Michael Bugenhagen

Patent Trials and Appeals Board

Feb 25, 2021

2019006124 (P.T.A.B. Feb. 25, 2021)

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.
11/479,751 06/30/2006 Michael K. Bugenhagen 1501-US-01 9543
114826 7590 02/25/2021
CenturyLink Intellectual Property LLC
Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
HOUSHMAND, HOOMAN
ART UNIT PAPER NUMBER
2465
NOTIFICATION DATE DELIVERY MODE
02/25/2021 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):
patent.docketing@centurylink.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte MICHAEL K. BUGENHAGEN

Appeal 2019-006124
Application 11/479,751
Technology Center 2400

Before MICHAEL R. ZECHER, JOHN A. EVANS, and
MICHAEL T. CYGAN, Administrative Patent Judges.

CYGAN, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–8, 10, 12–14, and 16–20. Appeal
Br. 3. Claims 2, 9, 11, and 15 have been cancelled. Id. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as
CenturyLink Intellectual Property LLC. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
The claimed subject matter relates to determining network services
available over a particular communication link based on access state
information pertaining to the communication link. Appeal Br. 4. The
claimed subject matter purportedly addresses the “first-mile” problem of the
quality of the link between a user’s device and service provider. Spec. 2:
19–24. The service provider may be any type of device capable of providing
services such as voice, video, and data. Id. at 5:21–26. The communication
link may be wired or wireless, such as CAT-5 cable, USB (Universal Serial
Bus) cable, or WiFi wireless connection. Id. at 5:29–31. The user’s device
may be a personal computer, mobile phone, or other type of device capable
of communicating through a communication link to a service provider. Id.
at 5:22–25. The access link state information of that link may be, for
example, the bandwidth available to a particular user’s modem. Id. at 2:22–
23. Appellant notes that, although access link state information has been
provided to service providers, such information has not been “utilized in an
interactive manner with the end user to optimize session experiences.” Id. at
2:25–30.
Independent claim 1 is illustrative, with the limitations at issue
emphasized in italics:
1. A method of operating a service provider system, the
method comprising:
receiving, at the service provider system, a state message
generated by a broadband modem at a customer premises, the
state message indicating access state information between an
access system and a communication network coupling the
access system to a service provider system, wherein the access
system includes the broadband modem, wherein the access
system provides a device at the customer premises with access
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to services provided by the service provider system, the access
state information providing information regarding a quality of a
communication link from the customer premises to the service
provider, coupling the access system to the service provider
system;
receiving a service request from the device identifying
the device and the service;
determining a plurality of options for providing the
service over the communication link, based on the state
message;
generating a service response indicating the plurality of
options for providing the service over the communication link;
transmitting the service response to the device at the
customer premises;
receiving a selection message from the device at the
customer premises indicating a service option of the plurality of
options selected by a user of the device; and
configuring the service for the service option selected by
the user of the device.
Appeal Br. 29 (Claims App.). Independent claims 8, 10, and 18 recite,
respectively, a service provider system, a communication system, and a
method of monitoring a connection having similar limitations. Id. at 30–32.
Dependent claims 3–7, 12–14, 16, 17, 19, and 20 each incorporate the
limitations of their respective independent claims. Id. at 29–32.
REFERENCES
Name Reference Date
Beadle et al.
(“Beadle ‘362”)
US 6,718,362 B1 Apr. 6, 2004
Beadle et al.
(“Beadle ‘709”)
US 7,039,709 B1 May 2, 2006

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REJECTIONS
Claims 18–20 are rejected under 35 U.S.C. § 112, second paragraph
as being indefinite for failing to particularly point out and distinctly claim
the subject matter which the applicant regards as the invention.
Claims 1, 3–8, 10, 12–14, and 16–20 are rejected under 35 U.S.C.
§ 103(a) as being obvious over the combined teachings and suggestions of
Beadle ‘362 and Beadle ‘709.
OPINION
A. Indefiniteness
The Examiner rejects claims 18–20 as being indefinite because the
term “selectable” causes the claim scope to be unclear in the phrase:
“wherein the at least one option is selectable by a user of the end user device
to cause a change in an application being used by the end user device.”
Final Act. 112 (emphasis omitted). The Examiner finds that the term
“selectable” makes optional the function of selecting, and thus, raises a
question of whether the entire clause is a required limitation. Ans. 3.
Appellant argues that the Examiner has not established a prima facie
case of indefiniteness. Appeal Br. 16. Appellant states, “the claim language
‘selectable[]’ further defines an attribute of the ‘at least one option’ as being
capable of being selected.” Reply Br. 4.
We are persuaded by Appellant’s characterization of “selectable” as
defining an attribute of the claimed option; i.e., that the object is selectable
by a user to cause a certain claimed result. Appellant’s characterization

2 All references to the Final Action refer to the Final Action mailed on
November 13, 2018.
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distinguishes between a selectable option and an unselectable option. We
note further that Beadle ‘709 describes “selectable buttons of the routing
options,” supporting Appellant’s characterization of that term as being based
on its ordinary and customary meaning. Beadle ‘709, 7:6–7. The Examiner
has not adequately explained how the characteristic of an option being
selectable provides any uncertainty in the scope of the claim. Consequently,
we reverse the Examiner’s indefiniteness rejection of claims 18–20.
B. Obviousness
1. “regarding a quality of a communication link from the
customer premises to the service provider”
The Examiner finds the combination of Beadle ‘362 and Beadle ‘709
to teach a state message indicating access state information “regarding a
quality of a communication link from the customer premises to the service
provider, coupling the access system to the service provider.” Final Act. 12–
15; Ans. 4–11.
The Examiner characterizes Beadle ‘709 as “focused on the client – in
a client server system;” specifically, as receiving a state message generated
by broadband modem 92 at the customer premises and connected to the
Internet. Final Act. 12–13; Ans. 5–6. The Examiner finds Beadle ‘709 to
teach or suggest each limitation of claim 1, except for receiving a state
message at the service provider system. Final Act. 13; Ans. 6.
The Examiner relies upon Beadle ‘362 for receiving a state message at
a service provider, in the form of information about the network connection
status such as congestion, at the network server. Final Act. 13–14; Ans. 6.
The Examiner explains, “the service provider, which is the server, receives
the state message, e.g. information about the connection status, which
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originated at the source computer; and next, the service provider shares this
information back with the client, the source computer – which maps to
customer premises.” Ans. 11. The Examiner cites to Beadle ‘362’s
description of a monitoring utility that “provides a set of registers, which are
embedded or encapsulated within the connection protocol,” for which “the
registers are updated with specific information about the network connection
status,” and provides to the source computer “a confirmation message along
with the appended registers.” Final Act. 13–14.
With respect to the limitations of claim 1 regarding determining
options for providing the service and receiving a selection of options from
the user, the Examiner relies upon Beadle ‘709’s Figure 7 for determining a
plurality of options for providing the service, and upon Beadle ‘709’s
Figures 4 and 5 for transmitting service response options to the customer
premises and receiving a selection of a service option from the user. Final
Act. 14–15; Ans. 12–13.
Appellant argues that the combination of Beadle ‘709 and Beadle ‘362
does not teach or suggest claim 1’s limitation of communication links “from
a customer premises to the service provider, coupling an access system to a
service provider system.” Appeal Br. 23. Appellant characterizes Beadle
‘709 as having a conventional modem connection to an Internet service
provider. Reply Br. 5. Appellant argues that Beadle ’709 is, through its
description of network path selection techniques utilizing a connectivity
table, focused on paths taken through a network, rather than the connections
between the customer premises and the service provider required by the
claims. Appeal Br. 23. Appellant characterizes Beadle ‘709’s connection
table as “indicat[ing] the efficiency of a particular server or route using
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efficiency values,” but that “[n]one of the entries of the routing table are
relevant to any connection between the customer premises and a service
provider.” Id. Appellant characterizes Beadle ‘362 as including “a general
network monitoring function, by which a network connection is monitored.”
Id. at 24. Appellant characterizes both Beadle ‘709 and Beadle ‘362 as
“concerned only with optimal route selection, in contrast with access state
information regarding a communication link from the customer premises to
the service provider.” Reply Br. 5. Appellant argues that, because the
combination of Beadle ‘709 and Beadle ‘362 does not teach the claimed type
of access state information, the combination also lacks a teaching of that
type of access state information being used in the remaining limitations of
claim 1. Reply Br. 5–6.
We are not persuaded that the Examiner’s combination of Beadle ‘709
and Beadle ‘362 fails to show quality information regarding a
communication link “from the customer premises to the service provider.”
Appellant does not contest that the combination teaches quality information
regarding a communication link to another server. Appeal Br. 23–24
(characterizing Beadle ‘709 as indicating the efficiency of a particular server
or route). Appellant attempts to draw a distinction between communication
via a network path involving servers and a communication link from the
customer premises to a service provider. Reply Br. 5. Appellant argues that
Beadle ‘709 focuses on network path selection, and not the network
connection from customer premises to a service provider, and that Beadle
‘362 simply monitors a network connection. Appeal Br. 23–24 (describing
Beadle ‘362 as having “a general network monitoring function, by which a
network connection is monitored”).
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The Specification provides an expansive description of a “service
provider system,” which is described as “any system capable of providing
services” that may include “voice, video, and data.” Spec. 5:21–26. The
Examiner finds Beadle ‘362 to teach a service provider system in the form of
a network server, and further finds Beadle ‘709 to teach a service provider
system in the form of an ISP (“Internet Service Provider”) that provides
services to a customer premises through a broadband modem. Final Act.
12–13. We agree with the Examiner’s finding that the ISP of Beadle ‘709
provides services including data to clients, and thus teaches the claimed
service provider system providing data to clients (access systems). See
Beadle ‘709, 1:48–53 (“Each server . . . has been adapted (programmed) for
providing information and/or services to individual users at another set of
nodes or client workstations.”) We further agree with the Examiner that
Beadle ‘362 teaches a network server that provides services including data to
clients. See, e.g., Beadle ‘362 3:20–21 (“Network 103 comprises several
clients 113 and servers 115”), 6:22–23 (“data traveling on the network”).
Claim 1 further requires that the service provider system receive the
claimed state message. The Examiner finds Beadle ‘362 to teach or suggest
a service provider that receives a state message in the form of information
about the network connection status, such as network congestion. Final Act.
13. We agree that the Examiner’s finding is supported by the cited section
of Beadle ‘362, which describes a monitoring utility that receives
information about the network connection status, such as congestion of the
connection route, when the connection protocol arrives at a network server,
and returns a confirmation message along with the information to the source
computer. Beadle ‘362 (8:60–9:4).
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In view of the foregoing, Appellant has not persuasively explained
why the status of the network between the client, at the broadband modem
located at the customer premises, and the network server or other server in
the network, does not teach or suggest the claimed “information regarding a
quality of a communication link from the customer premises to the service
provider.”
1. Further limitations of claim 1
Appellant further contends that the combination of Beadle ‘362 and
Beadle ‘709 does not teach or suggest the following additional limitations in
the remaining steps of claim 1; i.e.,
determining a plurality of options for providing the service over
the communication link, based on the state message;
generating a service response indicating the plurality of options
for providing the service over the communication link;
transmitting the service response to the device at the customer
premises;
receiving a selection message from the device at the customer
premises indicating a service option of the plurality of options
selected by a user of the device; and
configuring the service for the service option selected by the
user of the device.
Appellant argues that the Examiner relies upon two separate and
distinct embodiments that individually do not suggest these limitations.
Appeal Br. 25–28. Appellant characterizes Beadle ‘709 as having a first
embodiment, shown in Figure 5, describing generation of options for a
default type of communication link and providing a user the ability to
manually select one of those options. Id. at 26. Appellant further
characterizes Beadle ‘709 as having a second embodiment, shown in Figure
7, describing the computer generating options for a default connection and
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automatically selecting one of the default connection options. Id. Appellant
characterizes both embodiments as selecting default connections. Id.
Appellant argues that default connection medium does not teach transmitting
a service response or receiving a selection message that indicates the
selected service option, but instead describes updating browser settings to
replace a default route with a more optimal route. Id. at 27; Reply Br. 5.
We are not persuaded of error in the Examiner’s obviousness rejection
by Appellant’s argument. Appellant has not explained persuasively why
updating a default route would fail to teach or suggest the limitations of
claim 1. For example, claim 1 requires “configuring the service for the
service option selected by the user of the device.” Appeal Br. 29 (Claims
App.). The Examiner finds (Ans. 7), and we agree, that updating a default
route for future connections meets this limitation.
Further, Appellant’s characterization of Beadle ’709 as teaching
updating browser settings to replace a default route with a more optimal
route is incomplete. Beadle ‘709 also describes that both the automatic and
manual selection of options may result in re-routing the connection during
that session. Beadle ‘709, 10:39–11:32.
With respect to transmitting a service response and receiving a
selection message, the Examiner finds the user’s option selection interface
represented by Figure 5A in Beadle ‘709 to represent a server-connections’
GUI that represents communications between a client and a server. Final
Act. 15, 19. Appellant has not persuasively explained why the Examiner’s
finding is in error, instead stating, “closer examination of Beadle ‘709
reveals no such disclosures.” In view of the Examiner’s specific finding, we
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are not persuaded by Appellant’s conclusory statement that the Examiner’s
finding is in error.
We additionally note that our reviewing court has stated,
“[c]ombining two embodiments disclosed adjacent to each other in a prior
art patent does not require a leap of inventiveness.” Bos. Sci. Scimed, Inc. v.
Cordis Corp., 554 F.3d 982, 991 (Fed. Cir. 2009). Consequently, the mere
fact that Beadle ‘709 provides the relied-upon teachings in separate
embodiments that are distinguishable only with respect to manually or
automatically selecting one of the default connection options is not, without
more, persuasive to show error in the Examiner’s obviousness rejection.

CONCLUSION
For the above-described reasons, we reverse the Examiner’s rejection
of claims 18–20 as being indefinite under 35 U.S.C. § 112, second
paragraph, and we affirm the Examiner’s rejection of claims 1, 3–8, 10, 12–
14, and 16–20 as being obvious under 35 U.S.C. § 103(a). Because we have
affirmed at least one ground of rejection with respect to each claim on
appeal, the Examiner’s decision is affirmed. See 37 C.F.R. § 41.50(a)(1).
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).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s) Affirmed Reversed
18–20 112, second
paragraph
18–20
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1, 3–8,
10, 12–
14, 16–20
103(a) Beadle ‘709,
Beadle ‘362
1, 3–8, 10,
12–14, 16–
20

Overall
Outcome
1, 3–8, 10,
12–14, 16–
20

AFFIRMED