Teleste Oyj

Patent Trials and Appeals Board

Mar 12, 2021

2019006975 (P.T.A.B. Mar. 12, 2021)

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.
14/934,461 11/06/2015 Toni Rumpunen 0601.000020US01 1090
76385 7590 03/12/2021
Mueting Raasch Group
111 Washington Ave. S., Suite 700
Minneapolis, MN 55401
EXAMINER
PARRA, OMAR S
ART UNIT PAPER NUMBER
2421
NOTIFICATION DATE DELIVERY MODE
03/12/2021 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):
ptodocketing@mrgs.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TONI RUMPUNEN, PERTTU FAGERLUND, TOMMI
KETOLA, SAMI HALEN, and PEKKA HILKE

Appeal 2019-006975
Application 14/934,461
Technology Center 2400
Before JOHN A. JEFFERY, KRISTEN L. DROESCH, and
MICHAEL T. CYGAN, Administrative Patent Judges.
DROESCH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1 and 4–13. Claims 2 and 3 are
cancelled. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 (2017). Appellant indicates the real party-in-interest is
Teleste Oyj. Appeal Br. 1.
Appeal 2019-006975
Application 14/934,461
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BACKGROUND
The disclosed invention relates to an apparatus and method for
automatically configuring one or more communication-related parameters in
a cable model system that includes a signal spectrum analyser. See Abstract,
Spec. 2:1–19.
CLAIMED SUBJECT MATTER
Claim 1, which is representative of the subject matter of the appeal
and is reproduced from the Claims Appendix of the Appeal Brief, reads as
follows:
An apparatus for configuring one or more
communication-related parameters in a cable modem system,
the apparatus comprising:
a processor;
a memory coupled to the processor, said memory storing
a first computer-readable program code that, when
executed on the processor, is configured to configure the
communication related parameters;
a cable modem termination system unit for providing
access to a communication network;
a cable television signal input interface for receiving one
or more cable television downstream signals from a cable
television system;
an output interface for transmitting the downstream
signals towards a cable modem network segment connected to
one or more cable modems;
a spectrum analyser for analysing a spectrum of the
downstream signals from the cable television signal input
interface to determine one or more free frequency bands that are
unallocated in the spectrum of signals;
a second computer-readable program code, when
executed on the processor, is configured to allocate at least one
of the one or more free frequency bands for transmission of a
cable modem termination system signal via the output interface
of the apparatus to the at least one cable modem.

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
McMullan, Jr. et al. (“McMullan”) US 5,255,086 A Oct. 19, 1993
Bernath et al. (“Bernath”) US 2001/0038647 A1 Nov. 8, 2001
Wada US 2002/0144287 A1 Oct. 3, 2002
Totten et al. (“Totten”) US 2014/0282783 A1 Sept. 18, 2014

REJECTIONS ON APPEAL
Claims 1, 4, 5, 7,2 and 9–12 stand rejected under 35 U.S.C. § 103 as
unpatentable over Bernath and Wada. Final Act. 3–6.
Claims 6 and 13 stand rejected under 35 U.S.C. § 103 as unpatentable
over Bernath, Wada, and McMullan. Final Act. 6–7.
Claim 8 stands rejected under 35 U.S.C. § 103 as unpatentable over
Bernath, Wada, and Totten. Final Act. 7.
ANALYSIS
Unpatentability of Claims 1, 4, 5, 7, and 9–12
Appellant argues claims 1, 4, 5, 7, and 9–12 together as a group. See
Appeal Br. 5–7; Reply Br. 7–9. Consequently, we choose independent
claim 1 as representative of the group. 37 C.F.R. § 41.37(c)(1)(iv). We also
address certain arguments directed to the preamble of independent claim 9.
We have reviewed the Examiner’s rejections in light of Appellant’s
arguments in the Appeal Brief and the Reply Brief, as well as the
Examiner’s Answer. Appellant’s arguments are not persuasive of Examiner

2 The statement of rejection omits claim 7. See Final Act. 3. The substance
of the rejection, however, addresses claim 7. See Final Act. 6.
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error. We highlight and address specific findings and arguments below for
emphasis.
A cable television signal input interface for receiving one or more cable
television downstream signals from a cable television system
Figure 1a of Bernath is reproduced below.

Figure 1a depicts a block diagram of a common Multimedia Cable Network
System (MCNS). See Bernath ¶¶ 19, 30. Referring to Bernath’s Figure 1a,
the Examiner finds that internet 100, television programming 102, and radio
audio 104 received at head end 118 teach “a cable television signal input
interface for receiving one or more cable television downstream signals from
a cable television system,” as recited in claim 1. See Final Act. 4 (citing
Bernath Fig. 1a, ¶ 47); Ans. 3–4 (citing Bernath Fig. 1a, ¶ 47).
Appellant contends that Bernath does not teach this limitation of
claim 1 because “these sources supply signals to the headend 118, where the
[cable modem termination system] CMTS 110 converts the signals (e.g.,
television programming 102) into cable television downstream signals, as is
well known by one skilled in the art.” Appeal Br. 5. According to
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Appellant, “[t]he relied-upon data sources of Bernath do not enter a cable
television system until they are received by the CMTS 110.” Id.
In response, the Examiner finds:
Bernath teaches an apparatus (headend) receiving multiple
downstream input signals (100, 102, 104, 118, Fig. 1a) from a
cable television system (all the elements in Fig. 1a represent a
cable television system). Therefore, Bernath teaches input
interfaces that receive said input signals, since there must be a
receiver to collect/acquire said signals.
Ans. 8. The Examiner further asserts that, although Bernath’s CMTS 110
may combine or format for transmission the multiple downstream television
signals received at headend 118, the signals do not stop being downstream
signals for cable television distribution. See id. at 8–9. The Examiner
further asserts that there is no limitation or distinction in the claim language
that requires construction of “one or more cable television downstream
signals” to be of a certain format, or combination of signals, as suggested by
Appellant. See id. at 9.
Appellant’s arguments are not persuasive of Examiner error.
Appellant’s arguments are premised on an unsupported assertion that it is
well known that a CMTS converts signals into a cable television
downstream signal. Argument of counsel cannot take the place of objective
evidence. See Gemtron Corp. v. Saint-Gobain Corp., 572 F.3d 1371, 1380
(Fed. Cir. 2009) (unsworn attorney argument is not evidence). Moreover,
Appellant’s arguments also are not commensurate in scope with “one or
more cable television downstream signals,” as recited in claim 1. The
Examiner correctly notes that claims 1 and 9 do not recite or require any
particular format or combination of signals for the “one or more cable
television downstream signals,” as suggested by Appellant. We agree with
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the Examiner’s finding that all of the elements of Bernath’s system disclosed
in Figure 1a are a cable television system, and therefore, Bernath teaches an
apparatus (headend) that receives multiple downstream input signals from a
cable television system. See Ans. 8
Appellant further contends that none of Bernath’s data
sources 100, 102, 104 is a cable television signal input interface because
they are not input interfaces of an apparatus, as claimed, nor do they
generate cable television signals. See Appeal Br. 5. Appellant contends that
independent claim 9 recites that the apparatus is connected between a cable
television system and a cable modem network segment connected to one or
more cable modems. See id.
In response to Appellant’s arguments regarding claim 9, the Examiner
points out that “an apparatus connected between a cable television system
and a cable modem network segment connected to one or more cable
modems” is part of the preamble, not the body of the claim 9. See Ans. 10.
The Examiner states that it is not a vital element of the claim as if it was in
the body. See id. The preamble of claim 9 recites “[a] method for
configuring one or more communication related parameters in a cable
modem system, via an apparatus connected between a cable television
system and a cable modem network segment connected to one or more cable
modems.” Claim Appx. 10. The Examiner nonetheless finds that Bernath
teaches “[t]he configuring is performed via an apparatus connected between
a cable television system (headend 118 that includes CMTS 110 . . .) and a
cable modem network segment connected to cable modems (cable 114
connected to multiple cable modems 112.” Ans. 10 (citing Bernath Fig. 1a,
¶ 47).
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In response to the Examiner’s additional findings in the Answer
addressing claim 9, Appellant argues that the Examiner equates the claimed
cable television system with Bernath’s headend 118 in Figure 1a. See Reply
Br. 9. Appellant contends that Bernath’s Figure 1a does not show an
apparatus located between headend 118 and cable modems 112. See id.
We need not address whether the preamble of claim 9 is entitled to
patentable weight in order to resolve the issue raised by Appellant.
Appellant’s arguments addressing whether Bernath teaches the preamble
recitation of claim 9 are not persuasive of Examiner error because they are
misplaced. The Examiner does not equate Bernath’s headend 118 to a
claimed cable television system. Instead, the Examiner finds that all the
elements of Bernath’s Figure 1a teaches a cable television system, and,
therefore, Bernath’s headend 118 teaches the apparatus located between the
cable television system and the cable 114 connected to cable modems 112.
See Ans. 10 (citing Bernath Fig. 1a, ¶ 47).
A spectrum analyser for analyzing a spectrum of the downstream signals
from the television signal input interface
The Examiner further finds that Bernath teaches an apparatus
comprising “a cable modem termination system unit for providing access to
a communication network” as recited in claim 1, based on Bernath’s
disclosure of CMTS 110. See Final Act. 4 (citing Bernath Fig. 1a, ¶ 47);
Ans. 3–4 (citing Bernath Fig. 1a, ¶ 47). The Examiner acknowledges that
Bernath does not teach “a spectrum analyser for analyzing a spectrum of the
downstream signals from the cable television signal input interface to
determine one or more frequency bands that are unallocated in the spectrum
of signals.” See Final Act. 4–5; Ans. 4.
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The Examiner finds that Wada teaches a headend system with an
upstream and downstream CMTS device that allows different cable modems
(CMs) to measure noise from all of the downstream/upstream frequencies
and receive the results of those measurements and store them. See Final
Act. 5 (citing Wada ¶¶ 9, 15–17); Ans. 4 (citing Wada ¶¶ 9, 15–17), Ans. 12
(citing Wada ¶¶ 58–68, 73–80). The Examiner further finds that a
downstream communication determination unit determines which
channel/frequency should be used to transmit the downstream content. See
Final Act. 5 (citing Wada ¶¶ 9, 15–17); Ans. 4–5 (citing Wada ¶¶ 9, 15–17),
Ans. 12 (citing Wada ¶ 67). According to the Examiner,
it would have been obvious to one of ordinary skill in the art
before the effective filing date of the claimed invention to have
modified Bernath’s invention with Wada’s feature of
monitoring downstream spectrum for the benefit of avoiding
“to designate a channel which is too low in quality to
communicate due to the influence of noise.”
Final Act. 5 (citing Wada ¶ 16); Ans. 5 (citing Wada ¶ 16).
Appellant disputes the Examiner’s conclusion that the combined
teachings of Bernath and Wada teach or suggest “a spectrum analyser for
analysing a spectrum of the downstream signals from the cable television
signal input interface to determine one or more free frequency bands that are
unallocated in the spectrum of signals,” as recited in claim 1. See Appeal
Br. 6–7; Reply Br. 7–8. According to Appellant, “the claimed spectrum
analyser is in an apparatus connected between a cable television system (e.g.
a headend) and a cable modem network segment connected to one or more
cable modem (see, claim 9).” Appeal Br. 6. Appellant further contends
“[t]he claimed analysis of downstream signals from the cable television
input interface occurs in a separate CMTS unit closer to the cable modems.”
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Id. Appellant asserts that the alleged spectrum analyser of Wada is located
in Wada’s headend and relies on measurements received from cable
modems. See id. Appellant argues that Wada does not teach any
intervening devices between the headend system and the cable modems. See
id.
Based on the foregoing arguments, we are not persuaded of error in
the Examiner’s findings regarding claim 1. Appellant’s arguments are not
commensurate in scope with the limitations of claim 1, because claim 1 does
not recite or otherwise require: (1) an apparatus connected between a cable
television system or headend and a cable modem network segment; (2) a
separate CMTS unit closer to cable modems; or (3) intervening devices
between a headend and the cable modems. Appellant’s arguments
addressing claim 9 are not persuasive of Examiner error because, for the
same reasons explained above addressing the preamble of claim 9, the
Examiner finds that all the elements of Bernath’s Figure 1a teaches a cable
television system, and the Bernath’s headend 118 teaches an apparatus
located between the cable television system and cable 114 connected to
cable modems 112. See Ans. 10 (citing Bernath Fig. 1a, ¶ 47), 13 (citing
Bernath Fig. 1a, ¶ 47).
Appellant further contends that “the claimed spectrum analyzer
analyses the spectrum of downstream signals received at the CATV signal
input interface (i.e., received from headend) to determine one or more
unallocated frequency bands.” Appeal Br. 6; see Reply Br. 7. Appellant
argues that the claimed allocation of downstream signals is performed “on
the basis of analysed spectrum of the signals transmitted from the cable
television system (i.e., the headend).” Appeal Br. 6; see Reply Br. 7–8.
Appellant contends that Wada relies on measurements received from the
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cable modems, and argues the claimed spectrum analyser avoids the delay
generated by waiting for Wada’s measurements from the cable modems.
See Appeal Br. 6–7; Reply Br. 7–8. Appellant argues that neither Bernath
nor Wada has been shown to teach or suggest and apparatus having a cable
television signal input interface that receives cable downstream signals and a
spectrum analyser for analyzing those signals. Appeal Br. 7.
In response to Appellant’s arguments the Examiner explains, “[t]here
is nothing [i]n the claim that states that the analysis of the spectrum has to be
performed before transmitting the signals or without the feedback from the
multiple CMs.” Ans. 12. The Examiner also points out that Appellant’s
Specification discloses having multiple CMs to measure the frequencies’
power and transmit the values or analysis. See id. (citing Fig. 6). In
addition, “the examiner respectfully believes that the art of record teaches a
spectrum analyzer that performs its analysis of the spectrum based on the
information received from the cable modems.” Id.
Appellant’s arguments are not persuasive of Examiner error because
they are not commensurate in scope with the claim limitations. Appellant’s
arguments are premised on a requirement that the spectrum analysis must be
performed on downstream signals received at the cable television signal
input interface, and must be performed on downstream signals transmitted
directly from the cable television system. Claim 1 does not require spectrum
analysis of downstream signals received at the CATV interface or on
downstream signals transmitted directly from the cable television system.
As correctly pointed out by the Examiner, claim 1 does not require spectrum
analysis before transmission of the downstream signal, nor does claim 1
preclude the use of feedback or measurements from the cable modems. See
Ans. 12.
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Accordingly, for the foregoing reasons we are not persuaded the
Examiner erred in rejecting claims 1, 4, 5, 7, and 9–12 under
35 U.S.C. § 103. Therefore, we sustain the rejection of claims 1, 4, 5, 7,
and 9–12 under 35 U.S.C. § 103.
Unpatentability of Claims 6, 8, and 13
Appellant does not present substantive arguments addressing the
limitations of claims 6, 8, and 13. See Appeal Br. 7–8. Appellant instead
argues that the teachings of each of the additional references do not remedy
the alleged deficiencies of Bernath and Wada. See id. Therefore, for the
same reasons discussed immediately above addressing claims claims 1, 4, 5,
7, and 9–12, we are not persuaded the Examiner erred in rejecting claims 6,
8, and 13 under 35 U.S.C. § 103. Accordingly, we sustain the rejection of
claims 6, 8, and 13 under 35 U.S.C. § 103.
CONCLUSION
We affirm the Examiner’s rejections of claims 1 and 4–13 under 35
U.S.C. § 103.
In summary:
Claim(s)
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
1, 4, 5, 7, 9–12 103 Bernath, Wada 1, 4, 5, 7, 9–12
6, 13 103 Bernath, Wada, McMullan 6, 13
8 103 Bernath, Wada, Totten 8
Overall
Outcome 1, 4–13
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TIME PERIOD FOR RESPONSE
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