Ex Parte Featherston et al

Patent Trial and Appeal Board

Jan 17, 2018

14132992 (P.T.A.B. Jan. 17, 2018)

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.
14/132,992 12/18/2013 JOHN FEATHERSTON NG(ES)022310 US PRI 4594
109501 7590 01/19/2018
Tarolli, Sundheim, Co veil & Tummino
LLP and Northrop Grumman Systems Corporation
1300 East Ninth Street
Suite 1700
Cleveland, OH 44114
EXAMINER
SANCHEZ, DIBSONJ
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
01/19/2018 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):
rkline @ tarolli. com
docketing@tarolli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN FEATHERSTON, CHRISTOPHER A. ARCHER, and
JAMES M. CICCHIELLO1
Appeal 2017-006945
Application 14/132,992
Technology Center 2600
Before ROBERT E. NAPPI, CATHERINE SHIANG, and
STACY B. MARGOLIES, Administrative Patent Judges.
NAPPI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134(a) of the
Examiner’s Final Rejection of claims 1 through 36, which constitute all the
claims pending in this application. We have jurisdiction over the pending
claims under 35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellant, the real party in interest is Northrop Grumman
Systems Corporation. App. Br. 2
Appeal 2017-006945
Application 14/132,992
INVENTION
Appellants’ disclosed invention relates to an optical communication
system with an adaptive data rate processor that monitors the power level of
an optical signal and adjusts the data rate based upon the power level. Spec.,
Abstract. Claim 1 is illustrative of the invention and reproduced below:
1. An optical communications system, comprising:
a modulator/demodulator (modem) to transmit outgoing
communications data and to receive incoming communications
data in a transceiver;
a main detector coupled to the modem to convert an
optical signal representing the incoming communications data to
an electrical signal for the modem; and
an adaptive data rate processor to monitor the electrical
signal from the main detector to determine a current power level
of the optical signal, wherein the adaptive data rate processor
dynamically adjusts a data rate of the modem based on the
determined current power level of the optical signal.
REJECTIONS AT ISSUE
The Examiner has rejected claims 1,7, 10, 13 through 15, 25, 26, and
29 through 31 under 35 U.S.C. § 103(a) as unpatentable over Gerszberg et
al. (US 8,364,040 Bl; January 29, 2013) (“Gerszberg”) and Kitakado (US
2007/0217357 Al; September 20, 2007). Final Act. 12-16.2
The Examiner has rejected claims 2, 3, 20, 21, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Gerszberg, Kitakado, and Koiwai (US
2010/0316394 Al; December 16, 2010). Final Act. 16-21.
2 Throughout this Opinion we refer to the Appeal Brief, filed December 7,
2016; the Reply Brief, filed March 21, 2017; the Final Office Action, mailed
September 8, 2016; and the Examiner’s Answer, mailed January 23, 2017.
2
Appeal 2017-006945
Application 14/132,992
The Examiner has rejected claims 4 and 22 under 35 U.S.C. § 103(a)
as unpatentable over Gerszberg, Kitakado, Koiwai, and Kim et al. (US
2011/0133059; June 9, 2011) (“Kim”). Final Act. 21-22.
The Examiner has rejected claims 5, 6, 18, 23, 24, and 34 under 35
U.S.C. § 103(a) as unpatentable over Gerszberg, Kitakado, and Gultekin et
al. (US 6,215,793 Bl; April 10, 2001) (“Gultekin”). Final Act. 22-24.
The Examiner has rejected claim 8 under 35 U.S.C. § 103(a) as
unpatentable over Gerszberg, Kitakado, and Miller (US 6,735,718 B2; May
11,2004). Final Act. 24-25.
The Examiner has rejected claim 9 under 35 U.S.C. § 103(a) as
unpatentable over Gerszberg, Kitakado, Miller, and Kim. Final Act. 25-26.
The Examiner has rejected claims 11, 12, 27 and 28 under 35 U.S.C.
§ 103(a) as unpatentable over Gerszberg, Kitakado, and Solinsky (US
5,060,304; October 22, 1991). Final Act. 26-28.
The Examiner has rejected claims 16, 17, 32 and 33 under 35 U.S.C.
§ 103(a) as unpatentable over Gerszberg, Kitakado, and Sidhu et al. (US
2005/0036595 Al; February 17, 2005). Final Act. 28-30.
The Examiner has rejected claim 19 under 35 U.S.C. § 103(a) as
unpatentable over Gerszberg, Miller, and Kitakado. Final Act. 30-33.
The Examiner has rejected claim 36 under 35 U.S.C. § 103(a) as
unpatentable over Gerszberg, Kitakado, Koiwai, and Gultekin. Final Act.
33-34.
ANAFYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
contentions the Examiner has erred. Further, we have reviewed the
Examiner’s response to Appellants’ arguments. We disagree with
3
Appeal 2017-006945
Application 14/132,992
Appellants’ conclusion that the Examiner erred in rejecting claims 1 through
6, 35, and 36. However, we concur with Appellants that the Examiner erred
in rejecting claims 7 through 15 and 18 through 34.
Independent claim 1.
Appellants argue on pages 6 through 9 of the Appeal Brief and pages
3 through 8 of the Reply Brief that the Examiner’s rejection of independent
claim 1 is in error as the Examiner presented insufficient evidence that the
skilled artisan would have been motivated to combine Gerszberg with
Kitakado. Specifically, Appellants argue that Kitakado is directed to a radio
frequency transmission whereas Gerszberg and the claims are directed to
optical transmission and that one skilled in the art would not have been
motivated to combine the teachings of the references as asserted by the
Examiner to arrive at the claimed subject matter. App. Br. 6-7. Appellants
also argue that given the purported differences between the references, the
Examiner’s showing of a reason to combine is insufficient. Id. at 6-9.
The Examiner provided a detailed response addressing the numerous
points raised in Appellants’ arguments on pages 2 through 12 of the
Examiner’s Answer. We have reviewed the points raised in the Appellants’
arguments, the Examiner’s response, the Examiner’s rejection, and the cited
portions of Gerszberg and Kitakado.
We concur with the Examiner’s conclusion of obviousness and are not
persuaded of error by Appellants’ arguments. See Final Act. 2-3; Answer
2-12. We add the following in addition to the Examiner’s response.
Appellants’ argument directed to a motivation to combine the references is
misplaced. The Supreme Court has stated that “[t]he obviousness analysis
4
Appeal 2017-006945
Application 14/132,992
cannot be confined by a formalistic conception of the words teaching,
suggestion, and motivation.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398,
419 (2007). Appellants’ arguments regarding a purported deficient showing
of a reason to combine are not commensurate with the scope of claim 1 and
the basis for the Examiner’s rejection. The Examiner has shown sufficiently
that one skilled in the art would have been motivated to modify Gerszerg’s
optical system with the teaching in Kitakado of changing a modulation
scheme based on power of a received signal. See Final Act. 14; Answer 4-
12. For example, as found by the Examiner, a reason would have been to
better communicate the signals due to a modulation scheme change and to
improve signal quality. Final Act. 2-3; Answer 4-5. Further, Appellants’
argument that Kitakado’s RF modulation schemes (16QAM, QPSK or
BPSK) are inapplicable to Gerszberg, and thus a skilled artisan would not
have combine the teachings of the references is based upon unsupported
attorney argument and appears to be at odds with the teachings of the
references. Gerszberg discusses using Quadrature Amplitude Modulation
(QAM) in optical systems which is similar to the QAM used in by Kitakado.
See Gerszberg, col. 2, 60-63 and Kitakado para 56 . Further, claim 1 does
not recite a specific modulation scheme. Thus, Appellants’ argument that
the specific modulation schemes recited in Kitakado cannot be used with an
optical communication system does not persuasively address whether a
skilled artisan would have been motivated to combine the teachings in the
manner claimed—using different schemes with different data rates based
upon determined power level. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 418 (2007) (explaining what a court often must consider to determine
“whether there was an apparent reason to combine the known elements in
5
Appeal 2017-006945
Application 14/132,992
the fashion claimed by the patent at issue”). Additionally, Appellants’
arguments directed to the specification discussing specific causes of
degraded optical links are similarly unpersuasive because claim 1 does not
recite any feature uniquely related to such causes of signal degradation.
Thus, we are not persuaded of error and sustain the Examiner’s rejection of
independent claim 1.
Independent claim 35, dependent claims 2 through 4 and 36.
With respect to independent claim 35 and dependent claims 2 and 3,
Appellants present the same arguments as discussed above with respect to
claim 1. App. Br. 13-15. Further, Appellants argue the rejection of claim 4
is in error for the same reasons as claim 3 and the rejection of claim 36 is in
error for the same reason as claim 35. App. Br. 15-16, 27. Thus, we sustain
the Examiner’s rejection of claims 2, 3, 4, 35, and 36 for the reasons set
forth above in connection with claim 1.
Dependent claim 7.
Appellants argue the Examiner’s rejection of claim 7 is in error as the
combination of Gerszberg and Kitakado does not teach adjusting the data
rate based upon a detection of a power level, where the new data rate is
based upon a predetermined power threshold as recited in claim 7. App. Br.
9-10. Specifically, Appellants argue that Kitakado, which the Examiner
relies upon to teach this feature, teaches the data rates are adjusted based
upon a threshold signal-to-noise ratio and not a power level. App. Br. 10.
The Examiner responds to Appellants’ arguments, stating:
The Appellant has not provided any specifics in the claim as to
what the predetermined power threshold is and limitations from
the specification are not read into the claims. See In re Van
6
Appeal 2017-006945
Application 14/132,992
Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Thus,
in the broadest reasonable interpretation the predetermined
power threshold was interpreted to be a predetermined ratio
power threshold (i.e. a predetermined ratio in strength between a
desired signal and an interference signal threshold).
Answer 12.
We disagree with the Examiner’s claim interpretation. The Examiner
has not shown that the specification equates a power level to a signal-to-
noise ratio or that the specification supports such a broad interpretation.
Further, we do not consider it to be reasonable to equate a signal-to-noise
ratio to a power level; rather, power level is one of the elements in the ratio.
Accordingly, we do not sustain the Examiner’s rejection of claim 7.
Dependent claims 10 through 12.
Appellants argue the Examiner’s rejection of claim 10 is in error as
the combination of Gerszberg and Kitakado does not teach dynamically
adjusting a transmission data rate based upon a system mode as recited in
claim 10. App. Br. 10. Appellants argue the Examiner has not identified
what aspect of the references is being relied upon to teach the system mode.
Id.
The Examiner responds to Appellants’ argument by stating that claim
10 does not provide any specifics as to what the system mode is and by
interpreting the term “system mode” to be “a current system operating
mode.” Answer 13.
We have reviewed the Examiner’s rejection and response to
Appellants’ arguments and concur with Appellants. The Examiner merely
interprets the claim term but does not address what teaching of the
references corresponds to the claimed system mode based upon which the
7
Appeal 2017-006945
Application 14/132,992
data rate is adjusted. Thus, we do not sustain the Examiner’s rejection of
dependent claim 10 as it is unclear what the Examiner is relying upon to
teach or suggest the limitation of claim 10.
Claim 11 is dependent upon claim 10. The Examiner has not shown
that the additional teachings of Solinsky make up for the deficiency in the
rejection of claim 10. Accordingly, we do not sustain the Examiner’s
rejection of dependent claim 11 or claim 12 (which depends upon claim 11)
for the same reasons set forth above with respect to claim 10.
Dependent claim 13.
Appellants argue the Examiner’s rejection of claim 13 is in error as
the combination of Gerszberg and Kitakado does not teach adjusting the data
rate based upon an estimated bit error rate (BER). App. Br. 11.
The Examiner responds to Appellants’ argument, stating:
the error rate corresponds to a bit error rate (BER) because in
Kitakado paragraph [49] the error rate is being measured from a
signal being demodulated and outputted by the modem 206 and
it is known in the art that a signal being demodulated and
outputted by any modem is digital and has bits and therefore the
error rate is determined from the bits (BER).
Answer 14.
We disagree with the Examiner as we do not find that the
Examiner has identified sufficient evidence that the received signal
strength error discussed in paragraph 49 of Kitakado involves a bit
error rate. Accordingly, we do not sustain the Examiner’s rejection of
claim 13.
Dependent claim 14.
8
Appeal 2017-006945
Application 14/132,992
Appellants argue the Examiner’s rejection of claim 14 is in error as
the combination of Gerszberg and Kitakado does not teach adjusting the data
rate independently between a header portion and a data portion of a data
packet. App. Br. 11-12. Specifically, Appellants argue the Examiner
“appears to rely on a purported ability of the proposed Gerszberg-Kitakado
modification to adjust a modulation scheme ‘independently of other data
frames (packets),’ to describe the claimed feature.” App Br. 11. Appellants
reason the Examiner’s rejection is in error as the reasonable interpretation of
the claim requires “that the header portion of the packet is transmitted at one
rate and the data portion of the packet is transmitted at a different rate.”
App. Br. 12.
The Examiner responds by stating the claim 14 does not recite a single
packet being transmitted at two different rates as argued. Answer 14. The
Examiner finds that Kitakado teaches this feature in Figures 1,3, paragraphs
56, 58, 60, and 70. Answer 14-15.
We agree with the Examiner that the claim does not require a packet
being transmitted at two different rates. However, the claim does require
that the rate is adjusted independently between the header and the data
portion of a packet. We disagree with the Examiner’s finding that Kitakado
teaches this feature, as the cited disclosure of Kitakado does not teach that
the data rate is adjusted between the header and data of the same packet.
Accordingly, we do not sustain the Examiner’s rejection of claim 14.
Dependent claim 15.
Appellants argue the Examiner’s rejection of claim 15 is in error as
the combination of Gerszberg and Kitakado does not teach adjusting the data
rate independently for transmitted data packets while receiving data packets
9
Appeal 2017-006945
Application 14/132,992
with different information rates from the transmitted data packets. App. Br.
12-13.
The Examiner finds that Kitakado teaches this feature in Figures 1,3,
paragraphs 56, 58, 60, and 70 in that transmission and reception rates are
changed before and after a modulation scheme change. Answer 14-15.
We disagree with the Examiner. Claim 15 recites dynamically
changing the data rate independently for transmitted rates while receiving
data. We have reviewed the cited teachings of Kitakado and do not find that
they discuss independently changing transmitted data rates while receiving
data packets with different data rates from the transmitted packets.3
Accordingly we do not sustain the Examiner’s rejection of claim 15.
Dependent claims 5 and 6.
Appellants argue the Examiner’s rejection of claim 5 is in error as the
combination of Gerszberg, Kitakado, and Gultekin does not teach a modem
transmitting a packet of data indicating a data rate change to a transmitter
that communicates the data rate change to the remote transceiver as recited
in claim 5. App Br 16. Appellants argue that Gultekin, which the Examiner
relies upon for this teaching,
is concerned with, and only describes, an initialization protocol.
There does not appear to be any description in Gultekin, in the
cited passages or otherwise, of dynamically adjusting a modem’s
data rate by transmitting a packet of data indicating a data rate
change to an optical transmitter that communicates the data rate
change to a remote transceiver during transmission. Instead,
3 It appears that Kitakado teaches the data rate is set for both transmission
and reception based upon which is assigned priority. See Kitakado, paras.
81 and 82.
10
Appeal 2017-006945
Application 14/132,992
Gultekin only describes two transmitters negotiating a set of
optional rates prior to beginning a transmission.
App. Br 17.
We are not persuaded of error by this argument as it is directed
only to Gultekin and not the teachings of the combination of the
references. The Examiner in rejecting claim 1, from which claim 5
depends, relies upon the teaching of Gerszberg and Kitakado to teach
the dynamically adjusting of the data rate and Gultekin to teach the
claim 5 feature of transmitting a packet of data indicating the data
rate. Final Act. 13, 22, 23; Answer 25. Thus, we are not persuaded of
error by Appellants’ arguments as it is the combination of Gultekin
Gerszberg and Kitakado that teaches the disputed limitation.
Accordingly, we sustain the Examiner’s rejection of claim 5 and claim
6 grouped with claim 5.
Dependent claim 18.
Appellants argue the Examiner’s rejection of claim 18 is in error as
the combination of Gerszberg, Kitakado, and Gultekin does not teach a
separate communication channel established between transmitter and
receiver to negotiate data rate channels as recited in claim 18. App. Br. 17.
The Examiner finds that Gultekin teaches the separate communication
channel in Figure 1, column 5, lines 30^10, and column 9, lines 50-58.
Final Act. 23-24.
We disagree with the Examiner. We have reviewed the cited
teachings of Gultekin and do not find that they discuss a separate
communication channel established between transmitter and receiver to
11
Appeal 2017-006945
Application 14/132,992
negotiate data rate channels. Thus, we do not sustain the Examiner’s
rejection of claim 18.
Dependent claim 8.
Appellants argue the Examiner’s rejection of claim 18 is in error as
the combination of Gerszberg, Kitakado, and Miller does not teach the claim
8 limitation directed to an auxiliary detector to detect power level of the
optical signal. App. Br. 18. Appellants argue that Miller’s redundant
optical-to-electrical signal converter, which the Examiner relies upon to
teach the auxiliary detector, is not capable of detecting the power level of the
optical signal as it is not connected to the same optical signal line as the
primary detector. App. Br. 18-19.
The Examiner finds that Miller teaches two detectors (items 104a and
104b of Figure 1) and that in combination with Gerszberg’s teaching of an
optical transceiver (which the Examiner equates to the claimed main
detector) teaches a main and auxiliary detector. Answer 27-28. In response
to Appellants’ argument, the Examiner asserts that it would have been
obvious to modify the system described in Gerszberg with the Miller
teachings of a main detector 104a and redundant detector 104b. Answer 28-
29. The Examiner finds:
[A]s a matter of preference one of ordinary skill in the art can
implement this concept into the system of Gerszberg and have
the system of Gerszberg with a main detector and a redundant
detector for protection and which combination is a simple
implementation of a known protecting technique into the known
system of Gerszberg. This modification is possible because both
systems are optical systems and they both use detectors (i.e.
optical to electrical converters). For this combination, it is very
clear from the rejection that there is no integration of free space
12
Appeal 2017-006945
Application 14/132,992
and fiber systems, but merely the system as in Gerszberg being
modified based on the teachings of the system as in Miller (i.e.
of having main and redundant detectors).
Answer 29.
We disagree with the Examiner and are persuaded of error by
Appellants’ arguments. Dependent claim 8 recites that the auxiliary detector
detects a power level of “the optical signal.” The term “the optical signal”
has antecedent basis in the claim 1 recitation of “a main detector ... to
convert an optical signal”; thus, the claimed auxiliary detector detects power
of the same signal that is converted by the main detector. As argued by
Appellants, the detectors in Miller—items 104a and 104b—are connected to
different optical fibers and as such are not detecting the same optical signals
(see, e.g., Miller, Fig. 1 and col. 2,11. 58-66 (optical signal converter 104a is
connected to fiber 102a and sensor 104b is connected to fiber 102b)). Thus,
we find the Examiner has presented insufficient evidence showing that,
based on the combined teachings of Gerszberg and Kitakado, an auxiliary
optical detector as recited in claim 8 would have been obvious.
Accordingly, we do not sustain the Examiner’s rejection of claim 8 and
claim 9 which depends upon claim 8.
Independent claim 19 and dependent claims 20 through 34.
With respect to independent claim 19 and dependent claims 20 and
34, Appellants present the same arguments as discussed above with respect
to claim 8. App. Br. 23-27.
The Examiner on pages 35 through 48 response is similar to that
discussed above with respect to the rejection of claim 8.
13
Appeal 2017-006945
Application 14/132,992
Independent claim 19 is similar to claim 8 in that it recites a main
detector to convert an optical signal and an auxiliary detector to detect a
power level of the optical signal (i.e., the same optical signal). As discussed
above with respect to claim 8, we find the Examiner has presented
insufficient evidence showing that the claimed auxiliary optical detector
would have been obvious in view of the combined teachings of Gerszberg
and Kitakado. Accordingly, we similarly do not sustain the Examiner’s
rejection of independent claim 19. The Examiner has not shown that the
other references relied upon in the rejections of dependent claims 20 through
34 make up for the deficiency in the rejection of independent claim 19.
Accordingly, we do not sustain the Examiner’s rejection of dependent claims
20 through 34 which depend upon claim 19.
DECISION
We affirm the decision of the Examiner to reject claims 1 through 6,
35, and 36.
We reverse the decision of the Examiner to reject claims 7 through 15
and 18 through 34.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
14