Teleste OyjDownload PDFPatent Trials and Appeals BoardMar 12, 20212019006975 (P.T.A.B. Mar. 12, 2021) 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. 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 2 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. Appeal 2019-006975 Application 14/934,461 3 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. Appeal 2019-006975 Application 14/934,461 4 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 Appeal 2019-006975 Application 14/934,461 5 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 Appeal 2019-006975 Application 14/934,461 6 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). Appeal 2019-006975 Application 14/934,461 7 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. Appeal 2019-006975 Application 14/934,461 8 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.” Appeal 2019-006975 Application 14/934,461 9 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 Appeal 2019-006975 Application 14/934,461 10 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. Appeal 2019-006975 Application 14/934,461 11 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 Appeal 2019-006975 Application 14/934,461 12 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 Copy with citationCopy as parenthetical citation