Appeal 2007-0207
Application 10/054,009
display device for monitoring the data collected by the communications
network 24 (col. 6, ll. 13-18).
Appellants note that “[i]n accordance with this interpretation, network
24 in Richards should receive a request from the display device 62, map the
request into an optical network frame and transmit the optical network frame
over an optical supervisory channel of an optical transport network to the
transmitter” (Br. 5 and 6). Appellants argue (Br. page 6) that such an
interpretation of Richards fails to anticipate the claimed invention because
“the display device 62 is used to monitor performance of the network
elements, but not to initiate any diagnostic operation at the transmitter 12.”
Appellants additionally argue (Br. 6) that “network 24 fails to map a request
into an optical network frame and transmit the optical network frame as
recited in Applicant’s claimed invention.” We agree with appellants’
arguments that the test system described by Richards is incapable of
performing any of the diagnostic operations set forth in claims 1 through 6,
9, 10 and 21 on appeal. Accordingly, the anticipation rejection of these
claims is reversed.
Turning next to the obviousness rejection of claims 34 through 36, we
find that these claims are directed to the test signals that are used in the
network diagnostic system and method. Since the claims do not include the
diagnostic test equipment, the so-called “data” in each of the claims is
nothing more than non-functional descriptive material. Since appellants
cannot patent a test signal per se, we must agree with the examiner’s
ultimate conclusion (Answer 6) that it would have been obvious to one of
ordinary skill in the art to send a test signal via a carrier wave (e.g., an
optical signal) as described by Richards (col. 4, ll. 51-65; col. 6, ll. 4-12; col.
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Last modified: September 9, 2013