Ex Parte Feder et al

Patent Trial and Appeal Board

Jun 13, 2018

14540064 (P.T.A.B. Jun. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/540,064
69054 7590
RECHES PA TENTS
211 North Union St.
Suite 100
FILING DATE
11/13/2014
06/15/2018
Alexandria, VA 22314
FIRST NAMED INVENTOR
Meir FEDER
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.
8483-US 7621
EXAMINER
BELLO, AGUSTIN
ART UNIT PAPER NUMBER
2637
NOTIFICATION DATE DELIVERY MODE
06/15/2018 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):
OREN@I-P.CO.IL
RECHES0@012.NET.IL
MAIL@I-P.CO.IL
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MEIR FEDER, RONEN DAR,
MARK SHTAIF, and ANTONIO MECOZZI
Appeal2018-000883
Application 14/540,064
Technology Center 2600
Before ROBERT E. NAPPI, ERIC S. FRAHM, and SCOTT B. HOWARD,
Administrative Patent Judges.
FRAHM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE 1
Introduction
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Rejection of claims 1-5, 7-10, 34--36, 38--43, and 45--47. 2 Claims 11-
1 According to Appellants, Ramot at Tel-Aviv University Ltd. is the real
party in interest. App. Br. 3.
2 Appellants reference claim 33 (App. Br. 3 and 6-7), however, it is noted
that claims 11-33 were canceled in Appellants' amendment filed on
February 2, 2015. Appellants also reference the amendment filed on May
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Application 14/540,064
33 have been canceled. Claims 6, 37, and 44 have been objected to as
allowable if rewritten in independent form including all of the limitations of
the base claims and any intervening claims. Final Act. 6; Ans. 6. 3 We have
jurisdiction under 35 U.S.C. § 6(b). We affirm the Examiner's anticipation
rejection of claims 1, 2, 4, 5, 7-10, 34, 36, 38--40, 42, and 45--47; and
reverse the Examiner's written description rejection of claim 4 7 and
anticipation rejection of claims 3, 35, and 41.
Disclosed Invention and Exemplary Claims
The disclosed invention is a wavelength division multiplex (WDM)
system and method that provides noise correction by analyzing a sub-block
of a block of signals by means of a computer to determine what interferences
are affecting the signals and mitigating interferences that affect the block of
signals in response to the analysis results. Abstract; Title. Both phase noise
(see Spec. ,r,r 2, 4, 44, 53; see also e.g., claim 2), and non-linear inter-symbol
interference (ISI) (see Spec. ,r,r 2, 7, 60; see also e.g., claims 3 and 47) are
analyzed and mitigated. Abst.; Spec. ,r 2. Independent claim 1 and
dependent claims 2 and 3 are exemplary of the disclosed invention, and read
25, 2016, as including new claims 34--56 (App. Br. 3 and 17-19), however,
this amendment only actually presented/amended claims 34--47.
3 The dependency of claim 44 is incorrect since it depends from nonexistent
claim 52, and claim 37 is a system claim depending from claim 45 which is
a non-transitory computer readable medium claim, and not a system claim
(see App. Br. 17-19). However, we consider these to be harmless errors in
regards to the appeal, since claims 37 and 44 are not separately argued.
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Application 14/540,064
as follows (with the disputed portion of the claim emphasized and bracket
lettering added):
1. A method comprising:
receiving, by wavelength division multiplex (WDM)
receiver of a WDM system, a block of signals from a certain
WDM channel out of a set of WDM channels;
[ A J analyzing, by computer of the WDM system, at least a
first sub-block of signals of the block of signals to provide
analysis results indicative of interferences that affect the first
sub-block of signals and result from transmissions over other
WDM channels of the set of WDM channels; and
mitigating, by the computer of the WDM system,
interferences that affect the block of signals in response to the
analysis results.
2. The method according to claim 1 [BJ wherein the
interferences that affect the block of signal manifest as phase
noises and wherein the mitigating of the interferences comprises
phase noise cancellation.
3. The method according to claim 1 [CJ wherein the
interferences that affect the block of signal manifest as inter-
symbol interference and wherein the mitigating of the
interferences comprises inter-symbol interference cancellation.
Examiner's Rejections
(1) The Examiner rejected claim 47 under 35 U.S.C. § 112(a), as
failing to provide adequate written description of the claimed invention so as
to reasonably convey to one skilled in the relevant art that the inventors had
possession of the claimed invention at the time the application was filed.
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Application 14/540,064
Final Act. 2-3; Ans. 2-3, 17-18. Specifically, the Examiner determined that
the Specification lacks support for the recitation of the term "time varying
mode inter symbol interference model" recited in claim 4 7. Final Act. 2-3;
Ans. 2-3, 17-18.
(2) The Examiner rejected claims 1-5, 7-10, 34--36, 38--43, and
45--47 under 35 U.S.C. § I02(a)(l) as being anticipated by Price et al. (US
7,596,323 Bl; issued Sept. 29, 2009) ("Price"). Final Act. 3-6; Ans. 4--6,
6-17.
Appellants ' Contentions
Written Description
Appellants contend (App. Br. 14--15) that the Examiner erred in
rejecting claim 47 under 35 U.S.C. § 112(a) because the Specification at
paragraphs [0040], [0045], [0046], [0061] through [0067], and [0102]
through [0104] taken as a whole provide a written description of the inter
symbol interference model (ISI) of the nonlinear interference noise due to
the recitation that the "effect of nonlinear interference noise (NLIN) in
Wavelength Division Multiplex (WDM) systems ... described as
intersymbol interference (ISI) with slowly changing coefficients."
Anticipation
Appellants contend (App. Br. 8-13) that the Examiner erred in
rejecting claims 1-5, 7-10, 34--36, 38--43, and 45--47 under
35 U.S.C. § I02(a)(l). Specifically, Appellants contend independent claims
1, 9, and 10 were rejected in error because nothing in the Price reference
amounts to "analysis results indicative of interferences that affect the first
sub-block of signals and result from transmissions over other WDM
channels of the set of WDM channels" as recited in independent claim 1 (see
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Application 14/540,064
limitation [A] recited in claim 1 supra), and similarly recited in remaining
independent claims 9 and 10. App. Br. at 10 and 12. Specifically,
Appellants point to Price's description of the systems dispersion
compensation (DC), the recitation of the systems frequency offset and
timing offset, and Figures 10 and 11. App. Br. 8-12. Based on Appellants'
arguments, and because claims 1, 9, and 10 contain the same salient
limitation concerning analysis and mitigation of interference, we select
claim 1 as representative of claims 1, 4, 5, 7-10, 36, 38, 39, 42, 43, and 45-
47.
Appellants also contend that the Examiner erred in rejecting claims 2,
34, and 40 because Price's "Gain, Timing & Phase corrector 122" receives
inputs from frequency estimator and timing offset estimator, and not the
dispersion estimator, therefore, the corrector has nothing to do with the
interferences that affect the block of signals that manifest as phase noise.
App. Br. 12-13.
Lastly, Appellants contend that the rejection of claims 3, 35, and 41
was in error because Price's "Gain, Timing & Phase corrector 122" receives
inputs from frequency estimator and timing offset estimator and not the
dispersion estimator, therefore, the corrector has nothing to do with the
interferences that affect the block of signals that manifest as ISL App. Br.
13.
Principal Issues on Appeal
Written Description
Based on Appellants' arguments (App. Br. 14--15), the following
written description issue is presented:
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Application 14/540,064
(1) Did the Examiner err in rejecting claim 4 7 as lacking written
description support for the ISI model of the nonlinear interference noise on
the basis that the Specification as originally filed and supported by the
provisional application did not reasonably convey to one skilled in the
relevant art that the inventor had possession of the claimed invention at the
time the application was filed?
Anticipation
Based on Appellants' arguments (App. Br. 8-13), the following three
anticipation issues are presented:
(2) Did the Examiner err in rejecting claims 1, 4, 5, 7-10, 36, 38, 39,
42, 43, and 45--47 under 35 U.S.C. § 102(a)(l) because Price fails to
disclose limitation [ A J as recited in representative claim 1 supra?4
(3) Did the Examiner err in rejecting claims 2, 34, and 40 under 35
U.S.C. § 102(a)(l) because Price fails to disclose mitigating phase noise as
recited in claims 2, 34, and 40 (see e.g., limitation [BJ recited in claim 2
supra)?
(4) Did the Examiner err in rejecting claims 3, 35, and 41 under 35
U.S.C. § 102(a)(l) because Price fails to disclose mitigating non-linear
interferences using a time varying mode ISI model as recited in claims 3, 35,
and 41 (see e.g., limitation [CJ recited in claim 3 supra)?
4 Based on Appellants' arguments in the Appeal Brief (App. Br. 8-13), we
select claim 1 as representative of claims 1, 4, 5, 7-10, 36, 38, 39, 42, 43,
and 45--47.
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Application 14/540,064
ANALYSIS
We have reviewed the Examiner's rejections (Final Act. 2-6; Ans. 2-
6) in light of Appellants' arguments in the Appeal Brief that the Examiner
has erred (App. Br. 8-15), as well as the Examiner's response to Appellants'
arguments in the Appeal Brief (Ans. 6-18). We agree with Appellants'
conclusions ( as to Issue (1)) that the Examiner erred in rejecting claim 4 7
under 35 U.S.C. § 112(a), as failing to provide an adequate written
description of the invention recited in claim 47. See App. Br. 14--15.
However, we disagree with Appellants' conclusions with regard to the
anticipation rejection of representative claim 1 and dependent claims 2, 34,
and 40 over Price (Issues (2) and (3)). Appellants' arguments as to claims 1,
2, 34, and 40 are not persuasive of error. With regard to representative claim
1 (Issue (2)) and dependent claims 2, 34, and 40 separately argued (Issue
(3)), we agree with and adopt as our own the Examiner's findings of facts
and conclusions as set forth in the Answer. Final Act. 3-5; Ans. 4--5, 6-17.
Additionally, we agree with Appellants' arguments that the Examiner
erred in rejecting claims 3, 35, and 41 under 35 U.S.C. §102(a)(l) as
anticipated by Price (Issue (4)). See App. Br. 13.
We provide the following explanation for emphasis.
Issue (1): Written Description
The examiner ... "bears the initial burden ... of presenting
a prima facie case of unpatentability." In re Oetiker, 977, F .2d
1443, 1445 ... (Fed. Cir. 1992). Insofar as the written
description requirement is concerned, that burden is discharged
by "presenting evidence or reasons why persons skilled in the art
would not recognize in the disclosure a description of the
invention defined by the claims." [ In re] Wertheim, 541 F .2d
[257, 263 (CCPA 1976)]. Thus, the burden placed on the
examiner varies, depending upon what the applicant claims. If
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the applicant claims embodiments of the invention that are
completely outside the scope of the specification, then the
examiner or Board need only establish this fact to make out a
prima facie case. Id. at 263-264.
In re Alton, 76 F.3d 1168, 1175 (Fed. Cir. 1996) (parallel citations omitted).
In the instant case, the Examiner has not met this burden by merely
concluding that the Specification does not provide a support for the
recitation of claim 4 7 of "mitigating non-linear interferences using a time
varying mode inter symbol interference model of the nonlinear interference
noise."
Under 35 U.S.C. § 112(a) to satisfy the written description
requirement, "the disclosure of the application relied upon [must] reasonably
convey[] to those skilled in the art that the inventor had possession of the
claimed subject matter as of the filing date." Ariad Pharm., Inc. v. Eli Lilly
& Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en bane) (citations omitted).
See also Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563---64 (Fed. Cir.
1991) (" [T]he applicant must ... convey with reasonable clarity to those
skilled in the art that, as of the filing date sought, he or she was in possession
of the invention." Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563---64
(Fed. Cir. 1991). In other words, the Examiner has the initial burden of
presenting evidence or reasons why persons skilled in the art would not
recognize in an applicant's disclosure a description of the invention defined
by the claims. In re Wertheim, 541 F.2d at 265 (CCPA 1976).
Thus, the written description requirement requires us to determine
"whether the disclosure of the application as originally filed reasonably
conveys to the artisan that the inventor had possession at that time of the
later claimed subject matter, rather than the presence or absence of literal
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Application 14/540,064
support in the specification for the claim language." In re Kaslow, 707 F.2d
1366, 1375 (Fed. Cir. 1983) ( citations omitted) ( emphasis added).
Looking to the Appellants' Specification as a whole, including
paragraphs [0040], [0045], [0046], [0061]-[0067], and [0102]-[0104], along
with the pages 6 through 8 of the appendix provided in U.S. Provisional
Application No. 61/903,412 filed on November 13, 2013, and incorporated
by reference in paragraphs [0039] and [0040] of Appellants' Specification, 5
support is found for using the ISI model to mitigate interference.
Specifically, the appendix provided in U.S. Provisional Application No.
61/903,412 includes an article written by Appellants' entitled "Time Varying
IS! Model for Nonlinear Interference Noise." 6 See Spec. ,r,r 39, 40.
Appellants, in the Time Varying ISI Model article, discuss that nonlinear
interference between WDM channels manifests as time varying ISI, and
disclose Equation (4) which characterizes ISI coefficients for
determination over all neighboring WDM channels taking into account the
frequency separation between the channel of interest and the neighboring
channels. 7 In addition, claims 28 through 31 and 33, as originally filed with
the Specification on November 13, 2014, support measuring, learning, and
canceling inter-symbol interference (ISI) "per block of symbols" (Spec. 32-
33, originally filed claims 28-31, 33). Therefore, the originally filed
5 The instant application on appeal claims priority from U.S. Provisional
Patent Application No. 61/903,412 filed on November 13, 2013. Spec. ,r 1.
6 R. Dar, M. Feder, A. Mecozzi, and M. Shtaif, Time Varying IS! Model for
Nonlinear Interference Noise, OPTICAL FIBER COMMUNICATION
CONFERENCE, OSA Technical Digest ( online) (Optical Society of America,
2014), paper W2A.62 (hereinafter, "Time Varying ISI Model article").
7 See id. at 3, Abstract and Conclusion.
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Application 14/540,064
Specification does reasonably convey to one of ordinary skill in the art that
Appellants had possession of the claim limitation recited in dependent claim
4 7 at the time of filing of November 13, 2014, namely, that the interference
be mitigated using a time varying mode ISI model.
In this light, we do not agree with the Examiner that "support for such
mitigation based on a time varying mode inter symbol interference model of
the nonlinear interference noise cannot be found in the specification as
originally filed" (Final Act. 3; Ans. 3). And notably, neither the Examiner's
findings in the Final Rejection (see Final Act.2-3) nor the response to
Appellants' arguments in the Answer (Ans. 3, 17-18) concerning the written
description rejection of claim 4 7 address the specific portions of the
Specification contested by Appellants, and especially pages 6 through 8 of
the appendix to U.S. Provisional Patent Application No. 61/903,412 (the
Time Varying ISI Model) supporting use of the ISI model to mitigate
interference.
Accordingly, we do not sustain the Examiner's written description
rejection of claim 47.
Issues (2)-(4): Anticipation Rejection
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. 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).
Issue (2): Representative Claim 1
With regard to Issue (2), Appellants argue that Price fails to disclose
the limitation [A] of representative claim 1 supra. App. Br. 8-11.
Appellants describe how Price teaches an optical communication system that
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may perform dispersion compensation by means of a "dispersion
compensator 46 [that] receives I and Q signal and compensates for the
dispersion in the signal." App. Br. 9. Appellants also describe that Figure 11
of Price shows "frequency estimator 136, a dispersion estimator 138, timing
offset estimator 140, a dispersion compensation 118, a gain, timing & phase
correction 122," however, Appellants contend that these do not teach or
suggest the dispersion estimator that provides analysis results indicative of
interferences or mitigating interferences. App. Br. 9-11.
Based on the record before us, we agree with the Examiner (Ans. 4--5,
6-16) that Price's disclosure anticipates the analysis and mitigation of
interferences in a WDM system. Figure 11 of Price demonstrates a flow
diagram of how a signal having two polarizations with in-phase ("I") and
quadrature ("Q") components is processed by a signal processor 114. See
Price, col. 19, 11. 13-20. The signal is linearly or nonlinearly compensated
by a dispersion compensator (DC) 118 prior to detection by a signal detector
120. Price, col. 19, 11. 20-22; col. 20, 11. 1-2. The detected signal outputted
is then gain, timing, and phase corrected by corrector 122 which takes into
account timing offset estimates and frequency offset estimates from
estimators 136, 138, and 140 (Price, col. 19, 11. 25-27;) to align the
processed signals for the two polarizations. Price, col. 20, 11. 23-27. Once
corrected the two polarized components are combined 126, and a symbol
decision based on the combined signal can be made. Price, col. 20, 11. 27-
29.
In addition, Figure 10 of Price referred to by Examiner shows eight
subcarriers with unique wavelengths centered around a main carrier which
together can be interpreted as WDM system because the carriers are
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combined into single signal that is sent over a shared medium thus meeting
the basic definition of WDM. See Ans. 8-12. Specifically, the Examiner
points to Price's use of a correlator that analyzes a unique word (UW) as
disclosing the recitation in claim 1 of "analyzing ... at least a first sub-block
of signals" ( claim 1 ). Ans. 7-8. Price discloses that each UW is a sub-block
of data bits, and that within each frame of data an UW is processed to
estimate the frequency offset, system dispersion, and system timing within
that frame of data which is then correlated with the ideal UW response for
the sub-block of signals being processed. Ans. 6-8 citing Price, col. 20 11.
30-45. Specifically, Price discloses the use of the UW correlator to process
the effectiveness of a signal DC by means of a correlation metric which
increases if the DC approaches equalization of the actual dispersion and
decreases if the DC moves away from equalization of the actual dispersion.
Price, col. 12, 11. 35--47. In this light, Appellants' arguments (App. Br. 9-
12) that Price fails to disclose analyzing a sub-block of signals to provide
analysis results used to mitigate interference as set forth in claim 1, are not
persuasive.
As a result, Appellants have not sufficiently shown the Examiner
erred in rejecting claim 1 for anticipation, and Appellants' contentions that
Price fails to disclose, teach, or suggest limitation [A] of representative
claim 1 are not persuasive. Accordingly, we sustain the Examiner's
anticipation rejection of representative claim 1, and claims 4, 5, 7-10, 36,
38, 39, 42, 43, and 45--47 grouped therewith.
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Issue (3): Claims 2, 34, and 40
With regard to Issue (3), Appellants argue that Price fails to disclose
the interference as phase noise and the mitigation of the interference as
phase noise cancellation as recited in claims 2, 34, and 40. App. Br. 12-13.
Appellants specifically recite that the "Gain, Timing & Phase corrector 122"
receives inputs from frequency estimator and timing offset estimator, and
not the dispersion estimator therefore; the corrector has nothing to do with
the interferences that affect the block of signals that manifest as phase noise.
App. Br. 12-13.
Based on the record before us, we agree with the Examiner (Ans. 16-
1 7) that Price's disclosure anticipates the claim because phase noise can
manifest as either chromatic dispersion or polarization dispersion and be
corrected accordingly without the need for an input into the dispersion
estimator. Examiner in the Final Action points to Figure 11 of Price, which
demonstrates
the detector 120 determines the phase state of successive
symbols in the signal and determines the phase difference
between them. The phase difference corresponds to the two bits
of data transmitted. Depending on the specific modulation used,
fewer or more bits may be coded in each symbol, and the detector
120 may need to account for phase offsets. The detector 120
removes constant phase shifts between symbols, therefore
receive optical source 106 phase noise is mitigated because it
varies slowly compared to the symbol rate of the data signal. ...
Price, col. 20, 11.9-18.
Therefore, Figure 11 cited by the Examiner clearly demonstrates that
Price takes phase noise interference into account and mitigates it
accordingly. In view of all of the foregoing, Appellants have not sufficiently
shown the Examiner erred in rejecting claims 2, 34, and 40 for anticipation,
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and Appellants' contentions that Price fails to disclose mitigating
interference as phase noise cancellation as recited in claims 2, 34, and 40 are
not persuasive. Accordingly, we sustain the Examiner's anticipation
rejection of claims 2, 34, and 40.
Issue (4): Claims 3, 35, and 41
Lastly, with regard to Issue ( 4), Appellants argue that Price fails to
disclose the interference as ISI and the mitigation of the interference as ISI
cancellation as recited in claims 3, 35, and 41. App. Br. 13. Appellants
specifically recite that the "Gain, Timing & Phase corrector 122" receives
inputs from frequency estimator and timing offset estimator, and not the
dispersion estimator therefore; the corrector has nothing to do with the
interferences that affect the block of signals that manifest as ISL App. Br.
13.
Based on the record before us, we do not sustain the Examiner's
rejection of claims 3, 35, and 41. Ans. 16-17. The Examiner, in the
response to Appellants' arguments, merely reiterates the same arguments as
for claims 2, 34, and 40 discussed above, and does not discuss what in
Figure 11 of Price refers to the ISI interference model recited in claims 3,
35, and 41. See id. Price discloses that (i) "phase noise is mitigated because
it varies slowly compared to the symbol rate of the data signal," ( col. 20, 11.
17-18); and (ii) the dispersion compensator "provides one or more types of
compensation, such as linear or nonlinear compensation" (col., 1211.9-12).
However, Price is unclear as to whether the nonlinear correction is the same
as the ISI correction recited in claims 3, 35, and 41, since no reference is
made to an ISI model. The only ISI model for compensation of
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interferences in a signal comes from Appellants' own Specification. 8 See
Spec. ,r 39. For these reasons, we do not sustain the Examiner's anticipation
rejection of claims 3, 35, and 41.
CONCLUSIONS
(1) The Examiner erred in rejecting claim 47 as being unpatentable
under 35 U.S.C. § 112(a) for lack of written description support in the
Specification.
(2) The Examiner did not err in rejecting claims 1, 4, 5, 7-10, 36, 38,
39, 42, 43, and 45--47, as being anticipated by Price because Price discloses
limitation [A] set forth in representative claim 1.
(3) The Examiner did not err in rejecting claims 2, 34, and 40 as being
anticipated by Price because Price discloses mitigating phase noise as recited
in claims 2, 34, and 40.
(4) The Examiner erred in rejecting claims 3, 35, and 41 as being
anticipated by Price because Price does not disclose mitigating non-linear
interferences using a time varying mode ISI model as recited in claims 3, 35,
and 41.
8 Appellants' Specification at paragraph [0039] refers to, and incorporates by
reference, the appendix provided with U.S. Provisional Application No.
61/903,412, which describes the mitigation of ISI interference by means of
an ISI model.
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DECISION
(1) The Examiner's rejection of claim 47 under 35 U.S.C. § 112(a), as
failing to provide adequate written description of the claimed invention as
recited in dependent claim 4 7, is reversed.
(2) The Examiner's rejection of claims 1, 2, 4, 5, 7-10, 34, 36, 38--40,
42, and 45--47 under 35 U.S.C. § 102(a)(l) as being anticipated by Prince is
affirmed.
(3) The Examiner's rejection of claims 3, 35, and 41 under
35 U.S.C. § 102(a)(l) as being anticipated by Prince is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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