Ex Parte Landscheidt et al

Patent Trial and Appeal Board

Feb 9, 2017

13608536 (P.T.A.B. Feb. 9, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/608,536 09/10/2012 Dennis Landscheidt 2058.717US1 1087
50400 7590 02/13/2017
SCHWEGMAN LUNDBERG & WOESSNER/SAP
P.O. BOX 2938
MINNEAPOLIS, MN 55402
EXAMINER
VAN, JENKEY
ART UNIT PAPER NUMBER
2477
NOTIFICATION DATE DELIVERY MODE
02/13/2017 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):
uspto@slwip.com
SLW @blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENNIS LANDSCHEIDT and MARC-OLIVER KLEIN
Appeal 2016-001682
Application 13/608,5361
Technology Center 2400
Before ROBERT E. NAPPI, NORMAN H. BEAMER, and
MATTHEW J. McNEILL, Administrative Patent Judges.
BEAMER, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1—20. We have jurisdiction over the pending
rejected claims under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify SAP AG as the real party in interest. (App. Br. 2.)
Appeal 2016-001682
Application 13/608,536
THE INVENTION
Appellants’ disclosed and claimed invention is directed to predictive
network congestion control. (Abstract.)
Claim 1, reproduced below, is illustrative of the subject matter on
appeal:
1. A system comprising:
a network interface configured to receive network traffic
data of a location in a network, the location is defined by one of:
a cell tower, geo-coordinates, a zip code, or a city, and the
network traffic data is indicative of a current level of use of the
network at the location;
a data analysis engine configured to predict a future level
of use at the location of the network based on the received
network traffic data and based on past network traffic data for
the location of the network; and
a recommendation engine configured to generate a
recommendation to alter the future level of use for the location,
the recommendation including a type of alert to transmit to
devices of users of the network at the location,
wherein the recommendation is transmitted to a network
policy management server of the network.
REJECTIONS
The Examiner rejected claims 1—7 and 15—20 under 35 U.S.C.
§ 103(a) as being unpatentable over Carlson et al. (US 2006/0120282 Al,
pub. June 8, 2006), Puthenpura et al. (US 2010/0157841 Al, pub. June 24,
2010), and Suzuki (US 2005/0091303 Al, pub. Apr. 28, 2005). (Final Act.
3-15.)
The Examiner rejected claims 8 and 12—14 under 35 U.S.C. § 103(a)
as being unpatentable over Carlson and Puthenpura. (Final Act. 15—18.)
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Application 13/608,536
The Examiner rejected claims 9—11 under 35 U.S.C. § 103(a) as being
unpatentable over Carlson, Puthenpura, and Shah (US 8,392,574 Bl, issued
Mar. 5, 2013). (Final Act. 18-20.)
ISSUE ON APPEAL
Appellants’ arguments in the Briefs present the following issue:2
Whether the Examiner erred in finding the combination of Carlson,
Puthenpura, and Suzuki teaches or suggests the independent claim 1
limitation, “a recommendation engine configured to generate a
recommendation to alter the future level of use for the location, the
recommendation including a type of alert to transmit to devices of users of
the network at the location,” and the similar limitation recited in independent
claim 15, and whether the Examiner erred finding the combination of
Carlson and Puthenpura teaches or suggests the similar limitation recited in
independent claim 8. (App. Br. 7—11.)
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments the Examiner erred. We disagree with Appellants’ arguments,
and we adopt as our own (1) the pertinent findings and reasons set forth by
the Examiner in the Final Office Action from which this appeal is taken
(Final Act. 3—20) and (2) the corresponding findings and reasons set forth by
the Examiner in the Examiner’s Answer in response to Appellants’ Appeal
2 Rather than reiterate the arguments of Appellants and the findings of the
Examiner, we refer to the Appeal Brief (filed Apr. 16, 2015); the Reply
Brief (filed Nov. 23, 2015); the Final Office Action (mailed Oct. 17, 2014);
and the Examiner’s Answer (mailed Sep. 24, 2015) for the respective details.
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Application 13/608,536
Brief (Ans. 20-27). We concur with the applicable conclusions reached by
the Examiner, and emphasize the following.
For the claim limitation at issue, the Examiner relies on the disclosure
in Carlson of generating invitations to users to dynamically modify “Service
Load Agreements” (“SLAs”) between network providers and users based on
predictions of usage derived from usage levels exceeding predetermined
thresholds. (Final Act. 5; Carlson || 168—169.) The Examiner also relies on
the disclosure in Puthenpura of forecasting bandwidth requirements for an
access network and/or base stations based on the demand forecast,
performance metrics for the various traffic types, and/or other factors. (Final
Act. 5—6; Puthenpura 32—33.)
Appellants argue Carlson does not generate a recommendation to alter
further use levels at a location, but rather is based on “a user’s level of
bandwidth consumption.” (App. Br. 8—9.) Appellants argue, “‘comparing
user’s network access’ will not necessarily provide any data regarding
network access (e.g., traffic) at a location within the network. . . .” (App.
Br. 8.) This argument is unpersuasive because even if user access is not
necessarily linked to location information, the disclosure of Carlson at least
teaches or suggests that limitation, i.e., we agree with the Examiner’s
finding:
[NJetwork traffic data indicative of a current level of use of the
network at the location, is representative of traffic data for users
at the specified location. As such, a recommendation to alter the
future level of use for the location, may then be interpreted as
altering the use of resources at a later time for users within the
specified location.
(Ans. 22.)
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Application 13/608,536
The Examiner further relies on the cable network environment disclosed in
Carlson, in which “cable modem termination systems (CMTSs) and cable
modems (CMs)” are associated with users and are responsible for providing
bandwidth to users, thus serving as at least a teaching or suggestion of the
claimed “generation of] a recommendation to alter the future level of use
for the location.” (Ans. 22—23; Carlson Fig. 5.)
Appellants argue Carlson is directed to maintaining a “minimum level
of bandwidth” — i.e., “helping the user maintain their level of access not
change it in order to alter network usage in a location of the network.”
(App. Br. 9—10.) We are not persuaded the Examiner errs in finding:
Carlson, explicitly teaches modifications of the user’s SLA
[Service Level Agreement] for an appropriate period of time by
increasing (i.e. changing) the level of network access the user is
guaranteed (and/or the user’s respective maximum bandwidth
value (network usage)). Thus, the Carlson reference is
concerned with a user’s network access, but does not limit the
reference to only maintaining the user’s network access, but also
including the dynamic ability of modifying a user’s SLA for a
period of time, such as an increase in the maximum bandwidth
value allocated to the user.
(Ans. 26.)
Moreover, the Examiner relies on Puthenpura in combination with
Carlson to teach or suggest the claim language at issue. (Final Act. 5—6.)
Non-obviousness cannot be established by attacking references individually
where, as here, the ground of unpatentability is based upon the teachings of a
combination of references. In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986). Rather, the test for obviousness is whether the
combination of references, taken as a whole, would have suggested the
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Application 13/608,536
patentee’s invention to a person having ordinary skill in the art. In re Keller,
642 F.2d 413, 425 (CCPA 1981).
Appellants argue there is “no motivation for one skilled in the art to
substitute any static location disclosed by Puthenpura for the ‘user’ of
Carlson.” (App. Br. 9—10.) However, we find no error in the Examiner’s
analysis, demonstrating the relationship of the cable modems in a cable
network as disclosed in Carlson with the base stations in a wireless network
as disclosed in Puthenpura, such that “it would have been obvious to one of
ordinary skill in the art at the time of the invention to modify the teachings
of Carlson to include the above limitations as suggested by Puthenpura, such
that the service provider may use the forecasted bandwidth requirements and
network design rules for providing network growth and capital projections
as indicated in [0032] of Puthenpura.” (Final Act. 6.) “The test for
obviousness is not whether the features of a secondary reference may be
bodily incorporated into the structure of the primary reference.” Keller, 642
F.2d at 425. Appellants do not point to any evidence of record that the
claimed subject matter would be “uniquely challenging or difficult for one of
ordinary skill in the art” or “represented an unobvious step over the prior
art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418-19
(2007)). Nor have Appellants provided objective evidence of secondary
considerations which our reviewing court guides “operates as a beneficial
check on hindsight.” Cheese Sys., Inc. v. Tetra Pak Cheese and Powder
Sys., Inc., 725 F.3d 1341, 1352 (Fed. Cir. 2013). We are persuaded the
claimed subject matter exemplifies the principle that “[t]he combination of
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familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR, 550 U.S. at 416.
Appellants further argue the Examiner errs in broadly interpreting the
claim limitation at issue such that “[t]he recommendation engine generates a
recommendation, but is not tied in with the data analysis engine.” (App. Br.
10.) Appellants argue “it is very clear that contrary to the Examiner’s
assertion the data analysis is being used as a basis for a future
recommendation.” (App. Br. 11.) Appellants correctly describe the
preferred embodiment of the Application, but nonetheless the Examiner
correctly concludes:
The claim language recites “a recommendation to engine to
generate a recommendation to alter the future level of use for the
location ...” It is still unclear that the results of the data analysis
engine that “predicts a future level of use at the location” is tied to
the recommendation engine “generating a recommendation to alter
the future level of use for the location.” While both limitations
mention the future level of use for the location, the claim language
does not have linking verbage [sic] that one step is based on the
results of another, (i.e. no “based on” language). In other words,
the recommendation engine does not have any language for using
the predicted future level of use at the location based on past
network traffic data for the location of the network that is
determined by the data analysis engine. As such, it is not clear that
the data analysis is being used as a basis for a future
recommendation.
(Ans. 26—27.)
CONCLUSION
For the reasons stated above, we sustain the obviousness rejections of
independent claims 1 and 15 over Carlson, Puthenpura, and Suzuki, and of
claim 8 over Carlson and Puthenpura.
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We also sustain the obviousness rejections of claims 2—7 and 16—20
over Carlson, Puthenpura, and Suzuki, of claims 12—14 over Carlson and
Puthenpura, and of claims 9—11 over Carlson, Puthenpura, and Shah, which
rejections are not argued separately with particularity. (App. Br. 11.)
DECISION
We affirm the Examiner’s rejections of claims 1—20.
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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