Ex Parte Beser

Board of Patent Appeals and Interferences

Jan 18, 2011

10667978 (B.P.A.I. Jan. 18, 2011)

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.
10/667,978 09/23/2003 Nurettin Burcak Beser 0023-0099 8900
44987 7590 01/18/2011
HARRITY & HARRITY, LLP
11350 Random Hills Road
SUITE 600
FAIRFAX, VA 22030
EXAMINER
CHEA, PHILIP J
ART UNIT PAPER NUMBER
2492
MAIL DATE DELIVERY MODE
01/18/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte NURETTIN BURCAK BESER
_____________

Appeal 2009-007634
Application 10/667,978
Technology Center 2400
______________

Before, ROBERT E. NAPPI, ELENI MANTIS MERCADER, and
CARL W. WHITEHEAD, JR., Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL1

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-007634
Application 10/667,978

This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1, 3-8, 10-31, and 34. We have jurisdiction under 35
U.S.C. § 6(b).
We affirm-in-part the Examiner’s rejection of these claims.

INVENTION
The invention is directed to method and system of registering and
initializing cable modems in a prioritized order after a system failure or
power surge. See Spec: 2-3. Claim 1 is representative of the invention and
reproduced below:
1. A method of allocating upstream resources to a plurality of cable
modems, comprising:
grouping the plurality of cable modems into a plurality of groups
based on quality of service requirements of each of the cable modems;
ordering allocation of said upstream resources to each of the
plurality of cable modems based on the group to which each of the
cable modems belongs; and
allocating said upstream resources to each of the cable modems
based on the ordering.

REFERENCES
Fijolek US 6,553,568 B1 Apr. 22, 2003

Zadikian US 6,912,221 B1 Jun. 28, 2005
(filed Jan. 4, 2000)

REJECTIONS AT ISSUE
Claims 1 and 3-5 are rejected under 35 U.S.C. § 102(e) as being
anticipated by Fijolek. Ans. 2-3.
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Claims 6-31 and 34 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fijolek in view of Zadikian. Ans. 3-6.

ISSUES
Claim 1
Appellant argues on pages 6-9 of the Appeal Brief that the Examiner’s
rejection of claim 1 is in error. Appellant argues that Fijolek does not
disclose ordering allocation of upstream resources based on each cable
modem’s group and allocating upstream resources based on the ordering.
App. Br. 7.
Thus, with respect to claim 1, Appellant’s contention presents us with
the issue: Did the Examiner err in finding that Fijolek discloses ordering
allocation of upstream resources to each of a plurality of cable modems
based on a group to which each of the cable modems belongs, and allocating
upstream resources to each of the cable modems based on the ordering?
Claims 6-7
Appellant argues on page 13 of the Appeal Brief that the Examiner’s
rejection of claims 6-7 is in error. Claims 6 and 7 are dependent upon claim
1. Appellant argues that these claims are allowable based upon their
dependency on claim 1 and since Zadikian does not remedy the deficiencies
of Fijolek. App. Br. 13. Thus, with respect to claims 6-7, Appellant’s
contention presents us with the same issue as claim 1.
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Claim 3
Appellant argues on pages 9-10 of the Appeal Brief that the
Examiner’s rejection of claim 3 is in error. Claim 3 is dependent upon claim
1. Appellant makes the same arguments with respect to claim 3 as with
claim 1. App. Br. 9. Additionally, Appellant argues that Fijolek does not
disclose “assigning initialization channels of the upstream resources to each
of the plurality of cable modems based on the groupings of the plurality of
cable modems.” App. Br. 10.
Thus, with respect to claim 3, Appellant’s contention presents us with
the same issues as claim 1 and one additional issue: Did the Examiner err in
finding that Fijolek discloses assigning initialization channels of the
upstream resources to each of the plurality of cable modems based on the
groupings of the plurality of cable modems?
Claim 4
Appellant argues on pages 10-11 of the Appeal Brief that the
Examiner’s rejection of claim 4 is in error. Claim 4 is dependent upon claim
1. Appellant makes the same arguments with respect to claim 4 as with
claim 1. App. Br. 10. Additionally, Appellant argues that Fijolek does not
disclose “assigning registration channels of the upstream resources to each
of the plurality of cable modems based on the groupings of the cable
modems.” App. Br. 11.
Thus, with respect to claim 4, Appellant’s contention presents us with
the same issues as claim 1 and the additional issue: Did the Examiner err in
finding that Fijolek discloses assigning registration channels of the upstream
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resources to each of the plurality of cable modems based on the groupings of
the cable modems?
Claim 5
Appellant argues on pages 11-12 of the Appeal Brief that the
Examiner’s rejection of claim 5 is in error. Claim 5 is dependent upon claim
1. Appellant makes the same arguments with respect to claim 5 as with
claim 1. App. Br. 11. Additionally, Appellant argues that Fijolek does not
disclose “that a first group of the plurality of groups comprises message
transferring agents.” App. Br. 12.
Thus, with respect to claim 5, Appellant’s contention presents us with
the same issue as claim 1 and the additional issue: Did the Examiner err in
finding that Fijolek discloses that a first group of the plurality of groups
comprises message transferring agents?
Claims 8, 13, and 14
Appellant argues on pages 13-15 of the Appeal Brief that the
Examiner’s rejection of claims 8, 13, and 14 is in error. Appellant selects
claim 8 as representative of the group comprising claims 8, 13, and 14. App.
Br. 15. Appellant argues that Fijolek and Zadikian do not disclose allocating
upstream resources in a determined order. App. Br. 13-14.
Thus, with respect to claims 8, 13, and 14, Appellant’s contention
presents us with the issue: Did the Examiner err in finding that Fijolek and
Zadikian disclose determining an order for allocating upstream resources to
each of the plurality of CMs based on the group to which each of the CMs
belong?
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Claims 10 and 11
Appellant argues on pages 15-17 of the Appeal Brief that the
Examiner’s rejection of claims 10 and 11 is in error. Appellant argues that
claims 10 and 11 should be allowed for the same reasons as the claim from
which it depends. App. Br. 15 and 16. Also, Appellant makes the same
arguments as with respect to claim 3. App. Br. 16 and 17.
Thus, with respect to claim 10, Appellant’s contentions present us
with the same issues as claims 3 and 8.
Claim 12
Appellant argues on pages 17-18 of the Appeal Brief that the
Examiner’s rejection of claim 12 is in error. Appellant argues that claim 12
should be allowed for the same reasons as claim 8. App. Br. 17.
Additionally, Appellant makes the same arguments with respect to claim 12
as with claim 5.
Thus, with respect to claim 12, Appellant’s contentions present us
with the same issues as claims 5 and 8.
Claims 15-19, 20-22 and 24, and 34
Appellant argues on pages 18-19, 20-21, and 25-26 that the
Examiner’s rejection of claims 15-19, claims 20-22 and 24, and claim 34 is
in error. Appellant selects claim 15 as representative of the group
comprising claims 15-19 (App. Br. 19), claim 20 as representative of the
group comprising claims 20-22 and 24 (App. Br. 21), and claim 34 by itself
(App. Br. 25). Appellant makes the same argument with respect to claim 15,
20, and 34 as with respect to claim 8.
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Thus, with respect to claims 15-29, 20-22 and 24, and 34, Appellant’s
contentions present us with the same issues as claim 8.
Claims 25-28 and 31 and claim 29
Appellant argues on pages 22-26 that the Examiner’s rejection of
claims 25-28 and 31 and claim 29 is in error. Appellant argues that Fijolek
and Zadikian do not determine an order of assigning upstream channels
based on data retrieved from upstream channel requests. App. Br. 23.
Additionally, Appellant argues that claim 29 should be allowed based upon
its dependency on claim 27. App. Br. 24.
Thus, with respect to claims 25-28 and 31 and claim 29, Appellant’s
contentions present us with the same issue as claim 27 and the additional
issue: Did the Examiner err in finding that Fijolek and Zadikian discloses
determining an order in which to assign upstream channels to each of a
plurality of modems based on data retrieved from initial upstream channel
requests?

ANALYSIS
Claim 1
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 1. Claim 1 requires ordering upstream
resources to be allocated to each of the cable modems, based on each cable
modem’s group. Appellant argues that Fijolek does not disclose this
limitation because “specifying a maximum rate limit for a connection” is not
the same as ordering an allocation of resources. App. Br. 8. We disagree.
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First, the Examiner interprets “allocating” as “distributing according
to plan.” Ans. 6. Since Appellant has not provided a specific definition for
the term “allocating,” we find the Examiner’s interpretation to be
reasonable. Second, the Examiner finds that Fijolek’s cable modems are
grouped according to a quality of service. Ans. 6. Each of these groups has
an upstream speed associated with it, to which the Examiner interprets as an
upstream resource. Ans. 6-7. For instance, the Biz Gold group is
“allocated” a speed of 512K. Ans. 6. The Premium group is allocated a
speed of 40k. Ans. 6. Thus, the Examiner finds that Fijolek discloses the
claimed limitation since Fijolek discloses allocating a transmission rate, up
to a maximum rate limit, to a particular cable modem based upon the cable
modem’s group. Ans. 7. As such, we do not find Appellant’s arguments to
be persuasive.
Appellant additionally argues that Fijolek does not teach an upstream
speed, but rather the capability of transmitting at a higher speed. App. Br. 8-
9. We do not find this argument to be persuasive since the ability to have a
higher upstream speed is still an allocated resource. As such, we sustain the
Examiner’s rejection of claim 1.
Claims 6-7
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 6-7. Claims 6-7 depend upon claim 1.
Appellant’s arguments present the same issues discussed above with respect
to independent claim 1. App. Br. 13. Therefore, we sustain the Examiner’s
rejection of claims 6-7 for the reasons discussed supra with respect to claim
1.
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Claim 3
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 3. Claim 3 recites “assigning initialization
channels of the upstream resources to each of the plurality of cable modems
based on the grouping of the plurality of cable modems.” Claim 3 is
dependent upon claim 1. Appellant presents the same arguments discussed
above with respect to claim 1. App. Br. 9. Therefore, we do not find
Appellant’s previously presented arguments to be persuasive for the same
reasons as we stated above.
Appellant’s additional argument that Fijolek does not disclose
assigning initialization channels is also not persuasive. App. Br. 10. The
Examiner interprets a channel as a network address. Ans. 7. Appellant’s
Specification does not contain a specific definition for the term “channel.”
As a result, we find the Examiner’s interpretation to be reasonable. The
channel disclosed in Fijolek is initially assigned in response to a request.
Ans. 7. Therefore, Fijolek does disclose assigning an initialization channel.
Thus, we sustain the Examiner’s rejection of claim 3.
Claim 4
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 4. Claim 4 recites “assigning registration
channels of the upstream resources to each of the plurality of cable modems
based on the grouping of the plurality of cable modems.” Claim 4 is
dependent upon claim 1. Appellant presents the same arguments discussed
above with respect to claim 1. App. Br. 10. Therefore, we do not find
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Appellant’s previously presented arguments to be persuasive for the same
reasons as we stated above.
Appellant’s additional argument that requesting a specific IP address,
as disclosed in Fijolek, is not the same as assigning registration channels.
App. Br. 11. As disclosed above, the Examiner interprets a channel as a
network address which includes an IP address. Ans. 8. Therefore, since
Fijolek discloses assigning an IP address in response to a request, Fijolek
discloses assigning registration channels. Since Appellant has not responded
to the Examiner’s finding we do not find Appellant’s argument to be
persuasive. As a result, we sustain the Examiner’s rejection of claim 4.
Claim 5
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of claim 5. Claim 5 recites “wherein a first group of the plurality
of groups comprises message transferring agents.” Appellant’s initial
argument that claim 5 should be allowed for the same reasons as claim 1 is
not persuasive. However, Appellant’s additional argument is persuasive.
The Examiner finds that a TSI message is a message transferring agent.
Ans. 8. Appellant argues that Fijolek does not disclose a group that
comprises message transferring agents. App. Br. 12. We concur with
Appellant since the Examiner has not sufficiently disclosed how a TSI
message is the same as a message transferring agent. Thus, we will not
sustain the Examiner’s rejection of claim 5.
Claims 8, 13, and 14
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 8. Claim 8 recites “determining an order for
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allocating upstream resources to each of the plurality of CMs based on the
group to which each of the CMs belongs.” Appellant argues that Zadikian
restores failed connections based on the particular quality of service of the
CMs. App. Br. 14. This is not the same as determining an order for
allocating upstream resources since a connection is not an upstream
resource. App. Br. 14. We disagree.
Appellant does not supply sufficient evidence to support the argument
that a connection is not an upstream resource. Additionally, not only does
the Examiner find that Zadikian discloses restoring connections that have the
highest priority first (Ans. 8.), but Fijolek discloses assigning priority to the
different service level agreements (Col. 18, ll. 43-45), wherein the service
level agreements are how the CMs are grouped (Ans. 6.) Thus, the
combination of Zadikian’s priority restoration of connections based upon
Fijolek’s CM groupings discloses the claimed limitation. As a result, we
sustain the Examiner’s rejection of claim 8 and claims 13 and 14 that have
been grouped with claim 8.
Claims 10 and 11
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 10 and 11. Claims 10 and 11 are dependent
upon claim 8. Appellant’s arguments present the same issues discussed with
respect to claim 8. App. Br. 15-16. Additionally, Appellant’s arguments
present the same issues discussed with respect to claim 3. App. Br. 16-17.
Therefore, we sustain the Examiner’s rejection of claims 10 and 11 for the
reasons discussed supra with respect to claims 3 and 8.
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Claim 12
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claim 12. Claim 12 is dependent upon claim 8.
Appellant’s arguments present the same issues discussed above with respect
to claim 8. App. Br. 17. Additionally, Appellant’s arguments present the
same issues discussed with respect to claim 5. Therefore, we sustain the
Examiner’s rejection of claim 12 for the reasons discussed supra with
respect to claims 5 and 8.
Claims 15-19, 20-22 and 24, and 34
Appellant’s arguments have not persuaded us of error in the
Examiner’s rejection of claims 15, 20, and 34. Claims 15, 20, and 34
contain similar limitations discussed supra with respect to claim 8.
Appellant’s arguments present the same issues discussed supra with respect
to claim 8. App. Br. 18, 20, and 25. Therefore, we sustain the Examiner’s
rejection of claims 15, 20, and 34, and claims 16-19, and claims 21-22 and
24 that are grouped with claims 15 and 20 (respectively) for the reasons
discussed supra with respect to claim 8.
Claims 25-28 and 31 and claim 29
Appellant’s arguments have persuaded us of error in the Examiner’s
rejection of to claims 25-28 and 31 and claim 29. Claim 25 recites
“determining an order in which to assign upstream channels to each of the
plurality of modems based on the retrieved first data.” Claims 26-28 and 31
and claim 29 depend from claim 25. Appellant argues that neither Fijolek
nor Zadikian discloses an upstream channel request from which first data is
retrieved. We concur with Appellant. The Examiner has not addressed this
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argument in either the rejection or in the Examiner’s Answer. Therefore, we
will not sustain the Examiner’s rejection of claims 25-28 and 31 and claim
29.

CONCLUSION
The Examiner did not err in finding that Fijolek discloses ordering
allocation of upstream resources to each of a plurality of cable modems
based on a group to which each of the cable modems belongs, and allocating
upstream resources to each of the cable modems based on the ordering.
The Examiner did not err in finding that Fijolek discloses assigning
initialization channels of the upstream resources to each of the plurality of
cable modems based on the groupings of the plurality of cable modems.
The Examiner did not err in finding that Fijolek discloses assigning
registration channels of the upstream resources to each of the plurality of
cable modems based on the groupings of the cable modems.
The Examiner erred in finding that Fijolek discloses that a first group
of the plurality of groups comprises message transferring agents.
The Examiner did not err in finding that Fijolek and Zadikian disclose
determining an order for allocating upstream resources to each of the
plurality of CMs based on the group to which each of the CMs belong.
The Examiner erred in finding that Fijolek and Zadikian discloses
determining an order in which to assign upstream channels to each of a
plurality of modems based on data retrieved from initial upstream channel
requests.
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SUMMARY
The Examiner’s decision to reject claims 1, 3-4, 6-24, and 34 is
affirmed. The Examiner’s decision to reject claims 5 and 25-31 is reversed.
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).

AFFIRMED-IN-PART

ELD

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14