Ex Parte Bockhaus et al

Patent Trial and Appeal BoardMar 15, 2016

13133314 (P.T.A.B. Mar. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/133,314 06/07/2011 John W. Backhaus 56436 7590 03/17/2016 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 82671986 2110 EXAMINER DUNCAN, MARC M ART UNIT PAPER NUMBER 2113 NOTIFICATION DATE DELIVERY MODE 03/17/2016 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): hpe.ip.mail@hpe.com mkraft@hpe.com chris.mania@hpe.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHN W. BOCKHAUS, PA TRICK B. NUGENT, V ALENTINANDERS, and PAVEL VASEK Appeal2014-005545 Application 13/133,314 Technology Center 2100 Before JEAN R. HOMERE, CAROLYN D. THOMAS, and KARA SZPONDOWSKI, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. Â§ 134(a) of the Examiner finally rejecting claims 1-15 (Final Act. 2---6). Claims 16-20 are indicated as being allowable (id. at 7). We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We AFFIRM. The present invention relates generally to analyzing the reliability of a communication link. See Abstract. Appeal2014-005545 Application 13/133,314 Claim 1 is illustrative: 1. A diagnostic system for analyzing reliability of a communication link comprising: a link control component that controls the communication link, the link control component coupled to a processor and a diagnostic component, the diagnostic component configured to determine whether transmission errors have occurred on the communication link exceeding or matching a first programmable threshold over a range of multiple consecutive periods of time that exceeds or matches a second programmable threshold. Appellants appeal the following rejections: RI. Claims 1-5, 8-12, 14, and 15 are rejected under 35 U.S.C. Â§ 102(b) as being anticipated by Fall (US 5,757,810, May 26, 1998); and R2. Claim 6, 7, and 13 are rejected under 35 U.S.C. Â§ 103(a) as being unpatentable over Fall and Sharma (US 7,836,352 B2, Nov. 16, 2010). ANALYSIS Claims 1-5, 8-12, 14, and 15 Issue 1: Did the Examiner err in finding that Fall discloses a first programmable threshold, as set forth in claim 1? Appellant contends "Fall at best describes only a fixed threshold of one error [,] [h ]owever, Fall says nothing whatsoever about programming such a threshold" (App. Br. 6). The Examiner finds "[t]he reference makes clear that any interval can be used and the threshold can be set accordingly [and] [t]he reference makes clear that the threshold is set based on what would be a desirable threshold for speech quality" (Ans.8). We agree with the Examiner. 2 Appeal2014-005545 Application 13/133,314 Specifically, Fall discloses that "[a] first threshold is set in the supervisor for the number of erroneously received blocks which can be tolerated during a predetermined time interval, ... those skilled in the art will recognize that any monitoring interval can be used and that the first threshold can be set accordingly (6:24--32). In other words, Fall's first threshold can be programmed accordingly. We further agree with the Examiner that "a programmable system could, indeed, be static" (see Ans. 8). Programmable merely indicates the ability to be set accordingly. Thus, we find no error in the Examiner equating the claimed programmable threshold with Fall's setting of a threshold. Issue 2: Did the Examiner err in finding that Fall discloses whether transmission errors have occurred ... over a range of multiple consecutive periods of time, as set forth in claim 1? Appellant contends "a person of ordinary skill in the art will readily appreciate that checking whether a number of 'bad' intervals exceeds a threshold (as discussed in Fall) does not necessarily require that the 'bad' intervals are consecutive. . .. a range of multiple consecutive periods of time is not inherent in the technique described in Fall (App. Br. 7). The Examiner notes that "[t]he Examiner, however, never stated that the teaching of consecutive time periods is inherent in the Fall reference" (Ans. 9-10), and finds that "when the Fall reference looks to a history of previous intervals ... the reference very clearly is checking for consecutive intervals in addition to checking any number of intervals that would exceed the threshold" (id. at 10). We agree with the Examiner. 3 Appeal2014-005545 Application 13/133,314 As an initial matter, we note that in claim 1 the term "consecutive" immediately precedes the phrase periods of time, not the phrase transmission errors. Thus, we find that claim 1 can be interpreted as merely looking at a range of multiple consecutive periods of time, not necessarily consecutive bad intervals. Similarly, Fall discloses "the recent history of monitoring intervals (e.g., seconds) is filtered to determine if the transmission link is indeed faulty" (6: 53-55) and "in the filtering process, the previous five intervals can be reviewed[, and] [i]f, for example, more than two of the previous five intervals have been marked as 'bad', then the supervisory function can report ... insufficient quality" (4:6-11). In other words, Fall discloses reviewing the previous five intervals, i.e., multiple consecutive periods of time, and determining if more than two such intervals are marked "bad." Although we agree with Appellants that Fall's "bad" intervals may not be consecutive intervals, claim 1 does not require that there be consecutive bad intervals. As written, claim 1 merely requires transmission errors ... over a range of multiple consecutive periods of time. Thus, we find no error in the Examiner's interpreting the claims to only require looking at multiple periods of time (i.e., last five periods) and finding a threshold amount of bad intervals therein, whether the bad intervals are consecutive or not. "In the patentability context, claims are to be given their broadest reasonable interpretations .... [L ]imitations are not to be read into the claims from the specification." In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (citations omitted). Although, Appellants' specification indicates that "[t]he period counter counts consecutive periods where the event threshold has been exceeded or matched" (see i-f 25; see also i-f 56), claim 1 4 Appeal2014-005545 Application 13/133,314 recites, inter alia, determine whether transmission errors have occurred ... over a range of multiple consecutive periods of time ... (see claim 1 ). Thus, we find that claim 1, and each of the independent claims, merely looks at consecutive periods of time, not consecutive bad periods of time, as proffered by Appellants. Issue 3: Did the Examiner err in finding that Fall discloses the second programmable threshold being determined from register values, as set forth in independent claims 9 and 14? Claim 9 recites, inter alia, the second programmable threshold being determined from register values (see claim 9). Appellants contend that "the rejection fails to address this subject matter of claim 9" (App. Br. 8). Although Appellants are correct that the Examiner failed to address the aforementioned limitation of claim 9 in the Final Action (see Final Act. 5), the Examiner makes new findings in the Answer regarding this limitation. Specifically, the Examiner finds that "the threshold values in a processor system are necessarily stored in the processor system and a processor system at the time of [the] invention utilized registers as memory for access to values used in ongoing calculations" (Ans. 11 ). In response, Appellants contend "that the threshold values described in Fall could be determined from other sources such as, e.g., volatile memory, non-volatile memory, a hard drive, a floppy disk, etc. Therefore, [register values] is not inherent in Fall" (Reply Br. 5). We disagree with Appellants. In essence, Appellants contend that because different types of memory sources, i.e., volatile, non-volatile, hard drive, floppy, etc., can be used in Fall, Fall does not inherently disclose using registers. However, we find that 5 Appeal2014-005545 Application 13/133,314 Appellants' argument ignores that computers generally load data from a larger memory into registers where it is used for calculations, i.e., a faster way to access data. Thus, the fact that numerous types of memory sources could be used in Fall, does not address the fact that the use of registers are also necessary. Therefore, we find that Appellants' contention fails to specifically address the Examiner's findings that "registers" are necessarily being used by Fall's computer system. For at least the above-noted reasons, we are not persuaded the Examiner erred in finding that Fall discloses the invention as recited in independent claims 1, 9, and 14. Therefore, the Examiner did not err in rejecting claims 1-5, 8-12, 14, and 15 under 35 U.S.C. Â§ 102(b) for anticipation by Fall. Appellants do not argue separate patentability for the dependent claims 6, 7, and 13 under 35 U.S.C. Â§ 103(a). We, therefore, also sustain the Examiner'sÂ§ 103(a) rejection of claims 6, 7, and 13 over Fall and Sharma. DECISION We affirm the Examiner'sÂ§ 102(b) andÂ§ 103(a) rejections RI and R2. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6