Ex Parte Absillis et al

Patent Trial and Appeal Board

Sep 10, 2014

11745001 (P.T.A.B. Sep. 10, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte LUC ABSILLIS, SUDHEER DHARANIKOTA, and
GOPAL SURYA
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Appeal 2012-0028711
Application 11/745,001
Technology Center 2400
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Before JEAN R. HOMERE, CARLA M. KRIVAK, and
STANLEY WEINBERG, Administrative Patent Judges.

HOMERE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–7 and 9–13. Claim 8 has been canceled. App.
Br. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 The real party in interest is Alcatel-Lucent. App. Br. 1.
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Appellants’ Invention
Appellants invented a method and system for allowing operations,
administration, and management (OAM) of a passive optical network (PON)
to monitor, install and troubleshoot remotely elements of the network. Fig.
1; Spec. ¶ 2. In particular, the PON (10) includes an Optical Line Terminal
(OLT-20) coupled to a plurality of Optical Network Terminators (ONT-22)
via optical fibers (24) to exchange connectivity fault test massages between
the logical ports (70, 72, 74, 76,78) of maintenance end points (MEP) (84,
86, 88, 90) thereby establishing a desired maintenance entity (ME) level at a
selected device. Fig. 8; Spec. ¶¶ 22, 23, and 29-31.
Representative Claim
Independent claim 1 is representative. It reads as follows:
1. A connectivity fault management system within a passive
optical network (PON) that provides a plurality of Maintenance
End Points (MEPs), the system comprising:
a network device system remotely coupled via a passive
fiber network to an optical interface, the network device system
having a network device processor system programmed or
configured to provide a plurality of Maintenance Entity (ME)
levels, wherein each ME level comprises an MEP operating as a
second MEP in a network device system logical port, the
second MEP configured to exchange connectivity fault test
messages with a first MEP on the same ME level as the second
MEP via the passive fiber network in response to predetermined
conditions.

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Prior Art Relied Upon
Bernard US 2005/0198272 Al Sep. 8, 2005
Sutherland US 7,230,926 B2 Jun. 12,2007
Mohan US 2008/0219172 Al Sep. 11,2008
Kannan US 2005/0094567 Al May 5,2005
Sridhar et aI., End-To-End Ethernet Connectivity Fault Management in Metro
and Access Networks, Technology White Paper, 14, Ed. 01, Alcatel 2005.

Rejections on Appeal
The Examiner rejects the claims on appeal as follows:
1. Claims 1, 3, 4, 6, 9, 10, and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combination of Sutherland, Bernard, and
Mohan.
2. Claims 2, 5, and 7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Sutherland, Bernard, Mohan, and
Sridhar.
3. Claims 11–12 stand rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Sutherland, Bernard, Mohan, and Kannan.

ANALYSIS
We consider Appellants’ arguments seriatim as they are presented in
the Appeal Brief, pages 4–7, and the Reply Brief, pages 1–3.2

2 Rather than reiterate the arguments of Appellants and the Examiner, we
refer to the Appeal Brief (filed March 14, 2011), the Reply Brief (Filed July
19, 2011) and the Answer (mailed June 8, 2011) for the respective details.
We have considered in this Decision only those arguments Appellants
actually raised in the Brief. Any other arguments Appellants could have
made but chose not to make in the Briefs are deemed to be waived. See 37
C.F.R. § 41.37(c)(1)(vii).
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Dispositive Issue: Under 35 U.S.C. § 103, did the Examiner err in finding
the disclosures of Sutherland, Bernard, and Mohan are properly combined to
teach or suggest, a plurality of Maintenance Entity (ME) levels, each
containing a first MEP and a second MEP exchanging connectivity fault test
messages, as recited in claim 1?
Appellants argue the proffered combination of references does not
render claim 1 unpatentable. Id. In particular, Appellants argue “[a]lthough
Mohan appears to disclose multiple ME levels, modifying Sutherland and/ or
Bernard to accommodate the multiple ME levels of Mohan would
impermissibly change the principle of operation of Sutherland and/ or
Bernard”. App. Br. 4. In other words, according to Appellants,
incorporating Mohan’s ME steps into Sutherland/Bernard would impede
Bernard’s ability to send connectivity test signals between the OLT and the
ONT. Likewise, it would frustrate Sutherland’s ability to complete its fault
isolation process. Id. at 4–5. Consequently, Appellants argue
Sutherland/Bernard would have to be reprogrammed or reconfigured to
operate as levels of MEPs, which would require skill levels far beyond those
of the ordinarily skilled artisan. Id. at 5, Reply Br. 1–2. Appellants
therefore submit because Mohan is not properly relied upon to cure the
noted deficiencies of Sutherland and Bernard, the proffered combination of
references does not teach or suggest the disputed limitations. Id.
In response, the Examiner finds Mohan’s disclosure of a fault
isolation technique that utilizes OAM frames in an optical network to
provide an ME level to MEPS exchanging fault messages would
complement Sutherland/Bernard’s fault isolation schemes for identifying a
malfunctioning node in optical network. Accordingly, because the proffered
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combination would predictably result in identifying the location of the fault
utilizing a particular ME level, the Examiner finds the proffered combination
teaches the disputed limitations. Ans. 21–24.
On the record before us, we do not find error in the Examiner’s
obviousness rejection of claim 1. We note at the outset, Appellants do not
dispute the Examiner’s finding that Mohan teaches a plurality of ME levels,
each containing a first MEP and a second MEP exchanging fault test
messages. App. Br. 4, Ans. 21. Similarly, Appellants do not dispute the
Examiner’s findings as to Sutherland and Bernard. App. Br. 4–5.
Appellants mainly argue because incorporating the cited teaching of Mohan
into Sutherland and Bernard would require reprogramming that exceeds the
level of the ordinarily skilled artisan, thereby changing the principle of
operation of Sutherland and Bernard, the proposed modification would be
improper. Id. Reply Br. 1–2. We do not agree with Appellants.
An argument that a system is rendered “unsuitable for its intended
purpose” is a “teach away” argument. In re Gordon, 733 F.2d 900, 902
(Fed. Cir. 1984) (The court concluded that in effect, “French teaches away
from the board's proposed modification” because “if the French apparatus
were turned upside down, it would be rendered inoperable for its intended
purpose”). The Federal Circuit has held “[a] reference may be said to teach
away when a person of ordinary skill, upon reading the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant.” In re
Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006) (quoting In re Gurley, 27 F.3d
551, 553 (Fed.Cir.1994)). In this case, because Appellants have failed to
point to any teaching in Mohan that criticizes or discourages using an ME
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level containing MEPs that exchange fault test messages in optical networks
as in Sutherland or Bernard, Appellants have not presented sufficient
evidence to support the contention that Mohan’s teaching would
impermissibly change the principle of operation of Sutherland and Bernard
or would otherwise render the cited references unsuitable for their intended
purposes. Likewise, because Appellants have not presented evidence to
support the argument that the proffered combination would require
programming skills exceeding the levels of the ordinarily skilled artisan,
Appellants have not sustained the requisite burden to show error in the
Examiner’s rejection. Accordingly, because Sutherland, Bernard, and
Mohan disclose prior art elements that perform their ordinary functions, and
the combination would predictably result in an optical network having an
ME level that exchanges fault test messages between MEPS thereon to
isolate faults in particular nodes, we agree with the Examiner that the
proffered combination of references is proper.
Because Appellants have not presented separate patentability
arguments or have reiterated substantially the same arguments as those
previously discussed for patentability of claim 1 above, claims 2–7 and 9–13
fall therewith. See 37 C.F.R. § 41.37(c)(1)(vii).

DECISION
We affirm the Examiner’s rejections of claims 1–7 and 9–13 as set
forth above. No time period for taking any subsequent action in connection
with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED
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