Ex Parte Smith et al

Patent Trial and Appeal Board

Jun 21, 2017

13117918 (P.T.A.B. Jun. 21, 2017)

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
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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
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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).
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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
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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
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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)
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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)).
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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
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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
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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
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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
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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
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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.
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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
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