Ex Parte Mendoza

Patent Trials and Appeals Board

Jun 27, 2013

11443560 - (D) (P.T.A.B. Jun. 27, 2013)

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.
11/443,560 05/31/2006 Edgar A. Mendoza ROI-206D 2988
26410 7590 06/28/2013
HOWARD R. POPPER & ASSOC
4436 E. CAMELBACK ROAD STE #35
PHOENIX, AZ 85018
EXAMINER
RADKOWSKI, PETER
ART UNIT PAPER NUMBER
2883
MAIL DATE DELIVERY MODE
06/28/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte EDGAR A. MENDOZA
____________________

Appeal 2011-001408
Application 11/443,560
Technology Center 2800
____________________

Before THU A. DANG, JAMES R. HUGHES,
and GREGORY J. GONSALVES, Administrative Patent Judges.

DANG, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-001408
Application 11/443,560

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I. STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1-7, 9-17, and 21 (App. Br. 3). Claims 8 and 18-20 have been
cancelled (id.). We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.

A. INVENTION
Appellant’s invention is directed to a multi-channel optical Fiber
Bragg Grating (FBR) interrogation system comprising an optics block
having a gradient refractive index including an integrated planar wave guide
structure directly coupled to a fiber at a single point (Abstract).

B. ILLUSTRATIVE CLAIM
Claim 1is exemplary:
1. A fiber Bragg-grating (FBG) sensor interrogation unit for interrogating an
array of FBG transducers distributed along a single optical fiber, each FBG
transducer having a wavelength encoded optical signature, comprising:

an optics block having a gradient refractive index including an
integrated planar wave guide structure directly coupled to said fiber at a
single point, the optics block including a plurality of ports along its edges,
certain of said ports being allocated to corresponding ones of said signatures,
one of said ports having a broadband spectrum light source for interrogation
of the FBG transducers of said fiber.

C. REJECTION
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
White US 2003/0114006 A1 June 19, 2003
Kempen US 2006/0029348 A1 Feb. 9, 2006
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Application 11/443,560

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Xiao US 2006/0045412 A1 March 2, 2006

Claims 1-7, 9-17, and 21 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Xiao in view of White and Kempen.

II. ISSUE
The dispositive issue before us is whether the Examiner has erred in
determining that the combination of Xiao, White, and Kempen teaches or
would have suggested “an optics block” having “a gradient refractive index”
including “an integrated planar wave guide structure directly coupled to said
fiber at a single point,” the optics block including a plurality of “ports”
along its edges, certain of the ports “being allocated to corresponding ones
of said signatures,” and one port “having a broadband spectrum light
source for interrogation of the FBG transducers of said fiber” (claim 1,
emphasis added).

III. FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a preponderance of
the evidence.
Xiao
1. Xiao discloses a handheld interrogator system having an Array
Waveguide Grating (AWG) based interrogator chip 10 coupled to an optics
fiber 15 through an optical circulator 14 to sense reflected signals from an
array of Fiber Bragg Grating (FBG) sensors (sensor 1, sensor 2, sensor 3, …
sensor n); wherein, the chip 10 has a port for receiving the signals and a
broadband light source 13, and other ports connected to a photo detector
array 11 (Fig. 3;¶¶ [0025] and [0036]). All the optical components can be
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directly coupled together by butter coupling in order to miniaturize the
dimension of the interrogator (Fig. 3; ¶ [0025]). In particular, the circulator
14 is eliminated from the design when there is only a need to monitor
transmission signals from the FBG sensors (Figs. 3 and 6; ¶ [0036]).
2. The circulator can also be a waveguide based or any other types (¶
[0037]).
White
3. White discloses that signals can be transmitted most efficiently
to standard optical fibers using tapered, refractive-index-graded waveguide
features (¶ [0043]).
Kempen
4. Kempen discloses a waveguide structure that includes a core
adapted to propagate light along a path defined by the core and a cladding
material that at least partially surrounds the core; wherein, the core and the
cladding material each have a refractive index profile in the direction of light
propagation (Abstract).

IV. ANALYSIS
Claims 1-7, 9-17, and 21
Appellant contends that although Xiao discloses “that ‘all the optical
components can be connected by fiber or directly together’”, “one cannot
tell from this what should be ‘directly connected’ so as to do away with the
need for the circulator” (App. Br. 8). According to Appellant , “Xiao’s
AWG structure cannot be modified to connect a broad-band light source at
any of its ports and have detectors connected at any other of its ports” (App.
Br. 9). In particular, Appellant argues that “Xiao teaches neither an optics
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Application 11/443,560

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block having a gradient refractive index nor an integrated planar waveguide
structure directly coupled to an optical fiber” and the disclosure of Xiao
“does not directly couple to an optical fiber at a single point” (App. Br. 11).
Appellant further contends that “[a]lthough White and Kempen
disclose the use of tapers to couple an optical fiber to an optics block, there
is no disclosure of how to use taper waveguide paths within the optics
block” (App. Br. 12, emphasis removed). Appellant then argues that
“[c]ombining the Xiao, White and Kempen references does not teach,
suggest or encourage the avid seeker to learn anything about how to make a
sensor interrogation unit that can be coupled to an FBG string at a single
point without use of a lossy, external three-point circulator” (id.).
Appellant finally contends that “Examiner [has erred in] summarily
dismiss[ing] the Rule 132 evidence” of the “exhibits [which] establish the
nonobviousness of [Appellant]’s claims under the commercial success
criteria of Graham” (App. Br. 13). Appellant asserts that “the Navy
…explicitly recognized that commercially available optical fiber Bragg
grating sensors were bench-sized units weighing several pounds were too
heavy and large to be of use” and “award[ed] a contract to [Appellant]’s
company because … the invention claimed …was much lighter and smaller
than [other] commercially available [products]” (id.).
However, the Examiner finds that “Xiao explicitly teaches … that
optical fiber 15 can be directly coupled (without a circulator) to the sensor
interrogation unit” (Ans. 15). The Examiner notes that “sensing ‘to monitor
reflected signals’ is not recited in the rejected claims, [thus] this implied
limitation ‘monitor reflected signals’ cannot be read into the claims” (id.).
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Appellant’s argument that the “optics block’s ports are allocated to
detecting signals reflected from the FBG string” is not commensurate in
scope with the specific language of claim 1 (App. Br. 9). In particular, claim
1 does not recite such “to detecting signals reflected from the FBG string” as
Appellant argues.
We give the claim its broadest reasonable interpretation consistent
with the Specification. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Claim 1 does not define “optics block” other than it has a gradient
refractive index and a plurality of ports corresponding to the transducer
wavelength encoded optical signature and a broadband spectrum light
source. The Specification is silent with respect to an optics block. Thus, we
give “an optics block” its broadest reasonable interpretation as any optical
device having a gradient refractive index including an integrated planar
wave guide structure directly coupled to a fiber, as consistent with the
Specification and claim 1.
Xiao is directed to a handheld interrogator system having an AWG
based interrogator chip coupled to an optics fiber through an optical wave
guide based circulator to sense reflected signals from an array of FBG
sensors; wherein, the chip has a port for receiving the sensed signals and a
broadband light source and other ports connected to a photo detector array
(FF 1 and 2). A disclosed embodiment includes the elimination of the
circulator, where the AWG based interrogator chip is directly coupled to the
optics fiber and broadband light source (id.).
We find Xiao’s AWG based interrogator chip comprises an optics
device having a plurality of ports, one of which that directly couples to the
optics fiber at a single point. We find further that the FBG sensors comprise
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FBG transducers and that one of the ports of the AWG based interrogator
chip connected to the broadband light source comprises the broadband
spectrum light source for interrogation of the FBG transducers. That is, we
find that Xiao handheld interrogator system comprises
an optics block … directly coupled to said fiber at a single
point, the optics block including a plurality of ports along its
edges, certain of said ports being allocated to corresponding
ones of said signatures [of each FBG transducer], one of said
ports having a broadband spectrum light source for
interrogation of the FBG transducers of said fiber
(claim 1).
Further, White discloses a tapered, refractive-index-graded waveguide
that is used for transmitting signals most efficiently to standard optical fibers
(FF 3). We find the refractive-index-graded waveguide comprises an optical
device having a gradient refractive index including an integrated planar
wave guide structure. That is, we find that White’s system comprises an
“optics block having a gradient refractive index including an integrated
planar wave guide structure” (claim 1).
Similarly, Kempen discloses a waveguide structure that includes a
core and cladding material, where each have a refractive index profile in the
direction of light propagation (FF 4). We find waveguide structure
comprises an optical device having a gradient refractive index including an
integrated planar wave guide structure. That is, we find that Kempen’s
waveguide structure comprises an “optics block having a gradient refractive
index including an integrated planar wave guide structure” (claim 1).
In view of our claim construction above, we find that the combination
of Xiao, White, and Kempen at least suggests all of the limitations of claim
1.
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The Supreme Court has stated that “[t]he combination of familiar
elements according to known methods is likely to be obvious when it does
no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398, 416 (2007).
Thus, we find no error in the Examiner’s finding that the combination
of Xiao’s handheld interrogator system (including an AWG based
interrogator chip coupled to an optics fiber) that senses reflected signals
from an array of FBG sensors with the refractive-index-graded waveguide ,
as disclosed in White and the a waveguide structure including a core and
cladding material, each having a refractive index profile, as disclosed in
Kempen, produces an optics block having a gradient refractive index
including an integrated planar wave guide structure directly coupled to said
fiber at a single point which would be obvious (Ans. 6; FF 1-4).
As to Appellant’s contention that “Examiner has erred in summarily
dismiss[ing] the Rule 132 evidence” (App. Br. 13), to be given substantial
weight in the determination of obviousness or nonobviousness, evidence of
secondary considerations must be relevant to the subject matter as claimed.
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 305
n.42 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986). When an
Appellant asserts that commercial success supports its contention of
nonobviousness, Appellant bears the burden of establishing a sufficient
nexus between the alleged commercial success and the specific features of
the claimed invention exist. Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d
1530, 1539 (Fed. Cir. 1983). Gross sales figures do not show commercial
success absent evidence as to market share, Cable Electric Products, Inc. v.
Genmark, Inc., 770 F.2d 1015, 226 USPQ 881 (Fed. Cir. 1985).
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Although Appellant’s Appeal Brief was accompanied by the evidence
of alleged commercial success, we find that both Navy Contracts from
Exhibits A and B fail to establish a showing of commercial success. In
particular, the showing must include at least (1) a description of what was
sold (mapping the claimed features to the product sold), (2) a description of
the relevant market for the product, and (3) sales results including market
share. MPEP 716.03 (a)-(b). However, Exhibits A and B fail to provide (1)
a description of the product sold (the Navy Contract is silent as the product
or services sold; rather, it references a “SCHEDULE” which Appellant fails
to provide), (2) a description of the market, and (3) the sales results
including Appellant’s market share for the claimed invention. Without this
disclosure, there can be no support for commercial success. That is, the
Navy Contracts for the sale of products and/or services do not constitute
commercial success without disclosure of the specific product/services sold,
consideration of the features that were directly responsible for the alleged
commercial success, and consideration of the product sale’s relation to the
overall market share.
We find further that Appellant has failed to demonstrate the nexus
between the alleged commercial success and the merits of the claimed
invention, since Appellant does not provide any evidence that clearly
connects the Navy Contract to the features of the claimed invention or any
evidence that the alleged commercial success was derived from the claimed
invention. That is, although Appellant provided the description of the
miniaturized optical FBG sensor interrogator desired by the Navy in Exhibit
C, Exhibit C is silent as to any language that connects the claimed invention
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to the alleged commercial success other than the device must be a FBG
sensor interrogation unit.
Therefore, we are not persuaded by Appellant’s arguments pertaining
to secondary considerations as they relate to the Examiner’s obviousness
rejections.
Accordingly, we find no error in the Examiner’s rejection of claim 1
under 35 U.S.C. § 103(a) over Xiao in view of White and Kempen. Further,
claims 2-7, 9-17, and 21 (depending from claims 1) which have not been
argued separately, fall with claim 1.

V. CONCLUSION AND DECISION
The Examiner’s rejection of claims 1-7, 9-17, and 21 under 35 U.S.C.
§ 103(a) 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)(1)(iv).

AFFIRMED

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