Ex Parte Boland et al

Patent Trial and Appeal BoardOct 26, 2017

14298573 (P.T.A.B. Oct. 26, 2017)

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. 14/298,573 06/06/2014 Brian F. Boland 13-5285 (RAYN01-35285) 7298 18510 7590 10/30/2017 Dnoket Plerk-Ravthenn/MWM EXAMINER P.O.Drawer 800889 Dallas, TX 75380 ABRAHAM, SAMANTHA K ART UNIT PAPER NUMBER 3645 NOTIFICATION DATE DELIVERY MODE 10/30/2017 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): patents @ munckwilson. com munckwilson @ gmail. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN F. BOLAND, ROBERT D. STULTZ, and JOHN J. WOOTAN Appeal 2016-007236 Application 14/298,5731 Technology Center 3600 Before MICHAEL C. ASTORINO, TARA L. HUTCHINGS, and ALYSSA A. FINAMORE, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1—7, 9—15, and 17—20.2 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appellants, the real party in interest is Raytheon Company. Appeal Br. 2. 2 The Examiner withdraws the rejection of claims 8 and 16 under 35 U.S.C. § 103(a). Ans. 2. Appeal 2016-007236 Application 14/298,573 STATEMENT OF THE CASE Subject Matter on Appeal The Appellants’ invention “is directed in general to LADAR [(Laser Detection and Ranging)] systems and more specifically to the use of nonlinear conversion techniques to improve optical pulse contrast in LADAR systems.” Spec. Tfl[ 1,2. Claims 1, 9, and 17 are the independent claims on appeal. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A laser radar (LADAR) system, the LADAR system comprising: a laser transmitter configured to emit laser pulses at a first wavelength; a non-linear converter configured to convert the laser pulses to a second wavelength prior to spectral filtering of amplified spontaneous emission (ASE) that is emitted from the laser transmitter in a spectrum concentrated around the first wavelength; and a spectral filter configured to substantially filter the ASE and allow the laser pulses at the second wavelength to pass. Rejections Claims 1—5, 7, 9—13, and 15 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ter-Mikirtychev (US 2014/0050234 Al, pub. Feb. 20, 2014) and Fetzer et al. (US 2007/0024840 Al, pub. Feb. 1, 2007) (“Fetzer”). Claims 6 and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ter-Mikirtychev, Fetzer, and DeFlumere (US 2004/0021852 Al, pub. Feb. 5, 2004). Claims 17—20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Ter-Mikirtychev and DeFlumere. 2 Appeal 2016-007236 Application 14/298,573 ANALYSIS The Appellants argue that the Examiner’s rejection of claim 1, based on Ter-Mikirtychev and Fetzer, is factually and legally deficient. Appeal Br. 13. The Appellants’ argument includes many points. See Appeal Br. 8— 13; Reply Br. 2-4. Three of the Appellants’ points highlight error in the Examiner’s rejection of claim 1. The Appellants’ first point is directed to the features of claim 1, namely the order of operations performed by the claimed system. Appeal Br. 8. The Appellants point out that “[i]n the system recited in [cjlaim 1, laser pulses would be emitted at a first wavelength and converted to a second wavelength prior to spectral filtering of amplified spontaneous emission (ASE) emitted in a spectrum concentrated around the first wavelength.” Appeal Br. 9. In other words, claim 1 requires conversion of a second wavelength before spectral filtering of an amplified spontaneous emission (ASE). See Appeal Br., Claims App. The Examiner agrees. See Final Act. 2 (“The instant claims teach conversion prior to filtering.”) The Appellants’ second point is that “the ASE in Ter-Mikirtychev is always filtered before any non-linear conversion process occurs.” Appeal Br. 10. The Examiner takes a contrary position. Ans. 4—5; see Final Act. 4. The Examiner finds that Ter-Mikirtychev shows a non-linear converter 640, which produces a second wavelength, and a filter 642, which “filters out the ASE” after the non-linear conversion process. Ans. 5 (citing Ter- Mikirtychev Fig. 6). In response, the Appellants correctly point out that this finding is at odds with Ter-Mikirtychev’s explicit statement that “‘band-pass filter 634 filters out residual ASE signal which may be present in the output of the 3 Appeal 2016-007236 Application 14/298,573 fiber amplifier 632.’” Reply Br. 3 (quoting Ter-Mikirtychev 173). As shown in Ter-Mikirtychev’s Figure 6, band-pass filter 634 filters out the residual ASE signal before the energy reaches non-linear converter 640 and dichroic filter 642. As such, we agree with the Appellants’ statement, “[w]hen the signal leaves the bandpass filter 634, there is no residual ASE to filter.” Reply Br. 4 (emphasis omitted). We determine that the Examiner’s finding fails to be adequately supported. The Appellants’ third point is that the Examiner has not provided adequate alternative reasoning for the rejection of claim 1 set forth in the Response to Arguments section of the Final Office Action. See Appeal Br. 10—13. Specifically, in the Response to Arguments section the Examiner finds that “the prior art [(i.e., Ter-Mikirtychev)] teaches filtering prior to converging].” Final Act. 2. Because this finding is in opposition with the specific findings underpinning the rejection of claim 1 (Final Act. 3) and remarks made in the Answer (see Ans. 4—5), it is indicative of alternative reasoning for the rejection of claim 1. Indeed, based on this alternative finding, the Examiner concludes, “regardless of the order in which conversion and filtering are performed, one of ordinary skill in the art would recognize that the same outcome is achieved.” Final Act. 2. In response, the Appellants contend that there is insufficient disclosure in Ter-Mikirtychev to determine that changing the order of the conversion and filtering operations would result in the same outcome. See Appeal Br. 9—11. Notably, the Examiner relies on case law holdings to support the alternative reasoning (.e.g., In reJapikse, 181 F.2d 1019 (CCPA 1950) (holding that the rearrangement of parts of an invention involves only routine skill in the art)) and cites to Zhu et al. (US 2013/0258343 Al, pub. 4 Appeal 2016-007236 Application 14/298,573 Oct. 3, 2013) (“Zhu”) to teach “that non-linearly converted light is output to a filter in an effort to increase signal to noise ratio.” Final Act. 3. However, the citations to case law holdings are unavailing because the Examiner fails to explain how those holdings apply to the facts of this case. And, the Examiner’s finding based on Zhu fails to explain how the same outcome would result when changing the order of converting and filtering. We determine that the Examiner fails to explain — using adequate evidence or technical reasoning — why changing the order of the conversion of the second wavelength and the filtering of the ASE, as required by claim 1, achieves the same outcome. Additionally, the Examiner relies on Fetzer to teach “a laser radar (LADAR) system” (Final Act. 4), which does not cure the deficiencies of the Examiner’s finding and reasoning particular to the rejection of claim 1. Thus, we do not sustain the Examiner’s rejection of independent claim 1, and its dependent claims, as unpatentable over Ter-Mikirtychev and Fetzer. Independent claim 9 is similar to claim 1. Appeal Br., Claims App. The Examiner relies on the same inadequately supported finding and reasoning for claim 9 as discussed above. Final Act. 4. As such, we do not sustain the Examiner’s rejection of independent claim 9, and its dependent claims, as unpatentable over Ter-Mikirtychev and Fetzer. The Examiner’s rejection of claims 6 and 14 based on Ter- Mikirtychev and Fetzer in combination with DeFlumere relies on the same inadequately supported finding and reasoning as discussed above, which are not cured by the additional findings and/or reasoning associated with DeFlumere. As such, we do not sustain the rejection of claims 6 and 14 as unpatentable over Ter-Mikirtychev, Fetzer, and DeFlumere. 5 Appeal 2016-007236 Application 14/298,573 Independent claim 17 is similar to claim 1. Appeal Br., Claims App. The Examiner’s rejection of claim 17 is based on Ter-Mikirtychev and DeFlumere and relies on the same inadequately supported finding and reasoning discussed above, which are not cured by the additional findings and/or reasoning associated with DeFlumere. As such, we do not sustain the Examiner’s rejection of independent claim 17, and its dependent claims, as unpatentable over Ter-Mikirtychev and DeFlumere. DECISION We REVERSE the Examiner’s decision rejecting claims 1—7, 9—15, and 17—20. REVERSED 6