Ex Parte HSI et al

Patent Trial and Appeal Board

Feb 5, 2013

11691281 (P.T.A.B. Feb. 5, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE 1
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3
BEFORE THE PATENT TRIAL AND APPEAL BOARD 4
___________ 5
6
Ex parte TEH-LI HSI, ALBERT J. SAWYER, CHOKRI TRABELSI, 7
and YANG YANG 8
___________ 9
10
Appeal 2011-003683 11
Application 11/691,281 12
Technology Center 3600 13
___________ 14
15
16
Before ANTON W. FETTING, BIBHU R. MOHANTY, and 17
MICHAEL W. KIM, Administrative Patent Judges. 18
FETTING, Administrative Patent Judge. 19
DECISION ON APPEAL 20
Appeal 2011-003683
Application 11/691,281

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STATEMENT OF THE CASE1 1

1 Our decision will make reference to the Appellants’ Appeal Brief (“App.
Br.,” filed June 11, 2010) and the Examiner’s Answer (“Ans.,” mailed
September 1, 2010).
Teh-Li Hsi, Albert J. Sawyer, Chokri Trabelsi, and Yang Yang 2
(Appellants) seek review under 35 U.S.C. § 134 of a final rejection of 3
claims 10-21, the only claims pending in the application on appeal. We have 4
jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). 5
The Appellants invented a way of billing for quality of service 6
applications by determining at least one parameter indicative of resource 7
usage of at least one first quality of service application by comparing at least 8
one resource used by the first quality of service application(s) to at least one 9
resource used by a second quality of service application and providing 10
information indicative of at least one cost associated with the first quality of 11
service application( s) based on the comparison and at least one cost 12
associated with the second quality of service application. (Specification 13
5:10-17). 14
An understanding of the invention can be derived from a reading of 15
exemplary claim 10, which is reproduced below [bracketed matter and some 16
paragraphing added]. 17
10. A method for implementation in a wireless 18
communication system, comprising: 19
[1] calculating, 20
in the wireless communication system, 21
resource usage 22
of a reference application 23
in meeting a reference quality-of-service (QoS) 24
during wireless communication 25
in the wireless communication system; 26
Appeal 2011-003683
Application 11/691,281

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[2] setting a reference billing rate 1
based on the resource usage 2
of the reference application 3
in meeting the reference QoS; 4
[3] calculating, 5
in the wireless communication system, 6
resource usage 7
of a target application 8
in meeting a target QoS 9
during wireless communication 10
in the wireless communication system; 11
and 12
[4] setting a target billing rate 13
for the resource usage 14
of the target application 15
in meeting the target QoS 16
based on 17
the reference billing rate 18
and 19
a ratio 20
of the resource usage of the target 21
application 22
to 23
the resource usage of the reference 24
application. 25
26
The Examiner relies upon the following prior art: 27
Liebowitz US 5,812,545 Sep. 22, 1998
28
Claims 10 - 21 stand rejected under 35 U.S.C. § 102(b) as anticipated by 29
Liebowitz. 30
ISSUES 31
The issue of anticipation turns primarily on whether Liebowitz describes 32
computing a billing rate as the ratio of two observed sets of usage data as in 33
limitation [4]. 34
Appeal 2011-003683
Application 11/691,281

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FACTS PERTINENT TO THE ISSUES 1
The following enumerated Findings of Fact (FF) are believed to be 2
supported by a preponderance of the evidence. 3
Facts Related to the Prior Art 4
Liebowitz 5
01. Liebowitz is directed to satellite communication systems and 6
earth station terminals configured to provide full mesh, 7
multimedia, bi-directional communication with other terminals in 8
a network, having dynamic bandwidth allocation, broadcast and 9
multicast capability, and voice, data and video integration using a 10
plurality of protocols. Liebowitz 1:10-17. 11
02. The rate tables 194 comprise flat rates, usage rates for voice 12
data and video services, promotional rates and customized rate 13
tables according to countries or customer accounts. Flat rates can 14
include, for example, access fees for a terminal or port, installation 15
fees, maintenance fees, administration fees, or other services for 16
which a flat rate is charged. Rates for voice calls are preferably 17
specified in minutes on a bill. Two sets of rates for voice calls are 18
provided based on the quality of calls such as calls using 8 or 16 19
Kbps circuits. The rates also vary, depending on whether voice 20
calls are prime or non-prime time calls. Data services are billed 21
by CIR and EIR. Rate tables for CIR services support multiple 22
data rates between 0 Kbps to T1 rates. The EIR rates are based on 23
the CIR as a base price, and then vary according to the block of 24
kilo-characters (Kchar) transmitted provided bandwidth was 25
available. For example, EIR rates for a 9.6 Kbps CIR differ from 26
Appeal 2011-003683
Application 11/691,281

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that of a T1 CIR for the same amount of access bandwidth used. 1
The access bandwidth is billed based on blocks of kilo-characters. 2
The EIR rates also take into account the time of day (i.e., prime 3
and non-prime hours). Video services are specified on a bill in 4
terms of minutes and factor in time of day. Customized rate tables 5
can be created by operators to accommodate operating costs in 6
different countries or to extend advantages to preferred customers. 7
Customized rate tables reflecting promotional rates can also be 8
used in lieu of default rate tables. Liebowitz 19:13-39. 9
ANALYSIS 10
We are persuaded by the Appellants’ argument that Liebowitz fails to 11
describe the limitations of the sole independent claim. The Examiner cites 12
Liebowitz 19:13-39, which does state that “EIR rates for a 9.6 Kbps CIR 13
differ from that of a T1 CIR for the same amount of access bandwidth used. 14
The access bandwidth is billed based on blocks of kilo-characters,” but this 15
fails to describe the claim 10 limitation [4] of “setting a target billing rate for 16
the resource usage of the target application in meeting the target QoS based 17
on the reference billing rate and a ratio of the resource usage of the target 18
application to the resource usage of the reference application.” No ratio is 19
shown as being computed or used by Liebowitz. 20
The Examiner appears to be finding that whatever rate factor Liebowitz 21
uses is a ratio in the sense two numbers can be found whose quotient would 22
be the rate factor, as any arbitrary number would be, but merely being equal 23
to a ratio is not the same as having been computed as a ratio. The claim 24
requires computing a billing rate as the ratio of actual usage data, which we 25
cannot find in Liebowitz. 26
Appeal 2011-003683
Application 11/691,281

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CONCLUSIONS OF LAW 1
The rejection of claims 10 - 21 under 35 U.S.C. § 102(b) as anticipated 2
by Liebowitz is improper. 3
DECISION 4
The rejection of claims 10-21 is reversed. 5
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REVERSED 7
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Klh 9