Ex Parte Smith et alDownload PDFPatent Trial and Appeal BoardJun 21, 201713117918 (P.T.A.B. Jun. 21, 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. 13/117,918 05/27/2011 Brian Smith 05915-0125 8586 108226 7590 06/23/2017 Maynard Cooper & Gale PC (ADTRAN) 655 Gallatin Street, SW Huntsville, AL 35801 EXAMINER SLOMS, NICHOLAS ART UNIT PAPER NUMBER 2476 NOTIFICATION DATE DELIVERY MODE 06/23/2017 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): ipdocket @ maynardcooper. com seast @ maynardcooper.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN SMITH and DANIEL M. JOFFE Appeal 2017-003509 Application 13/117,91s1 Technology Center 2400 Before DEBRA K. STEPHENS, DANIEL J. GALLIGAN, and JESSICA C. KAISER, Administrative Patent Judges. STEPHENS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from a Final Rejection of claims 1—40. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 According to Appellants, the real party in interest is ADTRAN, Inc. (App. Br. 2). Appeal 2017-003509 Application 13/117,918 CLAIMED SUBJECT MATTER According to Appellants, the claims are directed to power management techniques which selectively enable or disable communication services to subscriber lines based on the amount of power provided by the subscriber lines (Abstract). Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A communication system, comprising: customer premises (CP) transceivers located at one or more customer premises (CP) and coupled to a plurality of subscriber lines including at least a first subscriber line coupled to one of the CP transceivers and a second subscriber line coupled to one of the CP transceivers, the CP transceivers configured to transmit power signals across the subscriber lines; and a network access device (NAD) coupled to the subscriber lines, the NAD positioned at an intermediate point between the CP and a network facility, the NAD comprising: a plurality of transceivers configured to transmit and receive data signals via the subscriber lines, each of the plurality of transceivers coupled to a respective one of the CP transceivers via a respective one of the subscriber lines, the plurality of transceivers including at least a first transceiver coupled to the first subscriber line and a second transceiver coupled to the second subscriber line; a power source configured to receive the power signals from the subscriber lines and to combine the plurality of power signals thereby forming a combined power signal, the power source further configured to power components of the NAD via the combined power signal; and a power detection element configured to sense a first parameter indicative of a power level for one of the power signals that is received by the power source from the first subscriber line, the power detection element further configured to perform a comparison between the first parameter and a threshold and to 2 Appeal 2017-003509 Application 13/117,918 determine whether to enable the first transceiver coupled to the first subscriber line based on the comparison of the first parameter. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Bailey Jessup et al., Smith et al., Burrows US 2006/0203997 Al US 2006/0271678 Al US 2009/0003587 Al US 2011/0018704 Al Sept. 14, 2006 Nov. 30, 2006 Jan. 1, 2009 Jan. 27, 2011 REJECTIONS Claims 1, 2, 5—10, 13—20, 22—36, and 38-40 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Bailey, Smith, and Jessup (Final Act. 5—9) Claims 3,4, 11, 12, 21, and 37 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over the combination of Bailey, Smith, Jessup, and Burrows {id. at 10-11). ISSUE 1 35 U.S.C. § 103(a): Claims 1-5, 8-13, 16,17, 20, 21, 31, 34, and 37 Appellants contend their invention as recited in independent claims 1, 9, 17, and 30, is not unpatentable over the combination of Bailey, Smith, and Jessup (App. Br. 8—14, 22—23; Reply Br. 2—6)3 The issues presented by the arguments are: 2 Rather than repeat the arguments here, we refer to the Appeal Brief and Reply Brief for the positions of Appellants and the Final Office Action and Answer for the positions of the Examiner. Only those arguments actually 3 Appeal 2017-003509 Application 13/117,918 Issue la: Has the Examiner shown the combination of Bailey, Smith, and Jessup teaches or suggests a power detection element configured to sense a first parameter indicative of a power level for one of the power signals that is received by the power source from the first subscriber line, the power detection element further configured to perform a comparison between the first parameter and a threshold and to determine whether to enable the first transceiver coupled to the first subscriber line based on the comparison of the first parameter, as recited in claim 1 and similarly recited in claims 9, 17, and 30? Issue lb: Did the Examiner improperly combine the teachings and suggestions of Bailey, Smith, and Jessup? ANALYSIS We disagree with Appellants’ contentions and adopt as our own: (1) the findings and reasons set forth by the Examiner in the action from which this appeal is taken (Final Act. 2—11); and (2) the reasons set forth by the Examiner in the Answer in response to the Appeal Brief (Ans. 2—13). With respect to the claims argued by Appellants, we highlight and address specific findings and arguments for emphasis as follows. Issue la Appellants contend the Examiner erred in finding the combination of Bailey, Smith, and Jessup teaches made by Appellants have been considered in this decision. Arguments that Appellants did not make in the Briefs are deemed to be waived. See 37 C.F.R. §41.37(c)(l)(iv). 4 Appeal 2017-003509 Application 13/117,918 a power detection element configured to sense a first parameter indicative of a power level for one of the power signals that is received by the power source from the first subscriber line, the power detection element further configured to perform a comparison between the first parameter and a threshold and to determine whether to enable the first transceiver coupled to the first subscriber line based on the comparison of the first parameter, as recited in claim 1 and similarly recited in claims 9, 17, and 30 (App. Br. 8—12, 22—23; Reply Br. 2—6). Specifically, Appellants argue the claimed “invention is directed to the comparison of power signals from individual subscriber lines to a threshold” (App. Br. 10) but “the combination of Bailey and Smith . . . make[s] power management decisions based on an aggregate power level” (Reply Br. 5). Appellants additionally argue Jessup does not teach “the enablement (or disablement) of transceivers at a network device based on power signals” (App. Br. 11; Reply Br. 6). According to Appellants, the combination of references teaches “random subsystems in the network element. . . may be enabled or disabled based on power management concerns” but does not teach enabling and disabling a transceiver based on the power level received by the transceiver (Reply Br. 3) We are not persuaded. The Examiner finds (Final Act. 5—6), and we agree, Bailey teaches “a system for supplying power in a communication network” in which a “power transmission circuit is configured to transmit a portion of the power supplied by the power supply of [a] subscriber device to [a] network element via [a] respective communication line” and “power supplied from . . . subscriber devices [is] aggregated to provide power for the network element” (Bailey 10; see Bailey 12, Fig. 1). That is, Bailey 5 Appeal 2017-003509 Application 13/117,918 teaches a network element powered by connected customer communication lines. The Examiner further finds, and we agree, Smith teaches “enablement and disablement of subsystems in accordance with a power budget, wherein power signals are compared to a threshold” (Final Act. 6—7 (citing Smith 65—67)). The Examiner combines the “power management features taught by Smith,” i.e., enabling and disabling subsystems based on the comparison of power levels to a threshold, with Bailey’s subscriber line- powered communication network (Final Act. 7; Ans. 3—4, 6). The Examiner then concludes an ordinarily skilled artisan would have found it obvious to incorporate Smith’s power management features into the system of Bailey to safely manage subscriber line power and to promote power control (Ans. 3 (citing Smith 17); that is, Smith teaches individual line power should be monitored. Furthermore, the Examiner finds, and we agree, Jessup teaches “transceivers [are] viable subsystems [to be] managed under a power budget” (Final Act. 7 (citing Jessup 1119); Ans. 3). The Examiner thus incorporates Jessup’s transceiver enablement and disablement into the Bailey and Smith combination, such that the Bailey, Smith, and Jessup combination teaches enabling or disabling transceiver subsystems based on power levels compared to a threshold (Ans. 4). Appellants’ arguments that Bailey, Smith, and Jessup compare aggregate power levels to a threshold (App. Br. 10; Reply Br. 5) do not persuade us that comparing individual subscriber line power signals to a threshold would not have been obvious to the ordinary skilled artisan. More specifically, we agree with the Examiner’s conclusion that “it would have 6 Appeal 2017-003509 Application 13/117,918 been obvious to one of ordinary skill in the art at the time of the invention to incorporate [the] features from Smith,” i.e., managing power by comparing monitored power to thresholds, “into the network element 110 of Bailey,” such that Bailey’s network element enables or disables subsystems based on a power level to threshold comparison (Ans. 3—5). Appellants have not presented, for example, sufficient persuasive evidence or argument that comparing individual line power to a threshold would have been “uniquely challenging or difficult for one of ordinary skill in the art” or would have “represented an unobvious step over the prior art” (Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418—19 (2007))) in light of Smith’s teachings. Indeed, Smith teaches “a power capacity metric of the subscriber line may be determined” (Smith 144; see Smith Claim 4) and the power capacity metric “represents] the maximum power that may be safely and/or legally applied to the one or more subscriber lines” (Smith 131; see Smith 17), i.e., Smith teaches that an individual line has a power level that should be monitored. Accordingly, as Smith teaches, or at least suggests, individual lines have associated power levels that should be monitored, Appellants have not persuaded us that an ordinarily skilled artisan would have not have found it obvious to enable a transceiver based on the comparison of the coupled individual line power level to a threshold. Further, Appellants’ argument that “the combination of Bailey and Smith would be directed to monitoring and managing the power received from the central office and not to enabling or disabling a transceiver based on the power level received by that transceiver” because Bailey teaches a central office can supply power to Bailey’s network element (Reply Br. 4—5) 7 Appeal 2017-003509 Application 13/117,918 inappropriately incorporates alternative embodiments in Bailey upon which the Examiner’s combination does not rely. In particular, the central office power supply features highlighted by Appellants are “an alternative exemplary embodiment” (Bailey Tflf 41 42). The Examiner’s combination does not rely on Bailey’s alternative embodiments drawing power from a central office, and Appellants’ arguments directed to those features do not persuasively address the Examiner’s combination of Bailey, Smith, and Jessup. Appellants’ remaining arguments are unpersuasive because those arguments inappropriately attack each reference individually when the rejection is based on the combination of references, i.e., Bailey, Smith, and Jessup. In re Keller, 642 F.2d 413, 426 (CCPA 1981) (citation omitted). In particular, Appellants’ argument that Jessup does not teach “the enablement (or disablement) of transceivers at a network device based on power signals” (App. Br. 11; Reply Br. 6) does not address the Examiner’s combination of Bailey, Smith, and Jessup. The combination of Bailey, Smith, and Jessup modifies the combination of Bailey and Smith (which manages power based on power signals) with Jessup (teaching the enablement and disablement of transceivers), to result in a power management technique which enables and disables transceivers based on power signals (Ans. 4—5; Final Act. 7). Additionally, Appellants’ argument that the “applied art. . . shows that random subsystems in the network element of Bailey . . . may be enabled or disabled” (Reply Br. 3) does not address the Examiner’s reliance on Jessup, which teaches enabling or disabling a transceiver subsystem (Ans. 3 (citing Jessup 1119)). 8 Appeal 2017-003509 Application 13/117,918 Accordingly, we are not persuaded the combination of Bailey, Smith, and Jessup fails to teach or suggest the limitations as recited in independent claim 1 Issue lb Appellants argue the Examiner improperly combined Bailey, Smith, and Jessup because “Bailey and Smith teach away from the claimed invention” (App. Br. 12—13). We are not persuaded. To teach away, a reference must “criticize, discredit, or otherwise discourage” the claimed solution. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). In particular, Appellants’ discussion of Bailey’s supplemental power supplies and Bailey’s diverse power sources (App. Br. 12—13 (citations omitted)) highlight “an alternative embodiment” in Bailey (Bailey 41—42) that the Examiner does not incorporate into the combination. Further, Appellants’ argument that “Bailey communicates with all subscriber devices” and that “Bailey expects some individual lines to not be providing power signals” (App. Br. 13), is without elaboration and does not explain how those features discourage enabling or disabling transceivers for power management. In particular, Appellants have not shown Bailey discourages disconnecting subscriber devices. Additionally, Appellants’ contentions that Smith does not receive power from subscriber lines and that Smith’s transceivers are wireless {id. at 13) are without elaboration and do not explain how those features in Smith actually discourage enabling or disabling transceivers for power management. Accordingly, we are not persuaded the combination of Bailey, Smith, and Jessup fails to teach, suggest, or otherwise render obvious the limitations 9 Appeal 2017-003509 Application 13/117,918 as recited in independent claims 1,9, 17, and 30 and dependent claims 2—5, 8, 10—13, 16, 20, 21, 31, 34, and 37, not separately argued. Therefore, we sustain the rejections of claims 1, 2, 5, 8—10, 13, 16, 17, 20, 30, 31, and 34 under 35 U.S.C. § 103(a) for obviousness over Bailey, Smith, and Jessup and claims 3,4, 11, 12, 21, and 37 under 35 U.S.C. § 103(a) for obviousness over Bailey, Smith, Jessup, and Burrows. ISSUE 2 35 U.S.C. § 103(a): Claims 6, 7, 14, 15, 18, 19, 22-29, 32, 33, 35, 36, and 38-40 Appellants contend their invention as recited in claims 6, 7, 14, 15, 18, 19, 22—29, 32, 33, 35, 36, and 38-40 would not have been obvious over Bailey, Smith, and Jessup (App. Br. 14—31; Reply Br. 6—8). We are not persuaded by Appellants’ arguments. As discussed supra, the Examiner combines Bailey, which teaches “the reception and aggregation of power signals by [a] network element” to power the network element (Ans. 2 (citing Bailey Fig. 1); Final Act. 5—6 (citing Bailey H 10, 12)), with Smith, which teaches enabling and disabling subsystems based on a comparison of a monitored power level to a threshold (Ans. 5 (citing Smith 11 65—67)). Further, as discussed supra, the Examiner incorporates Jessup, teaching transceivers are subsystems that can be enabled and disabled, into the Bailey and Smith combination (Ans. 4; Final Act. 7 (citing Jessup 1119)). In regards to claims 6, 14, and 18, Appellants’ arguments that Smith’s subsystems are “fan motors and disk drive motors” rather than communication subsystems, i.e., transceivers (App. Br. 14—15) are not 10 Appeal 2017-003509 Application 13/117,918 persuasive because the Examiner’s combination relies on Jessup to teach transceiver subsystems (Ans. 7; Jessup 1119). Thus, Appellants are arguing the references individually whereas the Examiner is relying on a combination of references. In regards to claims 7, 15, and 23, Appellants’ arguments that the Examiner does not discuss “how a ‘threshold’ is determined” and that Bailey and Smith’s “‘thresholds’ [are] associated with aggregate power levels” (App. Br. 16) are not commensurate with the scope of the claims. We are not persuaded. Claims 7, 15, and 23 do not recite how the threshold is determined instead reciting the threshold is determined based on the combined power signal. Thus, these claims do not prohibit the threshold from being associated with an aggregate power level; indeed, these claims themselves recite the threshold is “based on [a] combined power signal,” i.e., multiple power signals. Accordingly, Smith’s threshold, determined when the threshold is “set to a voltage value associated with a boundary of normal operating power draw” (Smith || 65—66), is within the scope of the claims. In regards to claim 19, Appellants’ argument that “Smith is directed to enabling a subsystem after the passage of a predetermined time period,” but the claimed invention “requires no such waiting period” (App. Br. 15) is not commensurate with the scope of the claim. The claim does not recite language precluding enabling a transceiver after a time period and, accordingly, Smith’s waiting period is not precluded from the scope of the claim. In regards to claims 22, 25, 28, and 32, Appellants’ argument that Bailey and Smith “do not appear to provide any functionality with respect to managing several individual power lines” (Reply Br. 7; App. Br. 18) is not 11 Appeal 2017-003509 Application 13/117,918 persuasive because Bailey’s network element connects to multiple devices through respective lines and “network element 110 can command or otherwise signal the power transmission circuits 125 in certain subscriber devices 115 to turn off or reduce power output” (Bailey 40 (emphasis added), Fig. 1). That is, Bailey teaches the management of multiple lines because Bailey controls multiple devices connected to respective lines. As discussed supra, we agree with the Examiner’ conclusion that it would have been obvious to manage individual lines based on a comparison of the line’s power to a threshold (Ans. 3—5). We further agree with the Examiner’s conclusion that it would have been obvious to manage an additional individual line based on a comparison of the additional line’s power to a threshold (Ans. 9) because Bailey suggests managing multiple lines. In regards to claims 24 and 26, Appellants’ argument that Smith could not have “one subsystem . . . being enabled while another subsystem ... is disabled” (App. Br. 20) is not persuasive. As discussed supra, we agree with the Examiner’s finding (Ans. 9) that “network element 110 can command or otherwise signal the power transmission circuits 125 in certain subscriber devices 115 to turn off or reduce power output” (Bailey 40 (emphasis added)), i.e., in Bailey, certain devices are disabled and other devices are enabled. Further, as discussed supra, we agree with the Examiner’s finding (Ans. 3) that Smith teaches that “one or more subsystems may be individually disabled” (Smith | 67), i.e., some of Smith’s subsystems are enabled while others are disabled. In regards to claims 27 and 29, Appellants’ argument that Jessup’s transceivers “have no impact on power management at a network device” (App. Br. 21) inappropriately attacks Jessup individually when the 12 Appeal 2017-003509 Application 13/117,918 Examiner’s rejection is based on a combination of references, i.e., Bailey, Smith, and Jessup. In re Keller, 642 F.2d at 426. In particular, Appellants’ argument that Jessup does not teach power management at a network device does not address the Examiner’s determination that the combination of Bailey, Smith, and Jessup teaches power management at a network device by enabling and disabling transceivers communicating with customer devices (Ans. 3—5). Additionally, with respect to claims 27 and 29, Appellants’ argument that the combination of Bailey, Smith, and Jessup does not teach providing service to a subscriber’s transceiver (Reply Br. 8) is not persuasive because the combination of Bailey, Smith, and Jessup teaches enabling and disabling the network device transceiver, consequently enabling and disabling data communication services (Ans. 10). As the Examiner finds, it naturally follows that an enabled transceiver connected to a customer’s device provides service (see Bailey 112 (“[e]ach of the plurality of subscriber elements is configured to communicate telecommunication signals with the network device via respective communication lines”)), and when the network device transceiver is disabled, the corresponding subscriber’s transceiver cannot receive service (see Ans. 10). In regards to claim 35, Appellants’ arguments that “Bailey discloses communication with all subscriber devices connected to the network element and as such would not have a power detection element controlling communication services provided by the transceivers” and that Smith “does not appear to disclose any mechanism to control individual transceivers in the subscriber line interface based on the input voltage received by the subscriber line interface” (App. Br. 25) inappropriately attack Bailey and 13 Appeal 2017-003509 Application 13/117,918 Smith individually and, moreover, do not address the Examiner’s combination of Bailey, Smith, and Jessup. In re Keller, 642 F.2d at 426. In particular, Appellants’ arguments are not responsive to Examiner’s finding that the combination of Bailey, Smith, and Jessup would require, or at least suggest, the use of control signals to control the combination’s network device transceivers because Bailey teaches its network device is a computer system which controls network systems (Ans. 11 (citing Bailey 40, 47)). Appellants’ remaining arguments, that Bailey or Smith enable or disable subsystems by comparing aggregate power levels to a threshold rather than individual power levels to a threshold (see App. Br. 15—16, 18, 20-21, 27), are not persuasive because those arguments do not persuade us that comparing individual line power to a threshold in order to enable or disable transceiver subsystems would have been “uniquely challenging or difficult for one of ordinary skill in the art” or would have “represented an unobvious step over the prior art,” as discussed supra. Leapfrog Enters. 485 F.3d at 1162. Claims 33, 36, 38, 39, and 40 recite similar limitations as the claims discussed supra, and Appellants’ arguments directed to those claims reference previously presented, similar arguments (see App. Br. 23—24, 26— 31), and, accordingly, those arguments are not persuasive for similar reasons discussed supra. Accordingly, we are not persuaded the combination of Bailey, Smith, and Jessup fails to teach, suggest, or otherwise render obvious the the subject matter of claims 6, 7, 14, 15, 18, 19, 22—29, 32, 33, 35, 36, and 38— 40. Therefore, we sustain the rejection of claims 6, 7, 14, 15, 18, 19, 22—29, 32, 33, 35, 36, and 38-40 under U.S.C. § 103(a) for obviousness over Bailey, Smith, and Jessup. 14 Appeal 2017-003509 Application 13/117,918 DECISION The Examiner’s rejection of claims 1, 2, 5—10, 13—20, 22—36, and 38— 40 under 35 U.S.C. § 103(a) as being unpatentable over Bailey, Smith, and Jessup is affirmed. The Examiner’s rejection of claims 3,4, 11, 12, 21, and 37 under 35 U.S.C. § 103(a) as being unpatentable over Bailey, Smith, Jessup, and Burrows is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 15 Copy with citationCopy as parenthetical citation