Ex Parte Absillis et alDownload PDFPatent Trial and Appeal BoardSep 10, 201411745001 (P.T.A.B. Sep. 10, 2014) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte LUC ABSILLIS, SUDHEER DHARANIKOTA, and GOPAL SURYA ____________________ Appeal 2012-0028711 Application 11/745,001 Technology Center 2400 ____________________ 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. Appeal 2012-002871 Application 11/745,001 2 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. Appeal 2012-002871 Application 11/745,001 3 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). Appeal 2012-002871 Application 11/745,001 4 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 Appeal 2012-002871 Application 11/745,001 5 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 Appeal 2012-002871 Application 11/745,001 6 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 Klh Copy with citationCopy as parenthetical citation