Alexander Ivan. Soto et al.

Patent Trials and Appeals Board

Nov 4, 2019

14588899 - (D) (P.T.A.B. Nov. 4, 2019)

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.
14/588,899 01/02/2015 Alexander Ivan Soto UBI-007B 5445
93749 7590 11/04/2019
Alexander Soto
7673 Hazard Center Dr.
San Diego, CA 92108
EXAMINER
LIU, LI
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
11/04/2019 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):
alexander.i.soto@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER IVAN SOTO AND WALTER GLEN SOTO
Appeal 2018-008100
Application 14/588,899
Technology Center 2600
BEFORE MICHAEL J. STRAUSS, MICHAEL M. BARRY, and
PHILLIP A. BENNETT, Administrative Patent Judges.
STRAUSS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–22. Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).

1 We refer to the Specification, filed January 2, 2015 (“Spec.”); Final Office
Action, mailed October 19, 2016 (“Final Act.”); Appeal Brief, filed March
18, 2017 as supplemented on May 8, 2017 (“Appeal Br.”); Examiner’s
Answer, mailed July 12, 2017 (“Ans.”); and Reply Brief, filed July 22, 2018
(“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as the joint inventors,
Alexander Soto and Walter Soto. Appeal Br. 3.
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Application 14/588,899
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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to optical layer management in optical
modules and remote control of optical modules. Spec., Title. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A pluggable optical transceiver module configured to
removably couple to an optical module port of a switch, router
or media adapter, the pluggable optical transceiver module
comprising:
a protocol processor for managing the transmission and
reception of Open Systems Inter-connect (OSI) Layer 3
communications;
an optical fiber interface port disposed to removably
couple one or more optical fibers to the pluggable optical
transceiver module;
an electrical network interface port electrically coupled to
the protocol processor and disposed for electrically coupling the
pluggable optical transceiver module-to a switch, router or media
converter;
a bidirectional optical assembly optically coupled to the
optical fiber interface port, the bidirectional optical assembly
being electrically coupled to the protocol processor and disposed
for transmitting optical signals through the optical fiber interface
port responsive to electrical signals received from the protocol
processor and further disposed to convey an electrical
communication signal to the protocol processor responsive to
receiving an optical communication signal through the optical
fiber interface port, whereby the pluggable optical transceiver
module is disposed to communicate using OSI Layer 3.
REFERENCES 3
The prior art relied upon by the Examiner is:

3 All citations herein to these references are by reference to the first named
inventor only.
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Application 14/588,899
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Name Reference Date
Scarmalis
Masucci et al.
Denton et al.
Medina et al.
Huang et al.
Xu et al.
Johnston et al.
US 6,229,823 B1
US 6,498,667 B1
US 6,567,413 B1
US 6,778,399 B2
US 7,031,574 B2
US 7,181,142 B1
US 7,991,296 B1
May 8, 2001
Dec. 24, 2002
May 20, 2003
Aug. 17, 2004
Apr. 18, 2006
Feb. 20, 2007
Aug. 2, 2011
Ethridge et al.
Levinson et al.
Song et al.
Cox et al.
Wang et al.
Tan et al.
US 2002/0163921 A1
US 2003/0053170 A1
US 2003/0137975 A1
US 2004/0028408 A1
US 2004/0052274 A1
US 2004/0208601 A1
Nov. 7, 2002
Mar. 20, 2003
July 24, 2003
Feb. 12, 2004
Mar. 18, 2004
Oct. 21, 2004
REJECTIONS
Claims 1–3, 10, and 13 stand rejected under pre–AIA 35 U.S.C.
§ 103(a) as being unpatentable over Levinson, Huang, and Tan. Final
Act. 4–8.
Claim 4 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Huang, Tan, Masucci, and Denton. Final
Act. 8–9.
Claim 5 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Huang, Tan, and Medina. Final Act. 9–10.
Claims 6 and 8 stand rejected under pre–AIA 35 U.S.C. § 103(a) as
being unpatentable over Levinson, Huang, Tan, Song, and Xu. Final Act.
10–12.
Claim 7 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Huang, Tan, and Wang. Final Act. 12–14.
Claim 9 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Huang, Tan, and Johnston. Final Act. 14–15.
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Claim 11 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Huang, Tan, and Ethridge. Final Act. 15–16.
Claim 12 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Hung, Tan, Ethridge, and Cox. Final Act. 16–
17.
Claims 14 and 20 stand rejected under pre–AIA 35 U.S.C. § 103(a) as
being unpatentable over Levinson and Tan. Final Act. 17–20.
Claim 15 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Tan, Masucci, Denton, and Scarmalis. Final
Act. 20–23.
Claim 16 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Tan, Masucci, Denton, Scarmalis, and Medina.
Final Act. 23.
Claims 17 and 19 stand rejected under pre–AIA 35 U.S.C. § 103(a) as
being unpatentable over Levinson, Tan, Song, and Xu. Final Act. 24–25.
Claim 18 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Tan, and Wang. Final Act. 26–27.
Claim 21 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Tan, and Ethridge. Final Act. 27–28.
Claim 22 stands rejected under pre–AIA 35 U.S.C. § 103(a) as being
unpatentable over Levinson, Tan, Ethridge, and Cox. Final Act. 28–29.

ANALYSIS
Except as noted, we adopt as our own (1) the findings and reasons set
forth by the Examiner in the action from which this appeal is taken (Final
Act. 4–29; Ans. 3–29) and (2) the findings and reasons set forth by the
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Examiner in the Examiner’s Answer in response to Appellant’s Appeal Brief
(Ans. 29–73) and concur with the conclusions reached by the Examiner. We
address Appellant’s contentions seriatim as they appear in the Appeal Brief,
highlighting the following for emphasis and adopting the Examiner’s issue
labeling convention for ease of reference.

A–C) Claim 4
4. The pluggable optical transceiver module of claim 3, wherein
the protocol processor includes an Ethernet MAC [(Media
Access Controller)] disposed to enable Ethernet communications
between the protocol processor and the switch, router or media
converter.
The Examiner finds the limitations of base claim 1 and intermediate
claim 3 are taught or suggested by combinations of Levinson, Huang, and
Tan. The Examiner applies Masucci and Denton in combination with
Levinson for teaching the additional limitations of claim 4.
Levinson et al. teaches “these programs and instructions
contained in memory 222 may be modified by the user(s) such
that the optoelectronic device may be reprogrammed to
communicate in various network protocols and to perform a
variety of operations. By altering the program codes contained
in memory 222, additional functionality may be added to the
optoelectronic device without altering the interface through
which it communicates with the host”. And to implement an
Ethernet MAC in a transceiver module is known in the art. E.g.,
Masucci et al discloses that a Ethernet MAC can be installed in
a remote terminal (30 in Figure 1), and Denton et al discloses that
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an Ethernet MAC (210 in Figure 2) can be implemented in a
protocol processor (Figures 1 and 2).
Final Act. 9 (emphasis omitted).
A. Protocol processor includes an Ethernet MAC
i. Appellant contends “Masucci’s remote terminals are traditional
[customer premise equipment (CPE)] and there is no suggestion in
[Masucci] that his remote terminals are configured to removably couple to
an optical module port of a switch, router or media adapter as in
Appellant[’s] independent claim 1, which claim 4 is dependent on.” Appeal
Br. 8–9.
Appellant’s contention is unpersuasive because it fails to address the
Examiner’s findings that the argued limitation is taught by the combination
of Levinson, Huang, and Tan (the references applied in the rejection of
claim 1), further in view of Masucci and Denton, not Masucci standing
alone. Final Act. 4, 8. The Examiner finds Huang discloses a plug-in
module 208 as shown in Figures 2 and 14 of the reference. Id. at 6 (citing
Huang Figs. 2, 12–14, col. 19, ll. 19–67). In particular, Huang discloses
“receptacle 1430 can accommodate a removable pigtail, small form factor
pluggable, GBIC [(Gigabit interface converter)], or any other standard form
factor connector.” Huang col. 19, ll. 53–55; see also col. 3, ll. 35–374. The
Examiner further finds “the system disclosed by Tan et al[.] is a pluggable
optical transceiver module having a bidirectional optical assembly and
removably couple[d] to an optical module port of a switch, router or media

4 “In still another configuration, the means for optically communicating may
include a pigtail that is removably attached or coupled to the module
casing.” Huang col. 3, ll. 35–37.
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adapter.” Final Act. 6 (citing Tan ¶ 72)5.
In still another configuration, the means for optically communicating may
include a pigtail that is removably attached or coupled to the module casing.
Col. 3, ll. 35–37. Thus, it is the combination of Huang and Tan, in view of
the references cited in the rejection of claim 1 (especially Levinson (see
Final Act. 8–9)), that teaches or suggests the argued limitation.
ii. Appellant further contends there is “no evidentiary support for the
claim by the Examiner that an Ethernet MAC such as Denton’s Ethernet
MAC (210 in Figure 2) described in Denton as an ASIC [(application-
specific integrated circuit)] . . . can be implemented in Levinson merely by
‘altering the program codes contained in memory 222’ [as alleged by the
Examiner6].” Appeal Br. 9. Appellant argues implementing the
combination by modifying Levinson to incorporate Denton’s MAC
is not an obvious or trivial matter even for one skilled in the arts
and Appellants[] merely point out there is a gap in the references
to support such a claim made by the Examiner and it is the burden
of the Examiner to clearly substantiate such a claim to establish
a prima facie case of obviousness.

5 “Alternatively, the PCB 600 may include pads 610 at an edge or tongue of
the PCB 600 to form an edge connection or alternatively a pluggable
connector to allow pluggability into an edge connector or a second pluggable
connector respectively of a host printed circuit board.” Tan ¶ 72.
6 “Levinson et al teaches “these programs and instructions contained in
memory 222 may be modified by the user(s) such that the optoelectronic
device may be reprogrammed to communicate in various network protocols
and to perform a variety of operations. By altering the program codes
contained in memory 222, additional functionality may be added to the
optoelectronic device without altering the interface through which it
communicates with the host.’” Final Act. 9 (citing Levinson ¶ 54)
(emphasis omitted).
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Id.
Appellant’s contention is unpersuasive in the absence of sufficient
evidence or reasoning explaining why the modification would have been
beyond the capabilities of one of ordinary skill in the art. In particular,
Appellant fails to explain why Denton’s disclosure is inadequate. Instead,
Denton “is presumptively enabling barring any showing to the contrary.” In
re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). To rebut this
presumption, Appellant “must generally do more than state an unsupported
belief that a reference is not enabling.” In re Morsa, 713 F.3d 104, 110
(Fed. Cir. 2013). “To be enabling, the specification of a patent must teach
those skilled in the art how to make and use the full scope of the claimed
invention without ‘undue experimentation.’” Genentech, Inc. v. Novo
Nordisk, A/S, 108 F.3d 1361, 1365 (Fed. Cir. 1997) (quoting In re Wright,
999 F.2d 1557, 1561 (Fed. Cir. 1993)). “[A] patent specification complies
with the statute even if a ‘reasonable’ amount of routine experimentation is
required in order to practice a claimed invention.” Enzo Biochem, Inc. v.
Calgene, Inc., 188 F.3d 1362, 1371 (Fed. Cir. 1999). Appellant fails to
identify any deficiencies in Denton that would present a unique challenge to
one of ordinary skilled in the art in making the asserted modification to
Levinson’s device.
Furthermore,
The test for obviousness is not whether the features of a
secondary reference may be bodily incorporated into the
structure of the primary reference; nor is it that the claimed
invention must be expressly suggested in any one or all of the
references. Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the
art.
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In re Keller, 642 F.2d 413, 425 (CCPA 1981) (citations omitted). The artisan
is not compelled to mechanically follow the teaching of one prior art
reference over the other without the exercise of independent judgment. See
Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984).
Instead, the skilled artisan would “be able to fit the teachings of multiple
patents together like pieces of a puzzle” because the skilled artisan is “a
person of ordinary creativity, not an automaton.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 420–21 (2007). Here, Appellant has not demonstrated
that the Examiner’s proffered combination in support of the conclusion of
obviousness would have been “uniquely challenging or difficult for one of
ordinary skill in the art.” Leapfrog Enters., Inc. v. Fisher-Price, Inc., 485
F.3d 1157, 1162 (Fed. Cir. 2007) (citing KSR, 550 U.S. at 420).
B. Reason to Combine References
Appellant argues the Examiner’s reason for modifying Levinson to
include Denton’s Ethernet MAC “does not imply a motivation to pick out
these references and combine them to arrive at Appellants claim.” Appeal
Br. 9 (contending, in combining references, it is inadequate that “a skilled
artisan, once presented with these references would have understood that
they could be combined” and, instead, there must be an articulated reason
why the teachings would have been combined. (emphasis added)).
This argument is unpersuasive. The Federal Circuit has held “while
an analysis of obviousness always depends on evidence that supports the
required Graham factual findings, it also may include recourse to logic,
judgment, and common sense available to the person of ordinary skill that do
not necessarily require explication in any reference or expert opinion.”
Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir.
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2009); see also Nat’l Steel Car, Ltd. v. Canadian Pacific Ry., Ltd., 357 F.3d
1319, 1337 (Fed. Cir. 2004) (“It has long been the law that the motivation to
combine need not be found in prior art references, but equally can be found
‘in the knowledge generally available to one of ordinary skill in the art.’”
(Quoting In re Jones, 958 F.2d 347, 351 (Fed. Cir. 1992))). The court
further instructs that
[w]hen there is a design need or market pressure to solve a
problem and there are a finite number of identified, predictable
solutions, a person of ordinary skill has good reason to pursue
the known options within his or her technical grasp. If this leads
to the anticipated success, it is likely the product not of
innovation but of ordinary skill and common sense.

KSR, 550 U.S. at 421.
The Examiner finds
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to apply the teachings of
Masucci et al and Denton et al to the system/method of Levinson
et al and Huang et al and Tan et al so that the transceiver module
can be used for Ethernet PON [(passive optical network)] system.
Final Act. 9. In the absence of sufficient evidence or argument to the
contrary, we find the Examiner has articulated reasoning with rational
underpinnings sufficient to justify the legal conclusion of obviousness.
Therefore, we are unpersuaded by Appellant’s contention that the
Examiner’s combination of references is inadequate or improper.
Appellant further contends “[t]he Examiner seems to mistakenly
conflate Ethernet or Ethernet MAC with Ethernet PON (taken to mean
EPON [(Ethernet passive optical network)) or EPON MAC, however they
are different protocols or devices. Merely having an Ethernet MAC does not
produce an EPON system.” Appeal Br. 9. The Examiner responds, finding
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“Masucci et al and Denton teach/suggest that the protocol processor [as
taught by the combination of Levinson and Tan] includes an Ethernet
MAC.” Ans. 34.
Appellant’s argument is unpersuasive of reversible Examiner error.
Levinson discloses protocol processing circuit of control circuit 150
exchanges data with a host device over serial interface connections shown in
Figs. 2A and 7 (e.g., electrical interface 702 for coupling to a host device).
Levinson further discloses control circuitry 150 includes protocol engine 350
“programmable to communicate in various network protocols” (Levinson
¶ 9) and that control circuitry 150 includes instruction and program memory
222 (Levinson ¶ 52). “[P]rograms and instructions contained in memory
222 may be modified by the user(s) such that the optoelectronic device may
be reprogrammed to communicate in various network protocols.” Levinson
¶ 54. Masucci discloses an Ethernet MAC installed in remote terminal 30
(Masucci Fig. 1) and Denton an Ethernet MAC 210 implemented in a
protocol processor (Denton Figs. 1, 2). Final Act. 9. Thus, we agree with
the Examiner in finding the combination of Levinson, Masucci, and Denton
teaches or suggests the disputed limitations of claim 4 wherein Levinson’s
protocol processor includes an Ethernet MAC as taught by Masucci and
disposed as taught by Denton so as to enable Ethernet communications
between the protocol processor (Levinson’s control circuitry 150) and the
switch, router or media converter (i.e., Levinson’s host device).

C. Reasonable Expectation of Success
Appellant contends “there is no reasonable expectation of success in a
functional Ethernet MAC in the proposed modification to Levinson and thus
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no reason to combine.” Appeal Br. 10. Appellant argues that providing an
Ethernet MAC in Levinson’s device by altering program codes in memory
222 would not result in any added functionality because Levinson filters data
based on IP address and Levinson suggests not otherwise altering
communication with the host. Id. Thus, according to Appellant,
any received data packet addressed to the proposed Ethernet
MAC in memory 222 in Levinson AND NOT containing the IP
address of Levinson’s optical transceiver are passed through
Levinson’s optical transceiver module AND NOT processed by
the proposed Ethernet MAC in memory 222; [while] [a]ny
received data packet addressed to the proposed Ethernet MAC
AND containing the IP address of Levinson’s optical transceiver
would already be processed without modification to Levinson’s
transceiver due to the IP address.
Id. at 10–11.
The Examiner responds, explaining how Levinson would be modified
to include an Ethernet MAC. Ans. 36–37. The Examiner concludes
Levinson does not teach away from the proposed modification. Id. at 37.
The Examiner further points out, contrary to Appellant’s argument,
“Levinson et al never state that the interface cannot be altered. Levinson et
al actually states ‘obviously many modifications and variations are possible
in view of the above teachings’ ([0068]).” Id. Thus, according to the
Examiner “Levinson does not teach away from the proposed modification;
and Levinson and Masucci and Denton are combinable; and the combination
of Levinson and Masucci and Denton teaches/suggests the proper processing
of the data packets and Ethernet address, ‘with a reasonable expectation of
success’.” Id. at 38.
Appellant’s contention is unpersuasive of reversible Examiner error.
“Obviousness does not require absolute predictability of success.” In re
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O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988). The optoelectronic devices
of Levinson, Huang, Tan, Masucci, and Denton are in the predictable arts of
optoelectronics governed by well-established scientific principles of
electronics, optics, and physics in general. Appellant provides insufficient
evidence those devices would behave other than in accordance with known
electriconic circuits. Furthermore, we find insufficient evidence that adding
Masucci and Denton’s Ethernet to Levinson’s optoelectronic device would
conflict with known interfacing and protocol conversion techniques. Thus,
we find one skilled in the art would have had a reasonable expectation of
success. In sum, Appellant provides insufficient evidence, other than mere
assertion, that one ordinarily skilled in the art would not reasonably expect
be successful in modifying or combining the applied teachings and
suggestions of the references. We note such conclusory statements that are
unsupported by factual evidence as alleged by Appellant are entitled to little
probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997); see
also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). See also Estee
Lauder, Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (Argument
made in a brief does not substitute for evidence lacking in the record).
We also disagree with Appellant’s contention that Levinson teaches
away from the proposed modification. See Appeal Br. 11. To teach away,
the prior art must “criticize, discredit, or otherwise discourage the solution
claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Teaching an
alternative method does not teach away from the use of a claimed method.
See In re Dunn, 349 F.2d 433, 438 (CCPA 1965); see also Ex parte Shuping,
No. 2008-0394, 2008 WL 336222, at *2 (BPAI 2008) (unpublished)
(“‘[T]eaching a way is not teaching away.’” (citation omitted)); In re
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Geisler, 116 F.3d at 1471 (holding that merely “express[ing] a preference”
falls short of discouraging one of ordinary skill in the art from following a
particular path). Appellant fails to identify any such criticism, discrediting
or discouragement.
Appellant’s argument is further unpersuasive because it improperly
relies on wholesale incorporation/combination of structures rather than what
the combination of Levinson, Huang, Tan, Masucci, and Denton teaches and
suggests. See discussion above addressing Appellant’s contention that
modifying Levinson to include Denton’s MAC would not have been an
obvious or trivial matter which we find unpersuasive for similar reasons as
discussed.
For the reasons discussed above, we sustain the rejection of claim 4
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, Tan, Masucci,
and Denton.

D) Claim 15
15. The method of claim 14, wherein the protocol processor is
adapted to process and perform data link layer communications
and the protocol processor is adapted to include an Ethernet
media access controller (MAC), the method further comprising:
receiving a first optical signal through an optical interface
port at a bidirectional optical assembly of the optical
transceiver module;
converting the first optical signal to an electrical signal at the
bidirectional optical assembly and conveying the electrical
signal to the protocol processor of the optical transceiver
module;
processing the electrical signal at the protocol processor to
determine a first optical data link layer frame and de-
encapsulating a first user payload data from the first
optical data link layer frame;
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conveying the first user payload data from the protocol
processor to the Ethernet MAC;
encapsulating the first user payload data in a first Ethernet
data frame by the Ethernet MAC and conveying the first
Ethernet data frame to the switch, router or media
converter through the electrical network interface port;
receiving a second Ethernet data frame from the switch, router
or media converter through the electrical network interface
port of the optical transceiver module;
de-encapsulating a second user payload data from the second
Ethernet data frame by the Ethernet MAC;
conveying the second user payload data from the Ethernet
MAC to the protocol processor;
encapsulating the second user payload data into a second
optical data link layer frame by the protocol processor;
converting the second optical data link layer frame to a second
optical signal; and
transmitting the second optical signal from the bidirectional
optical assembly through the optical interface port.
The Examiner finds the limitations of claim 15 are taught or
suggested by the combination of Levinson, Tan, Masucci, Denton,
and Scarmalis. Final Act. 19–23.
Regarding the encapsulating/de-encapsulating the payload
data in the Ethernet MAC, it is a common operation in the MAC,
Masucci et al discloses the data link layer encapsulation (Figures
3-8, and column 6 line 1 to column 7 line 13). And Denton also
teaches “PPP/HDLC processor 216 is employed to frame or de-
frame IP and POS data, providing appropriate encapsulation or
de-encapsulation, in accordance to PPP and HDLC. Similarly,
HDLC POS coder 218 is provided to perform physical sub-layer
Packet on SON ET coding and decoding for the egress and
ingress HDLC data respectively”. Another prior art, Scarmalis
discloses that in the OSI-layer 2, which is under the OSI-layer 3,
the encapsulation/de-encapsulation is performed (Background of
Invention and Figures 1-7).
Id. at 22. According to the Examiner, it would have been obvious to
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combine the references “so that the transceiver module [of Levinson] can be
used for Ethernet PON system[s], and the Ethernet MAC in the transceiver
module can perform the encapsulating/de-encapsulating the user payload
data and convey the user payload data to/from the protocol processor.” Id. at
22–23.
Appellant contends
It is not clear how program memory 222 would operate to
perform the encapsulation/de-encapsulation functions separate
from processor 224 or from itself if the protocol processor is
deemed to include both processor 224 and memory 222.
Appellants[] respectfully submit a proper clearly articulated
motivation to combine references has not been made and for at
least this reason alone this rejection should be withdrawn.
Furthermore, the reference to [Scarmalis] teaches away
from the proposed modification as [Scarmalis] suggests OSI
Layer 2 is under OSI Layer 3 yet the proposed modification
proposes the exact opposite by putting OSI Layer 3 processing
under OSI Layer 2. For example, the proposed Ethernet MAC
(OSI Layer 2), would only see data processed at OSI Layer 3 (i.e,
data filtered by IP address) which is the exact opposite of the OSI
model and why there is no reasonable expectation of success or
usefulness in doing so as previously argued by Appellants[] in
claim 4.
Appeal Br. 12.
The Examiner responds, explaining “Levinson et al never states that
the program memory (222) itself performs the encapsulation/de-
encapsulation functions. The program in the memory is used by the
processor so to perform the encapsulation/de-encapsulation functions.” Ans.
39. Appellant replies “[e]ven with this clarification by the Examiner it is
unclear what the motivation to combine references to reject claim 15.”
Reply Br. 5.
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Appellant’s contention is unpersuasive of reversible Examiner
error. The Examiner finds:
[I]t would have been obvious to one of ordinary skill in the art at
the time the invention was made to apply the teachings of
Masucci et al and Denton et al and Scarmalis to the system/
method of Levinson et al and Tan et al so that the transceiver
module can be used for Ethernet PON system, and the Ethernet
MAC in the transceiver module can perform the encapsulating/
de-encapsulating the user payload data and convey the user
payload data to/from the protocol processor.
Final Act. 22–23. Although alleging in reply “[a]t best the motivation seems
to mean so that the protocol processor 224 can convey data to/from itself”
(Reply Br. 5), Appellant fails to provide sufficient evidence or reasoning
explaining why the asserted modification would be ineffective for providing
the functionalities identified by the Examiner or otherwise detract from the
Examiner’s rationale for making the combination. Furthermore, absent a
showing of good cause explaining why the argument could not have been
presented in the Appeal Brief, this newly presented argument is untimely
and waived. 37 C.F.R. § 41.41(b)(2) (2016). Accordingly, we sustain the
rejection of claim 15 under 35 U.S.C. § 103(a).

E) Claims 6 and 8
6. The pluggable optical transceiver module of claim 1, wherein
the protocol processor performs functions conforming to a
network protocol selected from the group consisting essentially
of:
ITU-T G.984 Gigabit PON (GPON);
IEEE 802.3ah Ethernet PON (EPON);
ITU-T G.987 10 Gigabit PON (XG-PON);
IEEE 802.3av 10 Gigabit Ethernet PON (1OG-EPON);
ITU Next Generation PON (NG-PON);
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ITU NG-PON2;
WDM-PON;
ITU-T G.983 Broadband Passive Optical Network (BPON);
Data over Cable Service Interface Specification (DOCSIS)
PON (D-PON/DPON); and
RFoG SCTE IPS910.

8. The pluggable optical transceiver module of claim 1, wherein
the pluggable optical transceiver module is an Optical Network
Unit (ONU) or Optical Network Terminal (ONT).

The Examiner finds, although “Levinson . . . does not expressly state
. . . the protocol processor performs functions conforming to a network
protocol [recited by claim 6,] . . . GPON, EPON, and RFoG are well-known
system[s] in the art” as evidenced by the EPON systems taught by Song and
Xu.” Final Act. 10–11 (citing Song, Fig. 7 (optical modules 704, 754); and
Xu col. 8, ll. 57–60). Similarly, in connection with claim 8, the Examiner
finds Song and Xu teach ONUs and ONTs. Id. at 12.
Appellant contends the rejection of claim 6 is improper because “[t]he
references to Song and Xu disclose use of traditional [electrical-to-optical]
and [optical-to-electrical] transceiver modules and do NOT support the
Examiner’s conclusory statement that Levinson’s optical transceiver
module, in combination or not, can be used in PON systems.” Appeal
Br. 13. Appellant argues the Examiner fails to explain “specifically how
Levinson’s protocol processor performs one of the optical network protocols
as claimed [in] Appellant[’s] claim 6.” Id.
The Examiner responds, noting that claim 6 only recites the argued
protocol, not how to perform the protocols. Ans. 43. Furthermore,
according to the Examiner, Levinson teaches extracting traffic based on an
Ethernet address while Song and Xu teach a transceiver module installed in
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optical line terminals (OLTs) and optical network units (ONUs). Id. Thus,
the Examiner concludes “[it would have been obvious] to one skilled in the
art that the pluggable optical transceiver of Levinson in combination [with]
Huang . . . Tan . . . Song . . . and Xu . . . can be used in the GPON, EPON,
RFoG and WDM-PON etc.” Id. Appellant responds, arguing “the
Examiner’s rejection does not suggest in view of Song and Xu a
modification to Levinson’s protocol processor to support . . . functions
conforming to a network protocol selected from the group listed in claim 6.”
Reply Br. 5 (quoted statements reordered).
Appellant’s contentions in connection with claim 6 are unpersuasive
of reversible Examiner error. As indicated by the Examiner, claim 6 does
not recite how the recited protocols are to be implemented by the protocol
processor of claim 1. Thus, Appellant’s argument is not commensurate in
scope with claim 6.
Furthermore, “[w]hile a reference must enable someone to practice the
invention in order to anticipate under § 102(b), a non-enabling reference
may qualify as prior art for the purpose of determining obviousness under
§ 103.” Symbol Techs., Inc. v. Opticon, Inc., 935 F.2d 1569, 1578 (Fed. Cir.
1991). In particular, “a reference . . . is prior art for all that it teaches.”
Beckman Instruments, Inc. v. LKB Produkter AB, 892 F.2d 1547, 1551 (Fed.
Cir. 1989). The prior art must enable an ordinarily skilled artisan to make
and use the claimed subject matter to render the claimed subject matter
obvious. See In re Kumar, 418 F.3d 1361, 1368–69 (Fed. Cir. 2005);
Beckman Instruments, 892 F.2d at 1551. But that does not mean that any
one reference must enable the claimed subject matter within the reference’s
four corners. It is sufficient that the combined teachings of the references
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render the claimed subject matter obvious when the teachings are considered
together with the knowledge of an ordinarily skilled artisan. See In re
Paulsen, 30 F.3d 1475, 1480–81 (Fed. Cir. 1994). Cited references do not
have to explain every detail to render a claimed invention obvious because
the references speak to those skilled in the art. See id. at 1480. “A patent
need not teach, and preferably omits, what is well known in the art.”
Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1534 (Fed. Cir.
1987) (citation omitted).
Appellant offers insufficient evidence in support of the assertion that
Levinson’s optical transceiver module could not be used in PON systems.
See Appeal Br. 13. “[S]tatements of counsel in a brief cannot take the place
of evidence.” In re Walters, 168 F.2d 79, 80 (CCPA 1948) (citations
omitted). In the absence of sufficient evidence that modifying Levinson to
implement one of the recited protocols would have been proved uniquely
challenging, unusually difficult, require undue experimentation or produce
unpredictable results, we disagree a detailed explanation of how to
implement the protocols is required to support the rejection. Leapfrog, 485
F.3d at 1162.
Appellant further argues the Examiner’s rationale for combining
Levinson and Xu is improper because “Levinson processes data based on IP
address (i.e., OSI Layer 3 or [the] Network Layer address) and not by MAC
address (i.e., OSI Layer 2 or Data Link Layer address)”. Appeal Br. 14. We
find this argument unpersuasive because the Examiner relies on Xu only for
teaching an EPON network in which transceiver modules are installed in an
OLT and ONU (Final Act. 12), not for the particular implementation
disclosed by the Xu. Furthermore, in the absence of sufficient evidence that
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Xu criticizes, discredits, or otherwise discourages the solution claimed, we
are unpersuaded the reference teaches away from making the asserted
combination as argued by Appellant (Appeal Br. 13). See In re Fulton, 391
F.3d at 1201. Moreover, “[a] person of ordinary skill is also a person of
ordinary creativity, not an automaton.” KSR, 550 U.S. at 421. An
obviousness determination is not limited to instances where the person of
ordinary skill already knows how to combine the specific references or has a
document that plainly describes how to do so. The references can be
considered together with the knowledge of ordinarily skilled artisans. In re
Paulsen, 30 F.3d at 1480–81.
In connection with claim 8, Appellant argues Song’s optical module
7547 is not part of an ONU but is separate. Appeal Br. 13. Appellant argues
“Song’s optical module 745 [recte 754] in Figure 7B is clearly differentiated
from the ONU external to optical module 745 as indicated by the dotted line
and teaches away from Appellant[’s] claim 8.” Id.
The Examiner responds, citing to definitions of an ONU and ONT
appearing in Appellant’s Specification in support of a finding that
“according to [Appellant], the ONU/ONT has an optical transceiver module
and other processing circuit.” Ans. 44. Relying on this interpretation, the
Examiner further finds Song and Xu “teach[] the same ONU (Song: Figure
7; Xu: Figure 4) comprising optical transceiver module and other processing
circuits. That is, the pluggable optical transceiver module [of Song and Xu]
forms an Optical Network Unit (ONU) or Optical Network Terminal (ONT)
[as claimed].” Id.

7 Although referencing the argued component as “optical module 745”
(Appeal Br. 13), it appears Appellant is referring to optical module 754.
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Appellant’s contention is unpersuasive of reversible Examiner error.
Song’s optical modules are depicted within a larger box labeled as an ONU
as shown in Fig. 7B. We find insufficient evidence supporting Appellant’s
assertion that the dotted line surrounding Song’s optical module indicates
the module is not part of the ONU. Furthermore, was agree with the
Examiner in finding that Appellant’s definition of an ONU and ONT
supports a finding that Song and Xu teach or suggest the disputed limitation
of claim 8 wherein the pluggable optical transceiver module of claim 1 is an
ONU or ONT.
Finally, we are unpersuaded by Appellant’s argument the Examiner
has failed to provide sufficient motivation to combine the references.
Appeal Br. 14. As discussed above, there is no requirement that the
references provide motivation for making the combination, only that the
Examiner provide articulated reasoning with rational underpinnings
sufficient to justify the legal conclusion of obviousness. In re Kahn, 441
F.3d 977, 988 (Fed. Cir. 2006) (cited with approval, 550 U.S. at 418).
Herein the Examiner finds the reason to combine the references was “to use
the pluggable transceiver module in the OLT and ONU to realize the EPON
communications.” Final Act. 11. According to Appellant, because
“Levinson’s optical transceiver module can already be used in EPON
systems . . . there is no motivation to combine references in the first place to
realize EPON communications.” Appeal Br. 14. However, the Examiner’s
reasoning is not just to provide EPON communications, but to use a
pluggable transceiver module in an OLT or ONU to allow the OLT or ONU,
as recited by claim 8, to realize EPON communications. Appellant’s
argument fails to address the entirety of the Examiner’s reason for
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combining the references and is, therefore, unpersuasive.
For the reasons discussed above, we sustain the rejection of claims 6
and 8 under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, Tan, Song,
and Xu. Because Appellant argues the rejection of claims 17 and 19 on the
same bases (Appeal Br. 15), we similarly sustain the rejection of those
claims under pre–AIA 35 U.S.C. § 103(a) over Levinson, Tan, Song, and
Xu.

F) Claim 7
7. The pluggable optical transceiver module of claim 1, wherein
the pluggable optical transceiver module is an Optical Line
Terminal (OLT) and configuration of the OLT for provisioning
service level agreements (SLAs) is performed in-band using OSI
Layer 3 communications.
The Examiner finds Levinson’s optical transceiver has an IP network
address (i.e., OSI layer 3) and participates in in-band traffic for performing
functions otherwise performed by host equipment. Final Act. 13. The
Examiner further finds Levinson teaches status information generated by a
status monitoring module is incorporated into in-band data by a protocol
engine for communicating the status information to a host or remote device.
Id. (citing Levinson, Abstract). The Examiner also relies on Wang’s
disclosure of PON data transfers according to service level agreements with
prioritization information passed to an OLT to enforce policies and
bandwidth allocation for teaching the recited OLT provisioning service level
agreements. Id. Thus, the Examiner relies on Levinson, Huang, and Tan in
combination with Wang for teaching or suggesting the disputed limitations
of claim 7. Id.
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Appellant contends Wang uses OSI Layer 1, not Layer 3, to allocate
ONU bandwidth using SONET/SDH (synchronous optical networking/
synchronous digital hierarchy). Appeal Br. 15. Addressing Levinson,
Appellant argues the Examiner does not explain how Levinson’s optical
transceiver unit can enforce policies and allocate bandwidth to an OLT. Id.
at 16. Appellant further argues Levinson’s optical transceiver is distinct
from the OLT such that the Examiner’s motivation for combining the
references “‘so to use the pluggable transceiver in the OLT’” (Id. (quoting
Final Act. 14)) is based on an error in fact and, therefore, is deficient. Id.
Appellant still further argues, because Levinson’s optical transceiver
operates using internet protocol at OSI Layer 3 while Wang ONU uses
SONET/SDH communication protocol at OSI Layer 1, “Levinson’s optical
transceiver will not receive Wang’s ONUs request for bandwidth as the
ONUs do not use [an] IP address for the request.” Id.
The Examiner responds, disputing Appellant’s contention that
Levinson’s optical transceiver is not an OLT. Ans. 47. Instead, according to
the Examiner’s definition of an OLT8 and consistent with Appellant’s
Specification, the Examiner finds that “the optical module disclosed by
Levinson[,] . . . Huang[], . . . Tan[,] . . . and Wang . . ., in which an optical

8 According to [a] conventional definition, [an] OLT is a device
which serves as the service provider endpoint of a passive optical
network; it provides two main functions: to perform conversion
between the electrical signals used by the service provider’s
equipment and the fiber optic signals used by the passive optical
network, and to coordinate the multiplexing between the
conversion devices on the other end of that network (ONTs or
ONUs).
Ans. 47.
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transceiver is implemented, is an OLT.” Id. The Examiner further finds the
combination of Wang’s prioritization information passed to an OLT and
Levinson’s insertion of packets of information generated by a device into in-
band data (i.e., OSI Layer 3) teaches or suggests the disputed limitations of
claim 7. Id. at 48.
Appellant replies, arguing the Examiner mischaracterizes Wang as
using OSI layer 3.
Appellant’s argument that the rejection is improper because of
Wang’s use of OSI Layer 1 to communicate SLA data fails to address the
Examiner’s finding that Levinson uses OSI Layer 3 for communicating
status information. See Final Act. 13. Thus, Appellant’s argument is an
improper attack on the references individually where the rejection is based
on the combination of references. See Keller, 642 F.2d at 426; In re Merck
& Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Therefore, Appellant’s
argument is unpersuasive of reversible Examiner error.
We also find unpersuasive Appellant’s argument the rejection is
deficient because the Examiner does not explain how Levinson’s optical
transceiver unit can enforce policies and allocate bandwidth to an OLT. By
setting forth a prima facie case of obviousness, the burden shifts to
Appellant to allege deficiencies and errors rebutting a rejection. See, e.g., In
re Dillon, 919 F.2d 688, 692 (Fed. Cir. 1990). Herein, Appellant only
alleges the Examiner has not provided a detailed explanation of how the
combined teachings of the references would be practically implemented
rather than alleging error in the substance of the rejection such as providing
evidence that the teachings are not combinable to teach or suggest the
disputed limitations.
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Furthermore, because we disagree with Appellant’s premise that
Levinson’s optical transceiver is not an OLT (Appeal Br. 16), there is
insufficient support for Appellant’s conclusion that motivation is lacking for
combining the references. We also find unpersuasive Appellant’s argument
that Levinson’s optical transceiver, operating at OSI Layer 3, would not
receive Wang’s ONU request at Layer 1. Such argument is unpersuasive
because it relies on wholesale incorporation/combination of structures rather
than what the combination of Levinson and Wang fairly teaches or suggests.
See Keller, 642 F.2d at 425. The artisan is not compelled to blindly follow
the teaching of one prior art reference over the other without the exercise of
independent judgment. See Lear Siegler, 733 F.2d at 889; KSR, 550 U.S. at
420–21. Here, Appellant has not demonstrated that the Examiner’s
proffered combination in support of the conclusion of obviousness would
have been “uniquely challenging or difficult for one of ordinary skill in the
art.” Leapfrog, 485 F.3d at 1162 (citing KSR, 550 U.S. at 420).
For the reasons discussed above, we sustain the rejection of claim 7
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, Tan, and Wang.

G) Claim 9
9. The pluggable optical transceiver module of claim 1, wherein
the protocol processor is adapted to perform one or more of the
following functions:
deep packet inspection;
network address translation;
data encryption or decryption securitization; and
encryption or decryption key management.
The Examiner finds Levinson discloses modifying memory 222 to
provide additional functionality that, in combination with Johnston’s
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disclosure of providing functionality for communicating encrypted data and
keys between OLT and ONU, teaches or suggests the limitations of claim 9.
Final Act. 14–15 (citing Johnston col. 7, l. 10 – col. 8, l. 15). The
Examiner’s reason for combining the references is to enhance “the functions
of the packet inspection, address translation, data encryption or decryption,
and key management etc.” Id. at 15.
Appellant contends the combination of Levinson and Johnston is
improper because, according to Appellant, Levinson teaches away from
modifying memory 222 to implement data encryption functionality. Appeal
Br. 18. Appellant argues decrypting data packets would require altering the
host interface “which Levinson expressly states may not be altered.” Id.
Appellant further argues, if made, the proposed modification would alter
Levinson’s principle of operation. Id. Appellant furthermore argues “there
is no reasonable expectation of success in the suggested combination as
Johnston discusses encryption/decryption at OSI Layer 2 or the data link
layer using GPON . . . [while] Levinson filters data packets by IP address or
at OSI Layer 3.” Id. (citations omitted).
The Examiner responds, disputing Appellant’s contention that
Levinson discourages altering the host interface, instead finding Levinson
teaches instructions and program memory can be changed to modify the
operational state of the transceiver and to reprogram the optoelectronic
device to communicate in various network protocols and perform a variety
of operations. Ans. 50–51. The Examiner finds “Levinson . . . never state[s]
that the interface cannot be altered. Levinson . . . actually states ‘obviously
many modifications and variations are possible in view of the above
teachings.’” Id. (quoting Levinson ¶ 68). The Examiner also disputes
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Appellant’s argument that Johnston’s use of OSI Layer 2 is incompatible
with Levinson, finding instead that Johnston teaches the use of layer 3 and
other layers.9 Id. (citing Johnston col. 15, ll. 44–48.)
Appellant replies, contending Johnston’s reference to layer 3 is
actually to system packet interface layer 3, which is an OSI layer 2 interface.
Reply Br. 6. Appellant also questions whether Johnston’s reference to
“other layers” means OSI Layers other than OSI Layer 2, (e.g., OSI Layer 3
as used by Levinson). Id.
Appellant’s contentions are unpersuasive of reversible Examiner
error. We find Levinson’s disclosure of adding functionality without
altering the interface suggests a capability (i.e., a benefit) of not requiring
modification of the interface rather than indicating there is a reason to avoid
or restrict any such modification. Thus, Levinson does not discourage
making modifications to support encryption and does not teach away from
the combination with Johnston. Appellant’s remaining contentions are
naked allegations of error without sufficient supporting evidence or
reasoning to be persuasive. For example, Appellant does not explain why
the principle of operation of Levinson would be changed by supporting
encryption or decryption key management (Appeal Br. 18) or why there
would be no reasonable expectation of success. At most, Appellant’s
arguments are improperly based on a wholesale incorporation/combination
of structures rather than what the combination of Levinson, Huang, Tan, and

9 “As further examples, the architecture may further include an Ethernet
switch interface circuit coupled to an Ethernet switch for monitoring and
redundancy, a system packet interface layer 3 (SPI-3) circuit, a synchronous
optical network, etc. Other layers may also be supported by the
architecture.” Johnston col. 15, ll. 44–48.
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Johnston reasonably teaches and/or suggests. See Keller, 642 F.2d at 425.
For the reasons discussed above, we sustain the rejection of claim 9
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, Tan, and
Johnston.

H) Claims 11 and 21
11. The pluggable optical transceiver module of claim 1,
wherein the pluggable optical transceiver module further
comprises a modulation assembly electrically coupled between
the protocol processor and the bidirectional optical assembly, the
modulation assembly communicating with the protocol
processor using binary communications and the modulation
assembly communicating with the bidirectional optical assembly
using m-ary communications wherein the m-ary communication
is selected from the group consisting essentially of:
Quadrature Amplitude Modulation (QAM);
QAM-32, QAM-256;
Pulse Amplitude Modulation (PAM);
PAM-4;
PAM-5;
PAM-16;
PAM-17;
Quadrature Phase Shift Keying (QPSK);
Differential QPSK (DQPSK);
return-to-zero QPSK (RZ-QPSK);
dual-polarized QPSK (DP-QPSK); and
Orthogonal Frequency Division Multiplexing (OFDM).
(Claim 21, which depends from claim 14, recites
corresponding limitations.)
The Examiner finds “binary communications using m-ary
communications of QAM, PAM, QPSK, OFDM etc. are well-known and
commonly used modulation formats in the art,” with Ethridge disclosing the
use of QAM in optical communications. Final Act. 16 (citing Ethridge
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¶ 52). The Examiner reasons
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to use one of the commonly used
[binary] modulation format from QAM, PAM, QPSK, OFDM
etc. [as taught by Ethridge] in the system/method of Levinson,
. . . Huang, . . . and Tan . . . so to transfer the data over the optical
network.
Id.
Appellant contends the rejection is improper because (i) the Examiner
“confuse[s] binary communications with data that is digital or represented as
binary bit(s).” Appeal Br. 19. Appellant argues “[b]inary communications
and [the claimed] m-ary communications such as QAM are not the same
thing by definition.” Id. Appellant further questions (ii) “how Levinson’s
laser driver . . . is to perform digital m-ary modulation conversion while still
performing expected function of driving the laser.” Id. Appellant also
argues (iii) the Examiner’s reason for combining references by modifying
Levinson use Ethridge’s QAM so as to transfer data over an optical network
is improper because “Levinson already accomplishes transferring data over
the optical network and therefore [there would have been] no motivation to
combine references.” Id. at 20.
The Examiner responds explaining (i) the argued misstatement
confusing binary and m-ary communications was a typographical error, the
Examiner intending to reference the language of claim 11 requiring the
modulation assembly having the capability to (a) communicate with the
protocol processor using binary communications and (b) communicate with
the bidirectional optical assembly using m-ary communications. Ans. 54.
The Examiner acknowledges binary and m-ary communications are
different. Id. The Examiner further explains (ii) how Levinson’s laser
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would operate in an m-ary mode. Id. at 54–55. Furthermore, the Examiner
disagrees Ethridge is limited to a copper wire network (Appeal Br. 19–20),
finding the reference discloses communications using QAM over an optical
network. Ans. 55. The Examiner concludes “it would have been obvious to
one of ordinary skill in the art at the time the invention was made to use one
of the commonly used modulation format from QAM, PAM, QPSK, OFDM
etc. to transfer the data over the optical network.” Id.
Appellant replies, arguing the Examiner fails to demonstrate that
Levinson’s device could be modified to use Ethridge’s QAM system: “there
is a gap in the references to support the Examiner’s position and it is the
burden of the Examiner to clearly substantiate the rejection to establish a
prima facie case of obviousness.” Reply Br. 7. Appellant further argues
Etheridge teaches away from using QAM optically. Id.
Appellant’s contentions are unpersuasive of reversible Examiner
error. Concerning (i) differences between binary and m-ary
communications, the Examiner acknowledges the distinction. We find any
error to be harmless. We are also unpersuaded the Examiner has failed to
(ii) provide a sufficient explanation of how Levinson’s device and, in
particular, laser driver 105 would operate to support QAM. See Ans. 54–55.
Appellant provides insufficient evidence or reasoned argument to persuade
us that one skilled in the art at the time of the invention would have been
unsuccessful in modifying Levinson to incorporate Ethridge’s QAM or
otherwise would have found the modification to be uniquely challenging or
difficult.
We are also unpersuaded by Appellant’s contention that (iii) the
Examiner’s reasoning for modifying Levinson to include QAM so as to
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provide for the transfer of data is inadequate because Levinson already
includes such a capability without modification. The fact that a primary
reference may already possess structure sufficient for accomplishing a
particular task does not, without more, demonstrate the absence of
motivation for seeking other ways to accomplish that task. “[W]hen a patent
claims a structure already known in the prior art that is altered by the mere
substitution of one element for another known in the field, the combination
must do more than yield a predictable result.” KSR, 550 U.S. at 416
(citation omitted). “[A] person of ordinary skill has good reason to pursue
the known options within his or her technical grasp.” Id. at 421. We further
note selection based on suitability for an intended purpose supports a prima
facie case of obviousness. Sinclair & Carroll Co. v. Interchemical Corp.,
325 U.S. 327, 335 (1945) (“Reading a list and selecting a known compound
to meet known requirements is no more ingenious than selecting the last
piece to put into the last opening in a jig-saw puzzle.”); In re Fout, 675 F.2d
297, 301 (CCPA 1982) (“Express suggestion to substitute one equivalent for
another need not be present to render such substitution obvious.”). Absolute
predictability that the substitution will be successful is not required, all that
is required is a reasonable expectation of success. See In re O’Farrell, 853
F.2d 894, 903–04 (Fed. Cir. 1988).
For the reasons discussed above, we sustain the rejection of claim 11
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, Tan, and
Ethridge. Furthermore, because Appellant relies on argument presented in
connection with claim 11 in arguing for the patentability of claim 21
(Appeal Br. 20–21), we likewise sustain the rejection of claim 21 under pre–
AIA 35 U.S.C. § 103(a) over Levinson, Tan, and Ethridge.
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I–K) Claims 12 and 22
12. The pluggable optical transceiver module of claim 11,
wherein the modulation assembly further includes one or more
of the following functions:
blind equalization;
shaping, conditioning or emphasizing data for improved
transmission performance;
trellis encoding or decoding;
encoding or decoding data to compensate for the relative
noise intensity (RIN) of the bidirectional optical assembly
to improve performance; and
forward error correction.
(Claim 22, which depends from claim 21, recites
corresponding limitations.)
The Examiner finds, although not expressly disclosing a modulation
assembly performing the recited functions of claim 12, Levinson discloses
the capability to accommodate additional functionalities by altering program
code stored in memory. Final Act. 17 (quoting Levinson ¶ 54). The
Examiner also finds “Cox . . . discloses that forward error correction [(FEC)]
can be implemented in a transceiver.” Id. (citing Cox Figure 3). According
to the Examiner, it would have been obvious “to apply the FEC as taught by
Cox . . . to the system/method of Levinson . . . Huang . . . Tan . . . and
Ethridge . . . so to correct errors, and improve system reliability.” Id.
Appellant contends (I) the Examiner “conflate[s] memory 222 to
Appellant[’s] protocol . . . assembly. Given the Examiner’s position the
suggested modification does not read into Appellant[’s] claim as the
Examiner[] is not suggesting further m[o]di[fi]cation of Levinson’s laser
driver 105 to perform the additional features of Appellant[’s] claim.”
Appeal Br. 21. Appellant further contends (J) the proposed modification has
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no reasonable expectation of success because “any data packet containing a
correctable FEC error but NOT containing the IP address of Levinson’s
optical transceiver module will pass through the module without memory
222 performing a correction.” Id. at 21–22. Appellant still further contends
(K) the Cox reference is deficient because it implements FEC in a
transceiver, not inside an optical transceiver module. Id. at 22.
The Examiner responds as to contention (I):
Levinson et al shows SERDES [(SERializing and DESerializ-
ing)] and driver [circuits] are between the control circuitry and
the light source (laser), the control circuitry contains the protocol
processing units and other signal processing circuits. Ethridge et
al also discloses that a transmit framer is between the driver and
the control circuitry. That is, the combination of Levinson and
Ethridge et al teaches a modulation assembly that contains the
processing circuit for determining the modulation format and
driver etc.
As discussed above, Levinson’s control circuitry contains
different processing units, which use the programs/instructions
to perform different functionalities. The protocol processor in
the control circuitry is not a part of “modulation assembly”, but
the processing circuit for determining the modulation format and
driver etc. is. Therefore, Levinson et al and Huang et al and Tan
et al and Ethridge et al “suggested all the limitations of the
claimed invention”.
Ans. 56–57.
Appellant replies, arguing there is no evidence that Levinson discloses
other signal processing circuits for determining modulation format and
driver as asserted by the Examiner. Reply Br. 8. In particular, Appellant
argues Levinson fails to include circuitry that uses programs/instructions
stored in memory 222 of processor 224 of protocol processor 350 that is part
of the modulation assembly. Id.
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Appellant’s contention is unpersuasive because it is based on
mechanically following the teachings of one prior art reference over the
other without the exercise of independent judgment. See Lear Siegler, 733
F.2d at 889. As discussed above, the skilled artisan is not an automaton.
KSR, 550 U.S. at 420–21. In spite of any inconsistencies alleged in the
Examiner’s proffered implementation, Appellant fails to persuade us that
including forward error correction as taught by Ethridge in Levinson’s
modulation assembly would have been “uniquely challenging or difficult for
one of ordinary skill in the art,” whether by including the capability using
memory or otherwise. Leapfrog, 485 F.3d at 1162 (citing KSR, 550 U.S. at
420).
The Examiner responds to Appellant’s contention (J) that the
modification has no reasonable expectation of success, finding:
1. Levinson does not state that a packet would not have an IP address;
2. Because FEC is performed before the driver, it is not clear why, as
alleged by Appellant, a data packet having an IP address error will
pass through without being corrected by memory 222; and
3. “[A]s shown in Figure 3 of Cox, the FEC (314) is between the
Ethernet MAC (312) and the Mux/driver etc. (318 and 434/438
Figures 3 and 4), any signals that are sent from the MAC 312 to
the Mux/driver (318/434/438) are processed by the FEC.”
Ans. 57–58.
Appellant replies:
1. The Examiner’s statement about Levinson is misleading, inferring
Appellant’s argument is based on the total absence of an IP address
rather than how a data packet having an IP address other than that
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of Levinson’s optical transceiver module would be handled, i.e.,
passed through unmodified.
2. The Examiner’s description of performing FEC before the driver
indicates the Examiner is considering FEC before transmission
when it is assumed error detection and correction is performed
after a data packet is received.
3. “The Examiner’s third position is challenging to understand given
the cited hardware FEC of Cox Fig. 3 and the limitations of the
suggested modification of program/instruction of Levinson’s
memory 222 and processor 224 to enabling FEC.”
Reply Br. 8. Appellant argues “[the] positions taken by the Examiner fail to
address the Appellants position that there is a reasonable expectation of
failure in the suggested modification and therefore no reason to combine [the
references].” Id.
Appellant’s contentions are unpersuasive for the reasons discussed
previously above in connection with Appellant’s other contentions that there
would have been no reasonable expectation of success in combining the
teachings of the prior art references. “It is well-established that a
determination of obviousness based on teachings from multiple references
does not require an actual, physical substitution of elements.” In re Mouttet,
686 F.3d 1322, 1332 (Fed. Cir. 2012) (citing In re Etter, 756 F.2d 852, 859
(Fed. Cir. 1985) (en banc) (noting that the criterion for obviousness is not
whether the references can be combined physically, but whether the claimed
invention is rendered obvious by the teachings of the prior art as a whole)).
See also Keller, 642 F.2d at 425 (“The test for obviousness is not whether
the features of a secondary reference may be bodily incorporated into the
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structure of the primary reference . . . . Rather, the test is what the combined
teachings of [those] references would have suggested to those of ordinary
skill in the art.”); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973)
(“Combining the teachings of references does not involve an ability to
combine their specific structures.”). Thus, Appellant does not present
sufficient persuasive arguments or evidence explaining why one of ordinary
skill in the art would not have been motivated to combine the references, or
why there would not have been a reasonable expectation of success of such
combination.
For the reasons discussed above, we sustain the rejection of claim 12
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Hung, Tan, Ethridge, and
Cox. For the same reasons, we sustain the rejection of claim 22 under pre–
AIA 35 U.S.C. § 103(a) over Levinson, Tan, Ethridge, and Cox, Appellant
arguing claim 22 on the basis of argument presented in connection with
claim 12. Appeal Br. 22–23.

L–O) Claims 1–3, 5, 10, and 13
1. A pluggable optical transceiver module configured to
removably couple to an optical module port of a switch, router
or media adapter, the pluggable optical transceiver module
comprising:
a protocol processor for managing the transmission and
reception of Open Systems Interconnect (OSI) Layer 3
communications;
an optical fiber interface port disposed to removably couple
one or more optical fibers to the pluggable optical transceiver
module;
an electrical network interface port electrically coupled to the
protocol processor and disposed for electrically coupling the
pluggable optical transceiver module-to a switch, router or media
converter;
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a bidirectional optical assembly optically coupled to the
optical fiber interface port, the bidirectional optical assembly
being electrically coupled to the protocol processor and disposed
for transmitting optical signals through the optical fiber interface
port responsive to electrical signals received from the protocol
processor and further disposed to convey an electrical
communication signal to the protocol processor responsive to
receiving an optical communication signal through the optical
fiber interface port, whereby
the pluggable optical transceiver module is disposed to
communicate using OSI Layer 3.
The Examiner finds Levinson teaches the limitations of claim 1 except
“Levinson [does] not expressly show that a fiber is coupled to the optical
fiber interface port, and the TOSA/ROSA [(transmitter optical subassembly/
receiver optical subassembly)] forms a bidirectional optical assembly
coupled to the optical fiber interface port.” Final Act. 6. To remedy the
noted deficiencies, the Examiner finds Huang’s disclosure of a plug-in
module coupled to a transceiver to form a bidirectional optical assembly
teaches or suggests making the transceiver module bidirectional as claimed.
Id. The Examiner further finds Tan discloses a system that is “a pluggable
optical transceiver module having a bidirectional optical assembly and
removably couple[d] to an optical module port of a switch, router or media
adapter.” Id. According to the Examiner “it would have been obvious . . . to
apply the bidirectional scheme as taught by Huang . . . and Tan . . . and
widely used in the art to the system/method of Levinson . . . so that a single
fiber can be used for signal transmission, and system cost can be reduced.”
Id.
L. Frustration of Purpose
Appellant contends Levinson uses remote management to adjust the
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wavelength of an optical transceiver having a single transmitter using a
single tunable wavelength “to be used with a plurality of other like
transceivers whose accumulative transmissions are then combined onto an
optical fiber to form a [Dense Wave Division Multiplexing (DWDM)]
system.” Appeal Br. 23. Appellant argues “[t]he suggested modification of
combining Levinson’s transmit and receive wavelengths onto a single fiber
before the combination of communication from other like optical
transceivers to and from a DWDM system adds unnecessary costs and
degrades performance to this DWDM system as additional coupling is
needed.” Id. at 24.
The Examiner responds that Appellant’s argument based on a DWDM
system is not commensurate in scope with the claims. Ans. 62.
“The suggested modification of combining Levinson’s transmit
and receive wavelengths onto a single fiber” does not mean[] that
the combination Levinson . . . Huang . . . and Tan . . . must be
used in [a] DWDM system[;] the statement “the combination of
communication from other like optical transceivers to and from
a DWDM system” is just the Appellant’s presumption.
Id. The Examiner further disagrees the modification would not be desirable
because it would result in a more expensive system, finding the resultant
system would provide increased bandwidth and system capacity. Id. at 63.
The Examiner finds Huang’s disclosure that “[i]t is often desirable to limit
the number of fiber optic cables between two communication points to save
on material costs and installation” undermines Appellant’s argument the
combination adds unnecessary costs. Id. at 65.
Appellant replies, disputing the Examiner’s alleged cost savings.
Reply Br. 10. Appellant argues, in modifying Levinson’s device to include a
bidirectional optical assembly, the Examiner fails to consider the tunable
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nature of Levinson’s optical transceiver modules, which are more expensive
than fixed optical transceivers used to implement a DWDM system. Id. at
11. According to Appellant “the Examiner[’s] suggested modification of
adding Huang and Tan to Levinson . . . would frustrate the intended use case
of using tunable lasers, adding cost and degrading performance from the
addition of more Muxes to undo the suggested combination . . . to achieve
the tunable laser use case.” Id.
Appellant’s contention is unpersuasive of reversible Examiner error.
Initially, we are unpersuaded the combination would frustrate an intended
purpose of Levinson of, according to Appellant, including an adjustable
wavelength or tunable laser with remote or centralized control. Levinson
identifies a problem of prior art optoelectronic transceivers is that, using the
GBIC standard, transceiver operations are reliant on a host device to control
functions such as reset and shutdown. Levinson ¶¶ 5–6. Thus, a problem
using the GBIC standard is that a malfunction of the host device adversely
affects the associated transceiver. Id. ¶ 6. Levinson also discloses another
problem is that prior art systems using the GBIC standard are inflexible. Id.
Levinson’s solution to address these problems is to provide “an
optoelectronic device that has an assigned network address (e.g., Internet
Protocol address) and participates in in-band traffic for purposes of
performing functions (e.g., network diagnostics, network control, network
provisioning, fault isolation, etc.) that are traditionally performed by host
equipment.” Id. ¶ 8. Thus, an intended use of Levinson is to provide remote
control of optical transceiver functions which may include, among others,
laser diode wavelength control. See id. ¶¶ 31–39. That is, although an
embodiment of Levinson uses an adjustable wavelength or tunable laser (a
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feature that may be important in DWDM systems (id. ¶ 38)), we disagree
modifications that detract from use in that embodiment would frustrate the
intended use of Levinson to provide remote control of an optical transceiver.
Furthermore, although devices including tunable lasers as described by
Levinson may be used in a DWDM system, such use does not necessarily
foreclose other uses of tunable laser devices.
Appellant’s argument is further unpersuasive because, rather than
presenting evidence, Appellant provides examples of supposed increased
costs of a DWDM system incorporating a resultant combined device.
However, even if the overall cost of the resultant DWDM system were
proved to be greater, Appellant does not provide evidence that any
additional cost would be unwarranted in all cases. Merely knowing the
combination increases system costs does not indicate whether such
combination would have been nonobvious to persons of ordinary skill in the
art. See Orthopedic Equip. Co. v. United States, 702 F.2d 1005, 1013 (Fed.
Cir. 1983) (“[T]he fact that the two disclosed apparatus would not be
combined by businessmen for economic reasons is not the same as saying
that it could not be done because skilled persons in the art felt that there was
some technological incompatibility that prevented their combination.”);
Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“[A]
given course of action often has simultaneous advantages and disadvantages,
and this does not necessarily obviate motivation to combine.”); Winner Int’l
Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact
that the motivating benefit comes at the expense of another benefit, however,
should not nullify its use as a basis to modify the disclosure of one reference
with the teachings of another.”).
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M. Unsatisfactory for Intended Purpose
Appellant additionally alleges “the rejection is improper as it would
negatively frustrate a primary purpose of Levinson and therefore [there
would have been] no reason to combine [Levinson with Huang and Tan].”
Appeal Br. 24. We disagree for the reasons described above in connection
with contention L.
N. System Cost Reduced
The Examiner finds incorporating Huang and Tan’s bidirectional
scheme into the system of Levinson would allow use of a single fiber such
that “system cost can be reduced.” Final Act. 6. Appellant contends the
additional cost of adding Huang’s modules to Levinson’s optical transceiver
necessarily increases rather than reduces system costs, rendering the
combination improper. Appeal Br. 25. The Examiner responds, finding
Huang’s added circulator is a low-cost item while “two fibers cost more than
one fiber.” Ans. 68.
We are unpersuaded by Appellant’s argument. Although there may
be additional costs in providing an optical combining device such as an
optical circulator, we agree with the Examiner in finding such additional
cost may be partially or entirely offset by decreasing the number of optical
fibers/cables needed. Even if otherwise, for the reasons discussed above, we
disagree cost is a determinative, much less a dispositive factor in deciding
whether it would have been obvious to combine the teachings of the
references.
For the reasons discussed above, we sustain the rejection of claims 1,
2, 10, and 13 under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, and
Tan. We further sustain the rejection of claim 5 under pre–AIA 35 U.S.C.
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§ 103(a) over Levinson, Huang, Tan, and Medina, that claim being argued
on the basis of claim 1. Appeal Br. 27.
O. Physical Layer and Data Link Layer Network Addressing (Claim 3)
3. The pluggable optical transceiver module of claim 1, wherein
the protocol processor manages the transmission and
reception of data link layer communications including one or
more of the following functions comprising:
encapsulating user data into data link layer frames;
frame synchronization;
forward error correction;
physical layer addressing;
data link layer network identification addressing;
data packet queuing;
prioritizing of bandwidth allocations; and
operation administration and maintenance (OAM)
message processing.
In connection with claim 3, the Examiner finds Levinson’s
transceiver, having an assigned IP address, teaches or suggests physical
layer addressing and data link layer network identification addressing. Final
Act. 7 (citing Levinson ¶¶ 43–58).
Appellant contends “there is no support for [the asserted] teaching in
the cited paragraphs [of Levinson].” Appeal Br. 25. Appellant argues,
rather than using the data link layer (i.e., OSI layer 2) for network
identification addressing, “Levinson teaches IP or network layer addressing
(i.e., OSI layer 3) and therefore teaches away from the Examiner’s position.”
Id.
The Examiner responds, finding Levinson’s transceiver operates in
the physical layer. Ans. 70. The Examiner further finds Levinson “detects
and possibly corrects errors that may occur in the physical layer’ etc.,
therefore, Levinson teaches/suggests the data link layer.” Id. at 71. The
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Examiner explains:
Levinson discloses the OSI layer 3. The physical layer and data
link layer are the first and second layers of the open systems
interconnection (OSI) model, in which a layer serves the layer
above it and is served by the layer below it. Then, Levinson et
al teaches/suggests that the protocol processor manages the
transmission and reception of data link layer communications
including the following functions comprising physical layer
addressing, and/or data link layer network identification
addressing.
Id.
Appellant replies:
[D]evices or entities (e.g., software applications) that operate at
an OSI layer do so without regard to the addressing operation
below or above its OSI layer that a device or entity is designed
to operate at, as this addressing operation is the concern of other
OSI layer devices or entities that operate below or above. For
example, Levinson control circuit 150 that includes protocol
processor 350’ operates at OSI layer 3, having an IP address (i.e.,
an OSI layer 3 address) and is unconcerned about data link layer
(OSI layer 2) or physical layer addressing.
Reply Br. 12. Appellant concludes “the destination address [used by
Levinson] is an IP address [such] that Levinson teaches away from using
physical layer or data link layer addressing and thus teaches away from the
Examiner’s rejection to claim 3.” Id.
Appellant’s argument is unpersuasive of reversible Examiner error.
Levinson employs OSI layers 1 and 2 (i.e., the physical and data link layers)
and uses OSI layer 3 (i.e., IP) addressing. Because, as found by the
Examiner, Levinson teaches or suggests that a protocol processor manages
the transmission and reception of data link layer communications, we agree
Levinson further suggests physical layer addressing and/or data link layer
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network identification addressing. Furthermore, because Levinson explicitly
provides IP addressing and the use of both physical and data link layers, the
combination at least suggests the use of addressing at those layers.
We further note in passing and without reliance in arriving at our
decision that several of the other functions recited in the alternative by
claim 3 are described in the prior art of record, as follows:
encapsulating user data into data link layer frames: See, e.g., Final Act.
22 (with respect to claim 15): “Regarding the encapsulating/de-
encapsulating the payload data in the Ethernet MAC, it is a common
operation in the MAC, Masucci et al discloses the data link layer
encapsulation (Figures 3-8, and column 6 line 1 to column 7 line 13).”

frame synchronization: See, e.g., Xu col. 4, ll. 1–4; Johnston Abstract,
col. 5, ll. 50–55; col. 16, ll. 9–10.

forward error correction; See, e.g., Final Act. 16 (Cox et al. discloses that
forward error correction can be implemented in a transceiver (312 in
Figure 3); Cox ¶¶ 16, 33, 61.

data link layer network identification addressing: See, e.g., Final Act. 7;
Levinson ¶¶ 43–58; Scarmalis col. 5, ll. 43–45 (“The [data link]
protocol Q.922, among other things, includes an address header that is
applied to a data packet and provides the addressing for the frame
relay packet.”)

data packet queuing: See, e.g., Song ¶¶ 120–21, 225, 244; Masucci col. 4,
ll. 9, 51, col. 6, ll. 26–62.

prioritizing of bandwidth allocations: See, e.g., Final Act. 13, 18, 27;
Ans. 12–13, 17, 26, 47–48; Wang ¶ 51 (“The [optical line terminating
(OLT) network device] may use this traffic information to prioritize
traffic to enable high priority traffic to displace lower priority
traffic.”)

operation administration and maintenance (OAM) message processing:
See, e.g., Masucci (Figs. 3, 6, 8, col. 7, ll. 49–51; col. 8, ll. 32–33;
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col. 10, ll. 30–35, 56–59; Wang ¶¶ 50 (Table 1), 52, 54.
For the reasons discussed above, we sustain the rejection of claim 3
under pre–AIA 35 U.S.C. § 103(a) over Levinson, Huang, and Tan.

P) Claims 14, 16, and 20
14. A method of communicating from an optical transceiver
module for an optical network, the optical transceiver module
having a pluggable form factor and adapted to removably couple
to an optical module port of a switch, router or media converter,
the method comprising:
conveying a first electrical signal through an electrical
network interface port to a protocol processor;
processing the first electrical signal in accordance with an
Open Systems Interconnect (OSI) Layer 3 protocol by the
protocol processor and wherein the first electrical signal
includes an OSI Layer 3 network address associated to the
optical transceiver module;
modifying a parameter of the optical transceiver module
responsive to processing the first electrical signal wherein
the parameter is selected from one or more of the
following functions comprising: modifying quality of
service (QoS) of data traffic, subscriber service
provisioning and deprovisioning, modifying subscriber
bandwidth allocations or grants, reporting optical
transceiver alarm or optical transceiver diagnostics;
generating a second electrical signal in accordance with the
OSI Layer 3 protocol by the protocol processor and
wherein the second electrical signal includes the OSI
Layer 3 network address associated to the optical
transceiver module;
conveying the second electrical signal through the electrical
network interface port to the switch, router or media
converter.
The Examiner finds Levinson teaches the limitations of claim 14
except for a physically pluggable/removable port, for which the Examiner
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applies Tan. Final Act. 19. According to the Examiner, “it would have been
obvious . . . to apply the bidirectional scheme as taught by Tan . . . and
widely used in the art to the system/method of Levinson . . . so that a single
fiber can be used for signal transmission, and system cost can be reduced.”
Id. Appellant contends “the stated motivation to combine is the same as that
used in the rejection to claim 1 above and is drawn to Appellant[’s] optical
interface port which is not expressly part of Appellant[’s] claim 14.” Appeal
Br. 26. The Examiner responds, providing reasons why the pluggable form
factor of Tan would be incorporated into Levinson’s device. Ans. 7310.
We find the Examiner’s foregoing rationale constitutes articulated
reasoning with rational underpinnings sufficient to justify the legal
conclusion of obviousness. Accordingly, we sustain the rejection of claims
14 and 20 under pre–AIA 35 U.S.C. § 103(a) over Levinson and Tan. We
further sustain the rejection of claim 16 under pre–AIA 35 U.S.C. § 103(a)
over Levinson, Tan, Masucci, Benton, Scarmalis, and Medina, that claim

10 The pluggable form factor transceiver allows users to easily
adapt to various fiber optic or copper networking standards and
to select the appropriate transceiver for each link to provide the
required optical reach over the available optical fiber type. The
pluggable transceiver modules can be easily interchanged, and
electro-optical or fiber optic networks can be upgraded and
maintained more conveniently than has been the case with
traditional soldered-in modules. Rather than replacing an entire
circuit board containing several soldered-in modules, a single
module can be removed and replaced for repair or upgrading.
This can result in a substantial cost savings, both in maintenance
and in upgrading efforts.
Ans. 73.

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being argued on the basis of claim 14. Appeal Br. 27.
DECISION
We affirm the Examiner’s rejections of claims 1–22 under 35 U.S.C.
§ 103.

Claims
Rejected
35
U.S.C.
Reference(s)/Basis Affirmed Reversed
1–3, 10,
13
§ 103 Levinson, Huang, Tan 1–3, 10,
13

4 § 103 Levinson, Huang, Tan, Masucci,
Denton
4
5 § 103 Levinson, Huang, Tan, Medina 5
6, 8 § 103 Levinson, Huang, Tan, Song, Xu 6, 8
7 § 103 Levinson, Huang, Tan, Wang 7
9 § 103 Levinson, Huang, Tan, Johnston 9
11 § 103 Levinson, Huang, Tan, Ethridge 11
12 § 103 Levinson, Huang, Tan, Ethridge, Cox 12
14, 20 § 103 Levinson, Tan 14, 20
15 § 103 Levinson, Tan, Masucci, Denton,
Scarmalis
15
16 § 103 Levinson, Tan, Masucci, Benton,
Scarmalis, Medina
16
17, 19 § 103 Levinson, Tan, Song, Xu 17, 19
18 § 103 Levinson, Tan, Wang 18
21 § 103 Levinson, Tan, and Ethridge 21
22 § 103 Levinson, Tan, Ethridge, Cox 22
Overall
Outcome
1–22

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). See
37 C.F.R. § 41.50(f).

AFFIRMED