Ex Parte Shaver et al

Patent Trial and Appeal Board

Feb 25, 2016

13478255 (P.T.A.B. Feb. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/478,255 05/23/2012
101662 7590 02/29/2016
Murphy, Bilak & Homiller, PLLC
1255 Crescent Green
Suite 200
Cary, NC 27518
FIRST NAMED INVENTOR
Jesse Shaver
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.
1013-0002 6344
EXAMINER
SANDHU, AMRITBIR K
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
02/29/2016 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):
official@mbhiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JESSE SHA VER and TODD NICHOLS
Appeal2014-002000
Application 13/478,255 1
Technology Center 2600
Before ELENI MANTIS MERCADER, CARL L. SILVERMAN, and
JAMES W. DEJMEK, Administrative Patent Judges.
SILVERMAN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's final
rejection of claims 1-9 and 20. Claims 10---19 and 21 are withdrawn. App.
Br. 2. Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b ).
We REVERSE.
1 The real party in interest is Vadum, Inc. App. Br. 2.
Appeal2014-002000
Application 13/478,255
STATEMENT OF THE CASE
The invention relates to a photonic compressive sensing receiver.
Abstract.
Claim 1 is exemplary of the subject matter on appeal:
1. A compressive sensing receiver, comprising:
a sampling-signal generator circuit configured to supply a
plurality of modulation signals, wherein each modulation signal
is a periodic spreading-signal;
two or more continuous-output optical sources having
distinct spectral outputs and configured to produce spread
source signals, each optical source having a modulation input
coupled to a corresponding one of the modulation signals;
an optical wavelength-division multiplexer configured to
combine the spread source signals from the optical sources to
produce a combined multi-spectral optical signal;
a first optical modulator having an optical input
configured to receive at least a first portion of the combined
multi-spectral optical signal, a first modulation input configured
to receive a first broadband, sparse, multiband input, and a first
modulator output configured to output a first modulated optical
signal;
an optical wavelength-division demultiplexer configured
to separate the first modulated optical signal into a plurality of
optical output signals, each optical output signal corresponding
to one of the distinct operating wavelengths of the continuous-
output optical sources;
two or more optical receiver branches corresponding to
the two or more continuous-output optical sources, wherein
each optical receiver branch is coupled to one of the optical
output signals from the optical wavelength-division
demultiplexer and comprises a photodetector receiver followed
by an analog-to-digital converter;
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Appeal2014-002000
Application 13/478,255
and a signal processing circuit configured to receive
digital output signals from the analog-to-digital converters and
to detect individual signals received by the broadband front-end
system, or characterize signals received by the broadband front-
end, or demodulate signals received by the broadband front-
end, or perform a combination of said detecting, characterizing,
and demodulating.
App. Br. 20-21 (Claims Appendix).
THE REJECTIONS
Claims 1 and 3-5 stand rejected under 35 U.S.C. § 103 (a) as being
unpatentable over Nan et al. (Optical Analog-to-Digital Conversion System
Based on Compressive Sampling, 23 :2 IEEE PHOTONICS TECH. LETTERS 67,
67-69 (2011)) (hereinafter "Nan") in view of Sakuma (US 2012/0026578
Al; published Feb. 2, 2102). Final Act. 4--9.
Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nan in view of Sakuma and Dickson et al. (An 80-Gb/s
231-1 Pseudorandom Binary Sequence Generator in Si Ge Bi CMOS Tech.,
40: 12 J. OF SOLID-STATE CIRCUITS 2735, 2735-2745 (2005)) (hereinafter
"Dickson"). Final Act. 9-10.
Claims 6-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Nan in view of Sakuma and Sanchez (US 2006/0165139
Al; published July 27, 2006). Final Act. 10-13.
Claim 20 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Nan in view of Sakuma. Final Act. 13-16.
ANALYSIS
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Application 13/478,255
Appellants and the Examiner dispute whether it is obvious to modify
Nan's receiver apparatus, which includes a pulsed laser source, to include
Sakuma's continuous laser optical source ("two or more continuous-output
optical sources"), as recited in claim 1. Final Act. 4--8; App. Br. 11, 13-15;
Ans. 3-5; Reply Br. 3-9.
The Examiner finds Nan teaches all the limitations of claim 1, except
the continuous output laser, and relies on Sakuma for this limitation. Final
Act. 4--8 (citing Sakuma i1 95 (laser beam sources 11, 16, 17) ). The
Examiner concludes "it would be obvious to combine the continuous output
lase[r] source of Sakuma with Nan to have the power output of the laser
source continuous over time period." Id. at 8. Appellants argue, and we
agree, the Examiner's conclusion in the Final Action is inadequate because it
lacks "articulated reasoning with rational underpinning, that it would have
been obvious to modify Nan's receiver by replacing the pulsed optical
sources discussed in that reference with continuous-output sources." App.
T""t. "1AI / •,• "J.fT\T""fT\(\l"\"1Al-1 TTT f' ,1 T..Tr1T'\T ,,1 r--, rT11 rt T tlr. l <+ ~ cnmg 11-11L1,1 s L l <+ 1 i11, rounn para.; A.)K 1m t. co. v. 1 etejtex, 1nc.,
550 U.S. 398, 418 (2007). According to Appellants, the Final Office Action
presents no explanation why use of a continuous laser would be desirable in
Nan nor any evidence "that the person of ordinary skill in the art would have
any reason to believe that such a substitution is possible." Id. at 14.
Regarding whether using a continuous laser is desirable, Appellants argue
Nan teaches its system is superior to previous solutions "precisely because
of the very narrow pulses that can be achieved with pulsed optical sources."
App. Br. 14--15 (citing Nan 67 (col. 2, 11. 16-31); see also id. at 68 (col. 1, 11.
27-36; 1. 42---col. 2, 1. 13)). We are persuaded by Appellants' arguments that
the Examiner's Final Action does not "provide a satisfactory reason,
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Application 13/478,255
supported by facts, to explain why such a modification would have been
obvious" to one of ordinary skill in the art. App. Br. 15.
In the Answer, the Examiner finds the difference between the claimed
subject matter and the prior art is in "the substitution of the continuous wave
laser sources of the secondary reference for the pulsed optical sources of the
primary reference." Ans. 4. According to the Examiner, the "simple
substitution of one known element for another producing a predictable result
renders the claim obvious according [to] the Rational B of KSR principles
which states that the simple substitution of one element for another to obtain
predictable results can be used as motivation to combine two references."
Id.
In the Reply Brief, Appellants argue the Examiner presents no actual
evidence to support its finding that the modification is a "simple
substitution" with predictable results. Reply Br. 5. Appellants do not
dispute the existence of continuous-output lasers; Appellants argue the
Examiner presents no support for the modification. Id. at 7. Moreover,
according to Appellants, the Examiner presents no support for the finding
that "the substitution of continuous output laser source by Sakuma does not
change the functionality of the compressive sampling receiver." Reply Br.
7 (citing Ans. 5). Appellants further argue the Examiner's conclusion that
the "substitution would yield 'predictable results' is unsupported by
evidence and is actually contradicted by the only relevant evidence in the
record, i.e., Nan's teachings that the compressive receiver should include
pulsed laser sources having extremely short and precise pulses." Reply Br.
9.
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Application 13/478,255
We are persuaded by Appellants' arguments. While the Examiner's
statement the "simple substitution of one known element for another
producing a predictable result renders the claim obvious" can be applicable
to find obviousness when based on adequate factual basis, here, the
Examiner presents inadequate factual basis. Specifically, there is inadequate
basis that this is a "simple" substitution and the results would be predictable.
As stated by the Supreme Court, the Examiner's obviousness rejection
must be based on
"some articulated reasoning with some rational underpinning to
support the legal conclusion of obviousness" .... [H]owever,
the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can
take account of the inferences and creative steps that a person
of ordinary skill in the art would employ.
KSR, 550 U.S. at 418 (quoting In re Kahn, 441F.3d977, 988 (Fed. Cir.
2006)). Here, we agree with Appellants the Examiner presents inadequate
articulated reasoning and rational underpinnings to support the obviousness
conclusion. See KSR, 550 U.S. at 417-18.
In view of the above, we do not sustain the rejection of claim 1, and
independent claim 20 as this claim also recites a "continuous-output optical
source" discussed above regarding claim 1. We also do not sustain the
rejection of dependent claims 2-9. Cf In re Fritch, 972 F.2d 1260, 1266
(Fed. Cir. 1992) ("[D]ependent claims are nonobvious if the independent
claims from which they depend are nonobvious.").
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DECISION
We reverse the Examiner's decision rejecting claims 1-9 and 20.
REVERSED
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