Ex Parte Flask

Patent Trial and Appeal Board

Mar 28, 2018

14856318 (P.T.A.B. Mar. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/856,318 09/16/2015
133681 7590
Mannava & Kang, P.C.
3201 Jermantown Road
Suite 525
Fairfax, VA 22030
03/30/2018
FIRST NAMED INVENTOR
Robert J. Flask
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.
1095.0053PRUS 8954
EXAMINER
CADEAU, WEDNEL
ART UNIT PAPER NUMBER
2632
NOTIFICATION DATE DELIVERY MODE
03/30/2018 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):
docketing@mannavakang.com
dmitry.brant@viavisolutions.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT J. FLASK
Appeal2017-011041
Application 14/856,318
Technology Center 2600
Before ELENI MANTIS MERCADER, SCOTT E. BAIN, and
JASON M. REPKO, Administrative Patent Judges.
REPKO, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1-21. App. Br. 1.2 We have jurisdiction under 35 U.S.C.
§ 6(b ).
We affirm.
1 Appellant identifies the real party in interest as Viavi Solutions Inc.
App. Br. 3.
2 Throughout this opinion, we refer to the Final Rejection ("Final Act.")
mailed December 12, 2016, the Appeal Brief ("App. Br.") filed May 10,
2017, the Examiner's Answer ("Ans.") mailed June 29, 2017, and the Reply
Brief ("Reply Br.") filed August 25, 2017.
Appeal2017-011041
Application 14/856,318
THE INVENTION
Appellant's invention relates to testing and monitoring cable-
television networks. Spec. i-f 1. Specifically, a technician may travel
to a customer's tap if the customer needs a new service or the service
is impaired. Id. i-f 4. To look for possible problems, the technician
may need to separately test the customer's downstream services and
the customer's network. Id. According to the Specification, the
required testing takes a long time to perform. Id. To address these
issues, the invention simultaneously measures the upstream and
downstream signals. Id. i-f 1. One embodiment has two cable ports for
a simultaneous connection to the upstream and downstream portions
of the cable-television network. Id. i-f 6. By allowing a direct
comparison of network performance, the invention improves the
technician's efficiency and saves time. Id. i-f 48.
Claim 1 is reproduced below with our emphasis:
1. An apparatus for testing a cable network, comprising:
first and second cable ports connected to a node of the
cable network, wherein the node of the cable network includes
an upstream cable terminal and a downstream cable terminal, and
wherein the first cable port is connected to the upstream
cable terminal of the node of the cable network to receive an
upstream signal, and the second cable port is connected to the
downstream cable terminal of the node of the cable network to
receive a downstream signal;
a first signal processing circuit coupled to the first cable
port to process the upstream signal and obtain upstream
measurement data concurrently with a second signal processing
circuit coupled to the second cable port to process the
downstream signal and obtain downstream measurement data;
and
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Application 14/856,318
a processor communicatively coupled to the first and
second signal processing circuits to process the upstream
measurement data and the downstream measurement data and to
configure the upstream measurement data and downstream
measurement data for simultaneous display to user.
THE EVIDENCE
The Examiner relies on the following as evidence:
Stewart et al.
Williams
Wahl et al.
Chappell et al.
US 2002/0056137 Al
US 7,415,367 B2
US 2013/0101092 Al
US 2015/0020129 Al
THE REJECTIONS
May 9, 2002
Aug. 19,2008
Apr. 25, 2013
Jan. 15,2015
Claims 1 and 11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Williams and Chappell. Final Act. 4---6.
Claims 2, 3 4--10, and 12-21 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Williams, Chappell, and Wahl. Final Act. 6-11.
Claim 3 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Williams, Chappell, Wahl, and Stewart. Final Act. 11-12.
3 Although the Examiner omits claim 2 from the heading of the rejection, the
substantive discussion of claim 2 is directly underneath the heading. See
Final Act. 6. For the purposes of this appeal, we treat the Examiner's
omission of claim 2 from the heading as a harmless typographical error,
consistent with the Appellant's Brief. See, e.g., App. Br. 10.
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Appeal2017-011041
Application 14/856,318
THE REJECTION OVER WILLIAMS AND CHAPPELL
The Examiner's Findings
The Examiner finds that Williams teaches every limitation recited in
representative claim 14 except for displaying both streams simultaneously.
Final Act. 4--6. In concluding that claim 1 would have been obvious, the
Examiner cites Chappell as teaching displaying frequency spectra
concurrently with the demodulation parameters for two test points. Id. at 5
(citing Chappell i-f 58, Figs. 1-3, 6, 9). The Examiner concludes that it
would have been obvious for one of ordinary skill in the art to process and
display measurements from both of Williams' s streams because doing so
would allow the user to better analyze the two signals. Final Act. 6.
Appellant's Contentions
Appellant argues that Chappell' s processor displays data for two test
points, but the two test points are not two cable terminals of one node.
App. Br. 8-10. According to Appellant, Chappell's two test points have two
different locations in the network. Id. at 8. In Appellant's view, Chappell's
measurements must be received from two different nodes so that the
instrument can determine the signal's path through the network. Id. at 8-9.
Appellant further argues that Chappell does not use the terms "concurrently"
or "simultaneous," as recited in claim 1. Id. at 9.
Lastly, Appellant argues that the Examiner has not provided a reason
to combine Williams and Chappell. Reply Br. 4--6. According to Appellant,
Chappell' s side-by-side display is for displaying one signal that propagates
in a single direction and is sampled at two different points. Id. at 5. In
4 Appellant argues claims 1 and 11 together. See App. Br. 7-10. We select
claim 1 as representative. See 37 C.F.R. § 41.37(c)(l)(iv).
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Application 14/856,318
Appellant's view, one of ordinary skill in the art would not have used
Chappell's side-by-side display in Williams. Id.
Issues
I. Under§ 103, has the Examiner erred in rejecting representative
claim 1 by finding that Williams and Chappell would have collectively
taught or suggested the recited simultaneous display?
II. Has the Examiner supported the obviousness conclusion with
articulated reasoning with some rational underpinning?
Analysis
The claim 1 recites, in part, "configure the upstream measurement
data and downstream measurement data for simultaneous display to user."
Appellant does not argue that Williams lacks processing the upstream
measurement data and the downstream measurement data. See App. Br. 8-
1 O; Reply Br. 4---6. Rather, Appellant argues that Chappell does not display
this data. See App. Br. 8-10; Reply Br. 4---6.
The Examiner, however, relies on the combination of Williams and
Chappell to arrive at the limitation at issue. Final Act. 5---6. In particular,
the Examiner finds that Williams processes two streams from forward test-
point directional coupler 310 (e.g., where the downstream signal 368 is
sampled) and upstream test-point directional coupler 314. Ans. 3;
Final Act. 4 (citing Williams Fig. 3). The Examiner finds that these are one
node's test points-i.e., node 302's. Ans. 3; Final Act. 4. Although
Williams teaches the recited processed data, the Examiner finds Williams
lacks the display and cites Chappell as teaching a display for displaying
frequency spectra concurrently with the demodulation parameters for two
test points. Final Act. 5 (citing Chappell i-f 58, Figs. 1-3, 6, 9).
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Appellant argues that Chappell does not display the upstream
measurement data and downstream measurement data. App. Br. 8-9. This
argument, however, fails to take into consideration the combined teachings
of Chappell and Williams. Indeed, one cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. In re Keller, 642 F.2d 413, 426 (CCPA 1981);
In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Here, the Examiner relies on Chappell for the limited purpose of
teaching simultaneously displaying data from two points in a cable network.
Final Act. 4. We agree Chappell teaches such a display. Id. Although
Chappell does not use the term "concurrently" or "simultaneous" in the cited
paragraph, Chappell states that "in the displaying step ... , the first and
second spectra may be displayed together, e.g. side by side, for a visual
comparison." Chappell i-f 65 (emphasis added), cited in Ans. 4. We agree
that Chappell's side-by-side display is simultaneous. Ans. 4.
In Appellant's view, one of ordinary skill in the art would not have
used Chappell's side-by-side display in Williams. Reply Br. 5. But
Appellant has not shown, for example, that using Chappell' s display for
Williams' s data would have been uniquely challenging or otherwise beyond
the level of ordinarily skilled artisans. See Leapfrog Enters., Inc. v. Fisher-
Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007). Nor has Appellant shown
that the Examiner's proposed combination would render the prior art
unsuitable for its intended purpose to teach away from such an approach.
See In re Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984).
Instead, Appellant argues that it is insufficient to say that Chappell' s
information "could be easily replaced" by Williams' s information.
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Reply Br. 5---6 (quoting Ans. 4). But the Examiner's rationale is not based
entirely on easy replacement. See Final Act. 6. In the Final Rejection, the
Examiner concludes that it would have been obvious for one of ordinary
skill in the art to process and display measurements from both of Williams's
streams because doing so would allow the user to better analyze the two
signals. Id. In this way, the Examiner's proposed enhancement predictably
uses the prior art elements according to their established functions-i.e.,
displaying data and processing measured data-and involves a creative step
well within the skill level of ordinarily skilled artisans. See KSR Int 'l Co. v.
Teleflex, Inc., 550 U.S. 398, 417, 421 (2007).
Accordingly, we sustain the Examiner's rejection of representative
claim 1, and claim 11, which is not argued separately. See App. Br. 7-10.
THE REJECTION OVER WILLIAMS, CHAPPELL, AND WAHL
Claim 2 recites, in part,
the first signal processing circuit is to determine whether a first
signal received by the first signal processing circuit from the first
cable port comprises the upstream signal, and if the first signal
does not comprise the upstream signal, to generate a port switch
signal to couple the first signal processing circuit to the second
cable port.
The Examiner finds that Williams teaches the recited ports and signals
but does not make the recited determination. Final Act. 6. For the recited
determination, the Examiner finds that Wahl teaches a handheld subscriber-
line test equipment that switches modes when there is no signal on the
upstream. Id. Specifically, the Examiner finds Wahl switches modes based
on detecting one of (1) a downstream Customer Premises Equipment (CPE),
which can mean no signal on the upstream, or (2) an upstream Central
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Application 14/856,318
Office (CO) equipment, which can mean no signal on the downstream.
Id. at 6-7. The Examiner then concludes that the combined teachings of
Williams and Wahl would have suggested detecting an upstream signal, or
not, and switching to the appropriate port for testing. Id. at 7. For example,
the Examiner explains that the proposed modification would switch
Williams's ports for channels CHI and CH2. Id.
Appellant argues that switching operation modes in Wahl is not the
same as switching cable ports, and Wahl does not generate a port-switch
signal. App. Br. 12; Reply Br. 7-8. Similarly, Appellant argues that Wahl
does not detect a specific signal. App. Br. 12; Reply Br. 7-8. These
arguments, however, fail to take into consideration the Examiner's reliance
on Williams for teaching the ports corresponding to the recited upstream and
downstream signals. See Final Act. 6-7.
The skilled artisan is "a person of ordinary creativity, not an
automaton." KSR, 550 U.S. at 421. Here, the Examiner's proposed
enhancement to apply Wahl's mode switching to Williams' s ports involves a
creative step well within the skill level of ordinarily skilled artisans. See
Final Act. 6-7. We agree with Appellant that Wahl discloses what a device
would do if the test device detects a certain signal. App. Br. 12. But the
Examiner finds that Wahl further teaches that detecting the downstream CPE
can mean that there is no signal on the upstream. Ans. 7. As explained by
the Examiner, applying Wahl's teachings to Williams involves no more than
a switch to the appropriate port for testing. Id. In this way, the Examiner's
proposed enhancement predictably uses the prior art's features according to
their established functions, which is obvious. See KSR, 550 U.S. at 417,
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421. On this record, the Examiner has supported the obviousness conclusion
with articulated reasoning with some rational underpinning.
Accordingly, we sustain the Examiner's rejection of claim 2, and
claims 4--10 and 12-21, which are not argued separately (see App. Br. 11;
Reply Br. 8).
THE REJECTION OVER WILLIAMS, CHAPPELL, WAHL, AND
STEWART
Claim 3 recites, in part, "a connection switch disposed to provide a
switchable 2x2 connection from the first and second cable ports to the first
and second signal processing circuits, and to switch said connection in
response to receiving the port switch signal."
The Examiner finds that the Williams-Chappell-Wahl combination
switches port connections at the test equipment, but the combination lacks
the recited switchable 2x2 connection. Final Act. 11-12. For a switchable
connection, the Examiner relies on Stewart as teaching a cross-switcher for
connecting any input port to any output port. Id. at 12. In concluding that
the claim would have been obvious, the Examiner explains that applying
Stewart's cross-switcher to Williams's two channel ports and two signal
lines would create a 2x2 connection switch. Id.
Appellant argues that Stewart lacks the recited signal-processing
circuit. App. Br. 14; Reply Br. 9. Appellant further contends that Stewart
does not provide a 2x2 connection or receive a port-switch signal.
App. Br. 14; Reply Br. 9.
The Examiner, however, did not rely on Stewart for the recited signal-
processing circuit. See Final Act. 11-12. Appellant's arguments, therefore,
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fail to address the Examiner's proposed application of Stewart's cross-
switcher with Williams's ports. See App. Br. 14; Reply Br. 9.
That is, the Examiner's combination uses Stewart's cross-switcher to
switch between Williams two channel ports and two signal lines to arrive at
a 2x2 connection switch and port-switch signal. Final Act. 11-12. In this
way, Examiner's proposed enhancement predictably uses Stewart's cross-
switcher according to its established function: connecting input ports to
output ports. See Final Act. 12. Essentially, there is no change in the
function of Stewart's cross-switcher. See id. Thus, the Examiner proposes
combining prior art elements according to known methods to yield
predictable results, which is obvious. See KSR, 550 U.S. at 416.
Accordingly, we sustain the Examiner's rejection of claim 3.
DECISION
We affirm the Examiner's rejection of claims 1-21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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