Ex Parte Cummings et alDownload PDFPatent Trial and Appeal BoardFeb 25, 201310228196 (P.T.A.B. Feb. 25, 2013) Copy Citation 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. 10/228,196 08/27/2002 Scott A. Cummings 1875.2560000 7609 28393 7590 02/25/2013 STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C. 1100 NEW YORK AVE., N.W. WASHINGTON, DC 20005 EXAMINER MILLS, DONALD L ART UNIT PAPER NUMBER 2462 MAIL DATE DELIVERY MODE 02/25/2013 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 SCOTT A. CUMMINGS, JOEL I. DANZIG, and PAUL E. BURRELL ____________________ Appeal 2010-012529 Application 10/228,196 1 Technology Center 2400 ____________________ Before JOSEPH F. RUGGIERO, MARC S. HOFF, and ELENI MANTIS MERCADER, Administrative Patent Judges. HOFF, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is Broadcom Corporation. Appeal 2010-012529 Application 10/228,196 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Appellants’ invention concerns a distributed Cable Modem Termination System (CMTS) in a hybrid fiber/coaxial (HFC) plant. The distributed CMTS comprises at least one network layer, at least one media access control layer, and one or more physical layers. Each of these various layers functions as separate modules, enabling them to be in separate locations throughout the HFC plant, yet physically connected (Spec. 4). Claim 1 is exemplary of the claims on appeal: 1. A distributed cable modem termination system (CMTS) in a hybrid fiber/coaxial (HFC) plant, comprising: a network layer; at least one media access control (MAC) layer, said at least one media access control layer implementing a media access control chip; and at least one physical layer, said at least one physical layer interfacing to said media access control chip in said at least once media access control layer; wherein said network layer, said at least one media access control layer, and said at least one physical layer are dispersed throughout said HFC plant in a modular fashion, enabling said dispersed network layer, said at least one dispersed media access layer and said at least one dispersed physical layer to each be in a separate location of said HFC plant; wherein at least one of: said dispersed network layer is remotely coupled to said at least one dispersed media access control layer; or said at least one dispersed physical layer is remotely coupled to said at least one dispersed media access control layer; wherein each dispersed layer is isolated from at least one other layer; and Appeal 2010-012529 Application 10/228,196 3 wherein said dispersed network layer, said at least one dispersed media access control layer, and said at least one dispersed physical layer are configured to operate collectively as a cable modem termination system. The Examiner relies upon the following prior art in rejecting the claims on appeal: Bortolini US 2002/0100056 A1 July 25, 2002 Liva US 2002/0136203 A1 Sept. 26, 2002 Nazarathy US 6,490,727 B1 Dec. 3, 2002 Elliott US 6,614781 B1 Sept. 2, 2003 Claims 1-3 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bortolini in view of Elliott. Claims 4-7 and 26 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bortolini in view of Elliott and Nazarathy. Claims 8-25 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Bortolini in view of Elliott and either Nazarathy or Liva. Throughout this decision, we make reference to the Appeal Brief (“App. Br.,” filed Feb. 26, 2010) and the Examiner’s Answer (“Ans.,” mailed June 23, 2010) for their respective details. ISSUE Appellants argue that neither Bortolini nor Elliott teaches or suggests modularizing and distributing individual layers of a CMTS (App. Br. 22), that the soft switches and gateways of Elliott do not equate to network, media access control, and physical layers (App. Br. 24), and that the person of ordinary skill in the art would not have been motivated to combine Bortolini with Elliott (App. Br. 25-29). Appeal 2010-012529 Application 10/228,196 4 Appellants’ contentions present us with the following issues: 1. Does the combination of Bortolini and Elliott teach or fairly suggest dispersing the network, media access control, and physical layers of a CMTS in a modular fashion? 2. Do the soft switches and gateways taught by Elliott equate to the claimed network, media access control, and physical layers? 3. Would the person having ordinary skill in the art have been motivated to combine Bortolini and Elliott in the manner suggested by the Examiner? FINDINGS OF FACT The following Findings of Fact (FF) are shown by a preponderance of the evidence. Appellants’ Specification 1. Physical (PHY) layer 302 enables CMTS unit 300 to physically communicate with subscriber access equipment, such as cable modems 210 (¶ 0047). 2. Media access control layer (MAC layer) 304 is the messaging layer of CMTS 300 (¶ 0048). 3. Network layer 306 establishes, maintains, and terminates logical and physical connections between interconnected networks, such as packet switched network 112 (¶ 0049). Elliott 4. Elliott teaches soft switch sites 104, 106 that provide the core call processing for the voice network architecture. Soft switch sites 104, 106 process these signaling messages for the purpose of establishing new calls Appeal 2010-012529 Application 10/228,196 5 from calling parties 102, 122 through data network 112 to called parties 120, 124. Soft switch sites 104, 106 also process these signaling messages for the purpose of tearing down existing calls (col. 18, ll. 33-50). 5. Elliott teaches gateway sites 108, 110 that provide the means to originate and terminate calls through data network 112. Gateway sites 108, 110 can include network access devices to provide access to network resources. Gateway sites 108, 110 are controlled or managed by one or more soft switch sites 104, 106 (col. 19, ll. 26-27, 32-33, 40-41). PRINCIPLES OF LAW Section 103(a) forbids issuance of a patent when “the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved on the basis of underlying factual determinations including (1) the scope and content of the prior art, (2) any differences between the claimed subject matter and the prior art, (3) the level of skill in the art, and (4) where in evidence, so-called secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See also KSR, 550 U.S. at 407 (“While the sequence of these questions might be reordered in any particular case, the [Graham] factors continue to define the inquiry that controls.”). Appeal 2010-012529 Application 10/228,196 6 ANALYSIS CLAIMS 1-3 We select claim 1 as representative of this group of claims, pursuant to our authority under 37 C.F.R. § 41.37(c)(1)(vii). Appellants’ arguments, summarized supra, do not persuade us that the Examiner erred in rejecting the claims. We disagree with Appellants’ argument that neither Bortolini nor Elliott teaches or suggests modularizing and distributing individual layers of a CMTS (App. Br. 22). We concur with the Examiner’s finding that Elliott teaches distributing computing functionality such that different layers are dispersed but operate collectively (Ans. 24). The Examiner finds, and we agree, that Elliott teaches soft switch sites 104, 106 (FF 4) that correspond to a dispersed network layer, and gateway sites 108, 110 (FF 5) that correspond to a dispersed media access control and physical layer (Ans. 24). We further disagree that the soft switches and gateways of Elliott do not equate to network, media access control, and physical layers (App. Br. 24). We agree instead with the Examiner, who finds that the soft switch sites equate to a dispersed network layer, and that the gateway sites correspond to dispersed media access control and physical layers (Ans. 24). Appellants’ Specification states that the network layer “establishes, maintains, and terminates logical and physical connections between interconnected networks” (FF 3). The Examiner finds, and we agree, that the soft switches of Elliott provide core call processing, including the establishment and termination of calls (Ans. 21, 24-25; FF 4). Appellants’ Specification further states that the MAC layer is the messaging layer of the CMTS (FF 2), and that the physical layer enables the CMTS to physically Appeal 2010-012529 Application 10/228,196 7 communicate with subscriber access equipment (FF 1). We concur with the Examiner’s finding that the gateway sites “comprise media gateways, which include physical access (physical layer) or trunking to devices” (Ans. 5; see FF 5). Appellants allege that the gateways and soft switches of Elliott are “different structure[s] that perform different functions” than the claimed network layers (App. Br. 24), but provide no evidentiary support for their position. Last, we are not persuaded that the person of ordinary skill in the art would not have been motivated to combine Bortolini with Elliott (App. Br. 25-29). We agree with the Examiner’s articulated reasoning that the preferred combination would have been obvious “in order to push CMTS functionality into the Fiber Nodes, thereby, improving system efficiency in the last-mile by eliminating burdensome connections and allowing for adjustable line cards that may be dynamically adapted to service the network” (Ans. 6). To the extent that Appellants’ argument against combination of the references is an allegation that Bortolini and Elliott are not analogous (see App. Br. 25-26), we are not persuaded of error, because we agree with the Examiner that Bortolini and Elliott are commonly directed to packet switching network architectures (Ans. 28). As noted above, we are not persuaded by Appellants that “[n]either Bortolini nor Elliott teaches or suggests modularizing a CMTS device as separate NET, MAC, and PHY layers, distributing those modularized layers in an HFC plant, and having the distributed NET, MAC, and PHY layers communicate in a manner that collectively functions as a complete CMTS” (App. Br. 28), because we agree with the Examiner’s interpretation of the components of Elliott as Appeal 2010-012529 Application 10/228,196 8 corresponding to the network, media access control, and physical layers recited in the claims (Ans. 25). Accordingly, we find that the Examiner did not err in rejecting claims 1-3 under § 103 as being unpatentable over Bortolini in view of Elliott, and we will sustain the rejection. CLAIMS 4-7 AND 26 As noted supra, we sustain the rejection of claims 1-3. Appellants argue only that claims 4-7 incorporate the limitations of independent claim 1, that independent claim 26 recites the same limitations as claim 1, and that Nazarathy does not remedy the deficiencies of Bortolini and Elliott (App. Br. 34-36). Because we find that the Examiner did not err in rejecting independent claim 1, we will sustain the § 103 rejection of claims 4-7 and 26, for the same reasons. CLAIMS 8-25 As noted supra, we sustain the rejection of independent claim 1, from which claims 8-25 depend. Appellants argue only that claims 8-25 incorporate the limitations of independent claim 1 and that Nazarathy and Liva each do not remedy the deficiencies of Bortolini and Elliott (App. Br. 37-38). Because we find that the Examiner did not err in rejecting independent claim 1, we will sustain the § 103 rejection of claims 8-25, for the same reasons. Appeal 2010-012529 Application 10/228,196 9 CONCLUSIONS 1. The combination of Bortolini and Elliott fairly suggests dispersing the network, media access control, and physical layers of a CMTS in a modular fashion. 2. The soft switches and gateways taught by Elliott equate to the claimed network, media access control, and physical layers. 3. The person having ordinary skill in the art would have been motivated to combine Bortolini and Elliott in the manner suggested by the Examiner. ORDER The Examiner’s rejection of claims 1-26 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 kis Copy with citationCopy as parenthetical citation