CommScope Technologies LLC

Patent Trials and Appeals Board

Nov 27, 2020

2019004214 (P.T.A.B. Nov. 27, 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.
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.
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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.”).
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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.
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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.
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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).
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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
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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
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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.”).
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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,
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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.

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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