Ex Parte MAK et al

Patent Trial and Appeal Board

Oct 3, 2016

13300956 (P.T.A.B. Oct. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/300,956 11/21/2011
22474 7590 10/05/2016
Clements Bernard PLLC
4500 Cameron Valley Parkway
Suite 350
Charlotte, NC 28211
FIRST NAMED INVENTOR
Gary MAK
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.
10.2076 6283
EXAMINER
SHALABY,MINAM
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
10/05/2016 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):
patlaw@worldpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GARY MAK and MOHAMMAD SOTOODEH1
Appeal2015-006769
Application 13/300,956
Technology Center 2600
Before BRUCE R. WINSOR, JON M. JURGOV AN, and
DAVID J. CUTITTA II, Administrative Patent Judges.
CUTITTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's Final
Decision rejecting claims 1-14. We have jurisdiction over this appeal under
35 U.S.C. § 6(b).
We AFFIRM.2
1 According to Appellants, the real party in interest is Ciena Corporation.
See Appeal Br. 2.
2 Throughout this Opinion, we refer to: (1) Appellants' Specification filed
Nov. 21, 2011 ("Spec."); (2) the Final Office Action ("Final Act.") mailed
June 27, 2014; (3) the Appeal Brief ("Appeal Br.") filed Nov. 18, 2014;
(4) the Examiner's Answer ("Ans.") mailed May 15, 2015; and (5) the Reply
Brief ("Reply Br.") filed July 13, 2015.
Appeal2015-006769
Application 13/300,956
BACKGROUND
Appellants' application relates to systems and methods for subcarrier
power balance control in an optical communication system. Spec. 1. Claims
1 and 8 are independent claims. Claim 1 is representative and is reproduced
below with disputed limitations emphasized:
1. A method of controlling a multiple sub-carrier optical
channel of an optical communications system, the multiple sub-
carrier optical channel comprising at least two sub-carriers
having respective different center frequencies and being
modulated with respective sub-channel data streams within a
spectral range allocated to a single optical channel of the optical
communications system, the method comprising:
a transmitter modem of the optical communications
system applying a respective dither signal to each sub-carrier;
a receiver modem of the optical communications system
detecting a respective quality metric of each sub-carrier;
estimating a respective optimum power level of each sub-
carrier based on the applied dither signals and the detected
quality metrics; and
adjusting a respective power level of each sub-carrier in
accordance with the estimated respective optimum power level
of each sub-carrier.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal includes:
Roberts
("Roberts")
Khurgin et al.
("Khurgin")
Webb et al.
("Webb")
us 5,513,029 Apr. 30, 1996
US 2010/0135656 Al June 3, 2010
US 8,406,637 B2 Mar. 26, 2013
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Application 13/300,956
REJECTIONS
Claims 1-3, 5-10, and 12-14 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Khurgin and Webb. Final Act. 2.
Claims 4 and 11 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Khurgin, Webb, and Roberts. Final Act. 9.
Our review in this appeal is limited to the above rejections and issues
raised by Appellants. We have not considered other possible issues that
have not been raised by Appellants and which are, therefore, not before us.
See 37 C.F.R. § 41.37(c)(l)(iv) (2014).
ISSUES
1. Did the Examiner err in finding that the combination of Khurgin
and Webb teaches or suggests "estimating a respective optimum power level
of each sub-carrier based on the applied dither signals and the detected
quality metrics; and adjusting a respective power level of each sub-carrier in
accordance with the estimated respective optimum power level of each sub-
carrier," as recited in claim 1?
2. Was the Examiner's rationale for modifying Khurgin based on
Webb erroneous?
DISCUSSION
35 U.S.C. § 103: Claims 1-3, 5-10, and 12-14
After review of Appellants' arguments and the Examiner's findings
and reasoning, we determine that Appellants have not persuaded us of error
in the Examiner's rejection of claim 1. Accordingly, we affirm the rejection
for reasons set forth by the Examiner in the Final Office Action and the
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Application 13/300,956
Answer. See Final Act. 2--4; Ans. 13-14. We add the following for
emphasis and completeness.
In rejecting claim 1, the Examiner relies on the combination of
Khurgin and Webb to teach or suggest the disputed limitations. Final
Act. 2--4. Appellants contend that the Examiner's interpretation of the claim
is in error and that "the [E]xaminer' s interpretation of Webb is unsupported
by the teaching of Webb." Appeal Br. 10. Specifically, Appellants contend
the terms "optical channel" and "subcarrier" are explicitly defined in the
originally filed specification and the Examiner fails to consider these
definitions in interpreting the claims. Appeal Br. 10. Appellants contend
Webb's bands can thus not properly be interpreted as suggesting the claimed
"optical channels" because Webb's bands do not provide a physical layer
connection through an optical network between a single transmitter modem
and a single receiver modem, as defined by the Appellants' Specification.
Appeal Br. 12. Appellants further contend Webb's optical channels cannot
be interpreted as suggesting the claimed "subcarriers" because all of the
channels within Webb's bands are not routed through the network together,
as defined by Appellants Specification. Id.
We find Appellants' contentions unpersuasive because the contentions
are not responsive to the rejection. The Examiner does not rely on Webb to
suggest the claimed multiple sub-carrier optical channel but instead relies
upon Khurgin to teach this structure. Final Act. 2--4. In fact, Appellants'
contentions regarding claim construction notwithstanding, Appellants note
in the Appeal Brief that Khurgin teaches the claimed optical channels and
subcarriers. Appeal Br. 10 ("This structure of the optical channel signal
comprising a plurality of modulated subcarriers appears to agree with the
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Appeal2015-006769
Application 13/300,956
claimed 'multiple sub-carrier optical channel comprising at least two sub-
carriers having respective different center frequencies ... '."). Appellants
further note that Webb teaches applying a dither algorithm to the optical
channel and adjusting the power of the optical channel in accordance with
the dither algorithm. Appeal Br. 11 (citing Webb col. 2, 11. 7-16 and col. 3,
11. 40-49). Thus, by arguing Webb's bands cannot be interpreted as the
claimed "optical channel" and Webb's optical channel cannot be interpreted
as the claimed "subcarrier," Appellants are arguing the references
individually, because the Examiner is relying on the combination of Khurgin
and Webb to suggest the disputed limitations. Appeal Br. 12; see also 2--4;
Ans. 13-14. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) ("[O]ne
cannot show non-obviousness by attacking references individually where, as
here, the rejections are based on combinations of references.").
Appellants contend the Examiner has elected to employ only the
Teaching, Suggestion or Motivation (TSM) rationale for determining
obviousness based on Khurgin and Webb and that the Examiner fails to
articulate a plausible motivation from either of the references for making the
combination. Appeal Br. 12.
We find Appellants' contentions unpersuasive. Initially, we note that
the TSM test is not the only rationale that may be used in determining
obviousness. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007).
We also disagree with Appellants' contention that the Examiner has
employed only the TSM rationale because the Examiner has provided
multiple plausible motivations for one of ordinary skill in the art to combine
the power adjustment method of Webb with the subcarriers system of
Khurgin. Ans. 12-13. Second, with respect to the TSM test, the Examiner
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Application 13/300,956
does provide a rationale drawn from Webb's teachings. Id. Specifically, the
Examiner indicates one of ordinary skill in the art would immediately realize
that a power level adjustment technique applied to each carrier in a
Wavelength Division Multiplex ("WDM") system could be applied to each
subcarrier in a subcarrier system, for the reasons disclosed in Webb. Ans.
12 (citing Webb col. 5, 11. 59---61 ("a benefit for applying dither to control the
power, where dithering the power up increases the BER or dithering down
decreases the BER while the power set point is always decreased.")).
In response, Appellants contend the Examiner has failed to articulate a
plausible motivation because since the amplitude of Khurgin's phase shift
keying is held constant, "the examiner's alleged problem to be solved ("data
signals which fluctuate between logical 0' s and 1 's power levels") does not
exist." Appeal Br. 14.
We find Appellants' contentions unpersuasive, noting that Appellants
fail to persuasively demonstrate why dithering as taught by Webb could not
be applied to Khurgin's optical channel and subcarriers.
Moreover, the Examiner has provided several additional rationale
beyond the TSM rationale discussed above. Ans. 12-13. For example, the
Examiner indicates that the combination entails "use of a known technique
to improve similar devices (methods, or products) in the same way." Ans.
13 (citing MPEP § 2143(I)(C)). That is, "if a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill." KSR at 417.
Appellants fail to explain why this rationale should not be applied to
the combination of Khurgin and Webb. Instead, Appellants argue that none
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Application 13/300,956
of the Examiner's motivations relate to modifying the OFDM system of
Khurgin to independently control power level of each sub-channel of the
OFDM channel. Reply Br. 4.
We disagree. Appellants note that Webb applies a dither signal to an
optical channel and that Khurgin teaches the claimed optical channel and
subcarriers. Appeal Br. 10-11. The Examiner's rationales relate to applying
Webb's functions to the optical channel and subcarriers taught by Khurgin.
Appellants further argue Khurgin and Webb do not provide any
reason to implement per-sub-channel power control (by dither signals or
otherwise), and the Examiner's cited motivations do not appear to address
this deficiency. Reply Br. 4. We find Appellants' arguments unpersuasive.
The reason for combining the references need not be found in the references
themselves. KSR at 421. Moreover, Appellants do not set forth a rebuttal or
effectively articulate contrary evidence to the various motivations to
combine set forth in the Advisory Action and the Answer. Advisory Action
mailed August 9, 2014; Ans. 12-13. We are, thus, not persuaded by
Appellants' arguments, and find the Examiner has provided sufficient
reasoning with rational underpinnings. Id.; see also In re Kahn, 441 F .3d
977, 988 (Fed. Cir. 2006) ("[R]ejections on obviousness grounds [require]
some articulated reasoning with some rational underpinning to support the
legal conclusion of obviousness") (cited with approval in KSR at 418).
Accordingly, we sustain the Examiner's 35 U.S.C. § 103(a) rejection
of claim 13. Claim 8 recites a system with requirements analogous to those
of claim 1 and stands rejected on the same basis and, thus, for the reasons
discussed above, the rejection of claim 8 is also sustained. See Appeal Br.
9-10.
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Application 13/300,956
Appellants do not make any other substantive argument regarding the
rejection of dependent claims 2, 3, 5-10, and 12-14. See App. Br. 9-14.
Therefore, we likewise sustain the rejections of these dependent claims
under 35 U.S.C. § 103(a).
35U.S.C.§103: Claims 4and11
Claims 4 and 11, which depend, directly or indirectly, from claims 1
and 8 (see Appeal Br. 15-17 (Claims App'x)), stand rejected under 35
U.S.C. § 103(a). Appellants do not make any other substantive argument
regarding the rejection of dependent claims 4 and 11. See App. Br. 9-14.
Therefore, for the reasons discussed above, we sustain the rejections of these
dependent claims under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's decision rejecting claims 1-14.
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
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