Ex Parte Bialk et al

Board of Patent Appeals and Interferences

Oct 31, 2008

09851285 (B.P.A.I. Oct. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte HARVEY R. BIALK and JYOTI A. KULKARNI
_____________

Appeal 2008-0355
Application 09/851,285
Technology Center 2400
______________

Decided: October 31, 2008
_______________

Before KENNETH W. HAIRSTON, ROBERT E. NAPPI, and KARL D.
EASTHOM Administrative Patent Judges.

NAPPI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 of the rejection of
claims 1 through 11, 13 through 25, and 27.
We affirm-in-part the Examiner’s rejections of these claims.

Appeal 2008-0355
Application 09/851,285

INVENTION

The invention is directed to a system for managing a hybrid fiber coax
network. The system makes use of a database of the physical and logical
configuration of elements in the network. The database also includes
information about elements not in the network (e.g. devices that may be used
in the network at a later date). See pages 3 and 4 of Appellants’
Specification. Claim 1 is representative of the invention and is reproduced
below:
1. In a broadband network having a hybrid fiber coax (HFC)
network having network elements operable for communicating
telephony, data, and video signals with customer-premises equipment
(CPE) of subscriber households, the network elements including a
host digital terminal (HDT) for communicating the telephony signals,
a cable modem termination system (CMTS) for communicating the
data signals, and video equipment for communicating the video
signals, a fiber optics network connecting the HDT, CMTS, and video
equipment to a fiber optics node, and a coax cable network connecting
the fiber optics node to the CPE of the subscriber households, an HFC
network management system comprising:
a service, design, and inventory (SDI) system having a database
operable for storing data indicative of an inventory of the network
elements and the CPE in the HFC network and an inventory of CPE
which are out of the HFC network, for storing data indicative of
configuration and connectivity of the network elements and the CPE
in the HFC network, and for storing data indicative of assigned
capacity of the HFC network based on the configuration and the
connectivity of the network elements and the CPE in the HFC
network; and
an online provisioning application link (OPAL) operable with
the database of the SDI system for provisioning a CPE in the
inventory of CPE which are out of the HFC network to be added into
the HFC network and for provisioning network elements in the HFC
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Application 09/851,285

network with the CPE added into the HFC network based on the
assigned capacity of the network elements.

REFERENCES

Opoczynski US 5,519,830 May 21, 1996
Dev US 5,559,955 Sep. 24, 1996
Farry US 5,608,447 Mar. 4, 1997
Gorman US 6,137,793 Oct. 24, 2000
Cutaia US 2002/0004390A1 Jan. 10, 2002

REJECTIONS AT ISSUE
The Examiner has rejected claims 1 through 11, 13 through 25, and
27 under 35 U.S.C. § 103(a) as being unpatentable over the collective
teachings of Farry, Opoczynski, Gorman, Dev, and Cutaia.
ANALYSIS
Initially, we note that Appellants have not presented separate
arguments directed to independent claim 13 or dependent claims 14 through
16. While we recognize that Appellants attempted to cancel these claims in
an amendment, submitted after final (dated November 5, 2006), the
Examiner denied entry of this amendment (see Advisory Action Dated
November 17, 2006). Accordingly, claims 13 through 16 are still pending
and stand rejected. As Appellants have not presented arguments directed to
these claims, we summarily affirm the Examiner’s rejection of these claims.
Appellants argue on pages 8 through 13 of the Appeal Brief (dated
November 6, 2006) and pages 2 through 4 of the Reply Brief (dated April 4,
2007) that the Examiner’s rejection of independent claims 1 and 17 is in
error. Appellants argue on page 12 of the Appeal Brief and page 3 of the
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Reply Brief that contrary to the Examiner’s finding in the statement of the
rejection, Farley “does not teach or suggest the provisioning network
elements with CPE [customer premise equipment] based upon assigned
capacity of the network elements as claimed.” In response the Examiner
states:
[P]ermanent virtual circuits disclosed by Farry are in fact themselves
information representative of the assigned capacity of network
elements. A virtual circuit is simply a descriptive piece of
information describing path, or chain of nodes, that connects a
customer with a service provider. A virtual circuit doesn't have
"capacity” per se, because it is nothing more than a series of
instructions describing the path through a network that an information
stream will take. On the other hand the availability of predefined
permanent virtual circuits is information that is directly related to the
capacity of the network elements, because any one network element
will only support as many streams as there are permanent virtual
circuits that include said network element in the paths they describe,
and the number of total permanent virtual circuits represents the
operating capacity of the entire network. Therefore the assignment of
a permanent virtual circuit to a customer premises equipment is to
provision network elements based on their assigned capacity, as
claimed.

We disagree with the Examiner’s rationale. Claim 1 recites “an online
provisioning application … for provisioning network elements in the HFC
[hybrid fiber coax] network with CPE [customer premise equipment] added
into the HFC network based on the assigned capacity of the network
elements.” Independent claim 17, recites a similar limitation. Thus, the
scope of independent claims 1 and 17 includes that provisioning is
performed based upon assigned capacity of network elements. As identified
above, the Examiner’s rejection of these claims relies upon Farry to teach
the limitation of provisioning based upon capacity. We agree with the
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Examiner that Farry teaches that CPE are assigned to virtual circuits (which
include network elements). Farry teaches that the table of virtual circuits
includes paths through the ATM switch and the distribution component to
the terminal. Col. 7, ll. 24-26, col. 11, ll. 32-36. Thus, the virtual paths
involve several pieces of equipment. However, we find no discussion in
Farry concerning the capacity of the path or the assignment of the path being
based upon the assigned capacity of the equipment in the path. The
Examiner has not found, nor do we find, that the other references relied upon
in the rejection of independent claims 1 and 17 teach that provisioning is
performed based upon assigned capacity of network elements. As the
references do not teach all of the limitations of independent claims 1 and 17,
we will not sustain the Examiner’s rejection of claims 1 through 11, 17
through 25, and 27.

SUMMARY
Appellants have presented no arguments directed to the rejection of
claims 13 through 16, accordingly, we affirm the Examiner’s rejection of
these claims. Appellants’ arguments have persuaded us of error in the
Examiner’s rejection of claims 1 through 11, 17 through 25, and 27, and we
reverse the Examiner’s rejection of those claims.
The decision of the Examiner is affirmed-in-part.
No period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

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AFFIRMED-IN-PART

eld

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