Ex Parte Casterline et alDownload PDFPatent Trial and Appeal BoardDec 22, 201714172240 (P.T.A.B. Dec. 22, 2017) 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. 14/172,240 02/04/2014 Raymond Allen Casterline HI09-080A 1085 21495 7590 12/27/2017 CORNING INCORPORATED INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1 CORNING, NY 14831 EXAMINER LIU, LI ART UNIT PAPER NUMBER 2636 NOTIFICATION DATE DELIVERY MODE 12/27/2017 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): u sdocket @ corning .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RAYMOND ALLEN CASTERLINE, STEVEN CASEY KAPP, RAJESHANNAN PALANISAMY, ERIC MICHAEL SADOWSKI, DALE ALAN WEBB, and MICHAEL BRIAN WEBB Appeal 2017-003032 Application 14/172,240 Technology Center 2600 Before JAMES R. HUGHES, THU A. DANG, and CARL L. SILVERMAN, Administrative Patent Judges. HUGHES, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s final decision rejecting claims 1—20, which constitute all the claims pending in this application. Final Act. I.1 We have jurisdiction under 35 U.S.C. § 6(b). 1 We refer to Appellants’ Specification (“Spec.”) filed Feb. 4, 2014 (claiming benefit of PCT/US2010/022847 filed Feb. 2, 2010; US 61/230,472 filed July 31, 2009; and US 61/149,553 filed Feb. 3, 2009) and Appeal Brief (“Br.”) filed Mar. 7, 2016. We also refer to the Examiner’s Answer (“Ans.”) Appeal 2017-003032 Application 14/172,240 We affirm-in-part. Appellants ’ Invention The invention generally relates to optical fiber network control systems utilizing a controller configured to predict the failure of a communication component based on data (alarm information) received from the communication components, where the received data indicates an impending (predictive) failure in one of the communication components. The controller is further configured to calculate an alarm for the failing communication component. Spec. Tflf 3, 6—13; Abstract. Representative Claim Independent claim 1, reproduced below with key disputed limitations emphasized, further illustrates the invention: 1. A wireless communication system, comprising: communication components, comprising: a downlink base transceiver station (BTS) interface configured to receive downlink electrical radio frequency (RF) signals from at least one BTS on at least one communication downlink; at least one optical interface module (OIM) configured to: receive and convert the downlink electrical RF signals from the downlink BTS interface into downlink Radio- over-Fiber (RoF) signals on the at least one communication downlink; and receive and convert uplink RoF signals from at least one remote antenna unit (RAU) into uplink electrical RF signals on at least one communication uplink; mailed July 1, 2016, and Final Office Action (Final Rejection) (“Final Act.”) mailed Oct. 9, 2015. 2 Appeal 2017-003032 Application 14/172,240 an uplink BTS interface configured to receive and communicate the uplink electrical RF signals from the at least one communication uplink to the at least one BTS; and a controller configured to predict the failure of at least one of the communications components based on receiving alarm information from at least one of the communication components defining at least one condition indicative of a predictive failure in the at least one of the communication components, and to calculate the alarm for the at least one of the communication components. Rejections on Appeal2 1. The Examiner rejects claims 1—3, 5—12, 14, 15, and 20 on the ground of non-statutory obviousness-type double patenting over corresponding claims 1—28 of US Patent No. 8,649,684 B2 (“’684 Patent”). 2. The Examiner rejects claims 1, 5, 8, 9, 12, 14, and 16—19 under 35 U.S.C. § 103(a) as being unpatentable over George et al. (US 2008/0070502 Al, published Mar. 20, 2008) (“George”) and Parsay et al. (US 5,694,232, issued Dec. 2, 1997) (“Parsay”). 2 Neither the Examiner, nor Appellants address dependent claims 4 and 13 in their respective briefs (Final Action, Answer, and Appeal Brief). Claims 4 and 13 are pending (see, e.g., Final Act. 1). Claims 4 and 13 were previously rejected under 35 U.S.C. § 112, second paragraph. See Non- Final Office Action mailed June 5, 2015 (Non-Final Act. 4) and Appellants’ Reply dated Sept. 8, 2015 (Reply 6—7). The Examiner did not renew or withdraw the indefmiteness rejection in the Final Action. We view the omission of the indefmiteness rejection (and claims 4 and 13) as harmless typographical error in that the Examiner explains Appellants’ Specification does not explicitly describe an alarm configuration. See Final Act. 2—3. Accordingly, we include the indefmiteness rejection in the rejections on appeal and decide the issue based on the arguments in the Non-Final Action, the Final Action, and Appellants’ Reply to the Non-Final Action. 3 Appeal 2017-003032 Application 14/172,240 3. The Examiner rejects claims 2, 3, 6, 7, 10, 11, and 15 under 35 U.S.C. § 103(a) as being unpatentable over George, Parsay, and Sone et al. (US 2007/0264011 Al, published Nov. 15, 2007) (“Sone”). 4. The Examiner rejects claim 20 under 35 U.S.C. § 103(a) as being unpatentable over George, Parsay, and Aronson et al. (US 2005/0058455 Al, published Mar. 17, 2005) (“Aronson”). 5. The Examiner rejects claims 4 and 13 under 35 U.S.C. § 112, second paragraph as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventors regard as the invention. See Non-Final Act. 4. ISSUES Based upon our review of the record, Appellants’ contentions, and the Examiner’s findings and conclusions, the issues before us follow: 1. Did the Examiner err in finding that the combination of George and Parsay collectively would have taught or suggested “a controller configured ... to calculate the alarm for the at least one of the communication components” within the meaning of Appellants’ claim 1 and the commensurate limitations of Appellants’ claim 9? 2. Did the Examiner err in finding Appellants’ claims 4 and 13 indefinite? ANALYSIS The Double Patenting Rejection Appellants do not provide specific arguments showing error in the Examiner’s double patenting rejection. Appellants previously filed a 4 Appeal 2017-003032 Application 14/172,240 terminal disclaimer (dated Sept. 8, 2015), but the Examiner did not approve the Terminal Disclaimer (see Final Act. 2). Appellants merely state that the double patenting rejection is premature (Br. 15), and do not mention the Terminal Disclaimer or the Examiner’s disapproval of the Terminal Disclaimer in their Appeal Brief. Accordingly, we pro forma affirm the double patenting rejection of claims 1—3, 5—12, 14, 15, and 20. The 35 U.S.C. § 103 Rejections The Examiner rejects independent claim 1 as obvious over George and Parsay. See Final Act. 7—11; Ans. 17—29. Appellants contend that claim 1 recites the “‘controller’ is ‘configured’ ... ‘to calculate the alarm for the at least one of the communication components’” (Br. 9 (quoting claim 1)) and that Parsay does not teach calculating an alarm (with respect to claim 20 — see Br. 14). Appellants also generally contend that Parsay does not predict a failure or calculate an alarm (see Br. 9—13). Appellants and the Examiner focus their discussion almost entirely on whether George and Parsay suggest predicting a failure and, to a lesser extent the predictive nature of the received data. See Final Act. 7—11; Ans. 17—29; Br. 9—13. We find that Parsay, cited by the Examiner as teaching calculating an alarm (Final Act. 10), does not explicitly or inherently teach or suggest calculating an alarm. Instead, Parsay merely describes receiving test signals indicative of a malfunction and/or alarm signals (the recited alarm information) from remote components. See Parsay, col. 1,1. 59—col. 2,1. 3. Parsay does not describe calculating any value or performing any action based on the received data (alarm information). Accordingly, we disagree with the Examiner that Parsay impliedly or inherently calculates an alarm — in other words, we disagree that 5 Appeal 2017-003032 Application 14/172,240 the purpose of the alarm is ... to calculate the alarm for the at least one of the communication components (since “alarm” is used, it is either inherent or obvious that a “threshold” or a criteria is used to judge or calculate the current value to generate “alarm”) (Final Act. 10). Because we find at least one error with respect to the Examiner’s rejection, we need not and do not make any findings with respect to the predicting features. Rather, we confine our findings to the calculating feature, which is dispositive. Consequently, we are constrained by the record before us to find that the Examiner erred in finding George and Parsay teach the calculating feature of Appellants’ claim 1. Independent claim 9 includes limitations of commensurate scope. Dependent claims 5, 8, 12, 14, and 16—19 depend on claims 1 and 9, respectively, and stand with their respective independent claims. Accordingly, we do not sustain the Examiner’s obviousness rejection of claims 1, 5, 8, 9, 12, 14, and 16—19. With respect to the obviousness rejections of dependent claims 2, 3, 6, 7, 10, 11, 15, and 20, the Examiner has not established on this record that the additionally cited Sone or Aronson references overcome or cure the aforementioned deficiency of George and Parsay. Dependent claims 2, 3, 6, 7, 10, 11, 15, and 20 depend on claims 1 and 9, respectively. Accordingly, we do not sustain the Examiner’s obviousness rejections of claims 2, 3, 6, 7, 10, 11, 15, and 20. The 35 U.S.C. § 112 Rejection The Examiner previously rejected dependent claims 4 and 13 under 35 U.S.C. § 112, second paragraph. See Non-Final Office Act. 4. Appellants 6 Appeal 2017-003032 Application 14/172,240 previously contended that the disputed “alarm configuration” terminology was not indefinite in view of the support provided in the Specification. See Appellants’ Reply 6—7. While the portions of the Specification cited by Appellants do not explicitly describe an alarm configuration, the Specification does describe configuring a scheduler and external communications, as well as threshold configurations utilizing alarm information, which lends clarity to the claims by showing that the plain meaning of the alarm configuration language in the claims is in fact what Appellants intended to claim. See Spec. Tflf 204—207, 212—214. We find that the Examiner has not made sufficient findings showing that what is being claimed would not have been clear to a skilled artisan. In re McAward, Appeal 2015-006416, 2017 WL 3669566, *5 (PTAB Aug. 25, 2017) (precedential). We are, therefore, constrained by the record to find the Examiner erred in rejecting claims 4 and 13 as indefinite. CONCLUSIONS Appellants have not shown that the Examiner erred in rejecting claims 1—3, 5—12, 14, 15, and 20 on the non-statutory ground of obviousness-type double patenting. Appellants have shown that the Examiner erred in rejecting claims 1— 3, 5-12, and 14—20 under 35 U.S.C. § 103(a). Appellants have shown that the Examiner erred in rejecting claims 4 and 13 as being indefinite under 35 U.S.C. § 112, second paragraph. DECISION We affirm the Examiner’s rejection of claims 1—3, 5—12, 14, 15, and 20. We reverse the Examiners rejection of claims 4, 13, and 16—19. 7 Appeal 2017-003032 Application 14/172,240 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED-IN-PART 8 Copy with citationCopy as parenthetical citation