Ex Parte Moynihan et al

Patent Trial and Appeal Board

Feb 27, 2018

13868343 (P.T.A.B. Feb. 27, 2018)

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.
13/868,343 04/23/2013 Jeffrey Scott Moynihan 10.2147 2698
22474 7590 03/02/2018
P1e.me.nts RemarH Walker PT T P
EXAMINER
4500 Cameron Valley Parkway
Suite 350
ELMEJJARMI, ABDELILLAH
Charlotte, NC 28211 ART UNIT PAPER NUMBER
2462
NOTIFICATION DATE DELIVERY MODE
03/02/2018 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):
patlaw @ worldpatents.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY SCOTT MOYNIHAN
and MATTHEW W. CONNOLLY
Appeal 2017-005966
Application 13/868,3431
Technology Center 2400
Before ERIC B. CHEN, BARBARA A. BENOIT, and
MICHAEL J. ENGLE, Administrative Patent Judges.
ENGLE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
Technology
The application relates to “optical networking” and “suppressing
invalid defect detection when Out-Of-Frame (OOF) conditions occur.”
Spec. 11.
Illustrative Claim
Claim 1 is illustrative and reproduced below with certain limitations at
issue emphasized:
1 Appellants state the real party in interest is Ciena Corp. App. Br. 2.
Appeal 2017-005966
Application 13/868,343
1. A method for processing a report of a defect during an Out-
Of-Frame (OOF) condition, comprising:
detecting the OOF condition at a downstream node;
detecting an indication of the defect caused by the OOF
condition;
suppressing a report associated with the indication of the
defect;
determining whether the OOF condition is clear;
if the OOF condition is clear, determining whether the
indication of the defect is still present such that the defect is a
valid defect; and
if the indication of the defect is not present, cancelling the
report after the OOF condition is clear and before the OOF
condition becomes a Loss Of Frame (LOF) condition or a Loss
of Signal (LOS) condition since the defect is an invalid defect
caused by the OOF condition which is now cleared.
Rejections
Claims 1—8 and 10—19 stand rejected under 35 U.S.C. § 103(a) as
obvious over the combination of Smith et al. (US 2013/0051792 Al; Feb.
28, 2013) and Giorgetta et al. (US 7,035,292 Bl; Apr. 25, 2006). Final
Act. 3-7.
Claims 9 and 20 stand rejected under 35 U.S.C. § 103(a) as obvious
over the combination of Smith, Giorgetta, and Guylain Barlow, A G. 709
Optical Transport Network Tutorial, JDSU White Paper. Final Act. 7.
ISSUE
Did the Examiner err in finding Giorgetta teaches or suggests “if the
OOF condition is clear, determining whether the indication of the defect is
still present,” as recited in claim 1?
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Appeal 2017-005966
Application 13/868,343
ANALYSIS
Claim 1 recites “if the OOF condition is clear, determining whether
the indication of the defect is still present.” Independent claim 12 recites a
commensurate limitation.
The Examiner finds Giorgetta teaches or suggests this limitation:
When in an OOF condition, this block moves back to the in-
frame condition upon detecting two successive error-free
framing patterns. This implementation of the frame check circuit
clears OOF within the required 250 ms interval. Failure to obtain
a frame within 3 ms (OOF persists for 3 ms) results in a Loss-of-
Frame (LOF).
Ans. 4 (quoting Giorgetta 22:37-42, emphasis omitted).
Appellants argue the Examiner’s quoted language and citation “does
teach ‘the OOF condition is clear, ’ but [it] does not teach any of the
remaining aspects .... There is simply no suggestion to check if the defect
is present after the OOF condition clears.” Reply Br. 2; see also App. Br. 9—
10.
We agree with Appellants. The Examiner finds Giorgetta’s Loss-of-
Frame (LOF) teaches the claimed “defect.” Ans. 3^4. The Examiner further
finds that LOF arises only if “OOF persists for 3 ms.” Id. at 4. Thus, the
LOF condition only arises if the OOF condition exists. The Examiner also
finds that the OOF condition can be cleared but makes no finding about
when LOF is cleared. Id. Although it is theoretically possible that the LOF
condition might remain after the OOF condition was cleared (e.g., if LOF
was used to indicate a loss had ever occurred rather than a loss was currently
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Appeal 2017-005966
Application 13/868,343
occurring), nothing in the Examiner’s findings shows “determining whether
[LOF] is still present” if the OOF condition is clear.2
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 1 and 12, and their dependent claims 2—11 and 13—20.
DECISION
For the reasons above, we reverse the decision rejecting claims 1—20.
REVERSED
2 In the event of further prosecution, the Examiner may wish to consider
whether the “if’ clauses in claim 1 are conditional method steps such that
claim 1 can be met without triggering either of the conditions. See Ex parte
Schulhauser, Appeal No. 2013-007847, 2016 WL 6277792, at *3^1 (PTAB
Apr. 28, 2016) (precedential); Cybersettle, Inc. v. Natl Arbitration Forum,
Inc., 243 F. App’x 603, 607 (Fed. Cir. 2007) (unpublished) (“If the condition
for performing a contingent step is not satisfied, the performance recited by
the step need not be carried out in order for the claimed method to be
performed.”); Applera Corp. v. Illumina, Inc., 375 F. App’x 12, 21 (Fed. Cir.
2010) (unpublished).
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