Ex Parte Brogdon et alDownload PDFBoard of Patent Appeals and InterferencesDec 14, 201009905447 (B.P.A.I. Dec. 14, 2010) Copy Citation 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. Appeal 2009-006249 Application 09/905,447 2 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 Appeal 2009-006249 Application 09/905,447 3 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. Appeal 2009-006249 Application 09/905,447 4 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 Appeal 2009-006249 Application 09/905,447 5 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 Appeal 2009-006249 Application 09/905,447 6 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 Appeal 2009-006249 Application 09/905,447 7 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 Appeal 2009-006249 Application 09/905,447 8 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 rwk BAKER BOTTS L.L.P. 2001 ROSS AVENUE SUITE 600 DALLAS, TX 75201-2980 Copy with citationCopy as parenthetical citation