Cooper, Ian Robert.

Patent Trials and Appeals Board

Jun 29, 2020

13144904 - (D) (P.T.A.B. Jun. 29, 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.
13/144,904 07/15/2011 Ian Robert Cooper 4359.38WOUS 1082
135778 7590 06/29/2020
Patterson Thuente Pedersen, P.A.
4800 IDS CENTER
80 SOUTH 8TH STREET
MINNEAPOLIS, MN 55402-2100
EXAMINER
JANGBAHADUR, LAKERAM
ART UNIT PAPER NUMBER
2469
NOTIFICATION DATE DELIVERY MODE
06/29/2020 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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte IAN ROBERT COOPER
____________________

Appeal 2019-003694
Application 13/144,904
Technology Center 2400
____________________

Before ALLEN R. MacDONALD, JEREMY J. CURCURI, and
PHILLIP A. BENNETT, 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 a Non-Final
Rejection of claims 1–12. Appeal Br. 1. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 Appellant identifies British Telecommunications Public Limited Company
as the real party in interest. Appeal Br. 2.
Appeal 2019-003694
Application 13/144,904

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CLAIMED SUBJECT MATTER
Claim 1 is illustrative of the claimed subject matter (emphasis,
formatting, and bracketed material added):
1. A network distribution point for operation as a node in a
telecommunications system, the network distribution point
comprising:
[A.] a digital subscriber loop access multiplexer
[i.] providing a plurality of digital subscriber lines
interfacing with a plurality of individual termination
points remote from the network distribution point, and
[ii.] providing a multiplexed digital subscriber line
connected to a remote access server that is associated
with an exchange remote from the distribution point,
wherein the digital subscriber loop access multiplexer is
arranged intermediate between the individual termination
points and the remote access server to provide an interface
therebetween; and
[B.] a dynamic line management system for
[i.] processing data relating to capabilities of each of the
digital subscriber loops, and
[ii.] generating a profile of each digital subscriber loop and
used for setting a rate profile to allow control of
transmission of data to the individual termination points,
[C.] wherein the digital subscriber loop access multiplexer and
the dynamic line management system are co-located in the
network distribution point.
Appeal 2019-003694
Application 13/144,904

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REFERENCES2
The Examiner relies on the following references:
Name Reference Date
Pickering US 2009/0262647 A1 Oct. 22, 2009
Everett US 2010/0293274 A1 Nov. 18, 2010

REJECTIONS
The Examiner rejects claims 1–3, 6, and 7 under 35 U.S.C. § 103 as
being unpatentable over the combination of Pickering and Everett. Non-
Final Act. 6–9 and 11–14. We select claim 1 as the representative claim for
this rejection. The contentions discussed herein as to claim 1 are
determinative as to this rejection.
The Examiner rejects claims 4, 5, and 8–12 under 35 U.S.C. § 103 as
being unpatentable over Pickering and Everett in various combinations with
other references. Non-Final Act. 9–11 and 14–18. The contentions
discussed herein as to claim 1 are also determinative as to these rejections.
Therefore, except for our ultimate decision, we do not address claims
4, 5, and 8–12 further herein.

2 All citations herein to the references are by reference to the first named
inventor/author only.
Appeal 2019-003694
Application 13/144,904

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OPINION
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments that the Examiner has erred. Appellant’s contentions we discuss
are determinative as to the rejections on appeal. Therefore, Appellant’s
other contentions are not discussed in detail herein.
A.
In rejecting claim 1, the Examiner finds:
Everett . . . discloses a dynamic line management
system . . .
wherein a digital subscriber loop access multiplexer and
the dynamic line management system are co-located in a
network distribution point (see Fig. l, combination of
Management Device 100 and DSLAM 20 {a network
distribution point}, see para. 0047, the management device 100
comprises two main functional parts, a BRAS provisioning or
BRAS control function 120 and a Dynamic Line Management
(DLM) function 110, see also para. 0048, the BRAS provisioning
function 120 processes part of the information received from the
DSLAM’s to assess a consistent connection speed achieved by
each DSL).
Non-Final Act. 8 (emphasis added).
B.
Appellant contends that the Examiner erred in rejecting claim 1 under
35 U.S.C. § 103 because:
The Examiner erred in rejecting claim 1 because the
combination of Pickering [] and Everett does not discloses or
suggest every limitation of the claim.
In response to the previous Decision on Appeal and the
intervening Office Actions, claim 1 has been amended to recite
(in combination with the other elements of the claim) . . . that the
“[DSLAM] and the [DLM] system are co-located in the network
Appeal 2019-003694
Application 13/144,904

5
distribution point.” In other words, the claimed network
distribution point comprises both a DSLAM and a DLM, and is
remote from both the individual termination points (customer
equipment), and the exchange. Pickering ’647 and Everett,
whether considered alone or in combination, do not disclose or
suggest such a network distribution point.
Appeal Br. 12 (emphasis added).
C.
The Examiner responds by determining:
Under the broadest reasonable interpretation, the
combination of the systems as disclosed by Pickering and Everett
reads upon . . . [“]wherein the digital subscriber loop access
multiplexer and the dynamic line management system are
co-located in the network distribution point” as recites in the
claim.
Ans. 21–22 (emphasis added).
E.
As articulated by the Federal Circuit, the Examiner’s burden of
proving non-patentability is by a preponderance of the evidence. See In re
Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985) (“preponderance of the
evidence is the standard that must be met by the PTO in making rejections”).
“A rejection based on section 103 clearly must rest on a factual basis[.]” In
re Warner, 379 F.2d 1011, 1017 (CCPA 1967). “The Patent Office has the
initial duty of supplying the factual basis for its rejection. It may not . . .
resort to speculation, unfounded assumptions or hindsight reconstruction to
supply deficiencies in its factual basis.” Id. We conclude the Examiner’s
analysis fails to meet this standard because the rejection does not adequately
explain the Examiner’s findings of fact.
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Application 13/144,904

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Particularly, we agree with Appellant that the language of claim 1
requires “the digital subscriber loop access multiplexer and the dynamic line
management system are co-located in the network distribution point,” and
we disagree with the Examiner’s reasoning that Everett without more is
sufficient to show the argued claim limitation. We conclude, consistent with
Appellant’s arguments that there is insufficient articulated reasoning to
support the Examiner’s finding that Everett discloses the argued claim
limitation.
Therefore, we conclude that there is insufficient articulated reasoning
to support the Examiner’s final conclusion that claim 1 would have been
obvious to one of ordinary skill in the art at the time of Appellant’s
invention.

CONCLUSION
The Appellant has demonstrated the Examiner erred in rejecting
claims 1–12 as being unpatentable under 35 U.S.C. § 103.
The Examiner’s rejections of claims 1–12 as being unpatentable under
35 U.S.C. § 103 are reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–12 103 Pickering, Everett 1–12

REVERSED