BRITISH TELECOMMUNICATIONS public limited company

Patent Trials and Appeals BoardOct 29, 2020

2020000629 (P.T.A.B. Oct. 29, 2020)

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. 15/300,911 09/30/2016 Ian E HORSLEY RYM-36-2603 7439 23117 7590 10/29/2020 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER LIU, JUNG-JEN ART UNIT PAPER NUMBER 2473 NOTIFICATION DATE DELIVERY MODE 10/29/2020 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte IAN E. HORSLEY, ANDREW D. WALLACE, and TREVOR P. LINNEY Appeal 2020-000629 Application 15/300,911 Technology Center 2400 Before SALLY C. MEDLEY, MICHAEL R. ZECHER, and JUSTIN T. ARBES, Administrative Patent Judges. ARBES, 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 1–15. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as British Telecommunications. Our decision will make reference to Appellant’s Appeal Brief (“Appeal Br.,” filed June 17, 2019) and Reply Brief (“Reply Br.,” filed November 5, 2019), and the Examiner’s Answer (“Ans.,” mailed September 6, 2019) and Final Office Action (“Final Act.,” mailed October 29, 2018). Appeal 2020-000629 Application 15/300,911 2 CLAIMED SUBJECT MATTER Appellant’s invention is directed to the “configuration of digital subscriber line (DSL) equipment in access networks.” Spec. 1:4–5. “DSL is a collective term to cover a number of variations on DSL technology,” such as, for example, very high-bit-rate digital subscriber line 2 (VDSL2) and asymmetric digital subscriber line 2+ (ADSL2+). Id. at 1:9–11. “Conventionally, DSL technology for a line is selected at the time of ordering equipment—i.e. by ordering customer premises (CPE) and [digital subscriber line access multiplexer (DSLAM)] DSL transceivers configured to support the desired DSL technology.” Id. at 1:35–37. However, “such fixed product selection [cannot] take account of real world performance data, requires increased complexity in customer equipment ordering systems and [cannot] adapt to changing line conditions.” Id. at 2:1–3. Also, systems “programmed to select between alternative DSL technologies” “may not achieve optimum performance,” “may result in unexpected behavior,” and may require increased “initialization time.” Id. at 2:5–13. Appellant’s invention seeks to solve these problems with “[a]n automated method . . . to select, based on DSL performance data, between DSL technologies for operation of DSL transceivers connected in a communications network.” Id. at 2:16–19. The method “bases the choice of DSL technology on up-to-date measured values for loss on the line between DSLAM and CPE rather than on previously-recorded data,” which “increase[s] the accuracy of DSL technology selection.” Id. at 3:20–22. The Specification explains how, for example, ADSL2+ allows for greater data Appeal 2020-000629 Application 15/300,911 3 rates than VDSL2 at “higher values of attenuation (loop loss),” and vice versa for lower attenuation values. Id. at 4:35–5:27, Figs. 3a, 3b. Management device 150, which manages the operation of DSLAM 134, performs automated DSL technology selection algorithm 156 for selecting between different DSL technologies. Id. at 3:27–4:9, Fig. 1. The algorithm begins with “installation, power-up or reset of [the] DSLAM” and selection of a starting profile “based on an initial estimate of the line conditions.” Id. at 6:6–12, Fig. 5 (steps 510–514). The device then begins an operation cycle including a wait state. Id. at 6:14–17, Fig. 5 (step 516). For example, every 24 hours the device may perform a cycle of collecting “data on performance of the DSL line,” such as a measure of attenuation (Hlog); executing a routine to “determine, on the basis of the DSL line performance data, whether the current settings for operation of the DSL transceiver are optimum or whether improved performance may be achieved by reconfiguring the DSL transceiver to use a different DSL technology”; changing the DSLAM profile to a new DSL technology if warranted; and then returning to the wait state. Id. at 6:16–34, Fig. 5 (steps 516–522). Other data also may be collected in addition to attenuation. Id. at 9:9–11:32. Claims 1 and 12 are the only independent claims. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of selecting from a plurality of digital subscriber line (DSL) technologies supported by a first DSL transceiver, a DSL technology for use by the first DSL transceiver in transferring data over a communications line between the first DSL transceiver and a second DSL transceiver, the method comprising: obtaining an indication of attenuation in the communications line between the DSL transceivers; Appeal 2020-000629 Application 15/300,911 4 selecting from the plurality of DSL technologies, a DSL technology for use by the first DSL transceiver in transferring data over the communications line between the DSL transceivers; in which selection of the DSL technology is determined on the basis of one or more parameters; in which the one or more parameters comprise the indication of attenuation in the communications line between the DSL transceivers. Appeal Br. 15 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Kerpez 2016/0028434 A1 Jan. 28, 2016 (filed Mar. 1, 2013) Cunningham 2014/0086295 A1 Mar. 27, 2014 REJECTION Claims 1–15 stand rejected under 35 U.S.C. § 103 as being unpatentable over Kerpez and Cunningham. Final Act. 3–24; Ans. 3–36. ISSUE Appellant argues that the Examiner’s rejection of claims 1–15 is in error. Appeal Br. 8–14; Reply Br. 2–9. These arguments present us with the following issue: did the Examiner err in finding that the combination of Kerpez and Cunningham teaches a method of selecting, from a plurality of DSL technologies “supported by a first DSL transceiver,” “a DSL technology for use by the first DSL transceiver in transferring data over the Appeal 2020-000629 Application 15/300,911 5 communications line between the DSL transceivers” where the selection is “determined on the basis of one or more parameters,” as recited in claim 1, and similarly recited in claim 12? OPINION Claim 1 recites a method of selecting, from a plurality of DSL technologies “supported by a first DSL transceiver,” “a DSL technology for use by the first DSL transceiver in transferring data over the communications line between the DSL transceivers” where the selection is “determined on the basis of one or more parameters.” Appeal Br. 15. The Examiner finds that Kerpez teaches the recited selection, citing Kerpez’s description of “configuring . . . supporting equipment to reach . . . target performance targets” for vectored lines 230 and non-vectored lines 225. Final Act. 10–15 (citing Kerpez, Abstract, ¶¶ 27, 59, 60–61, 88, 89, Figs. 1–4B); Ans. 4–8 (same), 21–22. Appellant responds that Kerpez teaches a mixed deployment of vectored and non-vectored DSL lines over a common cable requiring “different pairs of DSL transceivers,” where the configuration of the dedicated transceivers is changed over time to minimize crosstalk. Appeal Br. 8–9 (emphasis omitted). According to Appellant, the technique of Kerpez is in fact a technique for configuring a plurality of lines, where each line is capable of a single technology, the plurality of lines co-existing and interacting in a “mixed environment” of two types of DSL technology (i.e., “vectored VDSL technology” and “non-vectored VDSL technology”). Kerpez’s technique involves adjusting what is transmitted on the respective lines in order to minimize the harm between them due to crosstalk, while taking account of the fact Appeal 2020-000629 Application 15/300,911 6 that some of the lines run between transceivers that are not capable of performing vectoring. Id. at 10. Appellant argues that “[t]here is no ‘selecting’ of a DSL technology for use by the ‘first DSL transceiver’ in question for the transfer of data over the communications line in question (i.e. the line between that ‘first DSL transceiver’ and the ‘second DSL transceiver’ in question)”; Kerpez only performs “configuration of the transceivers while using that technology.” Id. at 12. We agree with Appellant. “Vectored DSL technology aids in mitigating crosstalk effects that degrade performance in deployments of DSL lines operating at high speeds.” Kerpez ¶ 4. Kerpez describes a “mixed deployment[] of vectored and non- vectored DSL lines” in which the “non-vectored lines . . . negatively affect the operation of the vectored lines due to, for example, crosstalk coupling onto the vectored lines.” Id. ¶¶ 5, 18. Figure 2A of Kerpez is reproduced below. Figure 2A depicts “group of vectored lines 230 . . . providing communication services to a plurality of vectored premises 255 via the Appeal 2020-000629 Application 15/300,911 7 vectored VDSL DSLAM 210” and “group of non-vectored lines 225 . . . providing communication services to a plurality of non-vectored premises 260 via the non-vectored VDSL DSLAM 220.” Id. ¶ 42. Groups of lines 230 and 225 share common cable 235. Id. ¶ 39. Kerpez describes a process in which a management device collects operational data from the telephone lines and changes various “configurable values” based on the collected data to achieve certain operating points and minimize crosstalk. Id. ¶¶ 44, 57–59, 68, 81–82, Figs. 4A–4B. Kerpez explains that the selected operating point is approximately achieved on one or more of the copper telephone lines by setting configurable values selected from one or more of: target bit rate, range of target bit rates, maximum bit rate, transmit power, range of transmit powers[,] Power Spectral Density (PSD) mask, target noise margin, maximum noise margin, carrier mask, and transmit passbands defining a set of frequencies over which data is transmitted. Id. ¶ 89, 97. The Examiner does not cite—and we do not find—anything in Kerpez suggesting that the DSL technology to be used is one of the configurable values that Kerpez selects. To the contrary, as shown in Figure 2A above, Kerpez discloses separate DSLAMs and communication lines dedicated to vectored VDSL and non-vectored VDSL. There is no indication that the type of VDSL to be used by a DSLAM is selected based on any parameters (e.g., a measure of attenuation) or that, for example, the operation of a DSLAM can change from one type of VDSL to the other based on any parameters. Each DSLAM is capable of using a single DSL technology (either vectored or non-vectored VDSL) to communicate with its corresponding CPE and does not select from among multiple supported DSL technologies, as recited in claim 1. Further, the fact that Kerpez discloses Appeal 2020-000629 Application 15/300,911 8 that its process is “compatible” with DSL technologies other than vectored and non-vectored VDSL, such as VDSL2 and G.fast, does not mean that the reference teaches selection of a DSL technology to be used for communication with another DSL transceiver from among multiple supported DSL technologies. See Ans. 19–20, 23–24; Kerpez ¶¶ 27, 88. Nor does the Examiner explain sufficiently why any of the configurable values listed in Kerpez could be considered a “DSL technology.” The Examiner merely states that the “claimed limitation ‘selecting from a plurality of digital subscriber line (DSL) technologies’ is so broad [that] the limitation covers all aspect, layer, property, characteristic, capacity, etc. of DSL technologies.” Ans. 25. The configurable values of Kerpez (e.g., target bit rate, transmit power), however, appear to be general properties rather than related to DSL specifically. The Specification also explains that “[t]he term DSL is a collective term to cover a number of variations on DSL technology, comprising G.Fast, ADSL, ADSL2, ADSL2+, SDSL, VDSL and VDSL2 (including associated annexes) among others.”2 Spec. 1:9–12. Dependent claims 9 and 10 likewise recite that a first DSL technology and a selected DSL technology, respectively, comprise “one of G.Fast, VDSL2, ASDL, ADSL2 and ASDL2+.” Appeal Br. 16. Thus, although we agree with the Examiner that vectored and non-vectored 2 Notably, Kerpez includes a similar reference to the phrase “DSL technology,” stating that “the term ‘DSL’ refers to any of a variety and/or variant[s] of DSL technology such as, for example[,] Asymmetric DSL (ADSL), High-speed DSL (HDSL), Symmetric DSL (SDSL), and/or Very high-speed/Very high-bit-rate DSL (VDSL). Such DSL technologies are commonly implemented in accordance with an applicable standard . . . .” Kerpez ¶ 36. Appeal 2020-000629 Application 15/300,911 9 VDSL constitute two different “DSL technologies,” we do not agree that any of Kerpez’s configurable values constitutes a “DSL technology” as used in the claim. Accordingly, we do not sustain the Examiner’s obviousness rejection of claim 1, or claims 2–11, which depend from claim 1. Similar to claim 1, claim 12 recites “[a] digital subscriber line (DSL) controller for controlling configuration of a first DSL transceiver so as to control selection, from a plurality of DSL technologies supported by the first DSL transceiver, of a DSL technology for use by the first DSL transceiver in transferring data over a communications line,” comprising “a processor for selecting from the plurality of DSL technologies a DSL technology for transfer of data between the DSL transceivers” where the selection is “determined on the basis of one or more parameters.” Appeal Br. 17. The Examiner makes the same findings for independent claims 1 and 12. Final Act. 24; Ans. 18. We are persuaded of error for the same reasons explained above, and do not sustain the Examiner’s obviousness rejection of claim 12, or claims 13–15, which depend from claim 12. CONCLUSION For the above reasons, Appellant has persuaded us of error in the Examiner’s decision to reject claims 1–15. The Examiner’s obviousness rejection of claims 1–15 over Kerpez and Cunningham is reversed. Appeal 2020-000629 Application 15/300,911 10 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–15 103 Kerpez, Cunningham 1–15 Overall Outcome 1–15 REVERSED