Ex Parte Cooper

Patent Trial and Appeal Board

Dec 5, 2016

13144904 (P.T.A.B. Dec. 5, 2016)

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
24113 7590 12/06/2016
PATTERSON THUENTE PEDERSEN, P.A.
80 SOUTH 8TH STREET
4800 IDS CENTER
MINNEAPOLIS, MN 55402-2100
EXAMINER
JANGBAHADUR, LAKERAM
ART UNIT PAPER NUMBER
2469
MAIL DATE DELIVERY MODE
12/06/2016 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte IAN ROBERT COOPER
____________

Appeal 2015-006504
Application 13/144,904
Technology Center 2400
____________

Before MAHSHID D. SAADAT, KAMRAN JIVANI, and
STEVEN M. AMUNDSON, Administrative Patent Judges.

AMUNDSON, Administrative Patent Judge.

DECISION ON APPEAL

Appellant1 seeks our review under 35 U.S.C. § 134(a) from a final
rejection of claims 1–12, i.e., all pending claims. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 According to Appellant, the real party in interest is British
Telecommunications Public Limited Company. App. Br. 2.
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STATEMENT OF THE CASE
The Invention
According to the Specification, the “invention relates to
telecommunications systems and in particular to the management of network
equipment interfacing between a network and individual customer premises
systems.” Spec. 1:8–10.2 In an embodiment of the invention, a “network
distribution point” incorporates a “dynamic line management system for
processing data relating to the capabilities” of each of several “digital
subscriber loops, and generat[es] a profile of each digital subscriber loop . . .
to allow control of the transmission of data to the individual termination
points.” Id. 4:6–13.
Exemplary Claim
Independent claim 1 exemplifies the subject matter of the claims
under consideration and reads as follows:
1. A network distribution point for operation as a node in a
telecommunications system intermediate between and
interfacing with a remote access server and a plurality of
individual termination points served from the remote access
server by respective digital subscriber loops, the network
distribution point comprising:
a digital subscriber loop access multiplexer [DSLAM]
providing a plurality of digital subscriber lines interfacing with
the plurality of individual termination points, and providing a
multiplexed digital subscriber line connected to the remote
access server; and

2 This decision uses the following abbreviations: “Spec.” for the
Specification, filed July 15, 2011; “Final Act.” for the Final Office Action,
mailed August 6, 2014; “App. Br.” for the Appeal Brief, filed January 28,
2015; “Ans.” for the Examiner’s Answer, mailed April 20, 2015; and
“Reply Br.” for the Reply Brief, filed June 19, 2015.
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a dynamic line management system for processing data
relating to capabilities of each of the digital subscriber loops,
and 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.
App. Br. 26 (Claims App.).
The Prior Art Supporting the Rejections on Appeal
The Rejections on Appeal
Claims 1–3 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Pickering ‘647 and Everett. Final Act. 8–10; App. Br. 9–10.
Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Pickering ‘647, Everett, and Duan. Final Act. 13–14; App. Br. 9–10.
Claim 5 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Pickering ‘647, Everett, and Brown. Final Act. 14; App. Br. 9–10.
Claims 6 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Pickering ‘559 and Everett. Final Act. 11–13; App.
Br. 9–10.
Nugent US 2003/0236760 A1 Dec. 25, 2003
Cherkassky US 7,013,244 B2 Mar. 14, 2006
Brown et al.
(“Brown”)
US 7,058,122 B2 June 6, 2006
Duan et al.
(“Duan”)
US 2006/0224532 A1 Oct. 5, 2006
Pickering et al.
(“Pickering ‘559”)
US 2009/0103559 A1 Apr. 23, 2009
Pickering et al.
(“Pickering ‘647”)
US 2009/0262647 A1 Oct. 22, 2009
Everett et al.
(“Everett”)
US 2010/0293274 A1 Nov. 18, 2010
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Claim 8 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Pickering ‘559, Everett, and Nugent. Final Act. 15; App. Br. 9–10.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Pickering ‘559, Everett, Nugent, and Duan. Final Act. 15–16; App.
Br. 9–10.
Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Pickering ‘559, Everett, Nugent, and Cherkassky. Final
Act. 16–18; App. Br. 9–10.
Claim 12 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Pickering ‘559, Everett, and Brown. Final Act. 18; App. Br. 9–10.

ANALYSIS
We have reviewed the rejection of claims 1–12 in light of Appellant’s
arguments that the Examiner erred. For the reasons explained below, we
disagree with Appellant’s assertions regarding error by the Examiner.
The Rejection of Claim 1 Under 35 U.S.C. § 103(a)
THE DISCLOSURE OF EVERY LIMITATION IN CLAIM 1
Appellant argues that the Examiner erred in rejecting claim 1 because
“neither Pickering ‘647 nor Everett discloses or suggests a network
distribution point comprising both a DSLAM and a dynamic line
management system” as recited in claim 1. App. Br. 9. According to
Appellant, “both Pickering ‘647 and Everett lack a dynamic line
management device comprising part of the network distribution point as
claimed.” Id. at 11. Appellant asserts that both references “disclose the
same type of system architecture” where “a single management device
controls a plurality of DSLAMs from a remote, management layer
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configuration” unlike claim 1. Id. at 13. Appellant also asserts that
Pickering ‘647 discloses a single management device that “is remote from
the DSLAMs” and “interfaces only with the DSLAMs and the Interface
device” for the broadband remote access server (BRAS). Reply Br. 5.
The Examiner finds, however, that Pickering ‘647 discloses a
“network distribution point” comprising a DSLAM as recited in claim 1.
Final Act. 8–9; Ans. 2–3, 15–16. In addition, the Examiner finds that
Everett discloses a “dynamic line management system” as recited in claim 1.
Final Act. 4, 9; Ans. 3, 16. To reject claim 1, the Examiner relies on the
Pickering-Everett combination, reasoning that the combination “would
natural[ly] lead to a network distribution point . . . intermediate between and
interfacing with a remote access server and a plurality of individual
termination points, the network distribution point comprising a digital
subscriber loop access multiplexer (DSLAM) and a dynamic line
management system.” Ans. 16; see id. at 17.
We agree with the Examiner that the combination of Pickering ‘647
and Everett teaches the claimed subject matter. Final Act. 8–9; Ans. 2–3,
15–16. Appellant attacks the references individually, e.g., asserting that
each does not disclose or suggest a “network distribution point” comprising
a DSLAM and a dynamic line management system. App. Br. 9–13; Reply
Br. 4–5; see Final Act. 6. Where a rejection rests on a combination of
references, however, an appellant cannot establish nonobviousness by
attacking the references individually. See In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986).
Appellant contends that combining Pickering’s management device
with just one of Pickering’s several DSLAMs “results in all but one of the
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DSLAMs being uncontrolled and therefore inoperative . . . .” App. Br. 13.
In response, the Examiner explains that the rejection rests on “combining the
functionality” of various components disclosed in the references to “operate
as a node.” Ans. 17. “Combining the teachings of references does not
involve an ability to combine their specific structures.” In re Nievelt,
482 F.2d 965, 968 (CCPA 1973). Moreover, obviousness does not depend
on “whether the features of a secondary reference may be bodily
incorporated into the structure of the primary reference.” In re Keller,
642 F.2d 413, 425 (CCPA 1981). Consequently, Appellant’s contention
does not establish Examiner error.
Appellant argues that locating a management device “in a control
layer” according to Pickering ‘647 and Everett instead of a “network
distribution point” according to claim 1 “obviates many of the improvements
associated with the invention . . . .” Reply Br. 5. But claim 1 does not
specify operation at any particular layer. App. Br. 26 (Claims App.).
Appellant’s argument is not commensurate in scope with claim 1.
MOTIVATION TO COMBINE
The Examiner determines that the motivation to combine
Pickering ‘647 and Everett “is found in the Everett reference itself.”
Ans. 18. The Examiner reasons that “[i]t would have been obvious to
improve” a distribution point according to Pickering ‘647 to include the
limitations taught by Everett because that would provide the distribution
point with “the enhanced capability . . . of monitoring the DLM profile and
transition the connection from its current DLM profile to a more stable DLM
profile, to maintain the stability level of the line” or transition “to a less
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stable profile [to] improve bandwidth, thus maximizing the data rate.” Id.
at 18–19 (citing Everett ¶¶ 9–12).
Appellant asserts that “[t]he Examiner erred in rejecting claim 1 by
not providing a sufficient rationale to support” the Pickering-Everett
combination. App. Br. 14. Appellant further asserts that the “stability
policies and levels” the Examiner relies on “have no relation to the features
of Everett that the Examiner suggests [in] combining with Pickering ‘647
and are different from that which the Application discloses as a goal . . . .”
Id.
We are not persuaded by Appellant’s assertions. Everett discloses a
method that “permits different stability policies (each of which corresponds
to or specifies a stability level) to be applied to different data connections to
reflect the different possible uses for the connection which may place
different values on the relative merits of line stability, bandwidth and
latency.” Everett ¶ 10. Everett teaches that “different users may well have
very different tolerances to stability levels” and that one user “may well be
less tolerant to errors . . . and thus would prefer generally to achieve a
greater stability at the risk of perhaps having a slightly lower maximum
bandwidth” while another user may “prefer to have a slightly less stable
connection but one which . . . can achieve high throughputs.” Id. ¶ 11.
Thus, the Examiner has articulated some reasoning with a rational
underpinning for why a person of ordinary skill in the art at the time of the
invention would have combined Pickering ‘647 and Everett, including
identifying an advantage achieved with the combination. Ans. 18–19; see
Final Act. 10. “[A]ny need or problem known in the field of endeavor at the
time of invention and addressed by the patent can provide a reason for
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combining” references. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 420
(2007). The Specification explains that the invention “selects the optimum
rate profile for each line” by maximizing the line’s data rate while
maintaining the line’s stability. Spec. 1:18–22. As the Examiner notes,
Everett addresses the same need. Ans. 18–19 (citing Everett ¶¶ 9–12).
CLAIM 1’S PREAMBLE
The Examiner finds that Pickering ‘647 satisfies claim 1’s preamble.
Final Act. 2–3, 8; Ans. 2, 15. In the Answer, the Examiner also states that
the preamble “has not been given patentable weight . . . .” Id. at 18.
In the Reply Brief, Appellant argues that the “Examiner erred by
introducing a new rejection in the Answer without following the requisite
procedure” and failed to provide a “complete explanation supporting the
[new] rejection.” Reply Br. 6. Appellant also argues that “it is improper to
give no patentable weight to” to claim 1’s preamble because it “recites
limitations of the claim” and “give[s] life, meaning, and vitality” to the
claim by laying out “the structural arrangement between the various
components” in the claim’s body. Id. at 6–7 (emphasis omitted).
The Examiner’s statement regarding the patentable weight given to
the preamble notwithstanding, we agree with the Examiner’s finding that
Pickering ‘647 satisfies claim 1’s preamble. Final Act. 2–3, 8 (citing
Pickering ‘647 ¶¶ 17–18, Fig. 1); Ans. 2, 15 (citing Pickering ‘647 ¶¶ 17–18,
Fig. 1). In Pickering ‘647, a DSLAM interfaces with a broadband remote
access server (BRAS) and a plurality of individual customer premises
equipment. Final Act. 2–3, 8; Ans. 2, 15; see, e.g., Pickering ‘647 Fig. 1.
Appellant has not identified error in the Examiner’s finding. App. Br. 10–
13; Reply Br. 4–5.
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SUMMARY FOR CLAIM 1
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 1 for obviousness
based on Pickering ‘647 and Everett. Hence, we sustain the rejection.
The Rejection of Claim 6 Under 35 U.S.C. § 103(a)
THE DISCLOSURE OF EVERY LIMITATION IN CLAIM 6
Appellant argues that the Examiner erred in rejecting claim 6 because
Pickering ‘559 and Everett fail to disclose or suggest “a dynamic line
management system associated with” a “common distribution point” as
recited in claim 6. App. Br. 17–19; Reply Br. 8–10. Appellant contends that
Pickering ‘559 “discloses the same type of system architecture” as
Pickering ‘647 and Everett with a management device separate from a
DSLAM. App. Br. 17–18. Appellant also contends that claim 6 requires
“more than a mere coupling in which management device 100 is coupled to
several or all the DSLAMs 20” as in the references. Id. at 18; Reply Br. 9.
The Examiner finds, however, that Pickering ‘559 discloses a
“common distribution point” as recited in claim 6 that includes a DSLAM
and a management device. Final Act. 11–12; Ans. 5–6, 23–24. In addition,
the Examiner finds that Everett discloses a “dynamic line management
system” as recited in claim 6. Final Act. 12; Ans. 6, 24–25. To reject
claim 6, the Examiner relies on the Pickering-Everett combination,
reasoning that the combination “would natural[ly] lead to a method of
controlling transmission of data to individual network terminations”
according to claim 6. Ans. 25; see id. at 25–26.
We agree with the Examiner that the combination of Pickering ‘559
and Everett teaches the claimed subject matter. Final Act. 11–12; Ans. 5–6,
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23–25. As with claim 1, Appellant attacks the references individually. App.
Br. 17–19; Reply Br. 8–10. Where a rejection rests on a combination of
references, however, an appellant cannot establish nonobviousness by
attacking the references individually. See Merck, 800 F.2d at 1097.
MOTIVATION TO COMBINE
The Examiner determines that the motivation to combine
Pickering ‘559 and Everett “is found in the Everett reference itself.”
Ans. 26. The Examiner reasons that “[i]t would have been obvious to
improve” a distribution point according to Pickering ‘559 to include the
limitations taught by Everett because that would provide the distribution
point with “the enhanced capability . . . of monitoring the DLM profile and
transition the connection from its current DLM profile to a more stable DLM
profile, to maintain the stability level of the line” or transition “to a less
stable profile [to] improve bandwidth, thus maximizing the data rate.” Id.
(citing Everett ¶¶ 9–12).
Appellant asserts that “[t]he Examiner erred in rejecting claim 6 by
not providing a sufficient rationale to support” the Pickering-Everett
combination. App. Br. 19. Appellant further asserts that the “stability
policies and levels” the Examiner relies on “have no relation to the features
of Everett that the Examiner suggests [in] combining with Pickering ‘647
[sic] and are different from that which the Application discloses as a goal
. . . .” Id.
We are not persuaded by Appellant’s assertions. As discussed above,
Everett discloses a method that “permits different stability policies (each of
which corresponds to or specifies a stability level) to be applied to different
data connections to reflect the different possible uses for the connection
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which may place different values on the relative merits of line stability,
bandwidth and latency.” Everett ¶ 10. Everett teaches that “different users
may well have very different tolerances to stability levels” and that one user
“may well be less tolerant to errors . . . and thus would prefer generally to
achieve a greater stability at the risk of perhaps having a slightly lower
maximum bandwidth” while another user may “prefer to have a slightly less
stable connection but one which . . . can achieve high throughputs.” Id.
¶ 11.
Thus, the Examiner has articulated some reasoning with a rational
underpinning for why a person of ordinary skill in the art at the time of the
invention would have combined Pickering ‘559 and Everett, including
identifying an advantage achieved with the combination. Ans. 26–27; see
Final Act. 12–13.
SUMMARY FOR CLAIM 6
For the reasons discussed above, Appellant’s arguments have not
persuaded us that the Examiner erred in rejecting claim 6 for obviousness
based on Pickering ‘559 and Everett. Hence, we sustain the rejection.
The Rejection of Claim 8 Under 35 U.S.C. § 103(a)
The Examiner finds that Nugent discloses an “artificial neural
network” according to claim 8. Final Act. 15; Ans. 9, 28. The Examiner
determines that the motivation to combine Nugent with Pickering ‘559 and
Everett “is found in the Nugent reference itself.” Id. at 29. The Examiner
reasons that “[i]t would have been obvious to improve” a method according
to the Pickering-Everett combination to include the limitations taught by
Nugent because that would provide a “network distribution point with the
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enhanced capability so as to design the network without relying on computer
simulations for training . . . .” Id. (citing Nugent ¶ 19).
Appellant disputes that Nugent discloses an “artificial neural network”
according to claim 8. App. Br. 20–21. In various places, however, Nugent
discusses artificial neural networks. See, e.g., Nugent ¶¶ 3–9, 45, 61–73,
110–11. Nugent describes artificial neural networks as “systems composed
of many nonlinear computational elements operating in parallel and arranged
in patterns reminiscent of biological neural nets.” Id. ¶ 5. Nugent teaches
that the computational elements “are typically adapted during use to improve
performance.” Id. Moreover, Appellant does not address the Examiner’s
finding that Nugent discloses a multi-layer artificial neural network. App.
Br. 20–21; see Final Act. 15 (citing Nugent ¶ 29); Ans. 9 (citing Nugent
¶ 29). Consequently, we agree with the Examiner’s finding that Nugent
discloses an “artificial neural network” according to claim 8. Final Act. 15;
Ans. 9, 28.
Appellant asserts that Nugent concerns nanotechnology and “has no
relation to telecommunications networks.” App. Br. 21; see Reply Br. 11.
But Nugent discloses a pattern-recognition system, e.g., a speech-
recognition system, with a communication control unit that “transmits and/or
receives various data . . . through a communication network,” e.g., “a
telecommunications network, such as a wireless communications network.”
Nugent ¶¶ 110–11, 115, Fig. 12.
In addition, Nugent teaches that artificial neural networks “show the
greatest promise” for pattern-classification tasks, such as “automatic speaker
identification, automatic speech recognition and electro-cardiogram analysis,
etc.” Nugent ¶¶ 4, 9; see id. ¶ 110. Therefore, a person of ordinary skill in
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the art would have considered Nugent’s teachings applicable beyond
nanotechnology, e.g., to the “processing of data relating to a physical layer
of a digital subscriber loop” according to claim 8.
Appellant also asserts that the Examiner does not provide a sufficient
rationale to support the combination of Nugent with Pickering ‘559 and
Everett because the Examiner’s rationale “is unrelated to claim 8.” App.
Br. 21. As explained above, however, “any need or problem known in the
field of endeavor at the time of invention and addressed by the patent can
provide a reason for combining” references. KSR, 550 U.S. at 420. Here,
the Examiner has articulated some reasoning with a rational underpinning
for why a person of ordinary skill in the art at the time of the invention
would have combined Nugent with the other references, including
identifying an advantage achieved with an artificial neural network. Ans. 29
(citing Nugent ¶ 19); see Final Act. 15.
Accordingly, Appellant’s assertions have not persuaded us that the
Examiner erred in rejecting claim 8 for obviousness based on
Pickering ‘559, Everett, and Nugent. Hence, we sustain the rejection of
claim 8.
The Rejection of Claim 3 Under 35 U.S.C. § 103(a)
Appellant argues that the Examiner erred in rejecting claim 3 because
“the Examiner fails to identify any disclosure of an artificial neural network
in either Pickering ‘647 or Everett.” App. Br. 15. Appellant also argues that
in the Final Office Action the Examiner conceded “that the ‘combination of
Pickering [‘559] and Everett . . . does not explicitly disclose’” an “artificial
neural network” according to claim 8. Id. at 16 (citing Final Act. 15).
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In response, the Examiner explains that the Specification provides no
clear definition of “artificial neural network” and that the Examiner
“rejected claim 3 in view of appellant’s specification” using the broadest
reasonable interpretation of “artificial neural network.” Ans. 21. In
addition, the Examiner notes that “the examiner rejected claim 8 further in
view of Nugent . . . in order to provide a rejection using the disclosed
terminology.” Ans. 21.
We consider the Examiner’s failure to explicitly list Nugent when
rejecting claim 3 an inadvertent and harmless error. Claims 3 and 8 contain
identical language relating to an “artificial neural network.” App. Br. 26–27
(Claims App.). For the reasons explained above with respect to claim 8,
Appellant’s arguments have not persuaded us that the Examiner erred in
rejecting claim 3 as unpatentable under 35 U.S.C. § 103(a). Hence, we
sustain the rejection of claim 3.
The Rejection of Claim 9 Under 35 U.S.C. § 103(a)
The Examiner finds that Duan teaches an “artificial neural network
[that] is a Multilayer Perceptron” as recited in claim 9. Final Act. 16;
Ans. 10, 31. The Examiner determines that the motivation to combine Duan
with the other references “is found in the Duan reference itself.” Id. at 30.
The Examiner reasons that “[i]t would have been obvious to improve” a
method according to the combination of other references to include the
limitations taught by Duan because that “would provide the functionality to
improve trained neural networks and thus reach[] an optimal network
model.” Id. (citing Duan ¶ 31); see Final Act. 16.
Appellant argues that “none of Pickering ‘559, Everett or Nugent
discloses an artificial neural network” and that the Examiner’s rationale for
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combining Duan with the other references “is not sufficient.” App. Br. 22.
As discussed above, however, we agree with the Examiner’s finding that
Nugent discloses an artificial neural network. Final Act. 15; Ans. 9, 28.
Further, the Examiner has articulated some reasoning with a rational
underpinning for why a person of ordinary skill in the art at the time of the
invention would have combined Duan with Pickering ‘559, Everett, and
Nugent, including identifying an advantage achieved with the combination.
Ans. 30–31; see Final Act. 16.
Appellant also argues that Duan’s examples “have no relation to
telecommunications networks or systems . . . .” App. Br. 22; see Reply
Br. 11. But Duan discloses a computer operating “in a network
environment” and “connected to network devices” and further “connected to
remote computers.” Duan ¶ 65, Fig. 4. Duan explains that the computer
may interact with “a local area network (LAN), a wide area network
(WAN), and other networks” using a wide variety of network technologies,
including telecommunications technologies. Id. ¶ 65.
In addition, Duan teaches that “[i]t is now quite widely accepted that
certain aspects of adaptive competent behavior can be achieved through the
use of artificial neural networks” and that artificial neural networks “may be
used to great effect in standard tasks such as classification, regression or
prediction.” Duan ¶¶ 14–15, 17. Thus, Duan’s teaching is not limited to its
illustrative examples. See id. ¶ 96.
Accordingly, Appellant’s arguments have not persuaded us that the
Examiner erred in rejecting claim 9 for obviousness based on
Pickering ‘559, Everett, Nugent, and Duan. Hence, we sustain the rejection
of claim 9.
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The Rejection of Claim 4 Under 35 U.S.C. § 103(a)
The Examiner finds that Duan teaches an “artificial neural network
[that] is a Multilayer Perceptron” as recited in claim 4. Final Act. 13;
Ans. 7–8, 22. The Examiner determines that the motivation to combine
Duan with Pickering ‘647 and Everett “is found in the Duan reference
itself.” Id. at 21. The Examiner reasons that “[i]t would have been obvious
to improve” a distribution point to include the limitations taught by Duan
because that “would provide the functionality to improve trained neural
networks and thus reach[] an optimal network model.” Id. at 21–22 (citing
Duan ¶ 31); see Final Act. 13–14.
Appellant argues that the Examiner does not provide a sufficient
rationale to support the combination of Duan with Pickering ‘647 and
Everett. App. Br. 16–17. In particular, Appellant contends that
(1) Pickering ‘647 and Everett do not disclose an “artificial neural network”
according to claim 3 and (2) without that network “there can be no ‘trained
neural networks’ to improve.” App. Br. 16.
As with claim 3, we consider the Examiner’s failure to explicitly list
Nugent when rejecting claim 4 an inadvertent and harmless error. Claims 4
and 9 contain identical language relating to a “Multilayer Perceptron.” App.
Br. 26, 28 (Claims App.). For the reasons explained above with respect to
claim 9, Appellant’s assertions have not persuaded us that the Examiner
erred in rejecting claim 4 under 35 U.S.C. § 103(a). Hence, we sustain the
rejection of claim 4.
The Rejection of Claim 10 and 11 Under 35 U.S.C. § 103(a)
The Examiner finds that Cherkassky discloses (1) training prior to
installation and (2) data analysis as a single iteration according to claim 10.
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Final Act. 16–17; Ans. 10–11, 32. Further, the Examiner finds that
Cherkassky discloses optimization according to claim 11. Final Act. 17;
Ans. 11, 33–34. The Examiner determines that the motivation to combine
Cherkassky with the other references “is found in the Cherkassky reference
itself.” Id. at 32, 34. The Examiner reasons that “[i]t would have been
obvious to improve” a method according to the Pickering-Everett-Nugent
combination to include the limitations taught by Cherkassky because that
“would provide the functionality to support performance specifications, task
specifications and enable guarantee[d] performance.” Id. at 32, 34 (citing
Cherkassky 4:6–31).
Appellant asserts that “there simply is no disclosure in Cherkassky” of
the limitations in claims 10 and 11. App. Br. 23–24. Appellant does not,
however, address the Examiner’s findings that Cherkassky discloses (1) a
“framework [that] can be used to make single iteration decisions”; (2) using
sensors to take measurements subsequently processed by an estimating
module; and (3) an optimization method. Final Act. 16–17 (citing
Cherkassky 6:5–8, 9:52–53, 9:56–62); Ans. 11, 32–34 (citing Cherkassky
6:5–8, 9:52–53, 9:56–62).
Appellant contends that “Cherkassky teaches away from combination
with neural networks” because “Cherkassky identifies many ‘shortcomings’
of neural networks.” App. Br. 23–24. In response, the Examiner explains
that although Cherkassky identifies “shortcomings” of neural networks, the
Cherkassky “invention improves on these shortcomings.” Ans. 32, 34. In
the Reply Brief, Appellant does not address the Examiner’s determination
regarding Cherkassky’s improvements. Reply Br. 10.
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“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). Cherkassky refers to artificial neural networks when
discussing deficiencies in the prior art that Cherkassky’s invention allegedly
overcomes. Cherkassky 2:1–3:49. We agree with the Examiner that the
discussion of those deficiencies in connection with the invention’s
background would not discourage a person of ordinary skill from following
the teachings in Cherkassky that the Examiner relies upon for claims 10
and 11. See Ans. 32–34. Consequently, Appellant’s contentions have not
persuaded us that Cherkassky teaches away from the subject matter of
claims 10 and 11.
Accordingly, Appellant’s arguments have not persuaded us that the
Examiner erred in rejecting claims 10 and 11 for obviousness based on
Pickering ‘559, Everett, Nugent, and Cherkassky. Hence, we sustain the
rejection.
The Rejections of Claims 2, 5, 7,
and 12 Under 35 U.S.C. § 103(a)
Claims 2 and 5 depend from claim 1, while claims 7 and 12 depend
from claim 6. App. Br. 26–28 (Claims App.). Appellant does not articulate
any patentability arguments for these dependent claims beyond the
arguments regarding the associated independent claims. Id. at 15, 17, 20,
24; Reply Br. 7–8, 10. For instance, Appellant does not dispute the
teachings of Brown, which the Examiner relied on when rejecting claims 5
and 12. App. Br. 17, 24; see Final Act. 14, 18. Because Appellant does not
Appeal 2015-006504
Application 13/144,904

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argue these dependent claims separately, we sustain the rejections of claims
2, 5, 7, and 12. See 37 C.F.R. § 41.37(c)(1)(iv).

DECISION
We affirm the Examiner’s decision to reject claims 1–12.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).

AFFIRMED