Ex Parte Dispensa

Board of Patent Appeals and Interferences

Mar 30, 2009

09981422 (B.P.A.I. Mar. 30, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE

__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte STEVE DISPENSA
__________

Appeal 2008-3995
Application 09/981,422
Technology Center 2400
__________

Decided:1 March 30, 2009
__________

Before JOSEPH L. DIXON, ST. JOHN COURTENAY III, and
THU A. DANG, Administrative Patent Judges.

COURTENAY, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 CFR § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Data (electronic delivery).

Appeal 2008-3995
Application 09/981,422

2
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1-11, 13-41, 43-70, and 72-175. Claims
12, 42, and 71 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.

THE INVENTION
Appellant’s invention relates generally to the field of communication
systems. More specifically, in one embodiment, Appellant’s invention
relates to a system that provides wireless broadband services. (Spec. 2).

Independent claim 1 is illustrative:
1. A method of providing performance information of a
communication network, the method comprising:

in a performance management system, generating and
transmitting a graphical overview of the communication
network to a user system;

receiving an instruction to request the performance
information for a selected region of the communication network
into the performance management system from the user system;

in the performance management system, processing the
instruction to determine the performance information;

in the performance management system, generating a
graphical format of the performance information;

storing the graphical format of the performance
information in a repository; and

Appeal 2008-3995
Application 09/981,422

3
transmitting the graphical format of the performance
information from the performance management system to the
user system.

PRIOR ART
The Examiner relies upon the following references as evidence in
support of the obviousness rejections:

Opoczynski US 5,519,830 May 21, 1996
Dev US 5,751,933 May 12, 1998
Moura US 6,411,606 B1 Jun. 25, 2002
Groath US 6,571,285 B1 May 27, 2003

THE REJECTIONS
1. Claims 1-11, 13-16, 18, 19, 27-41, 43-46, 48, 49, 57-70, 72-75, 77,
78, 86-104, 106, 107, 115-133, 135, 136, 144-161, 163, 164 and 172-
175 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Groath and Dev.

2. Claims 17, 47, 76, 105, 134, and 162 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Groath and
Moura.

3. Claims 20, 50, 79, 108, 137, and 165 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over the combination of Groath, Dev,
and Opoczynski.

Appeal 2008-3995
Application 09/981,422

4
4. Claims 21-26, 51-56, 80-85, 109-114, 138-143, and 166-171 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Groath, Dev, Opoczynski, and Moura.

GROUPING OF CLAIMS
Appellant argues independent claims 1, 31, 61, 90, 119, and 148 as a
group and states that all claims dependent therefrom are allowable for at
least the reasons provided in support of claims 1, 31, 61, 90, 119, and 148.
(App. Br. 13).
We accept Appellant’s grouping of the claims. See 37 C.F.R.
§ 41.37(c)(1)(vii) (“Notwithstanding any other provision of this paragraph,
the failure of appellant to separately argue claims which appellant has
grouped together shall constitute a waiver of any argument that the Board
must consider the patentability of any grouped claim separately.”).
We will, therefore, treat claims 1-11, 13-41, 43-70, and 72-175 as
standing or falling with representative claim 1.

APPELLANT’S CONTENTIONS
Appellant contends that the Examiner erred in rejecting each
independent claim on appeal because “[a]t no point does Groath mention
storing a graphical format of performance information to a database, as
provided by claims 1, 31, 61, 90, 119 and 148 of the present application. In
fact, Groath makes specific mention of storage of key codes by way of data
warehousing techniques, which necessarily employ a numeric format, and
not a graphical format.” (App. Br. 11-12, emphasis in original).

Appeal 2008-3995
Application 09/981,422

5
EXAMINER’S RESPONSE
The Examiner points to Appellant’s disclosure in the Specification (p.
8, ll. 8-18) that “[i]n some embodiments, the graphical format is a web page,
a report, or screen.” (Ans. 14). The Examiner further points to Groath’s
teaching of storing standardized format data in a database at column 2, lines
6-23 (Ans. 15). The Examiner finds that Groath’s collected network status
data is concatenated and reformatted into a standard format prior to being
stored in the database, and thereafter that data is utilized to graphically
convey the network availability. (Ans. 15). The Examiner further proffers
that Groath describes one of the standardized formats to be Hyper Text
Markup Language (HTML). (Ans. 15).

ISSUE
Based upon our review of the administrative record, we have
determined that the following issue is dispositive in this appeal:
Has Appellant shown that the Examiner erred in finding that the
combination of Groath and Dev teaches and/or suggests storing a
graphical format of the performance information in a repository, as
recited in equivalent form by each of independent claims 1, 31, 61,
90, 119, and 148?

PRINCIPLES OF LAW
“What matters is the objective reach of the claim. If the claim
extends to what is obvious, it is invalid under § 103.” KSR Int’l Co. v.
Teleflex, Inc., 127 S. Ct. 1727, 1742 (2007). To be nonobvious, an
improvement must be “more than the predictable use of prior art elements
Appeal 2008-3995
Application 09/981,422

6
according to their established functions.” Id. at 1740. “Invention or
discovery is the requirement which constitutes the foundation of the right to
obtain a patent . . . unless more ingenuity and skill were required in making
or applying the said improvement than are possessed by an ordinary
mechanic acquainted with the business, there is an absence of that degree of
skill and ingenuity which constitute the essential elements of every
invention.” Dunbar v. Myers, 94 U.S. 187, 197 (1876) (citing Hotchkiss v.
Greenwood, 52 U.S. 248, 267 (1850)) (Hotchkiss v. Greenwood was cited
with approval by the Supreme Court in KSR, 127 S. Ct. at 1734, 1739,
1746).
Appellant has the burden on appeal to the Board to demonstrate error
in the Examiner’s position. See In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir.
2006). Therefore, we look to Appellant’s Briefs to show error in the
Examiner’s proffered prima facie case.

FINDINGS OF FACT
In our analysis infra, we rely on the following findings of fact (FF)
that are supported by a preponderance of the evidence:

THE GROATH REFERENCE
1. Groath teaches that “[a]n embodiment of the present invention
includes a database schema for storing and reporting on
network element performance data.” (Col. 11, ll. 64-65).
2. Groath teaches the use of a Performance Data Manipulator
(PDM) that “is a script that processes log files that have been
Appeal 2008-3995
Application 09/981,422

7
collected by Data Acquisition in order to load the data into a
database.” (Col. 11, ll. 53-55).
3. Groath teaches that “[t]he PDM converts the log files from
formats specific to a particular monitoring program into a
common format. PDM then formats the file based on data
warehousing techniques which include converting nodes and
performance metrics to key codes which are stored in the
database. The coded data file is then bulk loaded into the
database. The PDM may be written in PERL.” (Col. 11, ll.
56-62).
4. Groath teaches that “[a] graph is generated in operation 1604
from the data that matches the report parameters. In operation
1606, the generated graph is displayed to graphically represent
the monitored elements, services, and processes of the
network.” (Col. 65, ll. 30-33).
5. Groath teaches that report graphs may be changed by the user
and saved: “[t]o change the chart properties (on IGRAPHs) and
set it to a CHARTLOOK, double click on the graph in the
output viewer. This will activate it into interactive mode. Go
up to Format>Chart Properties in the menu bar and make
necessary changes in the tabbed dialog box. Some changes
include: Text size (the title and subtitle text size seems not to
take in the CHARTLOOK option when set here--FYI), Font,
Symbol attributes (shape, color, fill, etc), Axis attributes (line
width, tick marks), colors (for legends, shapes, etc), and other
features that need to be changed.” (Col. 72, ll. 17-26)
Appeal 2008-3995
Application 09/981,422

8
6. Groath teaches that “[a]fter changing what you want, click
Apply to view changes and OK to exit the dialog box. Then go
to the menu bar Format>Chartlook and click on Save As with
the ‘as displayed’ feature highlighted in the box to the left. Save
the chartlook to a location that can be called from the macro.
This chartlook should then set the settings for the next graphs
run with the /CHARTLOOK=‘file’ subcommand in the
IGRAPH syntax.” (Col. 72, ll. 27-34).

ANALYSIS
We decide the question of whether Appellant has shown the Examiner
erred in finding that the combination of Groath and Dev teaches and/or
suggests storing the graphical format of performance information in a
repository, as recited in equivalent form by each of independent claims 1,
31, 61, 90, 119 and 148.
Claim Construction
We begin our analysis by broadly but reasonably construing the
claimed “graphical format” in light of Appellant’s Specification. While
Appellant argues forcefully in the Briefs that Groath does not teach or
suggest storing a graphical format of performance information, we find
Appellant’s remarks to be conspicuously silent regarding the intended scope
of the claimed “graphical format.”
“[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.” In re Hyatt, 211
F.3d 1367, 1372 (Fed. Cir. 2000). As pointed out by the Examiner,
Appellant’s Specification expressly discloses that “[i]n some embodiments,
Appeal 2008-3995
Application 09/981,422

9
the graphical format is a web page, a report, or screen.” (Spec. 8, ll. 18-19).
Therefore, we broadly but reasonably construe the intended scope of the
claimed “graphical format” as encompassing any graphical format, including
a report or associated report format.
Based upon our review of the evidence, we find that Groath teaches a
database schema for storing and reporting on network element performance
data (FF 1). Groath’s collected log file data is processed by a Performance
Data Manipulator (PDM) script that formats the performance data for
storage in a database. (FF 2-3).
Groath also teaches that a graph is generated in operation 1604 from
the data that matches the report parameters. (FF 4). Because the scope of
the claimed “graphical format” broadly but reasonably encompasses a
report, we find that Groath’s generation of a graph from data that matches
report parameters is at least suggestive of Appellant’s argued limitations of
storing the graphical format of performance information to a database
(repository).
However, even if, arguendo, Groath’s performance report data is
actually converted to a graphical format after storage (as argued by
Appellant, App. Br. 12; see also FF 4), we nevertheless find that Groath also
teaches an embodiment where the graphical format of performance report
graphs may be changed by the user and saved using a feature referred to as
“CHARTLOOK.” (See FF 5-6).
In particular, we find Groath teaches that the “chartlook” (i.e.,
graphical format) of the performance data can be saved to “a location that
can be called from the macro where the saved ‘chartlook’ should then set the
settings for the next graphs run with the /CHARTLOOK=‘file’” (FF 6).
Appeal 2008-3995
Application 09/981,422

10
Therefore, we find that Groath’s “chartlook” feature teaches and/or
suggests the argued claim limitations of “storing the graphical format of the
performance information in a repository.” (See representative claim 1).
While our reading of Appellant’s claim 1 on the Groath reference has
departed from some aspects of the Examiner’s reading, it is our view that
Appellant has been given full and fair notice of the references. Appellant is
responsible for all that is disclosed by the collective teachings of the cited
references. See In re Zenitz, 333 F.2d 924, 926 (CCPA 1964) (“This court
has held in a number of decisions that a United States patent speaks for all it
discloses as of its filing date, even when used in combination with other
references.”). Our reviewing court has stated: “[t]he use of patents as
references is not limited to what the patentees describe as their own
inventions or to the problems with which they are concerned. They are part
of the literature of the art, relevant for all they contain.” In re Heck, 699
F.2d 1331, 1333 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006,
1009 (CCPA 1968)). Even though, in some instances, we sustain rejections
for different reasons than those advanced by the Examiner, our position is
still based upon the collective teachings of the references and does not
constitute a new ground of rejection. See In re Bush, 296 F.2d 491, 496
(CCPA 1961); In re Boyer, 363 F.2d 455, 458 n.2 (CCPA 1966).

CONCLUSION
Based on the findings of facts and analysis above, we conclude that
Appellant has not met his/her burden of showing that the Examiner erred in
rejecting representative claim 1 (and claims 2-11, 13-41, 43-70, and 72-175
that fall therewith) as being unpatentable under 35 U.S.C. § 103(a).
Appeal 2008-3995
Application 09/981,422

11
DECISION
We affirm the Examiner’s decision rejecting claims 1-11, 13-41,
43-70, and 72-175.
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

pgc

SPRINT
6391 SPRINT PARKWAY
KSOPHT0101-Z2100
OVERLAND PARK KS 66251-2100