Ex Parte Brogdon et al

Board of Patent Appeals and Interferences

Dec 14, 2010

09905447 (B.P.A.I. Dec. 14, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JONATHAN BROGDON and ANDREW M. SPOONER
____________________

Appeal 2009-006249
Application 09/905,447
Technology Center 2400
____________________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and THU A.
DANG, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL1

1 The 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.

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Application 09/905,447

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I. STATEMENT OF THE CASE
Appellants appeal from the Examiner’s final rejection of claims 1-31
under 35 U.S.C. § 134(a) (2002). We have jurisdiction under 35 U.S.C.
§ 6(b) (2008).
We affirm.

A. INVENTION
According to Appellants, the invention relates generally to computer
networks, and more specifically relates to a system and method for
providing quality of service to a DSL network interfaced with the internet
(Spec. 1, ll. 2-5).

B. ILLUSTRATIVE CLAIM
Claim 1 is exemplary and are reproduced below:
1. A method for providing quality of service in a DSL network, the
method comprising:

receiving a request at the DSL network to establish a network
connection between a DSL endpoint associated with the DSL network and
an Internet endpoint;

determining a network quality of service parameter associated with
the request and the Internet endpoint, wherein the determining of the
network quality of service includes determining if the request is from a
network having a layer 3 IP quality of service or a layer 2 ATM quality of
service;

mapping the network quality of service parameter to a DSL quality of
service parameter based on a connection type, wherein the mapping
operation correlates the DSL quality of service parameter to layer 1
parameters of the network quality of service parameter, and wherein the
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layer 1 parameters comprise cell delay, cell delay variation, and cell loss;
and

establishing the network connection between the DSL endpoint and
the Internet endpoint by applying the DSL quality of service parameter at the
DSL network.

C. REJECTIONS
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Sethuram US 6,058,114 May 2, 2000
Wang US 6,693,912 B1 Feb. 17, 2004
(filed Apr. 4, 2000)
Hugenberg US 6,714,545 B1 Mar. 30, 2004
(filed Mar. 3, 2000)

Claims 1-31 stand rejected under 35 U.S.C. § 112, second paragraph,
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which Appellants regard as the invention.
Claims 1-31 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the teachings of Hugenberg, Wang, and Sethuram.

II. ISSUE
Has the Examiner erred in concluding that:
1) the language of claims 1-31 is indefinite?
2) Hugenberg in view of Wang and Sethuram would have suggested
“mapping the network quality of service parameter to a DSL quality of
service parameter based on a connection type” (claim 1)? In particular, the
issue turns on whether Wang would have suggested mapping the network
quality of service parameter to a DSL quality of server parameter.
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III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Hugenberg
1. Hugenberg discloses a VDSL platform that supports Quality of
Service (QOS) and Class of Service (COS) at IP and/or ATM layers
and multi-protocol support over ATM (col. 2, ll. 23-26).
Wang
2. Wang recognizes that a connection passes through two
communication networks that guarantee quality of service in different
ways (Abstract), and thus, teaches mapping quality of service on one
network to quality of service on another network (id.).
Sethuram
3. Sethuram discloses the use of cell loss rate, cell delay and cell delay
variation as Quality of Service (QOS) parameters (col. 4, ll. 30-33).

IV. ANALYSIS
112, 2nd Paragraph
As to claims 1, 14, and 27, the Examiner finds that “the limitation
‘wherein the layer 1 parameters comprise cell delay, cell delay variation, and
cell loss’ is unclear” (Ans. 4). In particular, the Examiner finds that “[t]he
specification clearly describes these parameters as ‘layer 2 and 3 quality of
service parameters’” and “[c]laiming them as layer 1 parameters renders the
claim indefinite” (id.).
The Examiner also finds that 1) “[w]ith regard to claim 1, the
limitation ‘layer 1 parameters of the network quality of service parameter’ is
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unclear” (id.), 2) “[w]ith regard to claim 2, the limitation ‘wherein the
Internet network quality of service parameter comprises an IP quality of
service parameter’ is unclear” (id.), 3) “[w]ith regard to claim 3, the
limitation ‘wherein the Internet network quality of service parameter
comprises and ATM quality of service parameter’ is unclear” (Ans. 5), 4)
“[w]ith regard to claim 4, the limitation ‘wherein the network quality of
service parameter comprises a cell delay parameter’ is unclear” (id.), and 5)
“[w]ith regard to claims 8-10, these claims recite a similar limitation to
claim 4” and thus are similarly rejected (Ans. 5-6).
The Examiner then notes that “Appellants have failed to present any
arguments, substantive or otherwise, directed to the rejection of claims 1-31
under 35 U.S.C. § 112, second paragraph, and that this rejection
encompasses all claims on appeal” (Ans. 13). After reviewing the record on
appeal, we agree with the Examiner and find that Appellants have failed to
present any substantive argument to show error in the Examiner’s legal
conclusion under 35 U.S.C. § 112, second paragraph. (App. Br. 12-17).
Though Appellants attempt to remedy the deficiencies of the Appeal
Brief by adding in the Reply Brief that “one of ordinary skill in the art would
interpret the claims as correlating DSL quality of service parameters to layer
2 and 3 quality of service parameters” (Reply Br. 4), we find such broad
statement is not a substantive argument showing error in the Examiner’s
legal conclusion under 35 U.S.C. § 112, second paragraph. In particular, a
broad statement as to obviousness of a correlation between DSL QOS
parameters to layer 2 and 3 QOS parameters does not show error in the
Examiner’s legal conclusion that “[c]laiming them as layer 1 parameters
renders the claim indefinite” (Ans. 4). Furthermore, Appellants do not even
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address the Examiner’s conclusion with respect to claims 1-4 and 8-10 set
forth on pages 4-6 of the Answer (Reply Br. 4).
Accordingly, we find Appellants have not shown the Examiner erred
in concluding that the language of claims 1-31 is indefinite under Section
112, 2nd Paragraph.

35 U.S.C. § 103(a)
Appellants argue that “none of the references alone or in combination
teach… ‘the mapping operation correlates the DSL quality of service
parameter to layer 1 parameters of the network quality of service
parameter…” (App. Br. 12). In particular, Appellants contend that “there is
no recitation of establishing the network connection between the DSL
endpoint and the Internet endpoint by applying the DSL quality of service
parameter at the DSL network” (App. Br. 13). Appellants contend that
Sethuram “has noting to do with performing mapping operations in a DSL
network” and that Wang “does not even apply any type of DSL quality of
service: much less one at the origin of the request and much less one that
accounts for the layer 1 activity as identified” (App. Br. 12-13).
Though the Examiner finds that “Hugenberg discloses establishing the
network connection between the DSL endpoint and the Internet endpoint by
applying the DSL QoS parameter at the DSL network” (Ans. 15), and
nonobviousness cannot be shown by attacking the references individually, In
re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986), after reviewing the
record on appeal, we agree with the Appellants that the sections of the cited
references relied upon by the Examiner do not teach or suggest “mapping
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the network quality of service parameter to a DSL quality of service
parameter based on a connection type” as required by claim 1.
Hugenberg discloses a VDSL platform that supports Quality of
Service (QOS) and Class of Service (COS) at IP and/or ATM layers and
multi-protocol support over ATM (FF 1). We agree with Appellants that
there is no mapping of network QoS parameter to DSL QoS in Hugenberg.
Though Wang recognizes that a connection passes through two
networks that guarantee QoS in different ways and teaches mapping QoS on
one network to QoS on another network (FF 2), Wang also does not teach
mapping of network QoS parameter to DSL QoS. That is, Wang teaches
mapping between QoS on networks and not mapping between network QoS
parameter and DSL QoS. Furthermore, we agree with Appellants that Wang
“fails to disclose, teach, or suggest ‘mapping the network quality of service
parameter to a DSL quality of service parameter based on a connection
type’ of Claim 1 (emphasis added)” (Reply Br. 6).
Sethuram discloses the use of cell loss rate, cell delay and cell delay
variation as Quality of Service (QOS) parameters (FF 3). As admitted by
the Examiner, “Sethuram was relied upon only for its general teaching that
cell delay, cell delay variation, and cell loss are known QoS parameters in
ATM networks” (Ans. 15).
Accordingly, we find that there is no teaching or even suggestion in
the sections cited by the Examiner of Hugenberg, Wang, and Sethuram of
“mapping the network quality of service parameter to a DSL quality of
service parameter based on a connection type” as required by claim 1.
Thus, we reverse the rejection of independent claim 1, independent claims
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14 and 27 standing therewith, and claims 2-13, 15-26, and 28-31
respectively depending therefrom over the teachings of Hugenberg in view
of Wang and Sethuram.

V. CONCLUSION AND DECISION
We affirm the Examiner’s legal conclusion that claims 1-31 are
indefinite under 35 U.S.C. § 112, second paragraph.
We reverse the Examiner’s legal conclusion that claims 1-31 are
unpatentable under 35 U.S.C. § 103(a).
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

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