Ex Parte Gao et al

Patent Trial and Appeal Board

Jun 28, 2016

12902827 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/902,827 10/12/2010
5073 7590
BAKER BOTTS LLP,
2001 ROSS A VENUE
SUITE 600
DALLAS, TX 75201-2980
06/30/2016
FIRST NAMED INVENTOR
Ke Qin Gao
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
064731.0853 2775
EXAMINER
SANDHU, AMRITBIR K
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
ptomaill@bakerbotts.com
ptomail2@bakerbotts.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KE QIN GAO, NAGESWARA RAO NUKALA,
VIKAS MITTAL, MALLESWARAPRASAD SUNKARA,
LIXIN JIA, and QUANG CHAN TIEU
Appeal2014-007003
Application 12/902,827
Technology Center 2600
Before JEFFREYS. SMITH, DANIEL N. FISHMAN, and
NABEEL U. KHAN, Administrative Patent Judges.
FISHMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1-12. 1 We have jurisdiction over the pending claims under 35 U.S.C.
§ 6(b ).
We affirm.
1 In this Opinion, we refer to the original Specification ("Spec.," filed
October 12, 2010); the Final Office Action ("Final Act.," mailed August 8,
2013); Appellants' Appeal Brief ("App. Br.," filed December 12, 2013); the
Examiner's Answer ("Ans.," mailed April 4, 2014); and Appellants' Reply
Brief ("Reply Br.," filed June 3, 2014).
Appeal2014-007003
Application 12/902,827
THE INVENTION
Appellants' invention is directed to "protection switching in an optical
system." Spee. 1: 10.
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A method for protection switching in an optical
network, comprising:
communicating a switch request for initiation of
protection switching in response to a determination that at least
a minimum frequency of interrupts indicating failure of an
optical signal has occurred over a first period, the interrupts
being sent from hardware of a network node to software of the
network node; and
communicating a switch request for cessation of
protection switching in response to a determination that no
more than a maximum frequency of interrupts indicating failure
of an optical signal has occurred over a second period.
THE REJECTIONS
Claims 1--4 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Aprile (US 2009/0103915 Al; April 23, 2009). Final Act. 4--7.
Claims 5-12 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Sugahara (US 8,244,123 B2; August 14, 2012) and
Aprile. Final Act. 7-20.
ANALYSIS
Only those arguments actually made by Appellants have been
considered in this Decision. Arguments that Appellants did not make in the
Briefs are waived. See 37 C.F.R. § 41.37(c)(l)(iv).
2
Appeal2014-007003
Application 12/902,827
We are not persuaded by Appellants' contentions of Examiner error
(App. Br. 7-12; Reply Br. 2-7). We adopt as our own the findings and
reasons set forth by the Examiner in the action from which this appeal is
taken (Final Act. 4--20) and as set forth by the Examiner in the Answer (Ans.
3---6). However, we highlight and address specific arguments and findings
for emphasis as follows.
In rejecting claim 1, the Examiner finds Aprile teaches all elements
but fails to explicitly disclose switching between optical fibers based on a
minimum or maximum frequency of interrupts indicative of failures. Final
Act. 5---6. The Examiner further finds,
Id.
Aprile does not expclitly [sic] discloses at least a minimum
frequency of interrupts indicating failure over first period
;(Examiner considers that it would be obvious to check more than
once or repeat the step 35; figure 3A because the power in
protection line is checked twice at steps 31 and 36; figure 3A to
make sure the that protection is working properly before
switching and hence it is obvious to check whether the power in
working line is ok indicating a failure the working line twice to
make sure that there is actually a failure in the working line thus
making it more reliable); and that no more than a maximum
frequency of interrupts indicating failure over second
period;(Examiner considers that it is obvious to repeat the steps
53 to 56 more than once because the power in protection line is
checked twice at steps 31 and 36; figure 3A to make sure that the
power in working line is ok for a certain response period to make
sure that that working line is restored before switching from
protection to working).
Appellants argue, although Aprile discloses checking power on the
working line multiple times, Aprile performs a switch to the protection line
at the first detection of a failure of the working line - whereas the claim
requires detecting a minimum frequency of such detected failure in a first
3
Appeal2014-007003
Application 12/902,827
period of time. App. Br. 8; Reply Br. 3. In like manner, Appellants argue
the cessation of such a switch, as claimed, is performed in response to
detecting a failure frequency no greater than a maximum frequency-
whereas Aprile fails to disclose such a comparison with a maximum. App.
Br. 9; Reply Br. 3--4.
We are not persuaded the Examiner erred. Claim construction is an
issue of law that we review de nova. Cordis Corp. v. Boston Scientific
Corp., 561 F.3d 1319, 1331 (Fed. Cir. 2009). "[D]uring examination
proceedings, claims are given their broadest reasonable interpretation
consistent with the specification." In re Hyatt, 211F.3d1367, 1372 (Fed.
Cir. 2000). "Though understanding the claim language may be aided by the
explanations contained in the written description, it is important not to
import into a claim limitations that are not a part of the claim." SuperGuide
Corp. v. DirecTV Enters., Inc., 358 F.3d 870, 875 (Fed. Cir. 2004).
Appellants' Specification provides examples of the minimum and
maximum frequencies (see Spec. 11:3 through 12:8 (presented as variables
"X" and "W," respectively)), but Appellants have not identified any
limitations on permissible values of the minimum and maximum
frequencies. Thus, we construe the recited "minimum frequency of
interrupts" broadly but reasonably as encompassing a value of one and
broadly construe the recited "maximum frequency of interrupts" as
encompassing a value of zero (see Spec. 12:4--5 ("In certain embodiments,
the maximum number of interrupts W may be zero.")).
Thus, in accordance with our claim construction, as disclosed in
Aprile, a single detected failure (i.e., one failure detection is disclosed in
steps 34 and 35 of Fig. 3A) meets the claim limitation of at least a minimum
4
Appeal2014-007003
Application 12/902,827
when the minimum frequency is one. In like manner, detecting a single
condition where the working line is not failing (i.e., in steps 52 and 53 of
Fig. 3C) meets the claim limitation of not greater than a maximum frequency
where the maximum frequency is zero. Therefore, we are not persuaded the
Examiner erred in finding Aprile meets the limitations relating to minimum
and maximum frequency comparisons.
Appellants further contend Aprile fails to disclose interrupts sent from
hardware to software. App. Br. 9; Reply Br. 9. We remain unpersuaded of
Examiner error. The Examiner finds a broad but reasonable interpretation of
"interrupt" is "a signal to the processor from the software or the hardware
indicating an event that needs an immediate attention." Ans. 4--5. Based on
this broad interpretation, the Examiner finds Aprile discloses processor 61
that receives signals (interrupts) from network interface 67 and, thus, meets
the limitation relating to interrupts. Ans. 5. We agree. Appellants fail to
identify any limiting definition in the Specification that excludes or
contradicts the Examiner's broad but reasonable interpretation of an
"interrupt." Therefore, we remain unpersuaded of Examiner error.
In view of the above discussion, we are unpersuaded of error in the
Examiner's rejection of claim 1 or claims 2--4, dependent from claim 1 and
argued together with claim 1.
Appellants argue the Examiner erred in rejecting claims 5-12 for
essentially the same reasons as claim 1 (App. Br. 10-11) and, thus, we are
unpersuaded of Examiner error for the same reasons as claim 1.
5
Appeal2014-007003
Application 12/902,827
DECISION
For the above reasons, the Examiner's decision rejecting claims 1-12
is affirmed.
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
6