Ex parte Cullen

Board of Patent Appeals and Interferences

Aug 31, 2001

08586716 (B.P.A.I. Aug. 31, 2001)

1
The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 19
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte JOHN M. CULLEN
_____________
Appeal No. 1999-2348
Application No. 08/586,716
______________
HEARD: August 14, 2001
_______________
Before RUGGIERO, LALL, and BLANKENSHIP, Administrative Patent
Judges
LALL, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from
the Examiner's final rejection of claims 1 to 24, which
constitute all of the claims in the application.
The disclosed invention is directed to a method and
apparatus for operating, monitoring and controlling a
communication system. In particular, the claimed invention
provides a method and apparatus for measuring the traffic
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2
properties of a communication system by controlling selected
remote measuring devices which measure selective properties
and instructing the selected measuring devices to selectively
transmit the thus controllably selected data to a data
processing element in a manner that reduces the signaling load
on the communication system. The processor 5 is located in
the base site controller 6 and is in communication with each
of the measurement units 4a-4d (figure 1). The necessary
signaling is carried over the bearer links 3a-3d, which also
carry the telecommunication traffic for which the links have
been set up. The process control unit 5 instructs the
measurement units 4a-4d to make measurements of link
performance, e.g. BER, C/I, received power level or bit rate.
These units may collect data continuously, or may only do so
in response to a signal from the process controller 5. The
measurement units 4a-4d can be configured to make different
measurements according to instructions received from the
processing unit 5. Such changes may be made dynamically,
e.g., depending upon prevailing conditions, for example, the
type of signal, e.g., voice or data being carried by the
bearer, or in response to prevailing conditions elsewhere in
Appeal No. 1999-2348
Application No. 08/586,716
1 Our understanding of this reference is derived from an English
translation of the Japanese patent prepared for the PTO. A copy of the
translation accompanies this decision.
3
the network, e.g., time or day of the week, etc. The
parameter to be measured can also be selected
depending upon the type of signal carried by the bearer. A
further understanding of the invention can be achieved by
reading the following claim.
1. A communications system comprising:
a plurality of measuring means for measuring
properties of the traffic carried by the
communications system, and
a data processing element for controlling the
measuring means and receiving data from the
measuring means,
wherein the data processing element is arranged
to selectively instruct the measuring means to
transmit selected data to the data processing
element.
The examiner relies upon the following references:
Tayloe et al. (Tayloe) 5,023,900 Jun. 11,
1991
Ono1 JP 57-61350 Apr. 13,
1982
Appeal No. 1999-2348
Application No. 08/586,716
2 A reply brief was filed as paper no. 15 and the examiner noted its
entry without any further response, see paper no. 16.
4
Zoffinger, et al. (Zoffinger), Telephone Engineer &
Management, vol. 78, no. 1 (January 1, 1974).
Claims 1 to 24 stand rejected under 35 U.S.C § 103. For
evidence of obviousness the examiner presents Tayloe and Ono
with respect to claims 1, 2, 8, 10 to 13 and 19 to 24, and
adds Zoffinger to Tayloe and Ono with respect to claims 3 to
7, 9 and 14 to 18.
Rather than repeat the arguments of appellant and the
examiner, we make reference to the briefs2 and the answer for
the respective details thereof.
OPINION
We have considered the rejections advanced by the
examiner and the supporting arguments. We have, likewise,
reviewed the appellants’ arguments set forth in the briefs.
We reverse.
In our analysis, we are guided by the general proposition
that in an appeal involving a rejection under 35 U.S.C. § 103,
an examiner is under a burden to make out a prima facie case
of obviousness. If that burden is met, the burden of going
Appeal No. 1999-2348
Application No. 08/586,716
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forward then shifts to the applicant to overcome the prima
facie case
with argument and/or evidence. Obviousness is then determined
on
the basis of the evidence as a whole and the relative
persuasiveness of the arguments. See In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Hedges, 783 F.2d 1038, 1039, 228 USPQ 685, 686 (Fed. Cir.
1986); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788
(Fed. Cir. 1984); and In re Rinehart, 531 F.2d 1048, 1052, 189
USPQ 143, 147 (CCPA 1976). We are further guided by the
precedent of our
reviewing court that the limitations from the disclosure are
not to be imported into the claims. In re Lundberg, 244 F.2d
543, 113 USPQ 530 (CCPA 1957); In re Queener, 796 F.2d 461,
230 USPQ 438 (Fed. Cir. 1986). We also note that the
arguments not made separately for any individual claim or
claims are considered waived. See 37 CFR § 1.192(a) and (c).
In re Baxter Travenol Labs., 952 F.2d 388, 391, 21 USPQ2d
1281, 1285 (Fed. Cir. 1991) ("It is not the function of this
court to examine the claims in greater detail than argued by
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an appellant, looking for nonobviousness distinctions over the
prior art."); In re Wiechert, 370 F.2d 927, 936, 152 USPQ 247,
254 (CCPA 1967)("This court has uniformly followed the sound
rule that an issue raised below which is not argued in that
court, even if it has been
properly brought here by reason of appeal is regarded as
abandoned and will not be considered. It is our function as a
court to decide disputed issues, not to create them.”).
ANALYSIS
We consider the two combinations of the prior art
references suggested by the examiner, separately, below.
Tayloe and Ono
The examiner rejects claims 1, 2, 8, 10 to 13 and 19 to
24
as being unpatentable over Tayloe in view of Ono at pages 4 to
5 of the examiner’s answer.
The examiner admits that Tayloe fails to teach that the
data processing means element selectively instructs the
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measuring means to transmit selective data to the data
processing means as claimed. However, the examiner asserts,
id. at page 4, that: “Ono discloses that the data processing
means element 1 selectively instructs . . . the measuring
means 2(1)-2(2) to transmit selected data . . . to the data
processing means.” Appellant argues, reply brief at page 4,
that: “Ono does not monitor the traffic of the system to
assess signal quality. Instead, Ono is directed to monitoring
the condition of the circuits and routes of the system, e.g.,
circuit faults, routes affected by the faults and the type of
fault. There is no suggestion whatsoever in Ono of measuring
signal quality of actual traffic being carried by these
circuits.”
We agree with the appellant’s position.
Like the examiner, we note that Tayloe continuously
monitors the subscriber calls and updates the graphical
representations, thereby the system operator can actually
observe the effect of system modifications in a pseudo real-
time fashion. Column 2, lines 65-68. Tayloe does not
selectively control the measure-ments made by the measurement
elements. Ono on the other hand is directed to monitoring
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continuously an electronic system, even if a failure occurs
within the master monitor device, by using a set of slave
monitor devices, and by installing a control section on each
slave monitor device, which provides almost the same function
as the control section of the master monitor device. Ono
simply transfers and selectively activates some of the
functions of the master control monitor device to the slave
monitor devices 21 and 22, see figures 1 and 2 and the
paragraph bridging pages 2 and 3 of the English translation.
Thus, we agree with appellant that Ono does not cure the
deficiency noted by the examiner in Tayloe in meeting the
recited limitations of claim 1 and its corresponding method
claim 13. Therefore, we do not sustain the obviousness
rejection of claims 1, 2, 8, 10 to 13 and 19 to 24 over Tayloe
and Ono.
Tayloe, Ono and Zoffinger
The examiner rejects claims 3 to 7, 9 and 14 to 18 at
pages
6 to 7 of the examiner’s answer over Tayloe, Ono and Zoffinger.
However, since these claims each depend on claim 1 or 13, and
con- tain their respective limitations, and Zoffinger does not
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Application No. 08/586,716
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cure the deficiency noted above in regard to claims 1 and 13,
we cannot sustain the obviousness rejection of these claims
over Tayloe, Ono and Zoffinger.
In summary, we have not sustained the rejections of claims
1, 2, 8, 10 to 13 and 19 to 24 over Tayloe and Ono, and claims
3 to 7, 9 and 14 to 18 over Tayloe, Ono, and Zoffinger.
The decision of the examiner rejecting claims 1 to 24
under 35 U.S.C. § 103 is reversed.
REVERSED
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
PARSHOTAM S. LALL ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
vsh
Appeal No. 1999-2348
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