Ex Parte Lewis

Board of Patent Appeals and Interferences

Jun 19, 2009

09577232 (B.P.A.I. Jun. 19, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte LUNDY LEWIS
_____________

Appeal 2009-000889
Application 09/577,2321
Technology Center 2400
______________

Decided:2 June 19, 2009
_______________

Before LEE E. BARRETT, LANCE LEONARD BARRY, and
JEAN R. HOMERE, Administrative Patent Judges.

BARRETT, Administrative Patent Judge.

DECISION ON APPEAL

1 Filed May 23, 2000, titled "Method and Apparatus for Service
Analysis in Service Level Management (SLM)," which claims the benefit of
Provisional Application 60/135,492, filed May 24, 1999.
2 The two-month time period for filing an appeal or commencing a
civil action, as recited in 37 C.F.R. § 1.304, begins to run from the decided
date shown on this page of the decision. The time period does not run from
the Mail Date (paper delivery) or Notification Date (electronic delivery).
(Continued on next page.)
Appeal 2009-000889
Application 09/577,232

2
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s final
rejection of claims 31-59, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
Oral argument was held on June 10, 2009.
We affirm.

STATEMENT OF THE CASE
A. Appellant’s invention
The invention relates to service level management, wherein business
processes are composed of services. A state of the service is defined by one
or more service parameters, and the service parameters depend upon
performance of network components that support the service, e.g.,
component parameters. The state of the service may depend, for example,
on a collection of service parameter values for availability, reliability,
security, integrity, and response time. A service level agreement is a
contract between a supplier and a customer that identifies services supported
by a network, service parameters for the services, and service levels (e.g.,
acceptable levels) for each service parameter. See Abstract.

B. The claims
The independent claims are claims 31, 39, 46, 53, and 59, of which
claim 31 reads:
31. A method of providing service level management of
a business process in connection with a computer network,
wherein the business process is supported by a service operated
on the computer network, wherein the service is supported by at

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least one network component within the computer network,
wherein the service is to be provided at an agreed upon service
level, and wherein a measure of performance of the service
indicates a current service level of the business process, the
method comprising:
measuring a component parameter of the at least one
network component, the component parameter indicating an
operational characteristic of the at least one network
component;
determining a service parameter representative of a
measure of performance of the service, the service parameter
having a state used to determine conformity of the service to the
agreed upon service level; and
determining an effect of the measured component
parameter on the state of the service parameter.
Claims App., Br. 13.
C. The references

Glitho US 6,233,449 B1 May 15, 2001
(filed Aug. 24, 1998)
Yemini US 6,249,755 B1 Jun. 19, 2001
(filed Jul. 15, 1997)
Hunter US 6,449,603 B1 Sep. 10, 2002
(filed May 23, 1997)

D. The rejections
Claims 31, 32, 34-36, 38-43, 45-47, 49-51, 53-57, and 59 stand
rejected under 35 U.S.C. § 102(e) for anticipation by Glitho.
Claims 33 and 48 stand rejected under 35 U.S.C. § 103(a) for
obviousness over Glitho in view of Hunter.
Claims 37, 44, 52, and 58 stand rejected under 35 U.S.C. § 103(a) for
obviousness over Glitho in view of Yemini.
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PRINCIPLES OF LAW
Application claims are interpreted as broadly as is reasonable and
consistent with the specification, In re Thrift, 298 F.3d 1357, 1364 (Fed. Cir.
2002), while "taking into account whatever enlightenment by way of
definitions or otherwise that may be afforded by the written description
contained in the applicant's specification." In re Morris, 127 F.3d 1048,
1054 (Fed. Cir. 1997).
"A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference." Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987).

FACTS
The invention
The following terms are defined in the Specification:
A service is a function that a network provides for the
business. A service is an abstraction over and above the
network, and arises in virtue of the structure and operation of
the network. Thus, a service may be a function whose
performance depends upon performances of network
components that support the service. One example of a service
is providing Internet access. The state of a service may be
defined by one or more service parameter values. A service
may have a predefined state expressed as a range of parameter
values. The state of a service may depend, for example, on a
collection of service parameter values for availability,
reliability, security, integrity and response time.
A service parameter is a variable having a state (value)
which represents the performance of some service provided by
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a network. Three examples of service parameters are
availability, reliability, and usability (e.g., response time).
A component parameter is either: (1) a variable having
a state (value) which represents the performance of some
network component; or (2) a variable having a state (value)
which controls the performance of some network component
(e.g., transmission device, transmission media, computer
system, or application).
A component-to-service parameter mapping is a
function that takes as input a collection of one or more
component parameter values and provides as output a value for
a service parameter.
A service level is some value of a service parameter used
to indicate acceptable service qualities.

Spec. 20: 11-30. The "component-to-service parameter mapping" can
be declaring that some component parameter is a service parameter (a
one-to-one mapping) or a function can be devised that takes as input a
set of component parameters and outputs a value of the service
parameter that depends upon the input component parameters (a
many-to-one mapping) (Spec. 33: 12-21).
As shown in Figure 1, network components 18 are
"monitored/controlled by" component parameters 19 which are
"mapped into" service parameters 15 which are "marked by" service
levels 16.

Glitho
In Glitho, Figure 3, a network element (NE) mobile switching
center (MSC) has raw data 33 which needs to be reported to the
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Network Management System (NMS) so that the network can be
properly and efficiently managed (col. 4, ll. 41-45). "Raw data may
come from traffic data 34 or exchange data 35, and may include, for
example, exchange and cell configuration and performance data."
Col. 4, ll. 45-47.
The NE takes raw data and preprocesses it to compress the data
and sort it according to logical groups (col. 4, ll. 49-50).
Glitho states:
Some of the preprocessed data enters the OMCP 31 through a
Performance and Quality of Service (QoS) Monitoring (PQSM)
function 36, and some of the data enters through a Trouble Sniffer
(TS) 37. The OMCP uses the PQSM function to monitor performance
and QoS in the network. Performance thresholds are defined
(manually and/or automatically), and performance is presented to
assess the current situation and current utilization level in the network.
QoS may be monitored for specified cases such as handoffs and call
setups.

Col. 4, ll. 55-64.
"The PQSM function 36 determines whether there is a problem
with the QoS." Col. 4, ll. 65-66. The PQSM determines whether the
degradation in QoS exceeds a threshold and, if so, the PQSM sends
the data to the Trouble Sniffer (TS) 37 which performs calculations to
detect the cause of the degradation (col. 4, l. 66 to col. 5, l. 11).

DISCUSSION
Anticipation
Claims 31, 32, 34-36, 38-43, 45-47, 49-51, 53-57, and 59 are
grouped together. Accordingly, the claims in this rejection stand or
fall together with claim 31. See 37 C.F.R. § 41.37(c)(1)(vii).
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Issues
Based on Appellant's arguments, the issues are: Does Glitho teach:
(1) "determining a service parameter representative of a measure of
performance of the service"; (2) "determining an effect of the measured
component parameter on the state of the service parameter"; and (3) where
the state may be "used to determine conformity of the service to the agreed
upon service level," as recited in claim 31?

Contentions
The Examiner finds: "measuring a component parameter of the at least
one network component, the component parameter indicating an operational
characteristic of the at least one network component" is taught at column 4,
line 55 to column 5, line 40; "determining a service parameter representative
of a measure of performance of the service, the service parameter having a
state used to determine conformity of the service to the agreed upon service
level" is taught at column 4, line 65 to column 5, line 40; and "determining
an effect of the measured component parameter on the state of the service
parameter" is taught at column 5, lines 12-54 (Final Rej. 3).
Appellant argues that Glitho relates to using preprocessed
network element data to monitor performance and quality of service
(QoS) in a network, but does not disclose "determining a service
parameter representative of a measure of performance of the service"
or "determining an effect of the measured component parameter on
the state of the service parameter," where the state may be "used to
determine conformity of the service to the agreed upon service level"
(Br. 8-9).
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Appellant argues that assuming, arguendo, that similarities
exist between a "component parameter" and the preprocessed raw data
in Glitho, Glitho does not teach "determining an effect of the
measured component parameter on the state of the service parameter"
(Br. 9). It is argued that Glitho does not make the QoS determination
based on how the network element data affects a service parameter
state but, at best, uses network element data, not a service parameter's
state, to determine whether QoS degradation has occurred (Br. 9).
Thus, it is argued that Glitho does not teach "a service parameter
representative of a measure of performance of the service" or that the
service parameter has a "state used to determine conformity of the
service to the agreed upon service level" (Br. 9).
Appellant notes that the Examiner apparently equates
determining QoS degradation in Glitho with determining "conformity
of the service to the agreed upon service level" (Br. 9). It is argued
that assuming, arguendo, that similarities exist between QoS and
"service level," the Examiner has not shown that Glitho discloses a
"service parameter having a state used to determine conformity" to the
agreed upon QoS (Br. 9).
Appellant argues that the Examiner equates QoS to service level
and a predefined threshold to a state of the service, but nothing in
Glitho teaches a "service parameter having state" (Br. 10).
The Examiner finds that "the limitation of 'determining a
service parameter representative of a measure of performance of the
service' can be interpreted as determining or monitoring bandwidth or
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any service in a Quality of Service (QoS) system as taught in Glitho,
column 4, line 55 et seq." (emphasis added) (Ans. 11).
Appellant replies that "in taking this position, the Examiner
alleges that determining a 'service,' in itself, is the equivalent of
'determining a service parameter representative of a measure of
performance of the service.' In other words, the Examiner alleges that
a "service" is the same as the "service parameter" representing the
performance of the service." Reply Br. 2. Appellant argues that
"[d]etermining or monitoring a service in a QoS system is not the
same as 'determining a service parameter representative of a measure
of performance of the service'" (id.) and "for at least the reason that
Glitho fails to disclose using 'bandwidth or any service' as 'a service
parameter representative of a measure of performance of the service'"
(id.), the Examiner's position is in error.
The Examiner refers to the discussion of the degradation in the
QoS exceeding a threshold in Glitho, columns 4-5, and concludes that
it was "well known in the art that if there is a threshold that would
mean a measurement of some sort would have to be determined either
by measuring or calculations of a measurement" (emphasis added)
(Ans. 12).
Appellant replies that the claimed invention does not simply
recite "some sort" of measurement, but recites "measuring a
component parameter . . . indicating an operational characteristic of
the at least one network component" and the Examiner's allegation
that Glitho discloses "some sort" of measurement falls short of
teaching measuring a component parameter. Appellant notes Glitho
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teaches raw data that has been preprocessed, compressed, and sorted,
but argues, without saying why, "that preprocessed, compressed, and
sorted data do not indicate 'an operational characteristic of . . . at least
one network component'" (Reply Br. 3).
The Examiner states, with respect to the limitation "determining
an effect of the measured component parameter on the state of the
service parameter," that the "effect that the parameter has on the state
of the service is that the quality agreed upon is not being met and the
effect will cause the prior art of Glitho [to] determine what it is and
how to fix the problem so that the system will be up to the agreed
upon threshold" (Ans. 12).
Appellant argues:
[T]he claimed invention expressly recites measuring certain
information (i.e., a "component parameter"), determining a way
to represent service performance (i.e., using a "service
parameter"), and then determining a relationship between the
measured information and the represented service performance
(i.e., "the measured component parameter" effects "the state of
the service parameter"). On the other hand, the Examiner
alleges that Glitho discloses these features by first determining
that the agreed upon QoS is not being provided and then
determining "how to fix the problem." The mechanisms used to
diagnose causes of degraded QoS are irrelevant to the claimed
features of "determining an effect of the measured component
parameter on the state of the service parameter," among others.

Reply Br. 3-4. It is argued that the Examiner's continued reliance on
Glitho's discussion of suggested actions is irrelevant (Reply Br. 4).

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Analysis
With regard to the first step of "measuring a component
parameter of the at least one network component, the component
parameter indicating an operational characteristic of the at least one
network component" in claim 31, we find that the claimed "network
component" reads on the network element NE and the claimed
"component parameter indicating an operational characteristic of the
at least one network component" reads on measured values of the NE
which are the preprocessed raw data input to the PQSM function.
These measured component parameters include "performance data"
(col. 4, l. 47) and data relating to QoS. Therefore, we find that Glitho
teaches "measuring a component parameter of the at least one network
component, the component parameter indicating an operational
characteristic of the at least one network component" as recited in
claim 31. Appellant argues "that preprocessed, compressed, and
sorted data do not indicate 'an operational characteristic of . . . at least
one network component'" (Reply Br. 3), but does not present any
arguments why performance and QoS data of a NE are not measured
operational characteristics of the NE.
In the limitation "determining a service parameter
representative of a measure of performance of the service, the service
parameter having a state used to determine conformity of the service
to the agreed upon service level," the "state" is a value of a service
parameter. In Glitho, the performance data and data related to QoS
output from the NE are representative of a measure of performance of
the NE and have values that are used to determine conformity of the
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service to a performance or QoS service level; e.g., by comparison of
performance data to a performance threshold (col. 4, ll. 60-64) or QoS
data to a QoS threshold (col. 4, l. 65 to col. 5, l. 3) in the PQSM.
Thus, any one of the performance data and data related to QoS output
from the NE corresponds to "a service parameter representative of a
measure of performance of the service, the service parameter having a
state used to determine conformity of the service to the agreed upon
service level." Note that, at this point in the claim and the analysis,
the component parameter (indicating an operational characteristic of
the network component) and the service parameter (having a state
(value) used to determine conformity of the service) are not tied
together.
The limitation "determining an effect of the measured
component parameter on the state of the service parameter" requires
some interpretation. Appellant states that the limitation corresponds
to the description in the Specification at page 20, lines 26-28, and
page 23, lines 5-10 and 18-26 (Br. 4), which describes a component-
to-service parameter mapping. "A component-to-service parameter
mapping is a function that takes as input a collection of one or more
component parameter values and provides as output a value for a
service parameter." Spec. 20: 26-28. The Specification describes that
"[o]ne method for mapping includes declaring that some component
parameter is a service parameter, in which case a one-to-one mapping
between the component and service parameter has been established"
(Spec. 33: 14-16). The Specification also describes that there can be a
many-to-one mapping (Spec. 33: 16-19), but we rely on the
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one-to-one mapping example. Thus, "determining an effect of the
measured component parameter on the state of the service parameter"
is interpreted to mean determining the mapping between the
component parameter and the service parameter, which can simply be
"declaring that some component parameter is a service parameter"
(Spec. 33: 14-15). This interpretation is supported by claim 39 which
recites "designating one of the plurality of component parameters as a
service parameter." In Glitho, this is met by declaring that the
measured component parameters of the NE are the service parameters.
Although Glitho does not describe mapping a component
parameter to a service parameter, in the case of a one-to-one mapping,
which involves declaring that some component parameter is a service
parameter, this involves merely re-labeling items of data. In our
opinion, re-labeling of data does not prevent anticipation.
In this analysis, we have tried to answer Appellant's arguments
about how claim 31 is read onto Glitho. Admittedly, the Examiner's
rejection is lacking in claim interpretation and is not clear on several
key points. Nevertheless, we review the references for what they
fairly teach and find that claim 31 is anticipated by Glitho.

Conclusion
Glitho teaches: (1) "determining a service parameter representative of
a measure of performance of the service"; (2) "determining an effect of the
measured component parameter on the state of the service parameter"; and
(3) where the state may be "used to determine conformity of the service to
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the agreed upon service level," as recited in claim 31. The rejection of
claims 31, 32, 34-36, 38-43, 45-47, 49-51, 53-57, and 59 is affirmed.
Obviousness
Appellant argues that the obviousness rejection of claims 33
and 48 over Glitho and Hunter should be reversed because the
references fail to disclose, teach, or suggest the features of the
independent claims 31 and 46 (Br. 10-11). Appellant further argues
that the obviousness rejection of claims 37, 44, 52, and 58 over Glitho
and Yemeni should be reversed because the references fail to disclose,
teach, or suggest the features of the independent claims 31, 39, 46,
and 53 (id. at 11). Since Appellant does not argue the separate
patentability of these dependent claims, the dependent claims stand or
fall with the parent claims. The rejections of claims 33, 37, 44, 48,
52, and 58 are affirmed.

CONCLUSION
The rejection of claims 31, 32, 34-36, 38-43, 45-47, 49-51, 53-57, and
59 under 35 U.S.C. § 102(e) for anticipation by Glitho is affirmed.
The rejection of claims 33 and 48 under 35 U.S.C. § 103(a) for
obviousness over Glitho in view of Hunter is affirmed.
The rejection of claims 37, 44, 52, and 58 under 35 U.S.C. § 103(a)
for obviousness over Glitho in view of Yemini is affirmed.
Requests for extensions of time are governed by 37 C.F.R. § 1.136(b).
See 37 C.F.R. § 41.50(f).

AFFIRMED
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