Ex Parte Ennis

Patent Trial and Appeal Board

Sep 26, 2016

13099430 (P.T.A.B. Sep. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/099,430 05/03/2011
61834 7590
Meister Seelig & Fein LLP
125 Park Avenue
7th Floor
NEW YORK, NY 10017
09/28/2016
FIRST NAMED INVENTOR
Shawn Patrick Ennis
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
6176-002 1807
EXAMINER
FAYED,RASHAK
ART UNIT PAPER NUMBER
2479
NOTIFICATION DATE DELIVERY MODE
09/28/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
patents@msf-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SHAWN PA TRICK ENNIS
Appeal2015-005228
Application 13/099,430
Technology Center 2400
Before JASON V. MORGAN, MELISSA A. HAAPALA, and
NABEEL U. KHAN, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-3 and 5-20. We have jurisdiction under 35 U.S.C.
§ 6(b ).
We reverse.
Invention
Appellant invented "a method and system for inferential monitoring
of a resource." Abst.
Appeal2015-005228
Application 13/099,430
Exemplary Claim
1. A method for inferential monitoring of a link, the method
compnsmg:
selecting a given link to monitor by a service provider, the
selected given link including one or more monitorable channels
and at least one unmonitorable channel, the unmonitorable
channel inaccessible by the service provider;
performing one or more tests on the one or more
monitorable channels;
determining a status of the one or more monitorable
channels on the basis of the one or more tests;
correlating results from the one or more tests of the one or
more monitorable channels to the unmonitorable channel; and
determining a status of the unmonitorable channel on the
basis of the correlation.
App. Br. 12, Claims Appx.
Rejection
Claims 1-3 and 5-20 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wisseman (US 7,310,135 B2; Dec. 18, 2007) and Jensen
(US 5,969,833; Oct. 19, 1999). Final Act. 2-19 (Feb. 14, 2014). 1
ISSUE
Did the Examiner err in finding the combination of Wisseman and
Jensen teaches or suggests a "correlating results from the one or more tests
of the one or more monitorable channels to the unmonitorable channel,"
1 The Final Action's statement of rejection incorrectly denotes canceled
claim 4 as rejected. See Final Act. 2.
2
Appeal2015-005228
Application 13/099,430
where "the umnonitorable channel [is] inaccessible by the service provider,"
as recited in claim 1?
ANALYSIS
Claims 1-3 and 5-20 are rejected as obvious over Wisseman and
Jensen. Claim 1 is illustrative.
Claim 1 recites that correlating results from the one or more tests of
the one or more monitorable channels to the unmonitorable channel, where
the unmonitorable channel is inaccessible by the service provider.
Appellant's Specification discloses that a channel can be inaccessible when,
for example, it is part of a dark fiber connection directly between lessee-
specified points. Spec. ,-i 27.
The Examiner finds that Wisseman's disclosure of a monitor
wavelength teaches or suggests the claimed monitorable channel and that
Wisseman's disclosure of communication wavelengths, having a different
frequency band than the monitor wavelength, teaches or suggests the
claimed unmonitorable channels that are inaccessible by a service provider.
Final Act. 3-4; see also Wisseman col. 4, 11. 53-61; col. 5, 11. 18-36.
However, we agree with Appellant that a channel is not inaccessible merely
because the channel is communicated on a wavelength that is not monitored.
App. Br. 5. The claimed channel must not be capable of being monitored
because the channel cannot be accessed by the service provider. The
Examiner's findings do not show, for example, that Wisseman teaches or
suggests that the wavelengths of the unmonitored channels cannot be
accessed by a service provider. Moreover, the Examiner does not show that
Jensen cures the noted deficiency of Wisseman. Therefore, we agree with
Appellant that the Examiner's findings do not show that the combination of
3
Appeal2015-005228
Application 13/099,430
Wisseman and Jensen teaches or suggests the claimed monitoring of a link
including at least one unmonitorable channel that is inaccessible by the
service provider, and determining a status of the unmonitored channel based
on correlation results in the manner claimed.
Accordingly, we do not sustain the Examiner's 35 U.S.C. § 103(a)
rejection of claim 1, and claims 2, 3, and 5-20.
DECISION
We reverse the Examiner's decision rejecting claims 1-3 and 5-20.
REVERSED
4