Ex Parte Bellagamba et al

Patent Trial and Appeal Board

Apr 24, 2017

13391428 (P.T.A.B. Apr. 24, 2017)

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.
13/391,428 02/21/2012 Elisa Bellagamba P29743-US2 1044
132398 7590 04/26/2017
Clairvolex Inc.
4010 MOORPARK AVE, Ste, 228
San Jose, CA 95117
EXAMINER
BELLO, AGUSTIN
ART UNIT PAPER NUMBER
2637
NOTIFICATION DATE DELIVERY MODE
04/26/2017 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):
elofdocket @ clairvolex .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELISA BELLAGAMBA, ENRICO DUTTI, and
GIULIO BOTTARI
Appeal 2015-003597
Application 13/391,4281
Technology Center 2600
Before JAMES B. ARPIN, DANIEL N. FISHMAN, and
MATTHEW J. McNEILL, Administrative Patent Judges.
ARPIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) of a rejection of claims 1,
3, 4, 6, 7, 11, and 13.2 App. Br. 2. Claims 2, 5, 8—10, 12, and 14—16 are
cancelled. Id. at Claim App’x. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm-in-part.
1 According to Appellants, the real party in interest is Telefonaktiebolaget
LM Ericsson. App. Br. 1.
2 In this Decision, we refer to Appellants’ Appeal Brief (“App. Br.,” filed
September 10, 2014); Appellants’ Reply Brief (“Reply Br.,” filed January
28, 2015); the Final Office Action (“Final Act.,” mailed April 10, 2014); the
Examiner’s Answer (“Ans.,” mailed November 28, 2014); and the originally
filed Specification (“Spec.,” filed February 21, 2012).
Appeal 2015-003597
Application 13/391,428
THE INVENTION
The invention generally relates to methods for establishing optical
paths for user traffic by routing and wavelength assignment (RWA) of
optical channels carried in optical links of a Wavelength Switched Optical
Network (WSON). See Spec. 2:35—3:1. The methods involve obtaining a
set of physical impairment (PI) parameter values affecting the optical
channels, wherein at least one of the PI parameter values is obtained by
measurement and distribution of the parameter values among network nodes
connected to the optical paths in the given wavelength. See id. at 3:1—5. A
feasibility verdict is determined for each optical path candidate by
performing path computation for each optical path involving its obtained PI
parameter values. See id. at 3:5—7. Optical signals then are routed via
optical paths based upon the feasibility verdicts for different optical paths.
See id. at 3:7—8.
Claims 1, 4, and 11 are independent. App. Br., Claim App’x. Claims
3 and 13 depend directly from claims 1 and 11, respectively, and claims 6
and 7 depend directly from claim 4. Id. Claim 1, reproduced below, is
illustrative with disputed limitations emphasized:
1. A method for an optical network of establishing Optical
Paths for user traffic by routing and wavelength assignment of
optical channels carried in optical links of a Wavelength
Switched Optical Network (WSON), said method comprising
- obtaining a structured set of Physical Impairment (PI)
parameter values affecting the optical channels, wherein at least
one of said PI parameter values are obtained by measurement and
distribution of said PI parameter value among network nodes
connected to said Optical Paths in the WSON;
- determining a feasibility verdict for each optical path
candidate by performing path computation involving for each
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Application 13/391,428
optical path its obtained PI parameter values, wherein the
determining the feasibility verdict comprises
- calculating for each optical link a Quality of
Transmission (QoT) parameter value by means of the set
of PI parameter values, and
- assessing feasibility verdicts for different Optical
Paths across said Optical Network based on said
calculated Quality of Transmission (QoT) Parameter
values of optical links constituting of said different Optical
Path; and
- routing optical signals via Optical Paths based upon said
feasibility verdicts for different Optical Paths.
THE REJECTION
Claims 1, 3, 4, 6, 7, 11, and 13 stand rejected under 35 U.S.C.
§ 102(e) as anticipated by Lee et al. (US 2013/0156428 Al; pub. June 20,
2013) (“Lee”). Final Act. 2-4.
ISSUES
Appellants’ arguments present three issues. First, has the Examiner
erred by failing to demonstrate that Lee discloses each and every element of
claim 1? App. Br. 6—7. Second, has the Examiner erred by improperly
selecting disclosures from different embodiments of Lee in order to
conclude that Lee discloses each and every element of the rejected claims?
Id. at 7—8. Third, has the Examiner erred by failing to demonstrate that Lee
discloses each and every element of claims 3, 7, and 13? Id. at 8.
We are not persuaded of Examiner error with regard to the first and
second issues, but we are persuaded of Examiner error with regard to the
third issue.
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Application 13/391,428
ANALYSIS
1. Claims 1, 4, 6, and 11
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987) (emphasis added). Further, “it is not enough [to
demonstrate anticipation] that the prior art reference discloses part of the
claimed invention, which an ordinary artisan might supplement to make the
whole, or that it includes multiple, distinct teachings that the artisan might
somehow combine to achieve the claimed invention.” Net Money IN, Inc. v.
Verisign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
First, as noted above, Appellants dispute the Examiner’s findings with
respect to two recited steps of the independent claims. Appellants contend
that the Examiner fails to demonstrate that Lee discloses the steps of
“calculating for each optical link a Quality of Transmission (QoT)
parameter value by means of the set of PI parameter values” (i.e., the
calculating step) and “assessing feasibility verdicts for different Optical
Paths across said Optical Network based on said calculated Quality of
Transmission (QoT) Parameter values of optical links constituting of said
different Optical Path” (i.e., the assessing step). App. Br. 6—7. In particular,
Appellants contend that, with respect to the calculating step, the Examiner
relies on three “loosely-related paragraphs to show that Lee discusses the
propagation of accumulated impairment measures (e.g., [optical signal-to-
noise ratio (OSNR)] or [bit error rate (BER)]) to show the calculation of a
QoT parameter value for each ‘optical link.’” Id. at 7; see Final Act. 2—3
(citing Lee ^fl[ 42, 64, 69). Appellants then contend that, with respect to the
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Application 13/391,428
assessing step, the Examiner fails to demonstrate that Lee discloses that its
decision about path validity is made in the same manner that is recited in
claim 1. App. Br. 7; see Final Act. 3 (citing Lee 142).
With respect to the calculating step, the Examiner explains that it is
relying on any of paragraphs 42, 64, or 69 individually, rather than
collectively, to disclose this element. Final Act. 3 (“e.g. ‘OSNR’ of
paragraph [0042], ‘BER or OSNR’ of paragraph [0064], ‘computation
formulas’ based on ‘accumulated impairment measures’ as in paragraph
[0069]” (emphasis added)); see also Ans. 5 (discussing the disclosure of Lee
142). In particular, the Examiner finds that:
Like Appellant, Lee calculates and accumulates impairment
degradation measures for each link in the path from source to
destination by calculating OSNR, [differential group delay
(DGD)]. In doing so, Lee establishes a plurality of “Quality of
Transmission (QoT) parameter values” for each link, e.g. one
that is a measure of quality of the transmitted signal versus noise
on the link under consideration and another that is a measure of
differential delay imposed on the signal by the link under
consideration. Furthermore, Appellant acknowledges that
OSNR is a Quality of Transmission parameter value for each link
of the optical path (Appellant's specification paragraphs [0176]).
Ans. 5 (emphasis added). Thus, the Examiner finds, and we agree, that
Lee’s paragraph 42 alone is sufficient to disclose the calculating step.
In addition, with respect to the accessing step, the Examiner finds that,
as described in the Specification, 'ft] he process of checking the feasibility of
an optical path is called impairment validation (IV) and can be performed
by a software tool which analyses impairments (linear and non-linear)
accumulated during optical signal propagation and the characteristics of the
hardware crossed by the optical signal (e.g. amplifier types, fibre types).”
Spec. 1:21—25 (emphasis added). Similarly, Lee discloses that “the IA-
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RWA process may comprise distributed IV, where approximated impairment
degradation measures may be used, such as OSNR, differential group delay
(DGD), etc.” Lee 142 (emphases added). Thus, the Examiner finds, and we
agree, that Lee discloses “assessing feasibility verdicts for different Optical
Paths across said Optical Network” in the same manner as recited in claim 1.
In its Reply Brief, Appellants contend that the Examiner’s findings in
the Examiner’s Answer improperly incorporate “impairment validation” or
“IV” into the language of claim 1, such that the claim requires “assessing
feasibility verdicts” by “impairment validation.” Reply Br. 5—6. Again, we
disagree. This is not an issue of improper incorporation, but, instead, of the
breadth of construction. The term “feasibility verdict” is broad enough to
encompass a determination of feasibility based on “impairment validation”
or “IV.” In particular, Lee discloses that
the IV-Detailed [path computation element (PCE)] may send
back a reply (response) to the RWA PCE, which indicates
whether the IV request was successfully/unsuccessfully met. For
example, the reply may indicate a positive/negative decision (e.g.
yes/no decision). If the IV request is not met, the IV-Detailed
PCE may send a reply to the RWA PCE that indicates the reason
that the IV request failed.
Lee 175 (emphasis added). Given the Specification’s disclosure that “[t]he
process of checking the feasibility of an optical path is called impairment
validation (IV)” (Spec. 1:21—22), we are persuaded that the assessing step of
claim 1 also reads on Lee’s disclosure of determining feasibility based on
“impairment validation.” Final Act. 3; Ans. 4—5; see Lee ^fl[ 7, 8, 42.
Second, Appellants contend that the Examiner improperly relies on
the combination of “multiple, distinct teachings” of Lee to disclose these
steps. App. Br. 7—8. In particular, Appellants contend that Lee’s paragraph
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42 is directed to one embodiment (i.e., Lee, Fig. 2) and Lee’s paragraphs 64
and 69 are directed to another embodiment (i.e., Lee, Fig. 8). Reply Br. 2.
As noted above, although the Examiner cites to paragraphs 42, 64, and 69 as
alternatives, the Examiner’s citations to paragraph 42 are sufficient to
demonstrate that Lee discloses the disputed elements.3 Ans. 7 (“That at
least two embodiments meet the limitations of the claimed invention does
not detract from the fact that said limitations are still met by Lee.”
(emphasis added)).
On this record and for the reasons set forth above, we are not
persuaded that the Examiner erred and, thus, we sustain the Examiner’s
rejection of independent claim 1. Independent claims 4 and 11 recite similar
elements and were rejected for essentially the same reasons as claim 1 (Final
Act. 2—3), and claim 6 depends directly from claim 4 and also was rejected
for essentially the same reasons as claim 1 (id.). Appellants do not present
arguments for those claims separate from those presented with respect to
claim 1. See App. Br. 8. Thus, for the same reasons relied on with respect
to claim 1, we are not persuaded that the Examiner erred in rejecting
independent claims 4 and 11 or dependent claim 6, and we sustain the
rejections thereof.
3 Lee’s general recitation that various embodiments may be combined is not
necessarily sufficient to disclose the combination of particular embodiments,
e.g., the embodiment of paragraph 42 and the embodiment of paragraphs 64
and 69. Ans. 7 (citing Lee 1 85). However, in view of the sufficiency of the
Examiner’s arguments with respect to Lee’s paragraph 42, we need not
reach this argument.
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2. Claims 3, 7, and 13
Each of dependent claims 3, 7, and 13 recites substantially the same
elements, and each depends directly from its base claim. The Examiner
relies on Lee to disclose not only the elements of the base claims, but those
of dependent claims 3, 7, and 13.
Each dependent claim recites three additional elements:
(1) “parameters characterizing node optical interfaces such as transmitter
and receiver parameters,” (2) “parameters of the network nodes of an optical
path involved in the propagation of an optical signal such as amplifier
parameters,” and (3) “parameters of link components involved in the
propagation of an optical signal over an Optical Path.” App. Br., Claim
App’x (emphases added). The Examiner argues that Lee discloses each of
these parameters “throughout” Lee’s disclosure. Final Act. 4; see Ans. 7—8.
Nevertheless, Appellants contend, and we agree, that the “Examiner’s
rejection refers to several terms throughout the entire Lee reference and fails
to show any sort of clear explanation about which terms pertain to which
element in the dependent claims.” App. Br. 8 (emphasis in original). “[T]he
examiner bears the initial burden, on review of the prior art or on any other
ground, of presenting a prima facie case of unpatentability.” In re Oetiker,
977 F.2d 1443, 1445 (Fed. Cir. 1992). Thus, we are persuaded that the
Examiner erred in failing to identify upon which portion of Lee the
Examiner was relying to disclose each and every one of the three
“parameters” recited in the dependent claims, and, therefore, we do not
sustain the rejection of claim 3,7, and 13.
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DECISION
For the above reasons, we affirm the Examiner’s decision rejecting
claims 1, 4, 6, and 11 and reverse the Examiner’s decision rejecting claims
3, 7, and 13.
AFFIRMED-IN-PART
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