10338097 (P.T.A.B. Feb. 10, 2014)

Ex Parte Cannon et al

Patent Trial and Appeal BoardFeb 10, 2014

10338097 (P.T.A.B. Feb. 10, 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. 10/338,097 01/07/2003 Cristina Barbosa Cannon Cannon 1-6 (LCNT/125163) 1767 46363 7590 02/11/2014 WALL & TONG, LLP/ ALCATEL-LUCENT USA INC. 25 James Way Eatontown, NJ 07724 EXAMINER LEUNG, WAI LUN ART UNIT PAPER NUMBER 2637 MAIL DATE DELIVERY MODE 02/11/2014 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 CRISTINA BARBOSA CANNON and STEFAN HUNSCHE ____________ Appeal 2011-007531 Application 10/338,0971 Technology Center 2600 ____________ Before CAROLYN D. THOMAS, JASON V. MORGAN, and JOHNNY A. KUMAR, Administrative Patent Judges. THOMAS, Administrative Patent Judge. DECISION ON APPEAL 1 The real party in interest is Alcatel-Lucent. Appeal 2011-007531 Application 10/338,097 2 STATEMENT OF THE CASE Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner finally rejecting claims 1 and 28-56, all the claims pending in the application. Claims 2-27 are cancelled. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. The present invention relates generally to determining if an optical input signal has been interrupted and responsively replacing an interrupted optical signal with a replacement optical signal having a similar optical profile. See Abstract. Claim 1 is illustrative: 1. A method of transient control in a wavelength division multiplexed (WDM) optical transmission system, comprising: monitoring a WDM optical signal received via an optical signal bearing medium and having a plurality of wavelength channels including at least one uninterrupted wavelength channel and at least one interrupted wavelength channel; and replacing the at least one interrupted wavelength channel with a replacement wavelength channel having optical power and spectral characteristics similar to the at least one interrupted wavelength channel such that optical transients normally associated with amplification of a WDM optical signal having an interrupted wavelength channel are reduced, the WDM optical signal including the at least one uninterrupted wavelength channel and at least one replacement wavelength channel. Appellants appeal the following rejections: R1. Claims 1, 28-30, 37-40, and 47-50 are rejected under 35 U.S.C. § 102(e) as being anticipated by Frankel (U.S. 6,907,201 B1, June 14, 2005); Appeal 2011-007531 Application 10/338,097 3 R2. Claims 1, 28-34, 37-44, and 47-54 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Frankel and Arecco (U.S. 6,456,406 B1, Sept. 24, 2002) and R3. Claims 35, 36, 45, 46, 55, and 56 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Frankel and Casper (U.S. 4,451,916, May 29, 1984). ANALYSIS Our representative claim, claim 1, recites, inter alia, “a replacement wavelength channel having optical power and spectral characteristics similar to the at least one interrupted wavelength channel.” Independent claims 37 and 47 recite commensurate limitations. Thus, the scope of each of the independent claims includes a replacement channel having both an optical power and a spectral characteristics similar to the at least one interrupted wavelength channel. Issue: Did the Examiner err in finding that Frankel discloses a replacement wavelength channel having optical power and spectral characteristics similar to the at least one interrupted wavelength channel, as set forth in claim 1? Appellants contend that “Frankel makes no reference to the substituted channels having similar spectral characteristics as required by the claim. . . . Further, the compensation provided in the Frankel system is only power compensation, not spectral compensation” (App. Br. 8). Appellants further contend that “Frankel actually teaches away from spectral transient control” (id. at 9). Appeal 2011-007531 Application 10/338,097 4 The Examiner found that in Frankel “replacement channels λ73a – λ80a are added at the same channel wavelengths (and therefore have the same spectral characteristics) to replace the[] interrupted signals at the respective channel wavelengths” (Ans. 13). While we agree with the Examiner that Frankel uses substitute channels λ73a – λ80a to replace the dropped channels λ73 – λ80 (see Frankel, col. 4, ll. 24-31), the Examiner has not shown that Frankel actually adds the substitute channels at the same channel wavelength or that Frankel’s substitute channels have optical power and spectral characteristics similar to the at least one interrupted (i.e., dropped) wavelength channel. It is abundantly clear that Frankel seeks to maintain a substantially constant optical power on the optical signal paths (see Frankel, col. 2, l. 63-65 & col. 5, ll.17-20). However, the Examiner has not established, and we cannot find, where Frankel also considers a spectral characteristic that is similar to the interrupted wavelength channel. In fact, Frankel is silent as to any spectral characteristics of the substitute channels. At best, Frankel injects a compensating wavelength (in response to an associated total signal power sensed) into signal paths (see Frankel, col. 2, ll. 58-65). However, this “compensating wavelength” corresponds to the total signal power sensed by an optical power monitor, not to the interrupted wavelength channel spectral characteristics. Even if we assume arguendo (without deciding) that Frankel’s compensating wavelength is a spectral characteristic of the substitute channel, we cannot say, nor has the Examiner shown, that the compensating wavelength is necessarily similar to the at least one interrupted wavelength channel. In fact, Frankel states that “[t]he compensating wavelength should also be chosen to be different from the data Appeal 2011-007531 Application 10/338,097 5 carrying wavelengths in the band” (col. 6, ll. 3-4) (emphasis added). In other words, Frankel expressly notes that the compensating wavelength should be “different” from, not similar to, wavelengths in the band. The difficulty that we are having with this anticipation rejection before us is that there is no certainty from the Frankel reference itself as to what specific characteristics, other than power matching, are used to carry out the aforementioned substitution of channels. It is impermissible to speculate in an anticipation rejection. A rejection should not be based on “speculations and assumptions.” In re Steele, 305 F.2d 859, 862 (CCPA 1962). Here, the Examiner is merely speculating that the same wavelength is being used in the substitute channels, as Frankel fails to expressly state using the same wavelength. We are therefore constrained by the record before us to find that the Examiner erred in rejecting representative claim 1. In view of the above discussion, we are of the opinion that Frankel does not support the anticipation rejection. The Examiner has also failed to show that Arecco and/or Casper make up for the deficiencies of Frankel. We, accordingly, do not sustain the rejection of independent claims 1, 37, and 47, or the rejection of claims 28-36, 38-46, and 48-56, which are dependent thereon, which all include the argued limitation. Since we agree with at least one of the arguments advanced by Appellants, we need not reach the merits of Appellants’ other arguments. It follows that Appellants have shown that the Examiner erred in finding that Frankel (either alone or in combination with Arecco and/or Casper) renders the claims unpatentable. Appeal 2011-007531 Application 10/338,097 6 DECISION2 We reverse the Examiner’s §§ 102 and 103 rejections. REVERSED msc 2 In the event of further prosecution, we leave it to the Examiner to consider if the computer readable storage medium claim, claim 47, should also be rejected under 35 U.S.C. § 101. The Specification does not use the term “computer readable storage medium” at all. Given this silence in the Specification, we are compelled to note that the ordinary and customary meaning of “computer readable storage medium” to a person of ordinary skill in the art is broad enough to encompass both non-transitory and transitory media. Signals are not patentable eligible subject matter under § 101. In re Nuijten, 500 F.3d 1346, 1357 (Fed. Cir. 2007). See also MPEP § 2106(I) (8th ed. Rev. 9 Aug. 2012) and Ex parte Mewherter, 107 USPQ2d 1857 (PTAB 2013) (precedential).