Ex Parte Vaananen

Board of Patent Appeals and Interferences

May 8, 2012

10504418 (B.P.A.I. May. 8, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte MIKKO KALERVO VAANANEN
____________________

Appeal 2010-009390
Application 10/504,418
Technology Center 2600
____________________

Before BRADLEY W. BAUMEISTER, ERIC B. CHEN, and
JENNIFER S. BISK, Administrative Patent Judges.

BISK, Administrative Patent Judge.

DECISION ON APPEAL

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SUMMARY
This is an appeal under 35 U.S.C. § 134 from the Examiner’s final
rejection of claims 32-38 and 41-43.1 Claims 1-31, 39, 40, 44, and 45 have
been canceled. We have jurisdiction under 35 U.S.C. § 6(b).
Claims 32, 33, 41, and 42 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Izadpanah (US 2002/0122230 A1; Sep. 5, 2002
(filed Mar. 5, 2001)) and Plante (US 2004/0208602 A1; Oct. 21, 2004 (filed
Dec. 1, 2001)).
Claims 34-38 and 43 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Izadpanah, Plante, and Dodley (US 5,966,229; Oct. 12,
1999).
We affirm.

STATEMENT OF THE CASE
Appellant’s invention relates to a system and method for extending
the range and reliability of optical and Infrared/Microwave wireless
communications. See Spec. 1-3. Representative claim 32, reproduced below,
is illustrative of the claimed subject matter:2
32. A wireless beam transmission system for the
communication of information, comprising:
at least two transmitters (110) of different types and having all
or some parts of the transmission system arranged to
accommodate at least one wavelength, wherein

1 An oral hearing was held on May 1, 2012. The record includes a written
transcript of the oral hearing.
2 Appellant argues claims 32, 33, 41, and 42 together as a group. See App.
Br. 10-21. Accordingly, we select independent claim 32 as representative.
See 37 C.F.R. § 41.37(c)(1)(vii)(2010).
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– at least one transmitter (110) is a semiconductor laser and at
least one transmitter (110) is a quantum cascade laser or a
maser.
The Examiner finds that Izadpanah teaches a communication system
with two transmitters (a radio transmitter and a laser transmitter) using
electromagnetic waves at different frequencies to provide a redundant and
weather protective system that is operative over a broad range of
atmospheric conditions. Ans. 4, 6. Even though Izapandah does not
explicitly denote what specific type of laser is used for the disclosed laser
transmitter, we understand the Examiner to be interpreting this laser to be a
semiconductor laser, and Appellants do not dispute this interpretation or
assert otherwise. See App. Br. 12-17; Reply Br. 2-4; Izadpanah. See also Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an
appellant fails to present arguments on a particular issue—or, more broadly,
on a particular rejection—the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection.”). Designated precedential
at http://www.uspto.gov/ip/boards/bpai/decisions/prec/index.jsp.
The Examiner finds that Plante teaches the use of multiple quantum
cascade lasers, which are a type of semiconductor laser. Id. And the
Examiner finds that one of ordinary skill in the art would have been
motivated to combine the teachings of the two references so as to substitute
Plante’s quantum cascade for Izadpanah’s radio wave transmitter because
the mid-infrared (“mid-IR”) beams generated by quantum cascade lasers
have low atmospheric absorption and thus can add reliability to wireless
optical communications by mitigating the atmospheric limitations inherent
in these systems. Id. (citing Plante ¶ [0083] (“The Mid-IR region of the
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optical spectrum is particularly attractive for FSO systems for several
reasons . . . .”)).
Appellant argues that the Examiner’s rejection does not properly
present a prima facie case of obviousness. First, Appellant asserts that
Izadpanah teaches away from the present invention. App. Br. 10-15; Reply
Br. 2-4. Second, according to Appellant, the proposed combination of
Izadpanah and Plante would improperly change the principle of operation of
the system described in Izadpanah. App. Br. 16-17.

ISSUE
Has the Examiner erred in finding that a person of ordinary skill in the
art would have been motivated to combine the teachings of Izadpanah and
Plante to create Appellant’s invention?

ANALYSIS
There is no dispute that Izadpanah teaches a wireless communication
system comprising radio frequency transmitters and an optical transmitter.
Ans. 4; App. Br. 12. And Appellant agrees that the combination of the radio
and optical transmitters leads to a system with increased communication
connectivity and reliability. Ans. 6; App. Br. 13-14. This is because the
transmitters operate at different frequencies and therefore work well under
different atmospheric conditions. Ans. 6; App. Br. 14. Izadpanah explicitly
teaches that the radio transmitter is thus a “good complement[]” to the
optical transmitter “providing a redundant and weather protective system
that is operative over a broad range of atmospheric conditions.” App. Br. 14
(quoting Izadpanah ¶ [0038]).
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Appellant also admits that Plante discloses using one or more
quantum cascade lasers in a wireless communication system. App. Br. 17
(stating that Plante discloses “[a]s a design alternative, there can be two
[quantum cascade] lasers”). However, Appellant argues that “Plante does not
disclose the combination of two lasers of different types.” Id. Appellant’s
argument is narrowed to disputing the Examiner’s finding that one of
ordinary skill in the art would have been motivated to combine the teachings
of these two references because Izapandah discusses the benefits of
combining a laser transmitter with a radio transmitter. App. Br. 10-21; Reply
Br. 2-4.
We are not persuaded by Appellant’s arguments. We find rational the
Examiner’s reasoning that one of ordinary skill in the art would be
motivated to use the quantum cascade laser described by Plante in place of
the radio frequency transmitter in the system described by Izadpanah in
order to take advantage of the characteristics of a mid-IR beam. Ans. 6-7;
Plante ¶¶ [0083], [0096]. Thus, the Examiner has presented a prima facie
case of unpatentability. See In re Khan, 441 F.3d 977, 988 (Fed. Cir. 2006),
quoted with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007) (finding that to support a prima facie case of obviousness, a rejection
must include “some articulated reasoning with some rational underpinning”).
Therefore, the burden shifts to Appellant to prove patentability. In re
Sullivan, 498 F.3d 1345, 1351 (Fed. Cir. 2007) (“[W]hen a prima facie case
is made, the burden shifts to the applicant to come forward with evidence
and/or argument supporting patentability.”). Appellant’s assertion that
Izadpanah teaches away from the claimed invention does not meet this
burden. Appellant does not assert that Izadpanah criticizes or discredits
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using a quantum cascade laser in place of its disclosed radio transmitter.
App. Br. 10-15. Instead, Appellant argues that Izadpanah “teach[es] that to
increase the performance of the radio portion, more antennas and
frequencies need to be employed.” App. Br. 15. Thus, “one of ordinary skill
in the art would start from [Izadpanah] and turn to multiple antenna design
publications in his quest to improve the system.” Id. Appellant provides no
persuasive evidence to support this assertion. In the absence of such support,
we are not persuaded that a person of ordinary skill would be discouraged
from replacing the radio transmitter with a quantum cascade laser. See
Syntex LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed Cir. 2005) (“What a
reference teaches or suggests must be examined in the context of the
knowledge, skill, and reasoning ability of a skilled artisan. What a reference
teaches a person of ordinary skill is not . . . limited to what a reference
specifically ‘talks about’ . . . . [A] reference will teach away when it
suggests that the developments flowing from its disclosures are unlikely to
produce the objective of the applicant’s invention.”).
We are also not persuaded that the proposed combination of Plante
and Izadpanah would change the principle of operation of Izadpanah. In
explaining this argument, Appellant asserts that because Izadpanah “teaches
to proliferate antennas and frequencies,” restricting the system disclosed by
Izadpanah “to a dual-laser solution thus changes the principle of operation
of” Izadpanah. App. Br. 16. Again, Appellant provides no persuasive
evidence or explanation to support this conclusion. We thus agree with the
Examiner that adding a laser in place of the radio transmitter in Izadpanah
does not change the technical basis of how the system performs its intended
function. Ans. 7-8; see In re Ratti, 270 F.2d 810, 813 (CCPA 1959) (finding
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that a combination was not a proper ground of rejection only when the
“suggested combination of references would require a substantial
reconstruction and redesign of the elements shown in [the primary reference]
as well as a change in the basic principles under which the [primary
reference] construction was designed to operate”).
For these reasons, we sustain the Examiner’s rejection of
representative claim 32, as well as claims 33, 41, and 42, which were not
separately argued.
We also sustain the Examiner’s rejection of claims 34-38 and 43 as
being unpatentable over Izadpanah, Plante, and Dodley. Appellant argues
that Dodley also teaches away from the claimed invention because it teaches
using a single laser or a maser. App. Br. 22. According to Appellant, one of
ordinary skill “would seek to adjust a single laser and not turn to a second a
[sic] quantum cascade laser or a maser.” Id. Again, in the absence of any
supporting evidence, we are not persuaded that one of skill in the art would
not be motivated to combine the wireless optical communication systems of
Izadpanah, Plante, and Dodley, such that the resulting system included two
optical transmitters as described above with the spectrometer disclosed by
Dodley. Ans. 5, 10.

DECISION
The Examiner’s decision rejecting claims 32-38 and 41-43 is
affirmed.
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).

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AFFIRMED

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