Ex Parte Ngo

Patent Trial and Appeal Board

Sep 17, 2012

10448559 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/448,559 05/30/2003 Dat D. Ngo NGO 1 (LCNT/124986) 4779
46363 7590 09/17/2012
WALL & TONG, LLP/
ALCATEL-LUCENT USA INC.
25 James Way
Eatontown, NJ 07724
EXAMINER
LI, SHI K
ART UNIT PAPER NUMBER
2613
MAIL DATE DELIVERY MODE
09/17/2012 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 DAT D. NGO
____________

Appeal 2010-004512
Application 10/448,559
Technology Center 2600
____________

Before CAROLYN D. THOMAS, CARL W. WHITEHEAD, JR., and
ANDREW J. DILLON, Administrative Patent Judges.

WHITEHEAD, JR., Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2010-004512
Application 10/448,559

2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a final rejection of
claims 1-3, 7-11, 20-22, and 24-28. Appeal Brief 5. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).
We reverse.

Introduction
The invention is directed to “a method [that] includes collecting B]it
E]rror R]ate (BER) values, storing the BER values, analyzing the BER
values using a BER hysteresis algorithm to check for an indication of BER
degradation, and switching a transmission port in response to an indication
of BER degradation.” Appeal Brief 7.

Illustrative Claim
1. A method, comprising:

(a) collecting a plurality of bit error rate (BER) values;

(b) storing said BER values;

(c) analyzing said BER values using a BER hysteresis
algorithm to check for an indication of BER degradation,
wherein said analyzing comprises:

comparing each of a plurality of recent ones of
said collected BER values to a predetermined BER
threshold level, wherein said recent ones of said collected
BER values include a subset of said collected BER
values;
Appeal 2010-004512
Application 10/448,559

3
determining, for each of said recent ones of said
collected BER values, whether said recent BER value
exceeds said predetermined BER threshold level;
in response to a determination that each of said
recent ones of said collected BER values exceeds the
predetermined BER threshold level, determining whether
said collected BER values worsen over time;
in response to a determination that said collected
BER values worsen over time, detecting an indication of
BER degradation; and

(d) switching a transmission port in response to said
indication of BER degradation.

Rejections on Appeal1
Claims 1, 2, and 22 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vieregge (U.S. Patent Number 6,915,463 B2, issued July
5, 2005). Answer 3-4.

1. Appellant is not appealing the final rejection of claims 12 and 14-19.
Appeal Brief 5. Appellant states, “[T]he Examiner has modified the
Grounds of Rejection section to indicate that the grounds of rejection of
Appellant’s claims 12 and 14 - 19 have not been withdrawn by the Examiner
and, further, that they are not under review on Appeal because they have not
been presented for review by Appellant’s Appeal Brief.” See Supplemental
Reply Brief 2 (filed January 6, 2010).
Claims 12 and 14-19 has been withdrawn from appeal. “If upon filing an
appeal brief, the applicants limits the claims to be considered on appeal, then
it is the practice of the Patent and Trademark Office to treat the claims not
pursued in the appeal brief as having been withdrawn from appeal.” See Ex
parte Ghuman, 88 USPQ2d 1478, 1480 (BPAI 2008).

Appeal 2010-004512
Application 10/448,559

4
Claim 3 stands rejected under 35 U.S.C. §103(a) as being unpatentable
over Vieregge and Gillett (U.S. Patent Number 5,627,837, issued May 6,
1997). Answer 4.
Claims 7-9 and 24-26 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vieregge, Gillett, and Soltysiak. (U.S. Patent Number
6,775,237 B2, issued August 10, 2004). Answer 4-5.
Claims 10 and 11 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vieregge, Li (U.S. Patent Application Publication Number
2002/0018616 A1, published February 14, 2002) and Ryhorchuk (U.S.
Patent Number 7,113,698 B1, published September 26, 2006). Answer 5-6.
Claims 20 and 21 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Li and Ryhorchuk. Answer 6-7.
Claims 27 and 28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Vieregge, Gillett, Soltysiak, and de Boer (U.S. Patent
Number 6,917,759 B2, issued July 12, 2005). Answer 7-8.

Issues on Appeal
Does Vieregge disclose “comparing each of a plurality of recent ones
of said collected BER values . . . detecting an indication of BER
degradation” as recited in claim 1?
Do Li and Ryhorchuk, either alone or in combination, disclose “in
response to detection . . . a third optical channel using a span switch
operation” or “in response to detection of a condition . . . a third optical
channel using a ring switch operation” as recited in claim 20?

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Appeal 2010-004512
Application 10/448,559

6
Answer 12.
Vieregge’s column 5, lines 49-64, as recited by the Examiner (Answer
14) is reproduced below:
Preferably, some intelligence is employed in the
failure predictor 22 rather than simply using a hard
threshold IBr, so as to distinguish between a scenario in
which the BER is temporarily increased, but a failure is
not about to occur. For example, the failure predictor
could require that in addition to the latest BER exceeding
the threshold IBr, a rate of increase (for example between
two consecutive measurements) must also exceed some
value indicating that a failure is likely with the assumption
that a slow increase is less likely to be indicative of an
immanent [sic] failure. A first or higher order derivative
approximation might alternatively be employed.
In another example, two predictive thresholds (both
below the failure threshold) may be used, and if the two
thresholds are crossed in a short enough period of time,
then the decision to instigate protection switching is made.

In regard to the Examiner’s findings, Appellant argues two distinct
points:
With respect to the first embodiment described in the
cited portion of Vieregge, Appellant submits that steps of
determining whether a last BER value exceeds a threshold
and determining whether a rate of increase between two
consecutive BERs exceeds a value, as disclosed in
Vieregge, does not teach or suggest comparing each of a
plurality of recent ones of collected BER values to a
predetermined BER threshold level, determining whether
the recent ones of the collected BER values exceed a
predetermined BER threshold level, and, in response to a
determination that each of the recent ones of the collected
BER values exceeds the predetermined BER threshold
Appeal 2010-004512
Application 10/448,559

7
level, determining whether collected BER values (of
which the recent BER values are a subset) worsen over
time, as claimed in Appellant's claim 1.
With respect to the second embodiment described in
the cited portion of Vieregge, Appellant submits that
determining if two thresholds are crossed in a short
enough period of time, as disclosed in Vieregge, fails to
teach or suggest comparing each of a plurality of recent
ones of collected BER values to a predetermined BER
threshold level, determining whether the recent ones of the
collected BER values exceed a predetermined BER
threshold level, and, in response to a determination that
each of the recent ones of the collected BER values
exceeds the predetermined BER threshold level,
determining whether the collected BER values (of which
the recent BER values are a subset) worsen over time, as
claimed in Appellant’s claim 1.
Appeal Brief 14.
The Examiner’s mapping of the claims with Viergegge’s disclosure
demonstrates that a fair amount of assumptions would have to be accepted in
order for the claims to align to Viergegge’s disclosure and therefore we find
Appellant’s arguments to be persuasive for the reasons set forth by
Appellant above. Consequently, the Examiner’s rejection of claim 1, as well
as independent claim 22 which recite limitations commensurate in scope to
claim, are reversed. Also, the Examiner’s rejections of dependent claims 2,
3, 7-11, and 24-28 are reversed for the reasons set forth above.
Obviousness Rejection of claims 20 and 21
The Examiner finds the difference between Li and the claimed
invention is that Li does not teach an out-of-band signal and therefore the
Examiner relies upon Ryhorchuk which teaches that an optical supervisory
Appeal 2010-004512
Application 10/448,559

8
channel that carries out-of-band signals. Answer 7. The Examiner further
finds that:
It is also obvious that if the in-band data channel fails
while the OSC channel is working, it indicates a channel
failure and span switch is appropriate. If both the in-band
data channel and the OSC channel fail, it indicates a fiber
failure and ring switch is necessary. One of ordinary skill
in the art would have been motivated to combine the
teaching of Ryhorchuk et al. with the ring network of Li
because OSC channel can be used for communicating
status information between nodes. Thus it would have
been obvious to one of ordinary skill in the art at the time
the invention was made to include an OSC channel, as
taught by Ryhorchuk et al., in the ring network of Li
because OSC channel can be used for communicating
status information between nodes.
Id.
Appellant argues that combination of Li and Ryhorchuk, alone or in
combination with Li, fail to teach the limitations “in response to detection of
a condition on said first optical channel without detection of a condition on
said second optical channel, switching the in- band signal to a third optical
channel using a span switch operation” and “in response to detection of a
condition on said first optical channel and detection of a condition on said
second optical, switching the in-band signal to a third optical channel using a
ring switch operation,” as recited in claim 20. Appeal Brief 28.
It is noted that the two groups of claim limitations are recited in the
alternative in claim 20 and not in the aggregate.
Appellant argues that Ryhorchuk’s disclosure does not address the
deficiency of Li because:
Rather, although Ryhorchuk discloses an optical
supervisory channel, Ryhorchuk merely states that the
Appeal 2010-004512
Application 10/448,559

9
each node receives status information from upstream
nodes via the optical supervisory channel, and that the
status information includes information that at least one
upstream controller has measured or otherwise collected
regarding the status of the network channels. (Ryhorchuk,
Col. 8, Lines 46 - 50).
Ryhorchuk is devoid of any teaching or suggestion that
the optical supervisory channel is used in the same manner
as the out-of-band signal of the second optical channel of
Appellant’s claim 20. More specifically, Ryhorchuk does
not disclose use of the optical supervisory channel in
combination with an in-band signal to determine whether a
span switch or ring switch operation is performed to
switch an in-band signal to another optical channel.
Rather, as noted hereinabove, Ryhorchuk merely discloses
use of the optical supervisory channel to convey status
information between nodes.
Appeal Brief 28.
Appellant contends that the combination of Li and Ryhorchuk does
not disclose the invention recited in claim 20 because:
[B]ased on the teachings of Li and Ryhorchuk, a system
according to the combination of Li and Ryhorchuk would
merely disclose a system in which protection switching
may be performed using span or ring switch operations,
and in which an optical supervisory channel may be used
to exchange status information between nodes. In other
words, a system according to the combination of Li and
Ryhorchuk merely discloses presence of in-band and out-
of-band signals within the same system, however, a
system according to the combination of Li and Ryhorchuk
fails to disclose use of a combination of the in-band signal
and the out-of-band signal in the manner claimed in
Appellant’s claim 20. Namely, a system according to the
combination of Li and Ryhorchuk fails to disclose
performing a span switch operation or a ring switch
operation based on a combination of the presence/absence
Appeal 2010-004512
Application 10/448,559

10
of conditions on optical channels conveying in-band and
out-of-band signals. Thus, a system according to the
combination of Li and Ryhorchuk fails to disclose
switching an in-band signal to a third optical channel using
a span switch operation in response to detection of a
condition on the first optical channel without detection of
a condition on the second optical channel or switching the
in-band signal to a third optical channel using a ring
switch operation in response to detection of a condition on
the first optical channel and detection of a condition on the
second optical, as claimed in Appellant’s claim 20.
Appeal Brief 28-29.
In order for the combination of Li and Ryhorchuk to disclose the
invention as recited in claim 20 there would have to be an acceptance on our
part of a multitude of teachings or disclosures that are not readily evident
within the references and therefore we find Appellant’s arguments to be
persuasive and we reverse the Examiner’s rejection of independent claim 20
as well as dependent claim 21 for the reasons stated above.

DECISION
The rejections of claims 1-3, 7-11, 20-22, and 24-28 are reversed.

REVERSED

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