Ex Parte Chu et al

Board of Patent Appeals and Interferences

Jun 2, 2009

10818085 (B.P.A.I. Jun. 2, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PETER CHU, GRANT S. WILLIAMS, and JOSHUA A.
CONWAY
____________

Appeal 2009-2354
Application 10/818,085
Technology Center 2600
____________

Decided:1 June 2, 2009
____________

Before JOSEPH F. RUGGIERO, JOHN A. JEFFERY,
and KARL D. EASTHOM, Administrative Patent Judges.

EASTHOM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R.§ 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-2354
Application 10/818,085

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s final
rejection of claims 1-20 (Br. 2).2 No other claims are pending. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants’ invention performs phase-encoded optical Code Division
Multiple Access (CDMA) encoding. The disclosed system employs an
optical modulator 12 and a “wavelength and phase encoder” 16. The
modulator employs a codeword. The wavelength and phase decoder also
uses a codeword, dispersing an optical beam carrying data into separate
frequency/wavelength components and phase-shifting the beam components
according to the codeword. (Abstract; Fig. 1; Spec. 4: 9 to 5:28).
Claim 1, illustrative of the invention, follows:
1. A system for performing phase-encoded optical Code Division
Multiple Access (CDMA), comprising:
a transmitter for encoding digital data onto a wavelength of an optical
signal using a codeword, for splitting the optical signal into a plurality of
beams having separated frequency components, for selectively phase-
shifting the beams in accordance with the codeword, for recombining the
beams into the optical signal, and for transmitting the optical signal; and
a receiver for receiving the optical signal, for splitting the optical
signal into a plurality of beams having separated frequency components, for
selectively phase-shifting the beams in accordance with the codeword, for

2 Appellants’ Brief (filed Dec. 31, 2007) (“Br.”) and the Examiner’s Answer
(mailed Feb. 7, 2008) (“Ans.”) detail the parties’ positions.
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Application 10/818,085

recombining the beams into the optical signal, and for decoding the digital
data from a wavelength of the optical signal using the codeword.
The Examiner relies on the following prior art references:
Gutleber US 4,470,138 Sep. 4, 1984

Lee US 6,819,361 B1 Nov. 16, 2004
(filed May 16, 2000)
Rhead US 20050226555 A1 Oct. 13, 2005
(effectively filed Mar. 14, 2003)
Yoo US 7,068,881 B2 Jun. 27, 2006
(filed Aug. 20, 2003)

The Examiner rejected claims 1, 5-8, 10, 14-17, 19, and 20 under 35
U.S.C. § 102(e) based upon Yoo.
The Examiner rejected claims 2, 4, 11, and 13 under 35 U.S.C. §
103(a) based upon Yoo and Lee.
The Examiner rejected claims 3 and 12 under 35 U.S.C. § 103(a)
based upon Yoo and Rhead.
The Examiner rejected claims 9 and 18 under 35 U.S.C. § 103(a)
based upon Yoo and Gutleber.
ISSUE
Appellants dispute (Br. 5-8) the Examiner’s finding (Ans. 3) that Yoo
anticipates the claims, specifically contending that Yoo fails to disclose a
transmitter for encoding digital data onto a wavelength of an optical signal
using a codeword and for selectively phase-shifting the beams in accordance
with the codeword.
Therefore, the issue on appeal is:
Did Appellants demonstrate that the Examiner erred in finding that
Yoo discloses “a transmitter for encoding digital data onto a wavelength of
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an optical signal using a codeword” and “for selectively phase-shifting the
beams in accordance with the codeword” as recited in claim 1? 3

FINDINGS OF FACT (FF)
Appellants’ Disclosure
1. Appellants’ transmitter employs a modulator 12 followed by a
“wavelength and phase encoder” 16 (Spec. 4:26). Appellant’s state that in
their “novel implementation,” “encoding is performed both on the phase as
well as the wavelength of the optical signal.” (Spec. 2: 26-29). Separate
from the encoder, the modulator employs on-off keying (OOK) amplitude
modulation of an optical signal with a digital data input 14. The modulator
modulates the signal using a unique codeword associated with a user: “The
digital data input 14 is a unipolar data sequence (e.g., 1100) that is
modulated by the modulator 12 using a unipolar codeword uniquely
associated with the user (e.g., 1,0,0,1), onto the optical signal output from
the optical source” (Spec. 4:21-23).
2. The wavelength and phase encoder 16 includes a polarizing splitter
28, upper circulator 30, upper filter arm 32, lower circulator 34, lower filter
arm 36 and polarizer combiner 38 (Spec. 4:27-29). Filters 44 in the filter

3 With respect to the anticipatory rejection based upon Yoo, Appellants
group argued independent claims 1, 10, 19 and 20 without distinction. With
respect to dependent claims 5-8, 10, 14-17, 19 and 20, Appellants’ nominal
arguments (Br. 7) do not constitute separate arguments for patentability.
Appellants also specifically state that claims 5-8 and 14-17 “are not
separately argued” (Br. 7-9). The independent claims are similar in scope.
Therefore, pursuant to 37 C.F.R. § 41.37 (c)(1)(vii), we select claim 1 as
representative.
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arms receive the modulated optical signal and generate a dispersed beam
having separated frequency/wavelength components. Some of the separated
wavelengths are phase-shifted according to a unique code. (Spec. 5:5-28).
3. Appellants’ receiver employs a wavelength and phase decoder 20
that is a near mirror image of the wavelength and phase encoder. Filters 44
in the decoder receive the optical signal and generate a dispersed beam
having separated frequency components. Only signals having the unique
code imparted on it by the transmitter add constructively based on the
correct phase-shifts and pass from the decoder 20 to the detector 22 as a
strong signal. The detector 22 also uses a unique codeword to demodulate
the digital data from the signal. (Spec. 6:7 to 7:14; Fig. 3).
Yoo
4. Yoo discloses an “optical code-division multiple-access
communications (O-CDMA) network . . . in which a CDMA code is
assigned to each receiver. A transmitter generates a sequence of ultra-fast (~
1 ps) optical pulse [sic] and according to a binary data code modulates the
sequence” (col. 1, l. 66 – col. 2, l. 4).
5. In Yoo’s “encoding process, the pulse is spectrally separated into a
number of wavelength components and each wavelength component is
phase-modulated according to a first CDMA code. The phase-modulated
wavelength components are recombined to form a spread pulse for
transmission on an optical network” col. 2, ll. 4-9).
6. At the receiver, a decoder receives the spread pulse,
spectrally separates it into its wavelength components, phase-
modulates the wavelength components according to a second
CDMA code, recombines the phase-modulated wavelength
components, and optically detects the resulting pulses. If the
second code matches the first one, the resulting pulses replicate
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the data modulated transmitter pulses; if not, essentially noise is
detected.
(Yoo, col. 2, ll. 9-17).
7. In summary, Yoo’s “transmitter generates a sequence of narrow
pulses which are modulated into zero and finite pulses to represent binary
data. The transmitter imposes . . . a code on each pulse by differentially
phase modulating its wavelength components” (col. 4, ll. 19-22).
8. To impose the codes, a plurality of modulator waveguides 44 each
receive a different spectral component of the pulse and include a phase
modulator 46 “to selectively and dynamically control the phase or time delay
of the wavelength component passing through it” (col. 4, ll. 62-63). (See
also col. 4, ll. 35-67; Fig. 2). “The phase modulators 56 [sic 46] are
controlled according to a CDMA code 56” (col. 5, ll. 9-10). Each modulator
46 has a distinct multiple bit code (col. 5, ll. 9-17).
9. Figure 14 discloses a block diagram of Yoo’s O-CDMA system
which employs changing codes for enhanced security, and depicts, inter alia,
a pulse generator, data modulator, encoder and code sequencer in the
transmitter and complementary components in the receiver (col. 3, ll. 18-19;
col. 13, l. 34 - col. 14, l. 2).

PRINCIPLES OF LAW
“[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). Anticipation is
established when a single prior art reference discloses expressly or under the
principles of inherency each and every limitation of the claimed invention.
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Atlas Powder Co. v. IRECO, Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999); In
re Paulsen, 30 F.3d 1475, 1478-79 (Fed. Cir. 1994).
“[T]here must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006). “On appeal to the Board, an applicant
can overcome a rejection by showing insufficient evidence of prima facie
obviousness . . . .” Kahn, 441 F.3d at 985-86 (quoting In re Rouffet, 149
F.3d 1350, 1355 (Fed. Cir. 1998).

ANALYSIS
Appellants dispute (Br. 5) the Examiner’s finding (Ans. 3) that Yoo
discloses both (1) encoding digital data onto a wavelength of an optical
signal using a codeword and (2) selectively phase-shifting the beams in
accordance with the codeword. Specifically, Appellants contend that in Yoo
“the CDMA code is only used for phase-modulation . . . [and] is not also
used for encoding digital data onto a wavelength of an optical signal” (Br.
7).
The Examiner responds (Ans. 9) by pointing out that Appellants
disclose “a module referred to as wavelength and phase encoder (reference
numeral 16 in Figure 1 of Appellant’s drawings) . . . specifically described
as performing encoding of the wavelength and the phase with digital data
using a codeword” (emphasis added). Appellants fail to respond to the
Examiner’s findings, supported by the record (see FF 1-3).
In other words, Appellants’ disclosure does not clearly refer to
encoding digital data onto a wavelength (see id.). Encoding of a wavelength
occurs by phase-shifting (according to a CDMA code) the different
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wavelengths of a pulse that carries OOK digital data (see id., see also Ans.
8-9). Thus, the disclosed wavelength encoding occurs in Appellants’
“wavelength and phase encoder” 16 which, because it encodes the phases of
different wavelengths, can reasonably be interpreted as also encoding the
data onto the shifted wavelengths (see FF 1-2). As the Examiner found,
without rebuttal by Appellants, “the wavelength and phase encoding occurs
at a single location, i.e. reference numeral 16 in Appellant’s Figure 1, and
apparently either occurs simultaneously or are one and the same” (Ans. 9).
Therefore, Appellants’ implication that the claim requires a modulator
to encode data onto a wavelength, such as Appellants’ disclosed modulator
124, is not persuasive. Claim 1 does not recite a modulator.5 Moreover, as
the Examiner found, Appellants’ disclosure refers to encoding as separate
from modulating (FF 1, see also FF 2-3): “it is not entirely clear if
Appellants’ disclosed modulation of the digital data input by a codeword
constitutes encoding of the wavelength with digital data” (Ans. 9).
Therefore, the Examiner’s finding (see Ans. 8, 9) that Yoo’s transmitter
encodes data onto a wavelength using a code and phase-shifts the different
wavelengths according to the code, as required by claim 1, is consistent with
Appellants’ disclosure showing a similar process in Appellants’ “wavelength
and phase encoder” 16 (i.e., without the data modulator 12) (see FF 1-3).

4 (See Br. 2, referring to “encoding (12) digital data (14) onto a wavelength
of an optical signal using a codeword”).
5 Claim 1 also does not recite a detector, such as Appellants’ disclosed
detector 22, which also uses a unique codeword to demodulate the digital
data from the signal (see FF 3).
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Appellants do not rebut the Examiner’s findings with the requisite
clarity necessary to distinguish their invention over Yoo and demonstrate
Examiner error. “It is the applicants’ burden to precisely define the
invention, not the PTO’s.” In re Morris, 127 F.3d 1048, 1056 (Fed. Cir.
1997) (“The problem in this case is that the appellants failed to make their
intended meaning explicitly clear.”).
Accordingly, Yoo anticipates claim 1 as the Examiner found (FF 4-9,
Ans. 3, 6-9) and as explained further as follows. Yoo’s transmitter pulses
carry binary data and comprise wavelength components (also carrying that
data) that are split into different beams. The modulator waveguides 44 and
phase modulators 46 phase-shift the different beam components each
according to a unique code 56 (FF 4, 5, 7-8). Thus, it follows that the data
carried by each component is also encoded onto each wavelength (using a
code) because the data is phase-shifted and encoded along with the
wavelength carrying that data (see FF 7-8). Finally, Yoo’s (CDMA) code is
required to recover the data from each wavelength – further indicating
encoding of the data on the wavelength (see FF 6). Thus, in light of
Appellants’ disclosure, the Examiner reasonably determined that Yoo’s
“transmitter” performs “encoding digital data onto a wavelength . . . using a
codeword” as required by claim 1.
As discussed supra, Appellants do not dispute that Yoo discloses
phase-shifting in accordance with a codeword. Thus, it follows that Yoo
discloses, inter alia, “a transmitter for encoding digital data onto a
wavelength of an optical signal using a codeword,” and “for selectively
phase-shifting the beams in accordance with the codeword,” as required by
claim 1.
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Accordingly, for the reasons explained supra, we will sustain the
Examiner’s anticipatory rejection based on Yoo of claim 1, and of claims 5-
8, 10, 14-17, 19 and 20, not separately argued (Br. 5-9, see supra, n.3 ). For
the same reasons, we will also sustain the obviousness rejections of claims 2,
4, 11, and 13 based upon Yoo and Lee, claims 3 and 12 based upon Yoo and
Rhead, and claims 9 and 18 based upon Yoo and Gutleber, since Appellants
state that these claims “are not separately argued” (Br. 8-9).
CONCLUSION
Appellants did not demonstrate that the Examiner erred in finding that
Yoo discloses “a transmitter for encoding digital data onto a wavelength of
an optical signal using a codeword” and “for selectively phase-shifting the
beams in accordance with the codeword” as recited in claim 1.

DECISION
We affirm the Examiner’s decision rejecting claims 1-20.
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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