Ex Parte Graves et al

Board of Patent Appeals and Interferences

Apr 27, 2009

09893493 (B.P.A.I. Apr. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ALAN F. GRAVES, IAN M. CUNNINGHAM, RYAN STARK,
KENT E. FELSKE, CHRIS HOBBS, and JOHN H. WATKINS
____________

Appeal 2009-1247
Application 09/893,493
Technology Center 2600
____________

Decided:1 April 27, 2009
____________

Before KENNETH W. HAIRSTON, JOHN A. JEFFERY, and
CARLA M. KRIVAK, Administrative Patent Judges.

KRIVAK, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Application 09/893,493

2
Appellants appeal under 35 U.S.C. § 134 from a non-final rejection of
claims 1-26. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

STATEMENT OF CASE
Appellants’ claimed invention is a communications network for a
metropolitan area that includes access multiplexers and a photonic switch
coupled to the access multiplexers. Sparse wavelength division multiplexed
(SWDM) wavelengths are consolidated into dense wavelength division
multiplexed (DWDM) wavelengths for transmission. A core node carries
the DWDM wavelengths and routes the data packets within the
communication network or out to a long haul network (Spec. 13:11-23).
This reduces the number of transitions between protocol layers and
technologies and allows more direct connections between endpoints in the
same metropolitan or long distance network. Because the path from the
access multiplexers through the network is photonic, the path is independent
of the packet-level protocol, making the network more tolerant to future
protocol or bit rate changes or developments in technology at the packet
layer (Spec. 13:25-14:2).
Independent claim 1, reproduced below, is representative of the
subject matter on appeal.
1. A communications network for a metropolitan area
comprising:
a plurality of access multiplexers, each access multiplexer
operable to provide multiplexing of data packets from a
plurality of end-users onto a sparse dense wavelength division
multiplexed (S-DWDM) wavelength; the S-DWDM
wavelength having an optical precision capable of being
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interleaved into the optical frequency constraints of a dense
wavelength division multiplex (DWDM) wavelength plan used
in a core network;
a photonic switch, coupled to the access multiplexers via fiber
optic cable for carrying a plurality of S-DWDM wavelengths,
being all-optical and operable to switch the plurality of S-
DWDM wavelengths into a DWDM signal for transmission;
and
a core node being part of the core network, coupled to the
photonic switch via a fiber optic cable for carrying the DWDM
signal, and operable to route the data packets within the
communications network or out to a long haul network.

REFERENCES
Hung US 6,583,901 B1 Jun. 24, 2003
Hugenberg US 6,714,545 B1 Mar. 30, 2004

The Examiner rejected claims 1-26 under 35 U.S.C. § 103(a) based
upon the teachings of Hugenberg and Hung.2
Appellants contend that Hugenberg does not teach or suggest
multiplexing data packets from a plurality of end users onto a DWDM plan
or a photonic switch operable to switch the wavelengths into a DWDM
signal for transmission (App. Br. 7; Reply Br. 5) and that Hung does not
teach interleaving of wavelengths (App. Br. 9; Reply Br. 9).3

2 Although the Examiner omitted claims 7 and 21 in the statement of the
rejection (Ans. 3), the Examiner nonetheless included these claims in the
body of the rejection. We therefore presume that the Examiner intended to
reject these claims.

3 The Amended Appeal Brief filed Nov. 6, 2007, is referred to throughout
the opinion.
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ISSUE
Did Appellants establish the Examiner failed to provide a prima facie
case of obviousness by finding that Appellants’ photonic switch is the same
as the aggregation device of Hugenberg?

FINDINGS OF FACT
1. Appellants’ invention is directed to a communications network
including a plurality of access multiplexers for multiplexing data packets
onto S-DWDM wavelength having optical precision capable of being
interleaved into the constraints of a DWDM wavelength plan used in a core
network (Spec. 20:23-21:12).
2. An all-optical photonic switch switches the S-DWDM
wavelengths into a DWDM signal for transmission (Spec. 21:12-20). A core
node carries the DWDM signal and routes the data packets within the
communications network or out to a long haul network (cl. 1).
3. Hugenberg teaches VDSL data network. Hugenberg supports
multiple service platforms and supports two-way data services over high-
speed fiber optics using SONET, DWDM, IP, ATM, and other transport
systems (col. 7, ll. 33-41).
4. Hugenberg utilizes an ATM/IP universal service access
multiplexer (USAM) (col. 3, ll. 50-51; Fig. 2) and a Router/ATM
Aggregation Device 40 (col. 6, ll. 17-18; Fig. 2).

PRINCIPLES OF LAW
If the Examiner’s proposed modification renders the prior art
unsatisfactory for its intended purpose, the Examiner has failed to make a
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prima facie case of obviousness. See In re Gordon, 733 F.2d 900, 902 (Fed.
Cir. 1984).
In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the
Examiner to establish a factual basis to support the legal conclusion of
obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). “[T]he
examiner bears the initial burden, on review of the prior art or on any other
ground, of presenting a prima facie case of unpatentability.” In re Oetiker,
977 F.2d 1443, 1445 (Fed. Cir. 1992). If the Examiner’s burden is met, the
burden then shifts to Appellants to overcome the prima facie case with
argument and/or evidence. Obviousness is then determined on the basis of
the evidence as a whole and the relative persuasiveness of the arguments.
Id.

ANALYSIS
The Examiner rejected claims 1-26 under 35 U.S.C. § 103 as obvious
over Hugenberg and Hung.4 Therefore, this rejection is first addressed with
respect to independent claim 1.
The Examiner finds that Hugenberg teaches all the elements of
Appellants’ claimed invention but differs in that Hugenberg fails to
specifically teach an S-DWDM wavelength having an optical precision
capable of being interleaved into the DWDM wavelength plan, but that
Hung teaches providing a wavelength having an optical precision capable of
being interleaved into the DWDM wavelength plan (Ans. 4). Thus, one

4 As we indicated previously, although the Examiner noted that claims 1-6,
8-20, and 22-26 are rejected under 35 U.S.C. § 103 (Ans. 3), this appears to
be a mistake as claims 7 and 21 are included in the rejection (Ans. 5, 6).
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skilled in the art would have been motivated to employ a wavelength having
optical precision capable of being interleaved into a DWDM wavelength
plan as taught by Hugenberg to avoid exhausting the bandwidth of the fiber
as taught by Hung (Ans. 4).
Appellants contend that Hugenberg does not teach the access
multiplexer or the photonic switch, and that Hung teaches the S-DWDM
recited in the claims (App. Br. 6-10).
With respect to the photonic switch, the Examiner asserts that the
aggregation device 40 in Fig. 2 of Hugenberg (Ans. 3) is the same as
Appellants’ photonic switch. The Examiner also finds the aggregation
switch receives optical signs that are routed, aggregated, and then output as
optical signals to fibers 24 without mention of optical-electrical-optical
conversion (Ans. 9).
Appellants contend the aggregation switch is not a photonic switch. A
photonic switch is defined in the Specification (Spec. 22:31) as an all-optical
switch. As shown in Appellants’ Fig. 8, the entire traverse from access to
core is in the optical domain as are all the transactions (App. Br. 7; Spec.
55:24-30). Appellants contend Hugenberg’s aggregation device is an
electrical device where each bit rate service is mapped to a range of virtual
path identifiers/virtual channel identifiers (App. Br. 8; Reply Br. 7). We
agree. Further, Hugenberg’s aggregation device is a central office that
receives signals from a broadband digital terminal (BDT) (Fig. 2). As part
of the central office, there is no reason why the aggregation device would
not aggregate both electrical and optical signals; thus, Hugenberg’s
aggregation device is a router that is an optical-electrical-optical device.
There is no indication in Hugenberg that the aggregation device is or could
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be an all-optical device. The Examiner’s finding that “the mapping
functionality the Appellant insists classifies Hugenberg’s device as an
electrical device can occur in either the optical domain or the electrical
domain” (Ans. 9) supports Appellants’ position that, although the input
fibers and the output fibers in Hugenberg are optical, there is nothing
suggesting the aggregation device is entirely optical. If Hugenberg’s system
included an all-optical photonic switch, as stated by the Examiner, it would
have stated such. Therefore, modifying Hugenberg in the manner suggested
by the Examiner would render Hugenberg unsatisfactory for its intended
purpose. See Gordon, 733 F.2d at 902.
Therefore, the Examiner has not established a prima facie case of
obviousness with respect to claim 1 or independent claims 16, 22, and 23,
which recite commensurate limitations. Therefore, the Examiner’s rejection
of these claims is not sustained, nor is the Examiner’s rejection of dependent
claims 2-15, 17-21, and 24-26 sustained for similar reasons.

CONCLUSION
Appellants have established that the Examiner erred in rejecting
claims 1-26 under 35 U.S.C. § 103.

DECISION
The Examiner’s decision rejecting claims 1-26 is reversed.

REVERSED

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