Ex Parte Cruickshank et al

Patent Trial and Appeal Board

Oct 15, 2012

09995056 (P.T.A.B. Oct. 15, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT F. CRUICKSHANK III, DANIEL J. RICE,
JASON K. SCHNITZER, DENNIS J. PICKER,
RAPHAEL AARON LEEMAN, RAMESH H. VASWANI,
and ROBERT JAMES GAUVIN
____________

Appeal 2010-010244
Application 09/995,056
Technology Center 2400
____________

Before ROBERT E. NAPPI, JOHNNY A. KUMAR, and
RAMA G. ELLURU, Administrative Patent Judges.

KUMAR, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-010244
Application 09/995,056

2
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1, 12-14, 33, and 44-46. Claims 2-11, 15-22, 24-32, 34-43, 47-54,
and 56-66 have been cancelled. Claims 23, 55, and 67-85 have been
allowed. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
STATEMENT OF THE CASE1
Claims 1, 12, 13, and 14 which are illustrative of the invention, read
as follows:
1. A computer program product comprising computer-
executable instructions for causing a computer to:
obtain performance data related to performance of a
broadband network; and
provide a hierarchical display of network performance,
the hierarchical display including a first level with first data
indicative of network operation and a second level with second
data indicative of a plurality of issues comprising the first level
of network performance; wherein the second level includes
multiple issues that contain a third level with third data
indicative of network issues comprising at least some of the
secondary level issues;
the computer program product further comprising
instructions for causing the computer to analyze the more detail
and to provide an indication of a likely network problem, and a
suggested action for addressing the likely network problem.

12. The computer program product of claim 11 wherein the
instructions for causing the computer to combine the first
metrics by weighting different metrics differently dependent
upon perceived relevance of an issue associated with the metric
to network performance.

1 Our decision will make reference to Appellants’ Appeal Brief (“Br.,” filed
Aug. 12, 2008) and the Examiner’s Answer (“Ans.,” mailed Sept. 11, 2008).
Appeal 2010-010244
Application 09/995,056

3

13. A computer program product comprising computer-
executable instructions for causing a computer to:
obtain performance data related to performance of a
broadband network; and
provide a hierarchical display of network performance,
the hierarchical display including a first level with first data
indicative of network operation and a second level with second
data indicative of a plurality of issues comprising the first level
of network performance; wherein the second level includes
multiple issues that contain a third level with third data
indicative of network issues comprising at least some of the
secondary level issues, the computer program product further
comprising instructions for causing a computer to perform
comparisons of first metrics derived from raw data with
thresholds and to provide second metrics based upon the
comparisons.

14. The computer program product of claim 13 wherein the
second metrics provide indicia of grades of degraded
performance of portions of the network as a function of time.

The Examiner’s Rejections
Claims 1 and 33 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Foulger (US 2003/0018769 A1, Jan. 23, 2003). Ans. 3
Claims 12-14 and 44-46 stand rejected under 35 U.S.C. § 103(a) as
obvious over Foulger and Feinberg (US 6,798,745 B1, Sep. 28, 2004). Id.2

2 We removed claims 23 and 55 from the list of rejected claims because the
Examiner allowed these claims. See Ans. 14.

Appeal 2010-010244
Application 09/995,056

4
Appellants’ Contentions3
Appellants contend that:
1. The Examiner erred in rejecting claim 1 (and claim 33) because the
cited portions of Foulger do not disclose “to analyze the more
detail and to provide an indication of a likely network problem,
and a suggested action for addressing the likely network problem,”
as recited in claim 1. Br. 10-11. Also, Foulger does not disclose
analyzing the locations of network elements or metrics associated
with the network elements to provide an indication of a likely
network problem, and a suggested action for addressing the likely
network problem. Id.
2. The Examiner erred in rejecting claim 12 (and claim 44) because
Foulger and Feinberg do not teach or suggest to “combine the first
metrics by weighting different metrics differently dependent upon
perceived relevance of an issue associated with the metric to
network performance.” Br. 11-12.
3. The Examiner erred in rejecting claim 13 (and claim 45) because
Foulger and Feinberg do not teach or suggest to “perform
comparisons of first metrics derived from raw data with thresholds
and to provide second metrics based upon the comparisons,” as
recited in claim 13. Br. 12-13.
4. The Examiner erred in rejecting claim 14 (and claim 46) because
the cited portions of Foulger and Feinberg do not teach or suggest

3 Appellants focus their contentions on claims 1, 12-14 and argue the
patentability of claims 33, 44, 45, and 46 based on the same reasons
presented for claims 1, 12, 13, and 14, respectively, allowing those claims to
stand or fall with claims 1, 12, 13, and 14. See Br. 10-14.
Appeal 2010-010244
Application 09/995,056

5
“the second metrics provide indicia of grades of degraded
performance of portions of the network as a function of time,” as
recited in claim 14. Br. 13-14.

ISSUE
Did the Examiner err in rejecting claims 1, 12-14, 33, and 44-46 as
being anticipated or obvious because the cited references fail to teach or
suggest the argued limitations?

ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred.
We agree with the Examiner and adopt as our own (1) the findings
and reasons set forth by the Examiner in the action from which this appeal is
taken and (2) the reasons set forth by the Examiner in the Examiner’s
Answer in response to Appellants’ Appeal Brief (see Ans. 3-18). However,
we highlight and address specific findings for emphasis as follows.
As to Appellants’ above contention 1 (claims 1 and 33), we disagree
with Appellants’ arguments. Appellants have not provided an explicit
definition of “likely network problem” in their Specification. Thus, we
interpret the claim language “likely network problem” using the broadest
reasonable interpretation consistent with Appellants’ disclosure – to include
Foulger’s loss of client connection teaching. Ans. 4. See In re Morris,
127 F.3d 1048, 1054 (Fed. Cir. 1997). In addition, we agree with the
Examiner (Ans. 15-16) that Foulger teaches or suggests “a suggested action
for addressing the likely network problem.” Specifically, Foulger explicitly
Appeal 2010-010244
Application 09/995,056

6
teaches a “suggested action” of storing the traffic data from the last ten
minutes and continuously refreshing that data after the loss of client
connection. (¶¶ 0097, 0098).
As to Appellants’ argument relating to analyzing the locations of
network elements, Appellants’ arguments are not commensurate with the
scope of the claim. Claim 1 does not recite “analyzing the locations of
network elements.” Thus, this is not a requirement of the claims. Ans. 15.
As to Appellants’ above contention 2 (claims 12 and 44), Appellants
have not provided an explicit definition of “weighting” in their
Specification. On page 29, lines 16-18, the Specification discloses
“weightings of the equations provided below can be chosen to emphasize
some network issues at a higher priority than other network issues.”
Feinberg teaches providing a “number of combination and permutations for
processing or shaping the data.” Feinberg, col. 5, ll. 40-60. We find that
Feinberg’s shaping of the data encompasses “weighting” to prioritize
network issues as claimed. Thus, we agree with the Examiner that Feinberg
teaches the claimed “weighting different metrics differently.” Ans. 16
With regard to Appellants’ contention 3 (claims 13 and 45), we agree
with the Examiner (Ans. 17) that Foulger and Feinberg teach to “perform
comparisons of first metrics derived from raw data with thresholds and to
provide second metrics based upon the comparisons.” Feinberg teaches
shaping of raw data which comprises QoS events that correspond to the first
metrics derived from raw data with thresholds feature. Ans. 11. Feinberg
also discloses obtaining a QoS parameter value based on the comparison that
corresponds to the second metrics based upon the comparison features. Id.
See also Feinberg, col. 5, ll. 40-60.
Appeal 2010-010244
Application 09/995,056

7
As to Appellants’ above contention 4 (claims 14 and 46) relating to
“indicia of grades of degraded performance of portions of the network as a
function of time,” we note that the Examiner has identified the relevant
portions of Feinberg and has provided sufficient explanation with
corresponding citations to various parts of the reference for teaching the
feature disputed in Appellants’ contention (Ans. 18). For emphasis, we note
that the Examiner cites to portions of Feinberg in column 6, lines 37-56 that
describe detecting the packet loss as a function of time L(T). Id. In
particular, Feinberg describes that “as L(T) becomes increasingly greater in
value (L(T) O) QoS begins to degrade and either Gateway 106,116
terminates existing call connections. The number of terminations of existing
call connections is determined in accordance with the severity of the packet
loss rate (L(T)).” Feinberg, col. 6, ll. 51-56. Thus, we find that Feinberg
teaches grades of degraded performance of portions of the network as a
function of time.

CONCLUSIONS
On the record before us, we conclude that:
1. The Examiner did not err in rejecting claims 1 and 33 under 35
U.S.C. § 102(e) as anticipated by Foulger.
2. The Examiner did not err in rejecting claims 12-14 and 44-46
under 35 U.S.C. § 103(a) as obvious over Foulger and Feinberg.
3. Claims 1, 12-14, 33, and 44-46 are not patentable.

Appeal 2010-010244
Application 09/995,056

8
DECISION
The decision of the Examiner rejecting claims 1, 12-14, 33, and 44-46
is affirmed.
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

msc