Ex Parte Fong

Patent Trial and Appeal Board

Jan 17, 2013

11069575 (P.T.A.B. Jan. 17, 2013)

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.
11/069,575 02/28/2005 Thomas Kin Tak Fong PA3028US 6883
22830 7590 01/17/2013
CARR & FERRELL LLP
120 CONSTITUTION DRIVE
MENLO PARK, CA 94025
EXAMINER
ALATA, YASSIN
ART UNIT PAPER NUMBER
2427
MAIL DATE DELIVERY MODE
01/17/2013 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

Ex parte THOMAS KIN TAK FONG
____________

Appeal 2010-004384
Application 11/069,575
Technology Center 2400
____________

Before JEAN R. HOMERE, CARL W. WHITEHEAD JR., and
GREGORY J. GONSALVES, Administrative Patent Judges.

GONSALVES, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2010-004384
Application 11/069,575

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STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 1-23 and 25-29 (App. Br. 3). Claim 24 was cancelled (id.). We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
The Invention
Exemplary claim 1 follows:
1. A method for digitally testing a hybrid fiber coaxial
cable plant, comprising:

sending a query to a plurality of cable modems, the query
including a request for cable modem status information;

receiving a reply from at least one of the plurality of
cable modems wherein the reply includes at least a unique
identifier portion corresponding to the at least one of the
plurality of cable modems, and the requested cable modem
status information;

storing the reply in a database;

correlating each reply in the database to a specific cable
modem using the unique identifier portion in each reply;

developing a performance baseline report from reply data
in the database, wherein the baseline report encompasses
information related to one or more periodic effects on plant
performance; and

providing reconfiguration and adjustment instructions to
a cable modem that does not meet performance baselines as
identified in the performance baseline report.

Appeal 2010-004384
Application 11/069,575

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Claims 1, 4, 6-8, and 18 stand rejected under 35 U.S.C. 103(a) as
being unpatentable over Bahlmann (US 6,393,478 B1, May 21, 2002) ,
Anderson (US 5,850,386, Dec. 15, 1998), La Joie (US 5,630,048, May 13,
1997), and Leano (US 6,453,472 B2, Sep. 17, 2002) (Ans. 3-11).
Claims 9, 12, 15 and 16 stand rejected under 35 U.S.C. 103(a) as
being unpatentable over Bahlmann, Anderson, La Joie, Leano, and Dziekan
(US 6,704,288 B1, Mar. 9, 2004) (Ans. 11-14).
Claims 10-11 stand rejected under 35 U.S.C. 103(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano, and Stewart (US
5,812,557, Sep. 22, 1988) (Ans. 15-16).
Claim 13 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano, and Bergins (US
4,691,314, Sep. 1, 1987) (Ans. 16-17).
Claim 14 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano, and Moran III (US
6,377,552 B1, Apr. 23, 2002) (Ans. 17).
Claim 17 stands rejected under 35 U.S.C. 1 03(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano, and McMullan Jr.
(US 5,142,690 Aug. 25, 1992) and Stewart (US 5,812,557, Sep. 22, 1998)
(Ans. 18-19).
Claim 19 stands rejected under 35 U.S.C. 1 03(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano, and Hershey (US
5,568,471, Oct. 22, 1996) (Ans. 19- 20).
Claim 20 stands rejected under 35 U.S.C. 103(a) as being
unpatentable over Bahlmann, Anderson, La Joie, Leano and Ozluturk (US
6,157,619, Dec/ 5. 2000) (Ans. 20).
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Claims 2, 21, and 22 stand rejected under 35 U.S.C. 1 03(a) as being
unpatentable over Bahlmann, Dziekan, and La Joie (Ans. 20-24).
Claim 3 stands rejected under 35 U.S.C. 103(a) as being unpatentable
over Bahlmann, Dziekan, La Joie, Moran (US 6,377,552) and Morgan
(“Return Path Alignment, Insights into proper return path alignment, Digital
trouble shooting is a whole new ballgame”; Communication Engineering
Design, Oct.1996) (Ans. 24-26).
Claims 5, 23, and 25 are rejected under 35 U.S.C. 1 03(a) as being
unpatentable over Bahlmann, Wichelman (US 6,711,134 B1, Mar. 23,
2004), La Joie, and Robrock II (US 5,680,390, Oct. 21, 1997) (Ans. 26-31).
Claim 26-29 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Bahlmann, Wichelman, La Joie, Robrock, and Hrastar
(US 6,272,150 B1, Aug. 7, 2001) (Ans. 31-34).

FACTUAL FINDINGS
We adopt the Examiner’s factual findings as set forth in the Answer
(Ans. 3, et seq.).

ISSUE
Appellant’s responses to the Examiner’s positions present the
following issue:
Did the Examiner err in finding that the combination of Bahlmann,
Anderson, La Joie, and Leano teaches or suggests “developing a
performance baseline report from reply data in the database, wherein the
baseline report encompasses information related to one or more periodic
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effects on plant performance,” as recited in independent claim 1, and as
similarly recite in independent claims 2, 4, and 5?

ANALYSIS
Appellant contends that the Examiner erred in rejecting the
independent claims as obvious because La Joie “fails to disclose ‘developing
a performance baseline report from reply data in the database, wherein the
baseline report encompasses information related to one or more periodic
effects on plant performance'” (App. Br. 17 (emphasis omitted)). In support
of their contention, Appellant argues that “[m]erely taking the temperature
of a computer system does not correspond to developing a report that
reflects variations in temperature over time” (id.). Appellant further argues
that La Joie discloses merely a thermometer and that “[w]hile such a
thermometer might be involved in developing a baseline report that reflects
periodic effects on plant performance, that thermometer does not-by itself-
meet this claim element” (id.).
The Examiner concluded, however, that “La Joie, not - by itself -, but
instead combined with other references such as Bahlmann and Anderson, is
believed to have rendered the claim obvious to those skilled in the art” (Ans.
38). More particularly, the Examiner concluded that “it is reasonable to
conclude that La Joie's ‘thermometer’ can be involved in developing a
baseline report that reflects periodic effects on plant performance” (id.). The
Examiner reasoned that “as evidenced by Bahlmann and Anderson, it is a
further predictable and known technique for those skilled in the art to track
and develop baseline reporting of the operating parameters of devices” (id.).
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We agree with the Examiner. Our reviewing Court requires us to give
a claim its broadest reasonable meaning consistent with the Specification. In
re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Appellant’s Specification
discloses that "automated digital certification encompasses the collection of
data over a day or more to identify any periodic effects on plant
performance, such as those caused by daytime heating and nighttime cooling
of components" (p. 8, l. 19 – p. 9, l. 2). Accordingly, we construe the claim
term “periodic effects” as encompassing parameters that change over time
such as temperature. La Joie discloses measuring temperature over time:
“[a] temperature of the external computer system is monitored
through another connection between the monitoring system and
the external computer system. This temperature
measurement typically monitors a temperature sensor
installed within the fan of the external computer system
specification

(col. 11, ll. 40-45). Moreover, Bahlmann discloses a system that tracks
problems with devices in a network where “many devices 212 provide
values from internal sensors” (col. 7, l. 65 – col. 8, l. 2). Anderson teaches
developing a performance baseline report from network performance data:
It is an object of the present invention to provide a new and
improved protocol analyzer capable of displaying station level
statistics, displaying real time event detection creating baseline
network performance information and comparing said baseline
information with real-time performance information and
displaying to a user the results of that comparison . . ..

(col. 4, ll. 47-53).
Accordingly, we conclude that the claim limitation of developing a
performance baseline report compassing information related to periodic
effects is a combination of the familiar element of sensing data that changes
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over time like temperature as taught by La Joie and Bahlmann and
developing a performance baseline report from that data as taught by
Anderson that would have yielded predictable results. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007). Thus, we find no error in the
Examiner’s obviousness rejection of independent claims 1, 2, 4, and 5 as
well as the claims dependent therefrom (i.e., claims 1-23 and 25-29) because
Appellants did not set forth any separate and distinct patentability arguments
for the dependent claims (see App. Br. 15-17).

DECISION
We affirm the Examiner’s decision rejecting claims 1-23 and 25-29 as
unpatentable under 35 U.S.C. § 103(a).
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
Vsh