Ex Parte Schaich et al

Patent Trial and Appeal Board

Dec 15, 2014

11608182 (P.T.A.B. Dec. 15, 2014)

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.
11/608,182 12/07/2006 Frank Schaich LUC-881/ALU 114953 8898
47382 7590 12/15/2014
Carmen Patti Law Group, LLC
One N. LaSalle Street
44th Floor
Chicago, IL 60602
EXAMINER
LI, SHI K
ART UNIT PAPER NUMBER
2637
MAIL DATE DELIVERY MODE
12/15/2014 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 FRANK SCHAICH and JOACHIM SPEIDEL
____________________

Appeal 2012-006774
Application 11/608,1821
Technology Center 2600
____________________

Before ST. JOHN COURTENAY III, THU A. DANG, and
LARRY J. HUME, Administrative Patent Judges.

HUME, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134(a) of the final
rejection of claims 1–4 and 6–14. Appellants have previously canceled
claim 5. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 According to Appellants, the real party in interest is Lucent Technologies,
Inc., now known as Alcatel-Lucent. App. Br. 3.
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STATEMENT OF THE CASE2
The Invention
Appellants' invention relates to a multichannel optical transmission
system, coder, and coding method "in which coding is carried out both in the
time direction and over a plurality of channels, a mapping being selected for
the coding such that the simultaneous occurrence of bits with a signal value
of '1' in neighbouring channels is excluded." Spec. 16 ("Summary").
Exemplary Claims
Claims 1, 6, and 14, reproduced below, are representative of the
subject matter on appeal (formatting and emphases added to disputed
limitations):
1. A coding method for multichannel optical
transmission systems comprising:
transmitting a plurality of data signals via wavelength
multiplex channels; and
coding data signals both in the direction of time as well
as via at least two of the signals using a mapping in which each
bit pattern to be transmitted is assigned a specified coded bit
pattern and in which
the bit patterns in the at least two signals are coded
together by excluding the simultaneous occurrence of bits with
a signal value of '1' in signals transmitted in adjacent channels.

2 Our decision relies upon Appellants' Appeal Brief ("App. Br.," filed
Jan. 19, 2012); Reply Brief ("Reply Br.," filed Mar. 20, 2012); Examiner's
Answer ("Ans.," mailed Mar. 12, 2012); Final Office Action ("Final Act.,"
mailed Nov. 9, 2011); and the original Specification ("Spec.," filed
Dec. 7, 2006).
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6. The coding method according to claim 1, wherein
the most improbable codewords are excluded by means of a
suitable algorithm prior to decoding.
14. An encoder, wherein the encoder:
performs interchannel-time coding of a plurality of
transmission sequences for transmission via wavelength
multiplex channels;
codes data signals both in the direction of time as well as
via at least two of the signals; and
carries out a mapping in which each of the bit patterns to
be transmitted is assigned a specified coded bit pattern and in
which the bit patterns in the at least two signals are coded
together by excluding the simultaneous occurrence of bits with
a signal value of '1' in signals transmitted in adjacent channels.
Prior Art
The Examiner relies upon the following prior art as evidence in
rejecting the claims on appeal:
Chen US 7,260,764 B2 Aug. 21, 2007
Bernhardsson et al.
("Berhnardsson")
US 2006/0126761 A1 Jun. 15, 2006
"Digital Communications," 2nd ed., Bernard Sklar, Prentice
Hall, New Jersey, 2001, pp. 313–15 (herein after "Sklar").
K. Yu et al., "Design of New Family of Two-Dimensional
Wavelength-Time Spreading Codes for Optical Code Division
Multiple Access Networks", Electronics Letters, Vol. 35,
No. 10, 13 May 1999 (hereinafter "Yu").
K. Yu et al., "Wavelength-Time Spreading Optical CDMA
System Using Wavelength Multiplexers and Mirrored Fiber
Delay Lines", IEEE Photonics Technology Letters, Vol. 12,
No. 9, Sept. 2000 (hereinafter "Yu2").

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Parker et al., "Space-Time Codes for Future WLANs:
Principles, Practice, and Performance", IEEE Communications
Magazine, December 2004 (hereinafter "Parker").
Rejections on Appeal
R1. Claim 6 stands rejected under 35 U.S.C. § 112, first paragraph,
as failing to comply with the enablement requirement. Ans. 4.
R2. Claims 2–4, 6, and 14 stand rejected under 35 U.S.C. § 112,
first paragraph, as failing to comply with the written description
requirement. Ans. 5.
R3. Claims 1–4 and 14 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Yu. Ans. 6.
R4. Claim 6 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu and Bernhardsson. Ans. 6.
R5. Claims 7 and 8 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Yu. Ans. 7.
R6. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu and Chen. Ans. 7–8.
R7. Claim 10 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu and Yu2. Ans. 8.
R8. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu, Yu2, and Sklar. Ans. 9.
R9. Claim 12 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu, Yu2, and Parker. Ans. 9–10.
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R10. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
obvious over the combination of Yu, Yu2, and Chen. Ans. 10.
GROUPING OF CLAIMS
Based on Appellants’ arguments (App. Br. 7–12), we decide the
appeal of Rejection R3 of claims 1–4 and 14 on the basis of representative
claim 1.
We decide the appeal of separately argued Rejection R1 of claim 6
and Rejection R2 of claims 2–4, infra.
We address remaining claims 6–13 in rejections R2 (claims 6 and 14),
and R4–R10, not argued separately, infra.
ISSUES AND ANALYSIS
In reaching this decision, we consider all evidence presented and all of
Appellants' arguments actually made. We do not consider arguments which
Appellants could have made but chose not to make in the Briefs so that any
such arguments are deemed to be waived. 37 C.F.R. § 41.37(c)(1)(vii).
We agree with Appellants' arguments with respect to Rejection R2 of
claims 2–4. However, we disagree with Appellants' arguments, and adopt as
our own (1) the findings and reasons set forth by the Examiner in the action
from which this appeal is taken and (2) the reasons and rebuttals set forth by
the Examiner in the Examiner's Answer in response to Appellants'
arguments with respect to Rejections R1, R2 (claims 6 and 14), and
Rejections R3–R10, and we incorporate such findings, reasons, and rebuttals
herein by reference unless otherwise noted. We highlight and address
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specific findings and arguments regarding claims 1, 6, and 14 for emphases
as follows:
1. § 112, ¶ 1, Enablement Rejection R1 of Claim 6
Issue 1
Appellants argue (App. Br. 7–8; Reply Br. 4–5) the Examiner's
enablement rejection of claim 6 under 35 U.S.C. § 112, first paragraph, is in
error. These contentions present us with the following issue:
Did the Examiner err in concluding the recited method of claim 6 in
which "the least likely codewords are excluded by means of an algorithm
before the actual decoding" lacks an enabling disclosure such that a person
with skill in the art could make and/or use the invention?
Analysis
Appellants contend their Published Application3 "satisfies the
enablement requirement" (Reply Br. 5), and further allege, "[a]lthough the
Examiner fails to explain his reasoning, the Examiner seems to be
suggesting that enablement requires teaching a specific algorithm . . . [and
therefore, r]eversal of the rejection is . . . requested." Id.
We agree with the Examiner's findings that mere mention of "by
means of an algorithm" in the Specification, absent more, does not meet the
enablement requirement.
We agree because any analysis of whether a particular claim is
supported by the disclosure in an application requires a determination of

3 "[T]he least likely codewords are excluded by means of an algorithm
before the actual decoding." Published Application ¶ 42 (as amended); and
see Spec. 8.
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whether that disclosure, when filed, contained sufficient information
regarding the subject matter of the claims so as to enable one skilled in the
pertinent art to make and use the claimed invention. The statute (35 U.S.C.
§ 112) has been interpreted to require the claimed invention be enabled so
that any person skilled in the art can make and use the invention without
undue experimentation. In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).
Factors to be considered in determining whether a
disclosure would require undue experimentation . . . include (1)
the quantity of experimentation necessary, (2) the amount of
direction or guidance presented, (3) the presence or absence of
working examples, (4) the nature of the invention, (5) the state
of the prior art, (6) the relative skill of those in the art, (7) the
predictability or unpredictability of the art, and (8) the breadth
of the claims.
Id.
Claim 6 recites, in pertinent part, "the most improbable codewords are
excluded by means of a suitable algorithm prior to decoding." We note
Appellants' only mention of "a suitable algorithm" is in the Specification at
page 4 ("Summary of the Invention"), page 8 (cited above), and in
originally-filed claim 6.
There is no specific algorithm disclosed or suggested, nor do
Appellants even argue a person with skill in the art would know what a
suitable algorithm would entail. Given the lack of direction or guidance
presented in the Specification (Wands factor 2), the lack of any working
example (Wands factor 3), and the breadth of the claim, i.e., claiming "a
suitable algorithm" (Wands factor 8), we conclude claim 6 lacks an enabling
disclosure that would allow a person with skill in the art to make and/or use
the claimed invention without undue experimentation.
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Accordingly, Appellants have not persuaded us of Examiner error in
the enablement rejection of claim 6, and we sustain the rejection.
2. § 112, ¶ 1, Written Description Rejection of Claims 2–4, 6, and 14
Issue 2
Appellants argue (App. Br. 8; Reply Br. 5–8) the Examiner's written
description rejection of claims 2–4 under 35 U.S.C. § 112, first paragraph, is
in error.4 These contentions present us with the following issue:
Did the Examiner err in finding claims 2–4 lack written description
support that demonstrates the inventors were in possession of the invention
at the time the application was filed?
Claims 2–4
Analysis
"Compliance with the written description requirement is a question of
fact." ICU Med., Inc. v. Alaris Med. Sys., Inc., 558 F.3d 1368, 1376 (Fed.
Cir. 2009).
Appellants state the Specification was amended during prosecution to
change the disclosure of "embodiments of the invention that 'may be
envisaged' to instead refer to embodiments of the invention that 'may be
used.'" App. Br. 8; and see Reply Br. 6 ("[T]he Examiner seems to be
suggesting that details of word choices elected in a specification-even if later
amended-can somehow invalidate a specification's detailed teachings
regarding an invention . . . [but] the MPEP is clear that written description

4 Appellants offer no arguments in their principal brief concerning the
written description rejection of claims 6 and 14 under § 112, first paragraph.
See App. Br. 8.
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adequacy is a practical determination, not one that hangs on specific
phraseology . . . .").
We find the problem most likely to be in the translation of the original
priority European Application from German to English, during which time
the phrase "may be envisaged" was apparently chosen. We do not find a
substantive difference, in this particular case, with the substitution of the
more commonly used phrase in U.S. practice of "may be used" for the
arguably more stilted phrase "may be envisaged."
Further, we find the dependent claim limitations in claims 2–4, i.e., "a
maximum Hamming distance" (claim 2), "minimum Hamming weights"
(claim 3), and "a minimum number of '0 1' and '1 0' bit patterns " (claim 4)
are all well-known in the art, and therefore would not necessitate extensive
detail be provided in the Specification. See Synthes USA, LLC v. Spinal
Kinetics, Inc., 734 F.3d 1332, 1341 (Fed. Cir. 2013) (“The ‘level of detail
required to satisfy the written description requirement varies depending on
the nature and scope of the claims and on the complexity and predictability
of the relevant technology.’” (citation omitted.)).
For the foregoing reasons, we find the written description reasonably
conveys to one of ordinary skill in the art the inventor had possession of the
claimed subject matter of claims 2–4 as of the filing date. Therefore, we
reverse the Examiner’s written description rejection of claims 2–4 under
35 U.S.C. § 112, first paragraph.
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Claims 6 and 14
Analysis
Appellants provide no arguments in the principal Brief to rebut the
Examiner's written description rejection of claims 6 and 14 under § 112, first
paragraph. Arguments not made are considered waived. See Hyatt v.
Dudas, 551 F.3d 1307, 1314 (Fed. Cir 2008) ("When the appellant fails to
contest a ground of rejection to the Board, section 1.192(c)(7) [(now section
41.37(c)(1)(vii))] imposes no burden on the Board to consider the merits of
that ground of rejection . . . [T]he Board may treat any argument with
respect to that ground of rejection as waived."). As for any arguments in
connection with these claims made for the first time in the Reply Brief, we
find these arguments to be untimely. See "Reply Brief," infra.
Accordingly, lacking any timely, substantive argument, we pro forma
sustain the Examiner's written description rejection of claims 6 and 14 under
§ 112, first paragraph.
3. § 102 Rejection R3 of Claims 1–4 and 14
Issue 3
Appellants argue (App. Br. 8–11; Reply Br. 8–9) the Examiner's
rejection of claims 1–4 and 14 under 35 U.S.C. § 102(b) as being anticipated
by Yu is in error. These contentions present us with the following issue:
Did the Examiner err in finding the cited prior art discloses a method
in which, inter alia, "the bit patterns in the at least two signals are coded
together by excluding the simultaneous occurrence of bits with a signal
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value of '1' in signals transmitted in adjacent channels," as recited in
claim 1?
Analysis
Appellants contend, "the Examiner's suggestion [that Yu Figure 1
discloses the disputed limitation] is at best speculative . . . [and] the
Examiner's suggestion is probably not correct." App. Br. 9 (emphasis
added). Appellants further allege, "at least it is safe to say that Figure 1 of
Yu does not teach that the signal has no simultaneous values of '1' in
adjacent channels." Id. We disagree with Appellants, and find the
Examiner's interpretation of Yu, Figure 1, on its face, is not unreasonable.
See Ans. 6 and 12.
During examination, a claim must be given its broadest reasonable
interpretation consistent with the Specification, as it would be interpreted by
one of ordinary skill in the art. Because the applicant has the opportunity to
amend claims during prosecution, giving a claim its broadest reasonable
interpretation will reduce the possibility that the claim, once issued, will be
interpreted more broadly than is justified. In re Yamamoto, 740 F.2d 1569,
1571 (Fed. Cir. 1984); In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989)
("During patent examination the pending claims must be interpreted as
broadly as their terms reasonably allow.").
Further, a determination that a claim is anticipated under 35 U.S.C.
§ 102(b) involves two analytical steps. First, the Board must interpret the
claim language, where necessary. Because the PTO is entitled to give
claims their broadest reasonable interpretation, a court's review of the
Board's claim construction is limited to determining whether it was
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reasonable. In re Morris, 127 F.3d 1048, 1055 (Fed.Cir.1997). Secondly,
the Board must compare the construed claim to a prior art reference and
make factual findings that "each and every limitation is found either
expressly or inherently in [that] single prior art reference." In re Crish, 393
F.3d 1253, 1256 (Fed. Cir. 2004).
In this case, the Examiner maps the limitations to the cited prior art.
See Yu, Fig. 1 (and related discussion). In particular, the Examiner maps the
disputed limitation which requires, in pertinent part, "excluding the
simultaneous occurrence of bits with a signal value of '1' in signals
transmitted in adjacent channels." Claim 1. Claim 14 recites a substantially
similar limitation. We find the disputed limitation of claim 1 clearly reads
on Yu, Figure 1, as set forth by the Examiner. See Ans. 12.
"Anticipation of a patent claim requires a finding that the claim at
issue 'reads on' a prior art reference." Atlas Powder Co. v. IRECO, Inc., 190
F.3d 1342, 1346 (Fed Cir. 1999) (internal citations omitted). "In other
words, if granting patent protection on the disputed claim would allow the
patentee to exclude the public from practicing the prior art, then that claim is
anticipated, regardless of whether it also covers subject matter not in the
prior art." Id. We find the disputed limitation of claim 1 reads on Yu,
Figure 1.
Appellants argue:
Indeed, Yu teaches away from the claimed invention by
teaching optical CDMA. CDMA is well-known to be a
technology that uses orthogonal codes, spreading information
from many users over a single physical channel. Therefore,
CDMA is inconsistent with coded bit values in one channel
being associated with bit channels of any other channel.
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. . .
According to well-established case law, if a certain piece
of prior art is inconsistent with and teaches away from one or
more claims, as Yu's teachings regarding CDMA are
inconsistent with and teach away from-as explained above —
the Appellants' claims, then the claims need not specifically
exclude the inconsistent prior art technology. CDMA is
inconsistent with the instant invention as explained above, and
accordingly need not be explicitly excluded in the claims.
App. Br. 10 (emphasis added). Appellants do not cite to any case law in
support of their incorrect legal argument. However, we note, "[a] reference
is no less anticipatory if, after disclosing the invention, the reference then
disparages it . . . . [T]he question whether a reference 'teaches away' from
the invention is inapplicable to an anticipation analysis." Celeritas Techs.,
Ltd. v. Rockwell Int'l Corp., 150 F.3d 1354, 1361 (Fed.Cir. 1998).
We further note, Appellants' claim 1 does not preclude optical
CDMA, such that Appellants' arguments are not only legally incorrect, but
are also not commensurate with the scope of the claim.5
In the Reply, Appellants argue, "the Examiner has added nothing in
his Answer to bolster these suggestions." Reply Br. 8. We point out
Appellants' assertions against the Examiner's findings of fact amount to
unsupported attorney argument without factual evidence and with little
probative value, and therefore we give them little weight. See In re Geisler,
116 F.3d 1465, 1470 (Fed. Cir. 1997); see also In re Huang, 100 F.3d 135,

5 See In re Baxter Travenol Labs., 952 F.2d 388, 391 (Fed. Cir. 1991) ("It is
not the function of this court [or this Board] to examine the claims in greater
detail than argued by an appellant, looking for [patentable] distinctions over
the prior art.").
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139-140 (Fed. Cir. 1996); see also In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984).6
Accordingly, we do not find any reversible error in the Examiner's
reliance on the disclosure of Yu to anticipate claim 1, and claims 2–4
and 14, not separately argued, and which fall therewith. See "Claim
Grouping," supra.
§ 103(a) Rejections R4–R10 of Claims 6–13
In view of the lack of any arguments directed to the obviousness
Rejection R7 of independent claim 10 in either the Appeal Brief or Reply
Brief, we sustain the Examiner's rejection. Arguments not made are
considered waived. See Hyatt, 551 F.3d at 1314.
Similarly, Appellants do not provide any separate or substantive
arguments directed to obviousness Rejections R4–R6 and R8–R10 of claims
6–9 and 11–13 under § 103. See App. Br. 11–12. When Appellants do not
separately argue the patentability of dependent claims, the claims stand or
fall with the claims from which they depend. In re King, 801 F.2d 1324,
1325 (Fed. Cir. 1986); In re Sernaker, 702 F.2d 989, 991 (Fed. Cir. 1983).
Accordingly, we sustain the Examiner's rejections of dependent
claims 6–13, as they fall with their respective independent claims 1 and 10.

6 "Argument in the brief does not take the place of evidence in the record."
In re Schulze, 346 F.2d 600, 602 (CCPA 1965) (citing In re Cole, 326 F.2d
769, 773 (CCPA 1964)). See also In re Lovin, 652 F.3d 1349, 1357 (Fed.
Cir. 2011)("we hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.").
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REPLY BRIEF
To the extent Appellants advance new arguments in the Reply Brief
(Reply Br. 4–10) not in response to a shift in the Examiner's position in the
Answer, we note that "[a]ny bases for asserting error, whether factual or
legal, that are not raised in the principal brief are waived." Ex parte Borden,
93 USPQ2d 1473, 1474 (BPAI 2010) (informative). Cf. with Optivus Tech.,
Inc. v. Ion Beam Appl'ns. S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) ("[A]n
issue not raised by an appellant in its opening brief . . . is waived.").7
CONCLUSIONS
(1) The Examiner did not err with respect to the enablement
Rejection R1of claim 6 under 35 U.S.C. § 112, first paragraph, and we
sustain the rejection.
(2) The Examiner erred with respect to the written description
Rejection R2 of claims 2–4 under 35 U.S.C. § 112, first paragraph, and we
do not sustain the rejection.
(3) The Examiner did not err with respect to the written description
Rejection R2 of claims 6 and 14 under 35 U.S.C. § 112, first paragraph, and
we sustain the rejection.

7 In particular, we note such an untimely argument appears in the Reply
Brief in rebuttal to the § 112, first paragraph, written description rejection of
claims 6 and 14. Reply Br. 6–8. This untimely rebuttal argument was not
presented in the Appeal Brief, appeared for the first time in the Reply, and
was not presented in response to a shift in the Examiner's position between
the Final Action and Answer.
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(4) The Examiner did not err with respect to the anticipation
Rejection R3 of claims 1–4 and 14 under 35 U.S.C. § 102(b) over Yu, and
we sustain the rejection.
(5) The Examiner did not err with respect to the various
obviousness rejections of claims 6–13 under 35 U.S.C. § 103(a) over the
cited prior art combinations of record, and we sustain the rejections.
Because we have affirmed at least one ground of rejection with
respect to each claim on appeal, we affirm the Examiner's decision. See 37
C.F.R. § 41.50(a)(1). 8

8 Although not before us on appeal, we note claim 14 was originally
presented as an improper "single means" apparatus claim (i.e., "coder"), and
was subject to an undue breadth rejection as lacking enablement under 35
U.S.C. § 112, first paragraph. During prosecution, claim 14 was amended to
remove the "means for" limitation, leaving absolutely no structure recited,
but only function. While features of an apparatus may be recited either
structurally or functionally, claims directed to an apparatus must be
distinguished from the prior art in terms of structure rather than function. In
re Schreiber, 128 F.3d 1473, 1477-78 (Fed. Cir. 1997) (The absence of a
disclosure in a prior art reference relating to function did not defeat the
Board’s finding of anticipation of claimed apparatus because the limitations
at issue were found to be inherent in the prior art reference); see also In re
Swinehart, 439 F.2d 210, 212-13 (CCPA 1971); In re Danly, 263 F.2d 844,
847, (CCPA 1959). “[A]pparatus claims cover what a device is, not what a
device does.” Hewlett-Packard Co. v.Bausch & Lomb Inc., 909 F.2d 1464,
1469 (Fed. Cir. 1990) (emphasis in original). We have found independent
claim 14 to be unpatentable under § 102 as being anticipated, and under
§ 112, first paragraph, for lack of adequate written description support.
Therefore, we do not reject this claim redundantly based on other concerns
we might have. However, should there be further prosecution of this
application; we suggest the Examiner re-review pending claim 14 for
compliance with the enablement requirement of § 112, first paragraph,
and/or the definiteness requirement of § 112, second paragraph.
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DECISION
We affirm the Examiner's decision rejecting claims 1–4 and 6–14.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED

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