Ex Parte Bickham et al

Board of Patent Appeals and Interferences

Jan 13, 2011

10837868 (B.P.A.I. Jan. 13, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SCOTT R. BICKHAM, ALEKSANDRA BOSKOVIC, ANDREY
KOBYAKOV, A. BOH RUFFIN, and RICHARD E. WAGNER
____________

Appeal 2009-006809
Application 10/837,868
Technology Center 2600
____________

Before JOHN C. MARTIN, JOSEPH F. RUGGIERO, and CARLA M.
KRIVAK, Administrative Patent Judges.

RUGGIERO, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or filing a request for rehearing, as
recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper
delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode)
shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006809
Application 10/837,868

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Final Rejection
of claims 1-33 and 36-50, which are all of the pending claims. Claims 34
and 35 have been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.
Rather than reiterate the arguments of Appellants and the Examiner,
we refer to the Brief (filed April 23, 2008) and the Answer (mailed July 28,
2008) for the respective details. We have considered in this decision only
those arguments Appellants actually raised in the Brief. Any other
arguments which Appellants could have made but chose not to make in the
Brief are deemed to be waived. See 37 C.F.R. § 41.37(c)(1)(vii).

Appellants’ Invention
Appellants’ invention relates to an optical communication system
capable of transmitting optical signals with high optical launch power with a
large number of splits over long distances. The system includes a passive
optical network (PON) for optically connecting an optical signal source,
located in a head end or central office, to one or more remote terminals at
remote user sites. (See generally Spec. ¶ [0006]).

Claim 1 further illustrates the invention and reads as follows:
1. An optical communication system comprising:
an optical signal source for providing optical signals at an output
power;
a plurality of remote terminals, wherein at least one of the remote
terminals comprises a receiver; and
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Application 10/837,868

an optical signal distribution network optically connecting the optical
signal source to the receiver, the network comprising a feeder line having an
optical fiber path length greater than 500 meters;
wherein the optical signals are launched into the feeder line with a
launch power and the system parameters are selected so that at the remote
terminal comprising the receiver, in the operating wavelength range, CNR is
greater than 43 dBc or CSO is less than -58 dBc or CTB is less than -58 dBc
for substantially all channels with frequencies in the 45-560 MHz range
when the launch power is greater than 20 dBm.

The Examiner’s Rejections
The Examiner’s Answer cites the following prior art references:
Huber US 5,210,631 May 11, 1993
Srivastava US 6,151,145 Nov. 21, 2000

Claims 1-12, 14-33, and 36-50 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Srivastava.
Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Srivastava in view of Huber.

ANALYSIS
Claims 1-12, 14-33, and 36-50
Appellants’ argument focus on the contention that the Examiner erred
in concluding that an ordinarily skilled artisan considering the Srivastava
reference, which discloses a highest optical launch power level of 12 dBm,
would have arrived at the much higher claimed optical launch power levels
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Application 10/837,868

through routine experimentation.2 (Srivastava, Fig. 9). According to
Appellants (App. Br. 8-11), Srivastava discloses that undesirable cross-talk
levels occur as optical launch power is increased to levels even lower than
that claimed and, accordingly, the ordinarily skilled artisan would not be led
to modify Srivastava by increasing optical launch power to the claimed
levels.
We agree with Appellants. As pointed out by Appellants (App. Br.
11), Srivastava discloses that crosstalk levels need to be suppressed to -60 to
-65 dBc in order to use Srivastava’s wave-division multiplexing (WDM)
technique in an optical fiber communication system (col. 2, ll. 8-14).
Srivastava discloses, however, that deleterious crosstalk levels above -60
dBc will occur at optical launch powers substantially below the optical
launch powers claimed, which supports Appellants’ view that an ordinarily
skilled artisan would not experiment by increasing optical launch power in
Srivastava (Fig. 9, col. 6, ll. 57-67).
We also agree with Appellants (App. Br. 12-13) that the evidence in
the form of the Bickham declaration (Exhibit 1) and the OFC ’96 Technical
Digest article (Exhibit 2) further support the position that an ordinarily
skilled artisan would not routinely experiment by increasing the optical
launch power of the system disclosed by Srivastava as suggested by the
Examiner. In particular, we find that the OFC ’96 Technical Digest article
establishes that the Carrier to Noise Ratio (CNR) decreases and the

2 Appellants’ claimed optical launch power levels are set forth in the
independent claims as “greater than 20 dBm” (claims 1, 23, and 28), “greater
than or equal to 23 dBm” (claim 19), “greater than or equal to 19 dBm”
(claim 20), and “greater than 18 dBm” (claim 36).

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Application 10/837,868

Composite Second Order (CSO) and Composite Triple Beat (CTB) values
increase to undesirable levels as optical launch power increases above the
stated stimulated Brillouin scattering (SBS) threshold value of 8.5 dBm.
(OFC ’96 Technical Digest, Fig. 1). The 8.5 dBm SBS value, as well as the
7 dBm SBS value of the conventional optical fiber used by Srivastava, are
both significantly lower than the optical launch powers claimed by
Appellants.3
For the above reasons, we do not sustain the Examiner’s 35 U.S.C.
§ 103(a) rejection of independent claims 1, 19, 20, 23, 28, and 36, nor of
claims 2-12, 14-18, 21, 22, 24-27, 29-33, and 37-50 dependent thereon.

Claim 13
We also do not sustain the Examiner’s obviousness rejection of
dependent claim 13 in which the Examiner has applied the Huber reference
to Srivastava to address the intermediate splitter feature of the rejected
claim. We find nothing in the disclosure of Huber that overcomes the
deficiencies of Srivastava discussed supra.

3 The Examiner does not challenge Appellants’ statement that for “standard
commercially available telecommunication fiber operating at 1550 nm, the
SBS threshold for an optical source (laser) with an optical linewidth less
than 10 MHz is less than 7 dBm for a fiber optic link of approximately 50
kilometer length” (Spec. ¶ [0004]).
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Application 10/837,868

CONCLUSION OF LAW
Based on the findings of facts and analysis above, we conclude that
the Examiner erred in rejecting claims 1-33 and 36-50 for obviousness under
35 U.S.C. § 103(a).

DECISION
The Examiner’s 35 U.S.C. § 103(a) rejection of claims 1-33 and 36-
50, all of the appealed claims, is reversed.

REVERSED

ELD

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