in the network
connection.”
Rahman, ¶ 0015. Rahman further discloses that “a list of
multimedia channels being provided to the viewer’s premises is
displayed for the viewer and the viewer is given the option to
terminate provision of one or more of the other multimedia
channels so as to make additional bandwidth available for the
channel initially requested by the viewer.” Rahman, ¶ 0015.
However, the Examiner expressly conceded in the final office
action that “Rahman did not specifically teach wherein the
explanation includes an indication of a number of computing
applications or devices that are currently using a broadband
connection.” Office Action, p. 6.
Schryer cannot be used to make up for the deficiencies of
Rahman, with regard to pending claim 29. Although Schryer
discloses “[e]ach icon 410 can represent the configuration
settings 415 of the one or more media devices 108, thereby
allowing the user to identify other media devices 108 in the
media network 100 that are utilizing media resources” (Schryer,
¶ 0026), these icons are not displayed with a busy indicator
indicating insufficient bandwidth.

invention being “obvious” (Appeal Br. 18) under 35 U.S.C. § 103(a), we
deem the Examiner’s misstatement to be harmless error.
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Thus, the combination of Rahman and Schryer would
result in two separate and distinct functionalities (1) a busy
indicator that indicates a list of multimedia channels being
provided to the viewer’s premises and (2) a GUI that identifies
media devices 108 in the media network 100 that are utilizing
media resources. There is no indication in Schryer that the GUI
that identifies media devices 108 in the media network 100 that
are utilizing media resources is displayed with a busy indicator
in response to a determination of insufficient bandwidth.
Therefore, the combination of Rahman and Schryer would
not result in identifying a number of computing applications or
a number of devices that are currently using a broadband
connection in response to an indication that network conditions
indicate that insufficient bandwidth exists to satisfy the request
to run an application, which is recited by claim 29.
Reply Br. 5–6 (additional emphasis added).
We are unpersuaded by Appellant’s argument. First, Appellant does
not address the actual reasoning of the Examiner’s rejection. Instead,
Appellant attacks the Rahman reference singly for lacking a teaching that the
Examiner relied on a combination of Rahman and Schryer to show. Then
Appellant similarly attacks the Shryer reference singly for lacking a teaching
that the Examiner relied on the combination of Rahman and Schryer to
show. In particular, the rejection does not rely on Rahman for teaching the
“indication of a number of computing applications or devices” (Reply Br. 5)
aspect disputed by Appellant. See Final Act. 7 (finding Schryer teaches,
“an indication of a number of computing applications or devices”). Further,
the rejection does not rely on Schryer for teaching the “busy indicator
indicating insufficient bandwidth” (Reply Br. 5) aspect disputed by
Appellant. See Final Act. 6 (finding Rahman teaches “a busy indicator if
network conditions indicate that insufficient bandwidth exists”). One cannot
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show nonobviousness by attacking references individually when the
rejection is based on a combination of references. In re Merck & Co. Inc.,
800 F.2d 1091, 1097 (Fed. Cir. 1986); see also In re Keller, 642 F.2d 413,
425 (CCPA 1981) (explaining the relevant inquiry is whether the claimed
subject matter would have been obvious to those of ordinary skill in the art
in light of the combined teachings of those references).
Second, Appellant’s argument speculates that the combination of
Rahman and Schryer would render obvious a system with “two separate and
distinct functionalities.” Reply Br. 5. Even if we were to agree that the
cited combination also renders obvious an invention other than the invention
of Appellant’s claim 29, this is simply not a relevant argument as to whether
the Examiner has provided a proper final conclusion that the combination of
references renders obvious the claimed invention. A combination of
references is not precluded from rendering obvious any number of distinct
inventions.

B.
Also, Appellant raises the following argument in contending that the
Examiner erred in rejecting claim 29 under 35 U.S.C. § 103(a).
The Examiner fails to establish that the cited references
teach or suggest “generating an alarm based on user input
specifying which network conditions should generate an alert,
wherein the network conditions comprise at least one of network
utilization of the broadband connection exceeding a specified
threshold portion of an overall bandwidth, insufficient
bandwidth, or a packet loss condition,” as required by pending
claim 1.
Appeal Br. 24.
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[T]he manager 102, of Singhal, may receive one or more
operating parameters from a user to set up the network monitors
104. There is no indication that the operating parameters
received by the manager 102 and set up on the network monitors
104 would cause the network manager 102 to provide alarms and
alerts based on predefined events.
In fact, (1) receiving parameters from a user for setting the
operation of the network monitors 104 and (2) providing alarms
and alerts based on predefined events (e.g., network utilization
reaching a limit or detecting critical errors in the network 110)
are two separate and distinct functions that Singhal’s network
manager 102 performs. The network manager 102 of Singhal
receives a first set of parameters (operating parameters) from a
user to set up the operation of network monitors 104. The
network manager 102 of Singhal may also provide alarms based
on a second set of parameters (predefined events).
In Singhal, the first set of parameters (operating
parameters) received by the network manager 102 from the user
are distinct and separate from the second set of parameters
(predefined events) that cause the alarm or alert on network
manager 102. In Singhal, “[t]he operating parameters set by the
manager 102 may include, among others, information stored in
an adaptive session record (ASR), the format of the ASR, and
lengths of time the ASR should be stored.” Singhal, ¶ 0029. The
predefined events of Singhal may be “network utilization
reaching a limit or detecting critical errors in the network 110.”
Singhal, ¶ 0030. Although a user, in Singhal, may input the one
or more first parameters (operating parameters), there is no
indication that a user may define the one or more second
parameters (predefined events).
Appeal Br. 25 (additional emphasis added).
Essentially, Appellant argues that Singhal’s “predefining” an event
(e.g., alarm limit) does not indicate “a user” may predefine the event (e.g.,
alarm limit). Even if we adopt Appellant’s position that Singhal does not
indicate a user may define the event, we are unpersuaded the Examiner has
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erred. As Appellant acknowledges, Singhal discloses: “[t]he manager 102
may perform one or more of the following functions: . . . (vii) provide
alarms and alerts on predefined events (e.g., network utilization reaching a
limit or detecting critical errors in the network 110).” Accepting Singhal’s
silence as to the entity performing the “predefining,” there are finite number
of possibilities as to that entity (i.e., programmer, system administrator, or
end user) interacting with the network. Therefore, we conclude it would
have been obvious to try the user as the predefining entity that Appellant
argues is not taught by Singhal. The Court in KSR states:
When there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense.
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (emphasis added).
Again, it is not disputed that Singhal shows the desirability of providing
alarms and alerts on predefined events.

CONCLUSION
The Examiner has not erred in rejecting claims 1, 3–11, 18–20, and
22–30 as being unpatentable under 35 U.S.C. § 103(a).
The Examiner’s rejections of claims 1, 3–11, 18–20, and 22–30 as
being unpatentable under 35 U.S.C. § 103(a) are affirmed.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–11, 18–
20, 22–30
103(a) Molen, Yang, Rahman,
Schryer, Goto, Singhal
1, 3–11, 18–
20, 22–30

TIME PERIOD FOR RESPONSE
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.
§ 1.136(a)(1)(iv).

AFFIRMED