CommScope Connectivity UK LimitedDownload PDFPatent Trials and Appeals BoardMay 18, 20212020000516 (P.T.A.B. May. 18, 2021) Copy Citation 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. 14/341,008 07/25/2014 Kevin David Townend 100.1279US01 7489 135878 7590 05/18/2021 Fogg & Powers LLC/Commscope 4600 W 77th St Suite 305 Minneapolis, MN 55435 EXAMINER DUONG, OANH ART UNIT PAPER NUMBER 2441 NOTIFICATION DATE DELIVERY MODE 05/18/2021 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): docketing@fogglaw.com eofficeaction@appcoll.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte KEVIN DAVID TOWNEND, ANDREW P. ROBERTS, and ALEXANDER THOMAS Appeal 2020-000516 Application 14/341,008 Technology Center 2400 Before CARL W. WHITEHEAD JR., DAVID M. KOHUT, and IRVIN E. BRANCH, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–22. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use “Appellant” to reference the applicant as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “CommScope Connectivity UK Limited.” Appeal Br. 1. Appeal 2020-000516 Application 14/341,008 2 STATEMENT OF THE CASE Appellant’s Invention Appellant’s invention relates “to a ‘software only’ . . . physical layer management (PLM) system . . . us[ing] a hardware appliance that is locally deployed in an enterprises network.” Spec., Abstr. Claims 1 and 11, reproduced below, are illustrative of argued subject matter. 1. A server system comprising: one or more server computers operated by a third party; wherein the one or more server computers are configured to execute a respective hosted management application for each respective network of a plurality of networks as a hosted service, wherein each respective network of the plurality of networks is operated by a different respective enterprise of a plurality of enterprises; wherein the respective hosted management application for each respective network of the plurality of networks is configured to include a documentation function to document connections to one or more devices made using cables in the respective network and a workflow management function to direct a technician in moving, adding, or changing connections made using cables in the respective network, wherein the one or more devices include at least one managed device that includes a physical layer information [(PLI)] acquisition technology; and wherein the respective hosted management application for at least one respective network of the plurality of networks is configured to support a software only configuration in which all interaction with the documentation function and the workflow management function included in the respective hosted management application by entities associated with the respective network occurs only using client software executing on one or more client devices associated with the respective network. Appeal 2020-000516 Application 14/341,008 3 11. A system comprising: one or more server computers operated by a third party, wherein the one or more server computers are configured to aggregate [PLI] about each respective network of a plurality of networks as a hosted service, wherein each respective network of the plurality of networks is operated by a different respective enterprise of a plurality of enterprises; devices deployed in a first network included in the plurality of networks, the devices comprising [PLI] data acquisition technology to automatically capture [PLI] about cables used to make connections using the devices; and an appliance deployed in the first network that is configured to run a local agent that receives [PLI] acquired using the [PLI] data acquisition technology in the devices of the first network and communicates at least some of the received [PLI] to a hosted management application for the first network, wherein the hosted management application is hosted on the one or more server computers operated by the third party, wherein the appliance is configured to appear and function, from the perspective of the devices deployed in the first network, as a management application that is locally deployed in the first network. Appeal Br. 22, 25. Rejections Claim 11 stands rejected under 35 U.S.C. § 112(b) as being indefinite. Final Act. 2. Claims 1–4, 6–9, 11, 13–18, and 20–22 stand rejected under 35 U.S.C. § 103 as being unpatentable over Reyes (US 2011/0289134 A1; Nov. 24, 2011) and Raza (US 2010/0211664 A1; Aug. 19, 2010). Final Act. 3–10. Claims 5, 10, 12, and 19 stand rejected under 35 U.S.C. § 103 as being unpatentable over Reyes, Raza, and Applicant Admitted Prior Art. Final Act. 10. Appeal 2020-000516 Application 14/341,008 4 OPINION Indefiniteness As to the rejection of claim 11 under 35 U.S.C. § 112(b), Appellant only states: “As discussed in the Examiner Interview Summary submitted on December 26, 2018, the after-final amendment to claim 11 was entered by Examiner Duong[] and the rejection of claim 11 under 35 U.S.C. § l12(b) included in the September 2018 [Final Office Action] has been overcome.” Appeal Br. 20. The Examiner has not indicated the withdrawal of the 35 U.S.C. § 112(b) rejection. See Ans. 3. Accordingly, we summarily sustain the rejection of claim 11. Obviousness As to the rejections of claims 1–22 under 35 U.S.C. § 103, Appellant addresses only the independent claims (1 and 11) with particularity. Appeal Br. 7 et seq. We are unpersuaded of error in the rejections of the independent claims and accordingly sustain the rejections for claims 1–22. 1. Independent Claim 1 The overall dispute for claim 1 is whether the applied prior art teaches or suggests the following claim limitation: [T]he respective hosted management application for a respective network supports a software only configuration in which] all interaction with the documentation [] and workflow management function[s of the application,] by entities associated with the respective network[,] occurs only using client software executing on . . . client devices [of] the respective network. Appeal Br. 8. To address the limitation, the Examiner relies on both Reyes and Raza. Final Act. 3–5. Specifically, the Examiner maps Reyes’ networks Appeal 2020-000516 Application 14/341,008 5 (130–50) and their use of a cloud service (102) to the claimed plurality of networks (one being the above “respective network”) and their interactions with the documentation/workflow functions of the hosted management application (herein “HMA”). Id. at 3. The Examiner finds Reyes’ networks and cloud service are respectively similar to Raza’s client computers (136, 138)2 and aggregation point (120). Id. at 4; Ans. 11–12. In view of that finding, Examiner determines it would have been obvious to add Raza’s detecting and reporting of PLI, as performed by Raza’s client computer, to each of Reyes networks; and to add Raza’s tracking of PLI and related assistance in managing device connections, as performed by Raza’s aggregation point, to Reyes’ cloud service. Final Act. 4–6. The Examiner determines the Reyes-Raza combination’s resulting networks achieve the claimed networks, its cloud service achieves the claimed HMA, and the cloud service’s tracking of PLI and related assistance in managing device connections respectively achieve the claimed HMA’s documentation function and workflow management function. Id. at 4–5. Appellant contends Raza’s applied disclosures cannot teach or suggest the argued claim limitation’s “all interaction with the documentation [] and workflow management function[s] . . . occurs only using client software” because some interactions between Raza’s aggregation point and client computers do not occur via client software. Appeal Br. 10–12. Specifically, though acknowledging “the aggregation point . . . provides [interfaces] for external devices or entities to access (retrieve and/or supply) 2 There is no dispute that Raza’s computer 136 can operate as one of the inter-networking devices 138. We add, nonetheless, Raza describes them as having similar functions and as being available at a same site. Raza ¶ 52– 54, 57. Appeal 2020-000516 Application 14/341,008 6 the [collected PLI]” (Reply Br. 3), Appellant contends at least two interactions between the aggregation point and client computers do not occur via client software (id. at 3–4). First, Appellant references Raza’s use of “managed devices [to] automatically read and communicate the [PLI] to the aggregation point.” Reply Br. 3–4 (citing Raza ¶¶ 35–45); see also Appeal Br. 11. Second, Appellant references Raza’s “us[e of PLI] functionality 914 and an API of the aggregation point” to retrieve PLI from the aggregation point. Reply Br. 3 (citing Raza ¶¶ 133–35); see also Appeal Br. 11. We are unpersuaded of Examiner error. The Examiner does not find Raza describes the aggregation point as always collecting and providing PLI solely from and to client software. Final Act. 4–5. Rather, the Examiner finds Raza teaches the aggregation point as sometimes collecting and providing PLI from and to client software (134) and, in turn, determines it would have been obvious for the Reyes-Raza combination’s cloud service to perform all collecting and providing of PLI via client software. Id.; see, e.g., Final Act. 5; Ans. 11–12. That is, in view of Raza, the Examiner finds it was known to collect and provide PLI from and to client software and accordingly determines it would have been obvious to do so solely via client software. Id. See, e.g., KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”); id. at 418 (“[T]he analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim[.]”). Appellant cannot show an error in the Examiner’s reasoning by merely showing Raza’s cited embodiment sometimes collects and provides PLI by means other than client Appeal 2020-000516 Application 14/341,008 7 software. See In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference[.]”). Raza is sufficient support if, as a whole, it shows the modification of Reyes’ invention would have been obvious. See EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907 (Fed. Cir. 1985) (“A reference must be considered for everything it teaches by way of technology[.]”). Appellant also contends: “[T]he Examiner fails to explicitly identify the particular modifications that would be made to [] Reyes . . . [and] to provide reasoning as to why the modifications . . . would be obvious.” Appeal Br. 13. Appellant further contends: “[T]he motivation . . . is derived from the benefits of other features of Raza not relied upon in the rejection . . . [and] does not follow from the asserted modification.” Id. We are unpersuaded of Examiner error, for each of two reasons. First, the contentions do not present a developed argument. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.” (quoting Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001))). Indeed, the contentions are not even compatible with one another because Appellant alleges the modification is not articulated but then contrarily alleges an understanding of the “asserted modification,” the “motivation identified,” and how they are “derived from the benefits of . . . Raza.” Appeal Br. 13. Second, in view of Raza, the Examiner determines it would have been obvious for Reyes’ networks to detect and report PLI to the cloud service, Appeal 2020-000516 Application 14/341,008 8 for the networks to receive related assistance from Reyes’ cloud service (recommendations in managing device connections), and for these interactions between Reyes’ networks and the cloud service to occur via client software of the networks. See supra 4–6 (discussion of Reyes-Raza combination). We find the rationale is self-evident, i.e., to provide a cloud-service management of PLI information for the served external networks and their devices. Further, this rationale is presented by the explicitly stated motivation “to allow any of the [PLI] that resides in the PLM system to be used by external systems” (Final Act. 6) and the explicitly stated benefit that “the external devices and entities do not need to individually interact with all of the devices that provide PLI” (Ans. 13). But see KSR, 550 U.S. at 419 (“Helpful insights . . . need not become rigid and mandatory formulas[.] The obviousness analysis cannot be confined by a formalistic conception of the words teaching, suggestion, and motivation, or by overemphasis on the importance of published articles and the explicit content of issued patents.”). 2. Independent Claim 11 The overall dispute for claim 11 is whether the applied prior art teaches or suggests the following claim limitation: [A]n appliance deployed in the first network that is configured to run a local agent that receives [PLI] acquired using the [PLI] data acquisition technology in the devices of the first network and communicates at least some of the received [PLI] to a[n HMA] for the first network. Appeal Br. 8–12. To address the limitation, the Examiner relies on both Reyes and Raza. Specifically, the Examiner maps Reyes’ networks (130–50) and their Appeal 2020-000516 Application 14/341,008 9 use of the cloud service respectively to the claimed networks (one being the above “first network”) and their communication with a HMA. Final Act. 7. The Examiner analogizes Reyes’ networks and cloud service respectively to Raza’s Ethernet switches (1900) and aggregation point. Id. at 8. The Examiner concludes it would have obvious to add Raza’s communicating of PLI, as performed by the Ethernet switches, to each of Reyes’ networks. Id. at 7–9. The Examiner determines the Reyes-Raza combination’s networks achieve the claimed networks, the cloud service achieves the claimed HMA, and each network’s communicating of PLI achieves the claimed combination of the appliance, local agent, and data acquisition equipment. Id. at 8–9. Appellant contends Raza’s applied disclosures cannot teach or suggest the claimed communicating of PLI because: [Raza’s] Ethernet switch 1900 . . . does not receive [PLI] acquired using [PLI] data acquisition technology [of] devices in the network or communicate such [PLI] to a [HMA]. Instead, the Ethernet switch 1900 . . . communicate[s PLI for] the switch 1900 [(e.g.,] the cables connected to it[)] to the aggregation point. . . . In other words, the Ethernet switch 1900 obtains [PLI] using its own [PLI] data acquisition technology and communicates the [PLI] that it obtains itself to the aggregation point. Appeal Br. 16 (emphasis added). We are unpersuaded of Examiner error. The Examiner does not find Raza’s Ethernet switch teaches the claimed communicating of PLI, but rather that the switch’s functioning and components show it would have been obvious to add the claimed communicating of PLI to Reye’s networks. Final Act. 7–9 (discussed Final Act. 8–9). Specifically, the Examiner finds each switch relays PLI by including: a PHY device (1902) with registers Appeal 2020-000516 Application 14/341,008 10 (1922) that acquire PLI for respective connections (e.g., jack 1904 and inserted RJ-45 plug); and a processor (1930) running software (1932) that receives the acquired PLI and relays the PLI to the aggregation point. Final Act. 8–9; Advisory Act., Cont’n Sheet (PTOL-303); see also Raza ¶ 190. The Examiner determines it would have been obvious to similarly use separate PLI-acquisition registers and PLI processors/software within each of Reyes’ networks to respectively acquire and communicate PLI. Id. The Examiner also determines each network’s PLI registers, processors, and software respectively achieve the claimed data acquisition equipment (registers), appliance (processor), and local agent (software). Id. Appellant does not show this use of separate PLI-acquisition registers and PLI processors/software by Reyes’ networks fails to achieve the argued claim limitation, but rather unpersuasively contends that Raza individually fails to achieve the limitation. See Keller, 642 F.2d at 425 (“One cannot show nonobviousness by attacking references individually [if] the rejection [is] based on [a] combination[] of references.”). Appellant also contends, exactly as contended for claim 1, the Examiner does not articulate the modification of Reyes and the motivation is derived from benefits of Raza’s invention that do not result from the modification. Appeal Br. 19; see also supra 7 (identifying the same contentions with regard to claim 1). As discussed for claim 1, these contentions are unpersuasive. Appellant also contends: “[N]othing in Raza teaches or suggests that the aggregation point 120 is a[n HMA] that is hosted on one or more server computers operated by the third party.” Reply Br. 9. We are unpersuaded of Examiner error because Appellant does not show “good cause” for first Appeal 2020-000516 Application 14/341,008 11 raising this argument in the Reply Brief. See 37 C.F.R. § 41.41(b)(2) (permitted contents of a Reply Brief). The argument is therefore untimely and not considered on the merits. Id. CONCLUSION For the foregoing reasons, we affirm the Examiner’s obviousness rejections of claims 1–22. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 11 112(b) Indefiniteness 11 1–4, 6–9, 11, 13–18, 20–22 103 Reyes, Raza 1–4, 6–9, 11, 13–18, 20–22 5, 10, 12, 19 103 Reyes, Raza 5, 10, 12, 19 Overall Outcome 1–22 TIME PERIOD FOR RESPONSE 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)(2018). AFFIRMED Copy with citationCopy as parenthetical citation