14446543 (P.T.A.B. Oct. 2, 2018)

Ex Parte TAVERNER

Patent Trial and Appeal BoardOct 2, 2018

14446543 (P.T.A.B. Oct. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/446,543 07/30/2014 Domino TA VERNER 36735 7590 10/04/2018 PATTERSON & SHERIDAN, L.L.P. /Weatherford 24 Greenway Plaza, Suite 1600 HOUSTON, TX 77046 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. WEAT/1155US 2834 EXAMINER LEE,SHUNK ART UNIT PAPER NUMBER 2884 NOTIFICATION DATE DELIVERY MODE 10/04/2018 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): PSDocketing@pattersonsheridan.com Pair_eOfficeAction@pattersonsheridan.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DOMINO TA VERNER Appeal2017-009155 Application 14/446,543 Technology Center 2800 Before ROMULO H. DELMENDO, CHRISTOPHER L. OGDEN, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. Â§ 134(a) from a rejection of claims 1-12. 3 We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 In our Opinion, we refer to the Specification filed July 30, 2014 ("Spec."); the Final Action mailed September 6, 2016 ("Final Act."); the Advisory Action mailed November 15, 2016 ("Advis. Act."); the Appeal Brief, filed February 21, 2017 ("App. Br."); the Examiner's Answer mailed April 18, 2017 ("Ans."); and the Reply Brief filed June 14, 2017 ("Reply Br."). 2 Appellant is the applicant and real party in interest, Weatherford Technology Holdings, LLC. App. Br. 3. 3 Claims 13-22 have been canceled. App. Br. 26 (Claims App'x). Appeal2017-009155 Application 14/446,543 The invention relates to using a multi-peak reference grating as an optical reference element to produce an optical spectrum with a plurality of reference wavelength peaks. Spec. ,r 15. The multi-peak reference grating is suitable for use in swept wavelength interrogation systems, such as those utilizing Bragg grating sensors. Id. According to the Specification, a fiber Bragg grating (FBG) is an optical element that is highly reflective to light having wavelengths within a narrow bandwidth centered at the Bragg wavelength; other wavelengths pass through the FBG without reflection. Spec. ,r 4. The reference grating of the invention is interrogated concurrently with the Bragg grating sensors, and the position of each sensor peak relative to the reference grating peaks is used to calculate the absolute wavelength of each sensor ( and hence, the corresponding parameter of interest). Spec. i-fl5. The claims are directed to multi-peak reference gratings. Claim 1, reproduced below with disputed limitations highlighted, is illustrative of the claimed subject matter: 1. An optical wavelength measurement system, comprising: an optical source for producing light swept over a range of wavelengths; one or more optical sensing elements, each having a characteristic wavelength within the range of wavelengths; an optical reference element configured to produce a plurality of wavelength peaks spaced over at least a portion of the range of wavelengths, wherein each of the wavelength peaks is pre-characterized for absolute wavelength over a range of environmental operating conditions for the optical reference element; a sensing detector for converting light received from the optical sensing elements into a sensor electrical signal; 2 Appeal2017-009155 Application 14/446,543 a reference detector for converting light received from the optical reference element into a reference electrical signal; and a processing system configured to determine the characteristic wavelengths of the optical sensing elements based on the sensor electrical signal and the reference electrical signal. App. Br. 24 (Claims App'x). REFERENCES The Examiner relies on the following prior art in rejecting the claims on appeal: Bao et al. us 5,892,582 Apr. 6, 1999 ("Bao '582") Bao et al. US 6,449,047 Bl Sept. 10, 2002 ("Bao '047") Johnson et al. US 6,573,489 Bl June 3, 2003 ("Johnson") Taverner US 7,109,471 B2 Sept. 19, 2006 Trevor W. MacDougall and Paul E. Sanders, Large diameter waveguide Bragg grating components and their application in downhole oil and gas sensing, Fiber Optic Sensor Technology and Applications III, M. Marcus, B. Culshaw, J. Dakin, ed., 5589 Proc. of SPIE 221-232 (2004) REJECTIONS The Examiner maintains and Appellant seeks review of the following rejections: (1) claims 1 and 5-9 under AIA 35 U.S.C. Â§ I02(a)(l) as anticipated by Johnson; (2) claims 2 under AIA 35 U.S.C. Â§ 103 over Johnson in view of Taverner; (3) claim 3 under 35 U.S.C. Â§ 103 over 3 Appeal2017-009155 Application 14/446,543 Johnson in view of MacDougall; (4) claim 4 under 35 U.S.C. Â§ 103 over Johnson in view ofMacDougall and further in view of Bao '582; claims 10 and 11 under 35 U.S.C. Â§ 103 over Johnson in view of Bao '047; claim 12 under 35 U.S.C. Â§ 103 over Johnson. Final Act. 3-10; App. Br. 9-22. OPINION Rejection under 35 USCÂ§ 102(a)(l) The Examiner rejects claims 1 and 5-9 as anticipated by Johnson. Final Act. 3-5; Ans. Appellant argues claims 1 and 5-7 as a group (arguing dependent claim 8 and its dependent claim 9 as a separate group). We identify claim 1 as representative of the group; claims 5-7 will stand or fall together with claim 1. 37 C.F.R Â§ 4I.37(c)(l)(iv). The limitation at issue in the rejection of claim 1 is "an optical reference element configured to produce a plurality of wavelength peaks spaced over at least a portion of the range of wavelengths wherein each of the wavelength peaks is pre-characterized for absolute wavelength over a range of environmental operating conditions for the optical reference element." See App. Br. 9. Appellant argues that "the wavelength reference absorption cell [in Johnson's second embodiment] produces a plurality of wavelength dips or depressions, rather than a plurality of wavelength peaks," and, consequently, the second embodiment of Johnson does not teach the limitations. Id. at 9-10 (emphasis added). The Examiner finds that "an extremum in the spectroscopic data would be a minimum (i.e., dip) when the spectroscopic data is plotted in units of transmittance for the ordinate and the same extremum would be a maximum (i.e., peak) when the same spectroscopic data is plotted in units of 4 Appeal2017-009155 Application 14/446,543 absorbance," noting that absorbance is the negative common logarithm of transmittance. Ans. 4. The Examiner thus finds that the gas cell disclosed in the Specification would produce dips when the spectroscopic data is plotted in units of transmittance and peaks when the same spectroscopic data is plotted in units of absorbance. Id. The Examiner finds that "wavelength peaks" in the Specification encompass peaks in any spectroscopic units for the ordinate, including those disclosed in Johnson. Id. The Examiner also finds that Johnson expressly teaches gas cells and reference gratings produce wavelength peaks, citing peak detection elements 38 in Figs. la and 2a. Id. at 4---6. During prosecution, an application's claims are given their broadest reasonable scope consistent with the specification. In re Am. A cad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim must be read in light of the specification, as they would have been interpreted by one of ordinary skill in the art at the time of the invention. Id. On this basis, "wavelength peak" in claim 1 would be understood to be either a positive or negative value, depending on, for instance, whether transmittance or absorbance is plotted against wavelength. Appellant fails to show why a narrower construction is warranted. See In re Morris, 127 F.3d 1048, 1057 (Fed. Cir. 1997) (An applicant has an obligation to either demonstrate that the examiner's interpretation of claim language is unreasonable or amend the claim to expressly state the scope intended). Given the construction of "wavelength peak," Appellant's argument that Johnson fails to disclose wavelength peaks is not persuasive, for the reasons expressed by the Examiner and summarized above. 5 Appeal2017-009155 Application 14/446,543 Appellant also argues that the first embodiment of Johnson does not teach that "wavelength peaks being pre-characterized for absolute wavelength over a range of environmental operating conditions," but rather teaches that "the voltage-based ratio R is measured over a range of temperatures." App. Br. 10. We find this argument unpersuasive. The first embodiment of Johnson is illustrated in Fig. la, which is reproduced below: 12 / ... A 1,3,4, 5, IS '~~--~ ALU~NUM h SCANNING OPTICAL 16 --Â· v â€¢â€¢ , - ::,., ' ~ BANDPASSF!~TER 34, .... W1~5ml1~,::?=;JjjJ 7.:-1 JC. ";B ~ 14 / REFERENCE GRATINGS BROADBAND 32 34~ _ _ _ SENSING GRATINGS SOURCE 4 , I 7" r 44 _./1~ / 50/50 COUPLER 98 Â·!02 104 V(tl j A ,r36 B\,Â·,78 ' 1 PHOTODETECTORS FIG. 1a Fig. 1 a shows a block diagram of a passive, temperature compensated device for a tunable filter calibration Bragg-grating utilizing a dual-substrate Bragg grating calibration system. Johnson col. 2, 11. 24-27. Fig. la shows an array (12) of at least six Bragg gratings (14), five Bragg-gratings (14) are bonded to a common host substrate ( 16), such as glass, with a single grating ( 18) bonded to a substrate (22 ), with a different linear coefficient of thermal expansion, such as aluminum. Id. col. 2, 11. 51-56. Gratings (16) and (22) are reference gratings (21). Id. col. 2, 11. 56-57. The Bragg wavelength, AB, of an unbonded grating will vary with temperature. Id. col. 2, 11. 57-59. 6 Appeal2017-009155 Application 14/446,543 The Examiner finds, and we agree, that Johnson discloses that wavelength A is a function of voltage V. Ans. 7 (citing Johnson col. 3, 11. 35-39 and 57----62; col. 3, 1. 65---col. 4, 1. 19). Johnson discloses that the ratio R = (VrVi)l(V3-Vi), where Vi through V3 are voltages at which reference gratings are encountered, increases as temperature T increases. Johnson col. 3, 1. 63---col. 4, 1. 12. Recognizing that R is calculated from reference wavelengths Ai recorded in units of voltage Vi, we agree with the Examiner that Johnson expressly teaches that the steps for determining the reference wavelengths and the scanning filter calibration curve include a pre- characterization of the reference wavelengths by placing the reference device in an environmental chamber and recording each reference wavelengths Ai in units of voltage Vi as temperature is varied through a wide range. Ans. 8. Appellant's arguments do not persuade us of reversible error in the Examiner's rejection of claim 1 as anticipated by Johnson. We sustain the rejection of claim 1, as well as of claims 5-7, which were argued as a group with claim 1. Claims 8 and 9 Claim 8 depends from claim 1 : 8. The system of claim 1, wherein the processing system is configured to determine the characteristic wavelength for one of the optical sensing elements by: determining a relative time of a sensor peak in the sensor electrical signal corresponding to the one of the optical sensing elements; determining a relative time of a first reference peak occurring in the reference electrical signal before the sensor peak; 7 Appeal2017-009155 Application 14/446,543 determining a relative time of a second reference peak occurring in the reference electrical signal after the sensor peak; determining a first absolute wavelength corresponding to the first wavelength peak; determining a second absolute wavelength corresponding to the second wavelength peak; and calculating the characteristic wavelength for the one of the optical sensing elements based on the first absolute wavelength, the second absolute wavelength, and the relative time of the sensor peak with respect to at least one of the first or second reference peak. App. Br. 25 (Claims App'x). Claim 9 depends from claim 8 and recites further limitations not in dispute. The Examiner finds that claims 8 and 9 are anticipated by Johnson. Final Act. 4--5. Appellant argues claims 8 and 9 as a group; claim 9 will stand or fall with claim 8. 37 C.F.R. Â§ 4I.37(c)(l)(iv). Appellant argues that the Examiner, in relying on Johnson Figs. le and 2c, fails to particularly point out what is being considered as the relative times of either the sensor or reference peaks. App. Br. 13. Appellant contends that claim 8 is patentable over the reference because Johnson is "silent with respect to determining relative times of sensor or reference peaks, and especially to calculating a characteristic wavelength for an optical sensing element based, at least in part, on a relative time of a sensor peak with respect to at least one reference peak." Id. Appellant argues that Johnson is concerned with relative voltages, rather than times of and between peaks. Id. 8 Appeal2017-009155 Application 14/446,543 The Examiner finds that Johnson discloses relative times of sensor or reference peaks in Figs. le and 2c. Ans. 9. Johnson's Fig. le is reproduced below: AMPLIFIER A ,,. 52/ AMPLIFIERS 56 '58 1 __ 4_Â£be FIG. 1c 64 Fig. 1 c shows the voltage peaks present in the amplifiers indicating Bragg gratings at different scanning voltage values. Johnson col. 2, 11. 30- 32. "As the filter voltage [V(t)] is scanned from its lowest to highest voltage, the voltages at which the reference gratings ... are encountered, V 1 (52}-V2 (54) are recorded," "V7 (46) and Vs (48) denote the voltages at which the sensing gratings ... are encountered." Johnson col. 3, 11. 63---66 and col. 3, 1. 66-col. 4, 1. 1 [bolding and emphasis omitted]). The Examiner finds that the scanning filter control voltage (V(t)) is the ordinate and time (t) is the abscissa in Figs. le and 2c, noting that Johnson discloses "the amplified photodetector signal 37 results in a series of peaks that correspond to the gratings 14 or 18 in the arrays 12 and 22 from the lowest wavelengths to highest as the drive voltage 44, V(t), is increased." Ans. 9--10 (quoting Johnson col. 3, 11. 49--53). The Examiner finds that Johnson teaches the steps for determining the reference wavelengths and the scanning filter calibration curve include a pre- 9 Appeal2017-009155 Application 14/446,543 characterization of the reference wavelengths by placing the reference device ((14) and (18)) in an environmental chamber and recording each reference wavelengths Ai as a function of time ( t) as temperature (T) is varied through a wide range. Id. at 10. Appellant contends that the Examiner mischaracterizes Johnson because the reference teaches that the ratio R "is typically measured directly by placing the reference device 14 and 18 in an environmental chamber and recording Ras T is varied through a wide range." Reply Br. 3 ( quoting Johnson col. 4, 11. 16-19). Appellant argues that time is not recorded or even considered in the process. Id. at 3--4. Although we agree that Appellant correctly quotes Johnson, we are not persuaded that the Examiner reversibly erred in finding that Johnson teaches determining relative times of sensor and reference peaks. Johnson's Figs. 1 c and 2c illustrate voltage peaks or absorption lines at different scanning voltage values. See Johnson col. 2, 11. 30-32 and 41--45. The horizontal axis is not labeled in Figs. le or 2c, however, it is reasonable to interpret the horizontal axis in Figs. le and 2c as time. For example, Fig. 1 in the instant application identifies the horizontal axis of the illustrated spectra at "time." Spec. ,r 20. Even if the horizontal axis is taken to be wavelength, relative time of a sensor peak or reference peak is disclosed by Johnson, as wavelength is inversely proportional to frequency, which is measured in units of sec-1. Appellant, therefore, does not provide persuasive evidence to challenge the Examiner's finding that Johnson teaches "determining a relative time." Appellant also fails to argue persuasively that Johnson does not disclose the limitation of "calculating the characteristic wavelength for the 10 Appeal2017-009155 Application 14/446,543 one of the optical sensing elements based on the first absolute wavelength, the second absolute wavelength, and the relative time of the sensor peak with respect to at least one of the first or second reference peaks." See Reply Br. 2-3. Appellant argues that Johnson teaches only "calculating the voltage-to-wavelength function for the scanning range of the filter 28 ... from the voltages." Id. at 3. Johnson teaches monitoring absolute wavelength. Johnson col. 3, 11. 35-39. In addition, as discussed above, voltage is inversely proportional frequency, which is measured relative to time. Appellant's arguments are unpersuasive of reversible error in the Examiner's rejection of claim 8. We sustain the rejection of claim 8 and its dependent claim, claim 9. Rejections under 35 USCÂ§ 103 Claim 2 The Examiner rejects claim 2 as obvious over Johnson in view of Taverner. Final Act. 6; Ans. 10-11. Appellant argues in the Appeal Brief that the Examiner has not properly characterized the teachings of references and/or the claims at issue, and thus the Examiner failed to recognize important differences between the claim invention and the references. App. Br. 15. Appellant contends that Taverner fails to overcome the deficiencies in Johnson identified with respect to claim 1, making claim 2 allowable. Id. In the Reply Brief, Appellant argues that arguments in the Examiner's Answer relying on a gas cell as the optical reference element are moot with respect to claim 2. Reply Br. 4. 11 Appeal2017-009155 Application 14/446,543 The Examiner's Answer did not discuss Johnson in relation to claim 2. See Ans., generally. Appellant's Reply Brief thus contains a new argument which could have been but was not presented in the Appeal Brief. A new argument not timely presented in the Appeal Brief will not be considered when filed in a Reply Brief, absent a showing of good cause explaining why the argument could not have been presented in the Appeal Brief. See Ex parte Borden, 93 USPQ2d 1473, 1477 (BPAI 2010) (informative)) ("the reply brief [is not] an opportunity to make arguments that could have been made in the principal brief on appeal to rebut the Examiner's rejections, but were not."); compare also Optivus Tech., Inc. v. Ion Beam Applications S.A., 469 F.3d 978, 989 (Fed. Cir. 2006) (argument raised for the first time in the Reply Brief is considered waived); see also 3 7 C.F.R. Â§ 41.37 andÂ§ 41.41. In addition, we have addressed the argument newly raised by Appellant with respect to claim 2 in the discussion of claim 1. For the reasons provided in relation to claim 1, Appellant's argument is not persuasive of reversible error in the rejection of claim 2 as obvious. We sustain the rejection of claim 2. Claims 3, 4, 10, 11, and 12 The Examiner rejects claims 3, 4, 10, 11, and 12 as obvious over Johnson in view of additional references. Final Act. 6-10. For each of these claims, Appellant argues that the additional references fail to overcome the deficiencies in Johnson identified with respect to claim 1. App. Br. 17-22. As discussed above when considering the rejection of claim 1, Appellant fails to identify deficiencies in Johnson. Therefore, we sustain the rejection of claims 3, 4, 10, 11, and 12. 12 Appeal2017-009155 Application 14/446,543 DECISION The rejection of claims 1 and 5-9 as anticipated is affirmed. The rejection of claims 2, 3, 4, 10, 11, and 12 as obvious is also affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. Â§ 1.13 6( a )(1 )(iv). AFFIRMED 13