Ex Parte Kerpez

Patent Trial and Appeal Board

Oct 31, 2016

11341226 (P.T.A.B. Oct. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111341,226 01/26/2006 Kenneth J. Kerpez
23524 7590 11/02/2016
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
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.
088245-7214 1365
EXAMINER
MOOR THY, ARA VIND K
ART UNIT PAPER NUMBER
2492
NOTIFICATION DATE DELIVERY MODE
11/02/2016 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH J. KERPEZ
Appeal2015-002169
Application 11/341,226
Technology Center 2400
Before ELENI MANTIS MERCADER, CARL W. WHITEHEAD JR., and
ADAM J. PYONIN, Administrative Patent Judges.
Per Curiam.
DECISION ON APPEAL
STATEivIENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) from the Final
Rejection of claims 1-20. Appeal Brief 1. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Introduction
Appellant's invention relates to "accurately predict[ing] the
performance of each different priority or service level on a PON [passive
optical network] with multiple different service types and multiple users."
Abstract.
Appeal2015-002169
Application 11/341,226
Representative Claim (Disputed limitations emphasized)
1. A computer-implemented method comprising:
receiving, at a computer, actual data associated with a
plurality of characteristics of an existing passive optical network
(PON) and a broadband service which the existing PON is
configured to provide, wherein the actual data includes a number
of subscribers of the existing PON that subscribe to the
broadband service and a bit rate of the broadband service;
generating, at the computer, multiple traffic streams based
on the actual data;
predicting, at the computer, a performance of the existing
PON based on a real-time simulation of the existing PON loaded
with the multiple traffic streams;
determining, at the computer, whether the existing PON
has sufficient capacity to provide the broadband service based on
the predicted performance of the existing PON.
Rejections on Appeal
Claims 1, 2, 4, 5, 7, 11, 12, 14, 15, and 17-19 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Yantai Shu, Prediction-Based
Admission Control Using F ARIMA Models, 2000 IEEE International
Conference on Communications, 1325-29 (2000). Final Rejection 11.
Claims 1-5, 11-15, 18, and 19 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Borella (US 6,442, 141 B 1; August 27,
2002). Final Rejection 15.
Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shu in view of J.M. Senior, Modelling the response of
different WDM PON architectures to varying traffic load, SPIE Conference
on All-Optical Networking 1999, 181-87 (September 1999). Final
Rejection 17-18.
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Application 11/341,226
Claims 6, 8-10, 16, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Shu in view of Mario Gerla & Leonard Kleinrock,
On the Topological Design of Distributed Computer Networks, IEEE
TRANSACTIONS ON COMMUNICATIONS, 48---60 (January 1977). Final
Rejection 19.
Claims 6-10, 16, 17, and 20 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Borella in view of Gerla. Final Rejection 21.
Claims 11, 12, 14, 15, and 17 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Shu. Final Rejection 24.
Claims 1, 2, 4, 5-7, 11, 12, 14, and 15-19 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Shu in view of Chadi M. Assi,
"Dynamic Bandwidth Allocation for Quality-of-Service Over Ethernet
PONs, 21 IEEE JOURNAL ON SELECTED AREAS IN COMMUNICATIONS, 1467-
77 (November 2003). Final Rejection 24.
Claims 3 and 13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Shu in view of Assi and Senior. Final Rejection 27.
Claims 6, 8-10, 16, and 20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Shu in view of Assi and Gerla. Final Rejection 27.
Claims 1-7 and 11-19 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Borella in view of Assi. Final Rejection 27.
Claims 8-10 and 20 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Borella in view of Assi and Gerla. Final Rejection 29.
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Application 11/341,226
ANALYSIS
Rather than reiterate the arguments of Appellant and the Examiner,
we refer to the Final Rejection (mailed January 14, 2014), the Appeal Brief
(filed July 23, 2014), the Answer (mailed October 3, 2014), and the Reply
Brief (filed December 3, 2014) for the respective details. We have
considered in this decision only those arguments Appellant actually raised in
the Briefs.
We have reviewed the Examiner's rejections in light of Appellant's
arguments that the Examiner has erred. We adopt as our own ( 1) the
findings and reasons set forth by the Examiner in the action from which this
appeal is taken and (2) the reasons set forth by the Examiner in the
Examiner's Answer in response to Appellant's Appeal Brief, except where
noted.
Anticipation Rejections of Claims 1, 11, and 18
Regarding the anticipation rejection based on Shu, Appellant argues
Examiner error because Shu fails to disclose or suggest that "the actual data
includes a number of subscribers of the existing PON that subscribe to the
broadband service and a bit rate of the broadband service," as appearing in
claim 1. Appeal Brief 12. The Examiner finds that "(1) Number of
Subscribers is the #Actv the number of active flows" and "(2) Bit rate or
Bandwidth is% link utilization multiplied by total capacity." Answer 7
(citing Shu, "Table 2: Single-Hop Simulation Results"). We find
Appellant's arguments persuasive.
Regarding the anticipation rejection based on Borella, Appellant
argues Examiner error because "[s]imulating or measuring 'delay and loss
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Application 11/341,226
conditions' as in Borella is not the same as using a 'number of subscribers'
and 'a bit rate' as claimed" and "[t]he Examiner has not explained his
rationale for how 'bandwidth and users' are inherently disclosed." Appeal
Br. 15. The Examiner finds "the trace intrinsically contains both the
bandwidth and the subscriber information to perform the simulation."
Answer 14. We find Appellant's arguments persuasive.
Accordingly, we reverse the Examiner's anticipation rejections of
independent claim 1, as well as independent claims 11 and 18 not separately
argued, as well as the claims dependent therefrom. We also reverse the
following Examiner's obviousness rejections for the same reasons:
1. claims 3 and 13 (Shu in view of Senior);
2. claims 6, 8-10, 16, and 20 (Shu in view of Gerla);
3. claims 6-10, 16, 17, and 20 (Borella in view of Gerla); and
4. claims 11, 12, 14, 15, and 17 (Shu alone).
Obviousness Rejections of Claims 1, 11, and 18 in View of Various
Combinations of References
Regarding all obviousness rejections of claim 1, Appellant argues that
"[a]lthough pages 24-29 of the final Office Action have further rejected the
claims in the alternative, the rejections in the alternative do not allege that all
elements of independent Claims 1, 11, and 18 are disclosed in the additional
references." Appeal Brief 15. Appellant additionally contends that "[b ]ased
on Appellant's review ... Appellant submits that Shu, Borella, Assi, Gerla,
and Senior, alone or in combination, fail to disclose or suggest at least one
element in each of independent Claims 1, 11, and 18." Appeal Brief 16.
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Application 11/341,226
We are not persuaded by Appellant's arguments. Regarding the
combination of Shu and Assi, the Examiner finds, and we agree, that Assi
discloses a simulation considering "a PON architecture with 16 ONU s
[(optical network units)] connected in a tree topology" and that "[t]he
channel speed is considered to be 1 Gb/s." Final Rejection 25 (citing Assi §
VI (page 1473)). Assi further indicates "[e]ach ONU supports three priority
queues" and refers to this configuration as a "traffic model." Assi 1473.
One skilled in the art would understand that Assi' s traffic model would have
an upper bound on the maximum traffic that could be simulated, based on
the number of subscribers of the PON to be simulated.
The Examiner additionally finds, and we agree, that:
[a] person of ordinary skill in the art at the time of invention
would have utilized the simulation methodology and
characteristics disclosed in Assi with the simulation of Shu by
including the simulation inputs of Assi in the alternative or in
addition to those of Shu . . . in order to simulate system
scheduling performance.
Final Rejection 26 (citing Shu§§ 3, 3.1, 3.3 and Assi §II).
Similarly, with respect to the combination of Borella and Assi, the
Examiner finds, and we agree, that "[a] person of ordinary skill in the art at
the time of invention would have utilized the simulation methodology and
characteristics disclosed in Assi with the simulation of Borella by including
the simulation inputs of Assi ... in order to simulate system scheduling
performance." Final Rejection 29 (citing Borella Figure 5 and Assi §II).
We conclude the Examiner's articulated reasoning provides a rational
underpinning to support the legal conclusion of obviousness. See KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Appellant fails to address,
with any degree of specificity, the deficiency of (1) the addition of Assi to
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Shu, or (2) the addition of Assi to Borella, relied upon by the Examiner to
establish obviousness under 35 U.S.C. § 103(a), and Appellant similarly
fails to address the obviousness rejections based on the following additional
combinations of references:
1. Shu in view of Assi and Senior;
2. Shu in view of Assi and Gerla;
3. Borella in view of Assi; and
4. Borella in view of Assi and Gerla.
Once the Examiner has satisfied the burden of presenting a prima facie
case of obviousness, the burden then shifts to Appellant to present evidence
and/or arguments that persuasively rebut the Examiner's prima facie case.
See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Appellant did not
particularly point out errors in the Examiner's reasoning to persuasively
rebut the Examiner's prima facie case of obviousness and therefore the
following obviousness rejections are sustained:
1. claims 1, 2, 4, 5-7, 11, 12, 14, and 15-19 (Shu in view of Assi);
2. claims 3 and 13 (Shu in view of Assi and Senior);
3. claims 6, 8-10, 16, and 20 (Shu in view of Assi and Gerla);
4. claims 1-7 and 11-19 (Borella in view of Assi); and
5. claims 8-10 and 20 (Borella in view of Assi and Gerla).
DECISION
We affirm the Examiner's rejections of claims 1-20.
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).
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AFFIRMED
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