CommScope Technologies LLCDownload PDFPatent Trials and Appeals BoardNov 27, 20202019004214 (P.T.A.B. Nov. 27, 2020) Copy Citation 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. 14/456,709 08/11/2014 Van E. Hanson 2682/100.1470US01 1007 135878 7590 11/27/2020 Fogg & Powers LLC/Commscope 4600 W 77th St Suite 305 Minneapolis, MN 55435 EXAMINER SCHNELL, RICHARD L ART UNIT PAPER NUMBER 2416 NOTIFICATION DATE DELIVERY MODE 11/27/2020 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): docketing@fogglaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte VAN E. HANSON and MICHAEL J. WILLIAMSON ___________ Appeal 2019-004214 Application 14/456,709 Technology Center 2400 ____________ Before ST. JOHN COURTENAY III, LARRY J. HUME, and PHILLIP A. BENNETT, Administrative Patent Judges. COURTENAY, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–20. Final Act. 2. We have jurisdiction over the pending claims under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). According to Appellant, the real party in interest is CommScope Technologies LLC. Appeal Br. 1. Appeal 2019-004214 Application 14/456,709 2 STATEMENT OF THE CASE 2 Disclosed embodiments of Appellant’s invention relate to “methods and systems for transport link quality measurement in a distributed antenna system.” Spec. ¶ 4. Representative Claim 1 1. A method comprising: determining, by a component of a distributed antenna system, a link quality indicator associated with an aspect of performance of a digital transport link in the distributed antenna system; determining an indication of a potential fault condition of the digital transport link based on the link quality indicator before a fault condition of the digital transport link associated with the potential fault condition of the digital transport link occurs, wherein a potential fault condition of the digital transport link comprises a degradation of operation of the digital transport link to outside a normal operating range, wherein a normal operating range comprises a range of parameters in which the digital transport link is functioning at its full performance; and communicating the indication of the potential fault condition of the digital transport link to a user device to be displayed for a user, wherein the user device is separate from the distributed antenna system, wherein the user device is communicatively coupled to the distributed antenna system. Appeal Br. 20 (emphasis added regarding disputed limitations). 2 We herein refer to the Final Office Action, mailed Aug. 10, 2018 (“Final Act.”); Appeal Brief, filed Jan. 9, 2019 (“Appeal Br.”); the Answer, mailed March 8, 2019 (“Ans.”), Reply Brief, filed May 8, 2019 (“Reply Br.”). Appeal 2019-004214 Application 14/456,709 3 Prior Art The Examiner relies upon the following prior art as evidence in rejecting the claims on appeal: Name Reference Date DuBose et al. (“DuBose”) US 5,751,152 May 12, 1998 Hrastar et al. et al. (“Hrastar”) US 6,272,150 B1 Aug. 7, 2001 Patel US 2006/0161213 Al July 20, 2006 Sabat, Jr. et al. (“Sabat”) US 2007/0264009 Al Nov. 15, 2007 Clark et al. (“Clark”) US 2008/0265915 Al Oct. 30, 2008 Palanisamy et al. (“Palanisamy”) US 2012/0134673 Al May 31, 2012 Varga et al. (“Varga”) US 2016/0269916 Al Sept. 15, 2016 Rejections on Appeal A. Claims 1–9 and 13–17 are rejected under 35 U.S.C. § 103 as being obvious over the combination of Sabat, Varga, and Hrastar. See Final Act. 2. B. Claim 10 is rejected under 35 U.S.C. § 103 as being obvious over the combination of Sabat, Varga, Hrastar, and DuBose. See Final Act. 15. C. Claims 11 and 12 are rejected under 35 U.S.C. § 103 as being obvious over the combination of Sabat, Varga, Hrastar, DuBose, and Clark. See Final Act. 16. D. Claim 18 is rejected under 35 U.S.C. § 103 as being obvious over the combination of Sabat, Varga, Hrastar, and Patel. See Final Act. 17. Appeal 2019-004214 Application 14/456,709 4 E. Claims 19 and 20 are rejected under 35 U.S.C. § 103 as being obvious over the combination of Sabat, Varga, Hrastar, and Palanisamy. See Final Act. 18. Grouping of Claims Based upon Appellant’s arguments, and our discretion under 37 C.F.R. § 41.37(c)(1)(iv), we decide the appeal of Rejection A of claims 1–9 and 13–17 on the basis of representative claim 1. We separately address infra Rejections B, C, D, and E of claims 10–12 and 18–20, not separately argued. ANALYSIS In reaching this Decision, we consider all evidence presented and all arguments actually made by Appellant. To the extent Appellant has not advanced separate, substantive arguments for particular claims, or other issues, the doctrine of forfeiture applies.3 See 37 C.F.R. § 41.37(c)(1)(iv). We have reviewed Appellant’s arguments in the Appeal and Reply Briefs, the Examiner’s rejections in the Final Office Action, and the Examiner’s responses in the Answer to Appellant’s arguments. We disagree 3 See In re Google Technology Holdings LLC, 2020 WL 6685948, slip op. at * 3 (Fed. Cir. 2020): It is well established that “[w]aiver is different from forfeiture.” United States v. Olano, 507 U.S. 725, 733 (1993).[] “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)) (additional citations omitted). The two scenarios can have different consequences for challenges raised on appeal, id. at 733–34, and for that reason, it is worth attending to which label is the right one in a particular case. Appeal 2019-004214 Application 14/456,709 5 with Appellant’s arguments with respect to claim 1, and all other argued claims, and, unless otherwise noted, regarding these claims, we incorporate by reference herein and 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 and explanations set forth in the Examiner’s Answer in response to Appellant’s arguments. We highlight and address specific findings and arguments regarding claim 1 for emphasis as follows. Rejection A under § 103 of Representative Claim 1 Issue: Under 35 U.S.C. § 103, did the Examiner err by finding the cited combination of Sabat, Varga, and Hrastar would have taught or suggested a method comprising: . . . determining an indication of a potential fault condition of the digital transport link . . . wherein a potential fault condition of the digital transport link comprises a degradation of operation of the digital transport link to outside a normal operating range, wherein a normal operating range comprises a range of parameters in which the digital transport link is functioning at its full performance [,] within the meaning of independent claim 14 (emphasis added regarding disputed limitations). Appellant acknowledges that Sabat teaches the determination of a potential fault condition of a digital transport link based on a link quality indicator before a fault occurs. See Appeal Br. 8 (“This is not disputed.”). However, Appellant contends that Sabat does not teach the disputed claim 1 4 Throughout this opinion, we give the contested claim limitations the broadest reasonable interpretation (“BRI”) consistent with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appeal 2019-004214 Application 14/456,709 6 limitation “wherein a potential fault condition of the digital transport link comprises a degradation of operation of the digital transport link to outside a normal operating range.” Appeal Br. 8–10 (emphasis added). We are not persuaded by Appellant’s arguments because Appellant is arguing the references separately when the rejection is for obviousness based upon what the reference combination would have suggested to a person of ordinary skill in the art. “One cannot show non-obviousness by attacking references individually where . . . the rejections are based on combinations of references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981). The Examiner cites Varga, not Sabat, for teaching or at least suggesting the disputed wherein clause. Final Act. 3–4. Appellant next contends that Varga does not teach the disputed limitation “wherein a potential fault condition of the digital transport link comprises a degradation of operation of the digital transport link to outside a normal operating range, wherein a normal operating range comprises a range of parameters in which the digital transport link is functioning at its full performance.” Appeal Br. 11 (emphasis added). In support, Appellant argues: The cited portions of Varga do not describe the particular ranges for transport characteristics values used, let alone that the ranges are associated with a degradation of operation of a digital transport link to outside a range of parameters in which the digital transport link is functioning at full performance as claimed. Instead, Varga describes that the ranges are set by the Radio Coordination schemes and that specific Radio Coordination schemes between radio neighbors require particular ranges of transport characteristics values in order to be used and/or need tuning within the particular ranges depending on the transport characteristics. See, for example, paragraphs [0003] and [0053] of Varga. In other words, the Appeal 2019-004214 Application 14/456,709 7 transport characteristics values being outside a particular range indicates that a Radio Coordination scheme cannot be used or needs to be tuned. There is no teaching, or even a suggestion, that the ranges in Varga are indicative of performance of the digital transport link or that transport characteristics being out of range indicates a potential fault condition for the digital transport link. The ranges discussed in Varga are used for a wholly different purpose than in the claimed invention. Appeal Br. 11 (emphasis added). We do not find Appellant’s argument that Varga is used for a wholly different purpose persuasive. The Supreme Court guides: “[N]either the particular motivation nor the avowed purpose of the [Appellants] controls” when performing an obviousness analysis. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). For a prima facie case of obviousness to be established, the reference need not recognize the same problem solved by the Appellants. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). Appellant next presents arguments and interpretations as to what Varga teaches or suggests. Appeal Br. 12. However, we do not find Appellant’s arguments persuasive because Appellant’s arguments relate to interpreting the reference rather than construing the disputed claim limitations under the broadest reasonable interpretation consistent with the Specification. See supra n.4. As an initial matter of claim construction of the terms “digital transport link” and “full performance” in the disputed limitation, we turn to the Specification for context and find no explicit definitions, nor any limiting descriptions.5 Appellant’s Specification describes degradation of 5 Any special meaning assigned to a term “must be sufficiently clear in the specification that any departure from common usage would be so understood by a person of experience in the field of the invention.” Multiform Appeal 2019-004214 Application 14/456,709 8 operation of the communications link broadly: “The degradation of the communications link can be measured by measuring an attribute, metric, parameter, or other characteristic of the link.” Spec. ¶ 14 (emphasis added). Appellant’s Specification further broadly describes that “Any suitable communication link can be used for communication between the base station 114 and the head-end unit 116. Examples of suitable communication links can include, for example, a connection via a copper, optical fiber, or other suitable connection medium.” Spec. ¶ 16 (emphasis added). Appellant additionally describes multiple different examples of measuring the quality or integrity of a digital communications link. See Spec. ¶¶ 23–42. Regarding the claim term “full performance,” Appellant’s Specification describes non-limiting, exemplary embodiments: “[a] normal operating range can include a range of parameters in which the communications link is functioning at its full, expected, normal performance or quality. An acceptable operating range can include a range of parameters in which the communications link is functional but degraded in performance or quality. In contrast to a soft failure, a hard failure can include a condition in which the communications link does not operate at all.” See Spec. ¶ 14 (emphasis added). Thus, the terms “digital transport link” and “full performance” are recited in the claims, but no limiting or explicit definition is provided either Desiccants Inc. v. Medzam Ltd., 133 F.3d 1473, 1477 (Fed. Cir. 1998); see also Helmsderfer v. Bobrick Washroom Equip., Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own lexicographer and assign to a term a unique definition that is different from its ordinary and customary meaning; however, a patentee must clearly express that intent in the written description.”). Appeal 2019-004214 Application 14/456,709 9 within the claims or in the Specification. In this context, we emphasize that, because “applicants may amend claims to narrow their scope, a broad construction during prosecution creates no unfairness to the applicant or patentee.” In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). Under a broad but reasonable interpretation of claim 1, we conclude that the recited limitation “a potential fault condition of the digital transport link” is not limited to wireless or non-wireless links, but instead is a link made in any manner consistent with the Specification. Similarly, under a broad but reasonable interpretation of claim 1, we conclude that the scope of claimed “full performance” encompasses Varga’s “maximal performance.” See Varga ¶ 40, last sentence. Appellant additionally argues that the cited references were not properly combined by the Examiner. Appeal Br. 14–15. However, on this record, we are not persuaded that the Examiner’s proffered combination would have been “uniquely challenging or difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 418). The Supreme Court further guides that “familiar items may have obvious uses beyond their primary purposes.” KSR, 550 U.S. at 402. Therefore, we find a preponderance of the evidence supports the Examiner’s underlying factual findings and ultimate legal conclusion that the combination of Sabat, Varga, and Hrastar teaches or suggests, and thus renders obvious, the disputed limitations recited in claim 1. Accordingly, we sustain the Examiner’s obviousness Rejection A of independent claim 1, Appeal 2019-004214 Application 14/456,709 10 and grouped claims 2–9 and 13–17, which fall therewith. See Claim Grouping, supra. Rejections B, C, D, and E under § 103 of Claims 10–12 and 18–20 In view of the lack of any separate, substantive arguments directed to obviousness Rejections B, C, D, and E of claims 10–12 and 18–20 (see Appeal Br. 16–19), we sustain the Examiner’s rejections of these claims. Arguments not made are forfeited. See supra n.3. See 37 C.F.R. § 41.37(c)(1)(iv). CONCLUSION The Examiner did not err in rejecting claims 1–20 as being obvious under 35 U.S.C. § 103 over the combined teachings and suggestions of the cited references. Appeal 2019-004214 Application 14/456,709 11 DECISION SUMMARY Rej Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed A 1–9, 13–17 103 Sabat, Varga, Hrastar 1–9, 13–17 B 10 103 Sabat, Varga, Hrastar, DuBose 10 C 11, 12 103 Sabat, Varga, Hrastar, DuBose, Clark 11, 12 D 18 103 Sabat, Varga, Hrastar, Patel 18 E 19, 20 103 Sabat, Varga, Hrastar, Palanisamy 19, 20 Overall Outcome 1–20 FINALITY AND 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)(1)(iv). See 37 C.F.R. § 41.50(f). AFFIRMED Copy with citationCopy as parenthetical citation