Ex Parte June et al

Patent Trial and Appeal Board

Feb 19, 2014

11025275 (P.T.A.B. Feb. 19, 2014)

UNITED STATES PATENT AND TRADEMARKOFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
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APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/025,275 12/29/2004 Thaddeus O. June 20103/030853 3407
83417 7590 02/20/2014
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Room 2A-207
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EXAMINER
HO, CHUONG T
ART UNIT PAPER NUMBER
2412
MAIL DATE DELIVERY MODE
02/20/2014 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 THADDEUS O. JUNE and DUANE HATTAWAY
____________

Appeal 2011-007085
Application 11/025,275
Technology Center 2400
____________

Before JOHN A. JEFFERY, STEPHEN C. SIU, and JENNIFER L.
McKEOWN, Administrative Patent Judges.

JEFFERY, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1-10, 12-15, 18-20, and 23-26. Claims 11, 16, 17,
21, and 22 have been cancelled. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm-in-part.

STATEMENT OF THE CASE
Appellants’ invention enables a customer computer to reconfigure a
local data switch to re-route data from one interexchange carrier network to
another responsive to network disruptions. See generally Abstract. Claim 1
is illustrative:
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1. A telecommunications system, comprising:

a customer computer in communication with a local data switch in
communication with a first interexchange carrier network and a second
interexchange carrier network, the local data switch including a first
configuration associated with a first communication path between the
customer computer and the first interexchange carrier, the local data switch
including a second configuration associated with a second communication
path between the customer computer and the second interexchange carrier;
and

a customer network management application configured to enable a
user of the customer computer to change the local data switch from
operating according to the first configuration to operating according to the
second configuration, and wherein the local data switch is configured to
return to operating according to the first configuration after a predetermined
period of time.

THE REJECTIONS
The Examiner rejected claims 1, 3-5, 8-10, 12-15, 18-20, and 23-26
under 35 U.S.C. § 103(a) as obvious over De Paul (US 5,708,702; issued
Jan. 13, 1998) and Tuunanen (US 7,039,173 B2; issued May 2, 2006; filed
Jan. 8, 2002). Ans. 4-15.1
The Examiner rejected claims 2, 6, and 7 under 35 U.S.C. § 103(a) as
obvious over De Paul, Tuunanen, and Plunkett (US 6,292,552 B1; issued
Sept. 18, 2001). Ans. 15-17.

1 Throughout this opinion, we refer to (1) the Appeal Brief filed November
4, 2010 (“App. Br.”); (2) the Examiner’s Answer mailed January 21, 2011
(“Ans.”); and (3) the Reply Brief filed March 18, 2011 (“Reply Br.”).
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THE OBVIOUSNESS REJECTION OVER DE PAUL AND TUUNANEN
Regarding independent claim 1, the Examiner finds that De Paul’s
“customer computer” (technician terminal 66) in Figure 7 communicates
with a “local data switch” (time-multiplexed switch 57) that includes first
and second configurations associated with respective communication paths
between this “customer computer” and respective interexchange carriers
(points of presence (POPs) 41A and 41B in Figure 6A)2 via respective
interface modules 51. Ans. 4-5, 18-21. Although the Examiner
acknowledges that De Paul lacks a customer network management
application configured to enable a customer-computer user to switch from
first to second configuration operation and return to the first configuration
operation after a predetermined time period, the Examiner cites Tuunanen’s
control point re-routing functionality as teaching this feature in concluding
that the claim would have been obvious. Ans. 4-7, 18-28.
Appellants argue, among other things, that not only is De Paul’s
technician terminal not a “customer computer,” communication paths do not
exist between the technician terminal 66 and interexchange carriers as the
Examiner asserts. Rather, Appellants emphasize that De Paul’s terminal
merely enables a technician to provide instructions to administrative module
55 that communicates control messages to time-multiplexed switch 57.
App. Br. 10-14; Reply Br. 4-6. Appellants add that Tuunanen’s re-routing
involving distributing service control point (SCP) service requests fails to
cure De Paul’s deficiencies that, in any event, do not involve switching

2 Although the Examiner labels these “interexchange carriers” as POPs in
the rejection (which matches De Paul’s label), the Examiner refers to them
as “local exchange carrier networks” in the Answer’s response to arguments.
Compare Ans. 5 with Ans. 19.
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between interexchange carriers, but rather redundant SCPs. App. Br. 14-16;
Reply Br. 6. Appellants also argue independent claims 10 and 18 separately.
App. Br. 16-20; Reply Br. 7-8.

ISSUES
Under § 103, has the Examiner erred by finding that De Paul and
Tuunanen collectively would have taught or suggested:
(1)(a) a customer computer communicating with a local data switch
that includes first and second configurations associated with respective
communication paths between the customer computer and respective
interexchange carriers, and (b) a customer network management application
configured to enable a customer-computer user to switch from first to second
configuration operation and return to the first configuration operation after a
predetermined time period as recited in claim 1?
(2)(a) detecting, by a customer computer, a service disruption
associated with a first interexchange network; (b) configuring, by the
customer computer, a local data switch to route data between first and
second customer facilities via a second interexchange network responsive to
the service disruption; and (c) configuring, by the customer computer, the
local data switch to return to routing data between the facilities via the first
network after the data has been routed via the second network for a
predetermined time period as recited in claim 10?
(3) the switching and communication means recited in claim 18?

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ANALYSIS
Claims 1, 3-5, 8, 9, and 24
We do not sustain the Examiner’s rejection of independent claim 1
that recites, in pertinent part, first and second configurations associated with
respective communication paths between the customer computer and first
and second interexchange carriers, respectively. Even if De Paul’s
technician terminal 66 in Figure 7 is a “customer computer” as the Examiner
proposes, we still fail to see how a communication path is established
between that computer and the recited first and second interexchange
carriers, namely the POPs 41A and 41B in Figure 6A according to the
Examiner’s mapping.
The problem with the Examiner’s position is that it presupposes that
data is somehow communicated between the technician terminal 66 and the
POPs. See Ans. 20-21 (annotating De Paul’s Figures 6A and 7 to illustrate
communication paths). But that is not the case. Although a
“communication path” is established for control purposes between De Paul’s
technician terminal and interface modules 51 via (1) I/O processor 65; (2)
administrative module processor 61; (3) message switch 59; and (4) time-
multiplexed switch 57, this path ends at the interface modules. As such, this
path is for (1) transferring control-related messages between the interface
modules and the administrative module processor, and (2) data links from
the technician terminal to operations systems for traffic, billing, maintenance
data, etc. See De Paul, col. 15, ll. 14-32; Fig. 7. Notably, this control-
related path is specifically identified by the textual label “NETWORK
CNTL. AND TIMING LINKS” in De Paul’s Figure 7.
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Although De Paul’s interface modules may communicate externally
with POPs 41A and 41B in Figure 6A via lines and trunks3 as the Examiner
suggests, data associated with this external communication goes no farther
than the interface modules and the time-multiplexed switch. That is, this
externally-communicated data is not routed to the technician terminal (the
“customer computer”), as the Examiner seemingly suggests, but rather is
transferred to other interface modules via the time-multiplexed switch as
Appellants correctly indicate. See Reply Br. 5; De Paul, col. 15, ll. 10-13
(noting that the time-multiplexed switch transfers (1) voice data packets
between interface module channels, and (2) data messages between interface
modules). The Examiner’s reliance on De Paul is, therefore, flawed in this
regard, nor does Tuunanen cure that deficiency.
Accordingly, we are persuaded that the Examiner erred in rejecting
independent claim 1, and dependent claims 3-5, 8, 9, and 24 for similar
reasons.

Claims 10, 12-15, 25, and 26
We do, however, sustain the Examiner’s rejection of independent
claim 10 reciting, in pertinent part, (1) detecting, by a customer computer, a
service disruption associated with a first interexchange network; (2)
configuring, by the customer computer, a local data switch to route data
between first and second customer facilities via a second interexchange
network responsive to the service disruption; and (3) configuring, by the
customer computer, the local data switch to return to routing data between

3 See De Paul, Fig. 7 (labeling the output of various units of interface
modules 51) as “LINES AND TRUNKS.”
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the facilities via the first network after the data has been routed via the
second network for a predetermined time period.
Unlike claim 1, claim 10 does not require communication paths
between the customer computer and interexchange carriers. And unlike the
rejection of claim 1, the Examiner does not rely solely on De Paul’s
technician terminal 66 as corresponding to the recited “customer computer,”
but the Examiner also refers to Tuunanen’s master SCP 100 in this regard.
See Ans. 8-10, 28-34. The Examiner also finds that this “customer
computer” configures a “local data switch” (service switching point 105) to
route data from one slave SCP to another responsive to a service overload—
an overload that reasonably suggests a service disruption as claimed. See
Ans. 31 (citing Tuunanen, col. 6, ll. 16-58; Fig. 1). As such, Appellants’
contentions regarding De Paul, including the alleged shortcomings of De
Paul’s technician terminal (App. Br. 17; Reply Br. 6-7), do not persuasively
rebut the Examiner’s additional reliance on Tuunanen’s “customer
computer” (master SCP 100) in this regard.
Nor do we find error in the Examiner’s reliance on Tuunanen’s time-
based re-routing functionality for teaching returning routing data via a first
interexchange network after a predetermined time period as claimed. Ans.
31-34 (citing Tuunanen, col. 6, ll. 50-58). We also see no error with the
Examiner’s combining this teaching with De Paul to at least suggest the
claimed invention. Appellants’ contention that Tuunanen’s SCP
arrangement lacks local data switch operations (App. Br. 17-18) is
unavailing, for it does not persuasively rebut the Examiner’s reliance on
Tuunanen’s service switching point 105 to re-route data. See Ans. 31, 33.
We see no reason why this fundamental time- and disruption-based
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switching concept could not be applied to De Paul’s system as the Examiner
proposes, particularly in view of De Paul’s communications network
switching functionality noted previously and by the Examiner. See Ans. 8-
10, 28-34. Such an enhancement predictably uses prior art elements
according to their established functions—an obvious improvement. KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Although Appellants
argue the individual shortcomings of the cited references (see App. Br. 16-
18; Reply Br. 6-7), such individual attacks do not show nonobviousness
where, as here, the rejection is based on the references’ collective teachings.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
Therefore, we are not persuaded that the Examiner erred in rejecting
representative claim 10, and claims 12-15, 25, and 26 not argued separately
with particularity.

Claims 18-20 and 23
Although Appellants nominally argue the Examiner’s rejection of
independent claim 18 separately (App. Br. 19-20; Reply Br. 8), Appellants
reiterate arguments similar to those made previously which we find
unpersuasive for the reasons noted above.

THE REJECTION OVER DE PAUL, TUUNANEN, AND PLUNKETT
Because the Examiner has not shown that Plunkett cures the
deficiencies noted above regarding independent claim 1, we do not sustain
the obviousness rejection of dependent claims 2, 6, and 7 (Ans. 15-17) for
similar reasons.

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CONCLUSION
Under § 103, the Examiner erred in rejecting claims 1-9 and 24, but
did not err in rejecting claims 10, 12-15, 18-20, 23, 25, and 26.

ORDER
The Examiner’s decision rejecting claims 1-10, 12-15, 18-20, and 23-
26 is affirmed-in-part.
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-IN-PART

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