Ex Parte Swift et al

Patent Trial and Appeal Board

Sep 30, 2016

11125032 (P.T.A.B. Sep. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111125,032 0510912005
24504 7590 10/04/2016
THOMAS I HORSTEMEYER, LLP
400 INTERSTATE NORTH PARKWAY SE
SUITE 1500
ATLANTA, GA 30339
FIRST NAMED INVENTOR
Larry Swift
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
061607-1201 2545
EXAMINER
IBRAHIM, MOHAMED
ART UNIT PAPER NUMBER
2444
NOTIFICATION DATE DELIVERY MODE
10/04/2016 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):
uspatents@tkhr.com
ozzie. liggins@tkhr.com
docketing@thomashorstemeyer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LARRY SWIFT,
TEDN. MAWHINNEY, and RICK SILVA 1
Appeal 2015-005313
Application 11/125,032
Technology Center 2400
Before CAROLYN D. THOMAS, DAVID M. KOHUT, and
JASON V. MORGAN, Administrative Patent Judges.
MORGAN, Administrative Patent Judge.
DECISION ON APPEAL
Introduction
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Rejection of claims 12-20, 28-33, 35-39, and 42-50. Claims 1-11, 21-27,
34, 40, and 41 are canceled. Br. 37, 39, 41, and 42 (Claims App'x). This
appeal is related to prior appeal number 2010-012316 (Decision mailed June
18, 2013). To the extent that this decision is in any way inconsistent with
the prior appeal 2010-012316, we note that this later dated decision takes
precedent. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
1 Appellants identify Paradyne Corporation as the real party in interest. Br.
2.
Appeal 2015-005313
Application 11/125,032
Invention
Appellants disclose a system and method for using tolerances
obtained from a user together with historical information about a
communication network to analyze the network's performance and to
calculate and recommend a specific change to the committed information
rate (CIR) over a given frame relay permanent virtual circuit (PVC). See
Abstract.
Exemplary Claim
Claims 16, reproduced below with key limitations emphasized, is
illustrative:
16. A network management system of a communication
network, the network management system comprising:
means for obtaining information corresponding to an
initial guaranteed level of network performance provided to an
end user on the communication network;
means for collecting information corresponding to
actual performance of the communication network over a
period of time, wherein the information collecting means
collects data corresponding to the end-to-end data delivery
success; and
means for recommending a specific revised guaranteed
level of network performance based on the initial guaranteed
level of network performance and the actual performance of the
communication network.
13. The network management system of claim 12, wherein the
trend analysis logic forecasts network performance based on
the trends and predicts when the specific revised guaranteed
level of network peiformance will be needed.
1 7. The network management system of claim 16, wherein the
information collecting means collects data corresponding to
data transmitted and data dropped by the communication
2
Appeal 2015-005313
Application 11/125,032
network within a committed information rate ( CJR), data
transmitted and data dropped by the communication network
above the CIR, and the degree of bursting above the CIR.
31. The method of claim 33, wherein the information related to
the actual network performance is associated with burst data
above a committed information rate (CIR) over the period of
time.
32. The method of claim 33, wherein the information related to
the actual network performance further comprises network
latency over the period of time.
3 5. The network management system of claim 3 7, wherein the
revised guaranteed level of network peiformance is determined
using trend analysis logic for analyzing trends of the
performance of the communication network based on historical
information stored over a plurality of time periods and a
defined user tolerance for unused committed information rate
(CIR).
Rejections
The Examiner rejects claims 12-20; 35-39; and 46-50 under 35
U.S.C. § 112, second paragraph, as failing to particularly point out and
distinctly claim the subject matter which Appellants regard as the invention.
Final Act. 8-9.
The Examiner rejects claims 12-20, 28-33, 35-39, and 42-50 under
35 U.S.C. § 103(a) as being unpatentable over Ennis Jr. et al. (US 5,867,483;
issued Feb. 2, 1999) and Krishnaswamy et al. (US 5,999,525; issued Dec. 7,
1999). Final Act. 10-14.
ISSUES
1. Did the Examiner err in concluding that recitations of claim 16
invoked 35 U.S.C. § 112, sixth paragraph, without sufficient disclosure in
3
Appeal 2015-005313
Application 11/125,032
the Specification, thus rendering claim 16 indefinite under 35 U.S.C. § 112,
second paragraph?
2. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "means for collecting information
corresponding to actual performance of the communication network over a
period of time, wherein the information collecting means collects data
corresponding to the end-to-end data delivery success," as recited in claim
16?
3. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the trend analysis logic
forecasts network performance based on the trends and predicts when the
specific revised guaranteed level of network performance will be needed," as
recited in claim 13?
4. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the information collecting
means collects data corresponding to data transmitted and data dropped by
the communication network within a committed information rate (CIR), data
transmitted and data dropped by the communication network above the CIR,
and the degree of bursting above the CIR," as recited in claim 17?
5. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the information related to the
actual network performance is associated with burst data above a committed
information rate (CIR) over the period of time," as recited in claim 31?
6. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the information related to the
4
Appeal 2015-005313
Application 11/125,032
actual network performance further comprises network latency over the
period of time," as recited in claim 32?
7. Did the Examiner err in finding the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the revised guaranteed level of
network performance is determined using trend analysis logic for analyzing
trends of the performance of the communication network based on historical
information stored over a plurality of time periods and a defined user
tolerance for unused committed information rate (CIR)," as recited in claim
35?
ANALYSIS
35 US.C. § 112, second paragraph
In rejecting claim 16 under 35 U.S.C. § 112, second paragraph, the
Examiner concludes that claim 16 is indefinite because it includes recitations
directed to means for obtaining, means for collecting, and means for
recommendim.! that lack structural limitations. thus invokirn.! 35 U.S.C.
~ ; ~
§ 112, sixth paragraph, but "the written description fails to disclose the
corresponding structure, material, or acts for the claimed function[s]." Final
Act. 8.
Appellants point to multiple portions of the Specification to show
support for the means for recitations. Br. 2, 7-8. For example, Appellants
point to the querying of a user for the user's level of tolerance for data
dropped by the system (means for obtaining), the communications of
network management system 9 with at least two frame relay access units
(means for collecting), and permanent virtual circuit trend analysis (means
for recommending) as providing written description for the identified means
plus recitations. See Ans. 7-8 (citing, e.g., Spec. p. 9, 11. 26-27, p., 11, 11.
5
Appeal 2015-005313
Application 11/125,032
12-24, and p. 14, 11. 3-17); see also Spec. 21-23 (pseudocode for analysis
and calculations, along with definitions applicable to pseudocode ).
In response the Examiner finds the cited portions of the Specification
merely disclose "what is already recited in the claim itself and no particular
linking or associating of claimed means plus functions is pointed out by
[A]ppellants." Ans. 4. However, we agree with Appellants that the
Specification, particularly in the areas identified, does more than disclose
merely what the claim language recites. Br. 8-9. Rather, the Specification
identifies devices and algorithms performed on those devices that appear to
correspond with the claimed means for recitations. See, e.g., Spec. p. 9, 11.
26-27, p., 11, 11. 12-24, p. 14, 11. 3-17, and pp. 21-23. The Examiner's
cursory characterization of the Specification, as provided in the Final Action
and Answer, fails to show that the cited portions of the Specification are
merely verbose variations of the means plus claim recitations. Thus, the
Examiner's conclusion of indefiniteness lacks sufficient support. Therefore,
we are constrained to conclude that the Examiner has not provided adequate
findings or evidence to support the conclusion that recitations of claim 16
invoked 35 U.S.C. § 112, sixth paragraph, while lacking sufficient disclosure
in the Specification, thus, rendering claim 16 indefinite under 35 U.S.C.
§ 112, second paragraph.
Accordingly, we do not sustain the Examiner's 35 U.S.C. § 112,
second paragraph, rejection of claim 16, and claims 12-15, 17-20, and 46-
50, which are similarly rejected.
The Examiner's rejection of claim 37 under 35 U.S.C. § 112, second
paragraph, similarly lacks the findings or evidence to support the conclusion
that the trend analyzer configured to, data poller configured to, and trend
6
Appeal 2015-005313
Application 11/125,032
analyzer further configured to recitations invoke 35 U.S.C. § 112, sixth
paragraph, with insufficient disclosure in the Specification. See Final Act. 8;
Ans. 3--4; Br. 8. Therefore, we also do not sustain the Examiner's 35 U.S.C.
§ 112, second paragraph, rejection of claim 37, and claims 35, 36, 38, and
39, which are similarly rejected.
35 US.C. § 103(a)---Claims 12, 14-16, 18, 19, 20, 28-30, 33, 37, 39, 42-46,
48, and 49
In rejecting claim 16 under 35 U.S.C. § 103(a), the Examiner finds
that Ennis, by providing a console that analyzes network performance and
suggests increasing or decreasing access to a channel bandwidth or
individual circuit committed information rate teaches or suggests means for
collecting information corresponding to actual peiformance of the
communication network over a period of time. Final Act. 12 (citing Ennis
col. 8, 11. 32---62, col. 18, 11. 7-37); Ans. 4 (citing Ennis col. 3, 11. 41--46, col.
3, 1. 65---col. 4, 1. 17, and col. 8, 11. 7-24). The Examiner relies on
Krishnaswamy's guarantee of delivery through the use of a circuit that
allocates bandwidth, end-to-end, even when only a portion of the bandwidth
is utilized to teach or suggest wherein the information collecting means
collects data corresponding to the end-to-end data delivery success. Final
Act. 12-13 (citing Krishnaswamy col. 13, 1. 65---col. 14, 1. 65, col. 22, 11. 1-
46); see also Ans. 4.
Appellants contend the Examiner erred because "Krishnaswamy
merely uses the term 'end-to-end' in discussing end-to-end handshaking and
total bandwidth allocated for a call, not 'data corresponding to the end-to-
end data delivery success,' as recited in claim 16." Br. 11. However, the
disputed data recitation is directed to non-functional descriptive material.
7
Appeal 2015-005313
Application 11/125,032
See E'x parte Nehls, 88 USPQ2d 1883, 1887-90 (BPAI 2008) (precedential).
In particular, neither claim 16 nor any claims dependent upon claim 16
positively recite any actual use of the claimed data, including use of the
recited data in recommending a specific revised guaranteed level of network
performance. As such, the content of the claimed data, lacking a new and
unobvious functional relationship with the network management system that
obtains this data, need not be given patentable weight. Moreover, we agree
with the Examiner that the use of a monitoring probe in Ennis to monitor
system activity teaches or suggests a means for collection information
corresponding to actual performance of a communication network over a
period of time (i.e., means for collecting data). Final Act. 4 (citing Ennis
col. 3, 11. 41--46, col. 3, 1. 65---col. 4, 1. 17, and col. 8, 11. 7-24). Therefore,
we find the Examiner did not err in relying on the teachings and suggestions
of Ennis and Krishnaswamy to teach or suggest "means for collecting
information corresponding to actual performance of the communication
network over a period of time, wherein the information collecting means
collects data corresponding to the end-to-end data delivery success," as
recited in claim 16.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 16, and claims 12, 14--15, 19, 20, 28-30, 33, 37, 39, and 43, which
Appellants argue are patentable for similar reasons. See Br. 12, 20-22, and
25-27.
The disputed recitation of claim 18 directed to "means for collecting
information corresponding to actual performance of the communication
network over a period of time, wherein the information collecting means
collects data corresponding to data dropped by the communication network"
8
Appeal 2015-005313
Application 11/125,032
is similar to the disputed recitation of claim 16. Appellants' arguments with
respect to claim 18 are similar to those made with respect to claim 16. Br.
17. Thus, for the reasons discussed above, we also sustain the Examiner's
35 U.S.C. § 103(a) rejection of claim 18, and claims 46, 48, and 49, which
Appellants do not argue separately. Br. 17. Appellants make similar
arguments with respect to claim 45. Br. 32-34. For similar reasons, we also
sustain the Examiner's 35 U.S.C. § 103(a) rejection of claim 45, and claims
42 and 44, which appellants do not argue separately. Br. 34.
35 US.C. § 103(a)-Claim 13, 36, and 47
In rejecting claim 13, the Examiner finds that Ennis, by suggesting
whether to increase or decrease access channel bandwidth or individual
circuit committed information rate data, teaches or suggests wherein the
trend analysis logic forecasts network peiformance based on the trends and
predicts when the specific revised guaranteed level of network performance
will be needed. Final Act. 13 (citirn.! Ennis col. 18.11. 7-37. col. 17. 1. 6-col. ' '-' / / /
18, 1. 6).
Appellants contend the Examiner erred because this suggestion fails
to teach or suggest the claimed prediction of when a level of network
performance will be needed. Br. 13. However, Appellants' contention is
conclusory and fails to distinguish the claimed prediction from the
suggestion in Ennis of increasing or decreasing access channel bandwidth or
individual circuit committed information rate data. As such, we agree with
the Examiner that the combination of Ennis and Krishnaswamy teaches or
suggests "wherein the trend analysis logic forecasts network performance
based on the trends and predicts when the specific revised guaranteed level
of network performance will be needed," as recited in claim 13.
9
Appeal 2015-005313
Application 11/125,032
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 13. Appellants' arguments with respect to claims 3 6 and 4 7 are
similar. Br. 17-18, 29--40. Therefore, for these same reasons we also
sustain the Examiner's 35 U.S.C. § 103(a) rejection of claims 36 and 47.
35 USC§ 103(a)--Claims 17, 38, and 50
Appellants contend the Examiner erred in rejecting claim 17 based on
the recitation wherein the information collecting means collects data
corresponding to data transmitted and data dropped by the communication
network within a committed information rate (CIR), data transmitted and
data dropped by the communication network above the CIR, and the degree
of bursting above the CIR. Br. 13-14. However, this recitation, like the
claim 16 recitation directed to the content of the data collected by the
information collecting means, is non-functional descriptive material that is
not entitled to patentable weight. And, as discussed above, the Examiner
shows that that the use of a monitorirn.! nrobe in Ennis to monitor svstem
~~ ~
activity teaches or suggests a means for collection information
corresponding to actual performance of a communication network over a
period of time (i.e., means for collecting data). Final Act. 4 (citing Ennis
col. 3, 11. 41--46, col. 3, 1. 65---col. 4, 1. 17, and col. 8, 11. 7-24). As such, we
agree with the Examiner that the combination of Ennis and Krishnaswamy
teaches or suggests the disputed recitation of claim 17.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 1 7. Appellants make similar arguments with respect to claims 3 8
and 50. Br. 18-20, 30-32. For these same reasons, we also sustain the
Examiner's 35 U.S.C. § 103(a) rejection of claims 38 and 50.
10
Appeal 2015-005313
Application 11/125,032
35 US.C. § 103(a)-Claims 31 and 32
Appellants argue the Examiner erred in rejecting claim 31 based on
the recitation wherein the information related to the actual network
performance is associated with burst data above a committed information
rate (CIR) over the period of time. Br. 22-23. Similarly, Appellants argue
the Examiner erred in rejecting claim 32 based on the recitation wherein the
information related to the actual network peiformance further comprises
network latency over the period of time. Br. 24--25. However, these
recitations, like other disputed recitations, are non-functional descriptive
material and are not entitled to patentable weight. Moreover, as discussed
above, we agree with the Examiner that the use of a monitoring probe in
Ennis to monitor system activity teaches or suggests a means for collection
information corresponding to actual performance of a communication
network over a period of time (i.e., means for collecting data). Final Act. 4
(citing Ennis col. 3, 11. 41--46, col. 3, 1. 65---col. 4, 1. 17, and col. 8, 11. 7-24).
As such, we agree with the Examiner that the combination of Ennis and
Krishnaswamy teaches or suggests the disputed recitations of claim 31 and
32.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 31 and 32.
35 US.C. § 103(a)-Claim 35
In rejecting claim 35, the Examiner finds that the suggestions in Ennis
to increase or decrease access channel bandwidth or individual circuit
committed information rate data-where recommendations are characterized
as conservative, moderate, or aggressive depending on how tolerable they
are to high bandwidth utilization-teaches or suggests wherein the revised
11
Appeal 2015-005313
Application 11/125,032
guaranteed level of network performance is determined using trend analysis
logic for analyzing trends of the performance of the communication network
based on historical information stored over a plurality of time periods and a
defined user tolerance for unused committed information rate (CIR). Final
Act. 13 (citing Ennis col. 18, 11. 7-37).
Appellants contend the Examiner erred because "Ennis merely
discusses suggesting whether to increase or decrease the individual circuit
CIR." Br. 28. However, Appellants' contention is conclusory and fails to
distinguish the claimed determination and its use of historical information
and a defined user tolerance from the categorized (i.e., conservative,
moderate, aggressive) suggestions in Ennis of increasing or decreasing
access channel bandwidth or individual circuit committed information rate
data. Thus, we agree with the Examiner the combination of Ennis and
Krishnaswamy teaches or suggests "wherein the revised guaranteed level of
network performance is determined using trend analysis logic for analyzing
trends of the performance of the communication network based on historical
information stored over a plurality of time periods and a defined user
tolerance for unused committed information rate (CIR)," as recited in claim
35.
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 3 5.
12
Appeal 2015-005313
Application 11/125,032
DECISION
We affirm the Examiner's decision rejecting claims 12-20, 28-33,
35-39, and 42-50
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.
§ 41.50(f).
AFFIRMED
13