Ex Parte Laye et al

Board of Patent Appeals and Interferences

Mar 4, 2008

10132979 (B.P.A.I. Mar. 4, 2008)

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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte CHRISTOPHE T. LAYE and MARC FLAUW
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Appeal 2007-3005
Application 10/132,9791
Technology Center 2100
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Decided: March 4, 2008
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Before JOSEPH L. DIXON, LANCE LEONARD BARRY, and
CAROLYN D. THOMAS, Administrative Patent Judges.

THOMAS, C., Administrative Patent Judge.

DECISION ON APPEAL

I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a Final Rejection
of claims 1-38 entered November 30, 2005. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.

1 Application filed April 26, 2002. The real party in interest is Hewlett-
Packard Development Company.
Appeal 2007-3005
Application 10/132,979

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A. INVENTION
Appellants invented a system and method for providing real-time
monitoring of services by using real-time aggregation of service instance
parameters. (Spec., ¶0003).

B. ILLUSTRATIVE CLAIMS
The appeal contains claims 1-38. Claims 1, 11, 21, and 30 are
independent claims. As best representative of the disclosed and claimed
invention, claims 1, 3, and 6 are reproduced below:
1. A telecommunications network management system that
comprises:
a data collector that receives service information from
one or more sources in a telecommunications network, and that
converts the service information into values of primary parameters of
multiple service model instances; and
a performance data manager that receives the primary
parameter values from the data collector, and that calculates values of
secondary parameters of the service model instances from the primary
parameter values, wherein the performance data manager stores the
primary and secondary parameter values in a performance data
database,
wherein the performance data manager determines at
least one aggregated parameter value from values of a parameter of
the multiple service model instances and stores the aggregated
parameter value in the performance data database.

3. The system of claim 2, wherein the performance data
manager further determines a higher-level aggregation parameter
value from aggregated parameter values associated with different
regions.

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6. The system of claim 1, further comprising:
a service level objective (SLO) monitor that receives the
aggregated parameter value from the performance data manager and
that initiates a specified action if the aggregate parameter value
crosses a specified threshold.

C. REFERENCE
The single reference relied upon by the Examiner in rejecting the
claims on appeal follows:
Ries US 6,055,493 Apr. 25, 2000

D. REJECTION
The Examiner entered the following rejection, which is before us for
review:
Claims 1-38 are rejected under 35 U.S.C. § 102(b) as being
anticipated by Ries.

II. PROSECUTION HISTORY
Appellants appealed from the Final Rejection and filed an Appeal
Brief (App. Br.) on March 7, 2006. The Examiner mailed an Examiner’s
Answer (Ans.) on December 4, 2006. Appellants filed a Reply Brief
(Reply Br.) on February 2, 2007.

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III. ISSUE
Whether Appellants have shown that the Examiner erred in rejecting
claims 1-38 as anticipated by Ries.

IV. PRINCIPLES OF LAW
"[A]nticipation of a claim under § 102 can be found only if the prior
art reference discloses every element of the claim . . . ." In re King, 801
F.2d 1324, 1326 (Fed. Cir. 1986) (citing Lindemann Maschinenfabrik
GMBH v. American Hoist & Derrick Co., 730 F.2d 1452, 1458 (Fed. Cir.
1984)). "[A]bsence from the reference of any claimed element negates
anticipation." Kloster Speedsteel AB v. Crucible, Inc., 793 F.2d 1565, 1571
(Fed. Cir. 1986).

V. ANALYSIS
Grouping of Claims
In the Brief, Appellants present three separate arguments (App. Br.
12-14).
For example, for claims 1, 2, 4, 5, 7-12, 14, 15, 17-24, 26-33, and 35-
38, Appellants merely repeat the same argument made for claim 1.
Accordingly, the remaining claims in this group stand or fall with claim 1.
Appellants argue claims 3 and 13 as a separate group. For claim 13,
Appellants repeat the same argument made for claim 3. We will, therefore,
treat claim 13 as standing or falling with claim 3.

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Appellants argue claims 6, 16, 25, and 34 as a separate group. For
claims 16, 25, and 34, Appellants repeat the same argument made for claim
6. We will, therefore, treat claims 16, 25, and 34 as standing or falling with
claim 6. See 37 C.F.R. § 41.37(c)(1)(vii)(2004). See also In re Young, 927
F.2d 588, 590 (Fed. Cir. 1991).
Rather than repeat the arguments of Appellants or the Examiner, we
make reference to the Briefs and the Answer for their respective details.
Only those arguments actually made by Appellants have been considered in
this decision. Arguments which Appellants could have made but chose not
to make in the Briefs have not been considered and are deemed to be
waived. See 37 C.F.R. § 41.37(c)(1)(vii)(2004).
We have thoroughly reviewed each of the arguments advanced by
Appellants. However, we are in complete agreement with the Examiner’s
reasoned analysis and application of the prior art, as well as the Examiner’s
cogent disposition of the arguments raised by Appellants. Accordingly, we
will adopt the Examiner’s reasoning as our own in sustaining the rejection of
record, and we add the following for emphasis only.

The Anticipation Rejection
Group I: Claims 1, 2, 4, 5, 7-12, 14, 15, 17-24, 26-33, and 35-38
Appellants contend that “Ries does not . . . discuss
telecommunications networks. Rather Ries appears to be measuring and
monitoring computer networks.” (App. Br. 12.) Appellants further contend
that “Ries models physical systems, calculations, and reports, but not
services. Ries 4:47-57. Claim 1 requires instances of one or more service
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models, i.e., a model of a service to be provided on the telecommunications
network, and this limitation is not taught or suggested by Ries.”
(App. Br. 13.)
However, we fully concur with the Examiner that that Ries expressly
discloses using telecommunication devices in its system and hence
telecommunication networks. (Ans. 27.)
Furthermore, as explained by the Examiner, Ries offers a process for
performance measurement and service quality monitoring within an
information system. (Ans. 28.) We agree.
Specifically, with respect to Appellants’ argument that “a model of a
service to be provided on the telecommunications network, . . . is not taught
or suggested by Ries” (App. Br. 13), we endorse and adopt the Examiner’s
findings that Ries shows diagrams illustrating a modeling mechanism for
several different instances of services in Figs. 5A, 5B, and 5C and further
discloses specific object-oriented modeling in column 4, lines 47-51. (Ans.
28.)
As such, we do not find that Appellants have shown error in the
Examiner’s rejection of exemplary claim 1. Instead, we find the Examiner
has set forth a sufficient initial showing of anticipation, and Appellants have
not shown that Ries lacks the above noted disputed features of claim 1.
Therefore, we affirm the rejection of independent claim 1 and of claims 2, 4,
5, 7-12, 14, 15, 17-24, 26-33, and 35-38, which fall therewith.

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Group II: Claims 3 and 13
Appellants state that “[t]he examiner argues that ‘it is inherent [sic]
further aggregated values from the associated aggregated values are
calculated by the server in order to satisfy requests sent by the users about
the different regions being monitored.’ . . . Given this standard for
inherency, appellants maintain that the quoted claim limitation is clearly not
inherent in Ries because aggregation is not necessarily hierarchical and in
fact, Ries suggests that recalculations of readily determinable parameters
may in fact be desirable.” (App. Br. 13-14.) Appellants further contend that
“the language quoted by the examiner is taken from claim 3 and is not being
quoted from any of the cited portions of Ries.” (Reply Br. 2.) Appellants
also contend that “[t]he examiner’s editorial notes characterizing the
sentences as sequential or hierarchical aggregation steps are erroneous.”
(Reply Br. 1.)
We agree with the Examiner’s assessment that “the issue of inherency
is moot in view of the quoted . . . parts of the reference and further in view
of Ries’s teachings in column 8, lines 64-67 and in column 9, lines 1-11.”
(Ans. 29.)
Specifically, with respect to Appellants’ argument that “the quoted
claim limitation is clearly not inherent in Ries because aggregation is not
necessarily hierarchical . . .” (App. Br. 13-14), we endorse and adopt the
Examiner’s findings that the issue of inherency is moot in view of the quoted
parts of Ries on pages 29-31 of the Answer. Appellants do not present
separate arguments for such quoted parts.
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As such, we do not find that Appellants have shown error in the
Examiner’s rejection of exemplary claim 3. Instead, we find that Ries
discloses the above noted disputed features of claim 3. Therefore, we affirm
the rejection of claim 3 and of claim 13, which falls therewith.

Group III: Claims 6, 16, 25, and 34
Appellants contend that “Ries makes no suggestion that decisions may
be taken by a network manager or anything other than a user. Moreover,
Ries does not inherently require that such decisions would be based on
crossing a specified threshold, and to the contrary, Ries suggests that
decisions would be based on anticipated deviations.” (App. Br. 14.)
We concur with the Examiner that Ries discloses a service level
objective (SLO) monitor that can be used to anticipate any deviations and
make any necessary decisions in order to guarantee and respect service
undertakings. (Ans. 31-32.)
Specifically, with respect to Appellants’ argument that “Ries suggests
that decisions would be based on anticipated deviations” (App. Br. 14), we
find that Ries’ “anticipated deviations” signifies a foreseen departure from
the standard and as such reads on the claimed “crosses a specified
threshold”. Therefore, we endorse and adopt the Examiner’s findings as
expressed in the Answer, page 29-31.
We observe that Appellants have not refuted the Examiner’s analysis
spanning pages 27-32 of the Answer. We also note that Appellants base no
arguments upon objective evidence of nonobviousness, such as unexpected
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results, which would serve to rebut the prima facie case of obviousness by
the Examiner.
As such, we do not find that Appellants have shown error in the
Examiner’s rejection of exemplary claim 6. Instead, we find that Ries
discloses the above noted disputed features of claim 6. Therefore, we affirm
the rejection of claim 6 and of claims 16, 25, and 34, which fall therewith.

VI. CONCLUSIONS
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1-38.

VII. DECISION
In view of the foregoing discussion, we affirm the Examiner’s
rejection of claims 1-38.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2006).

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AFFIRMED

pgc

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