Ex Parte Mikhailov et al

Patent Trial and Appeal Board

Nov 29, 2016

13177116 (P.T.A.B. Nov. 29, 2016)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/177,116 07/06/2011 Vitaly Mikhailov Mikhailov 2-33 5833
57040 7590 12/01/2016
OFS Fltel, LLC
(FORMERLY FURUKAWA ELECTRIC NORTH AMERICA, INC.)
2000 NORTHEAST EXPRESSWAY
NORCROSS, GA 30071
EXAMINER
RABOVIANSKI, IVAN I
ART UNIT PAPER NUMBER
2862
NOTIFICATION DATE DELIVERY MODE
12/01/2016 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):
Arochester@ofsoptics.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VITALY MIKHAILOV and PAUL S. WESTBROOK
Appeal 2015-004860
Application 13/177,116
Technology Center 2800
Before MARKNAGUMO, MICHAEL P. COLAIANNI, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision2 finally rejecting claims 1, 5-16, 27, 29-32, and 34-40. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal relates to a technique for calibrating an
optical polarimeter that does not rely on the use of a polarization “standard”
and can be used to calibrate a polarimeter during installation and/or
operation in the field. Spec. ^ 2.
1 Appellants identify the real party in interest as OFS Fitel, Inc. Appeal
Brief filed October 16, 2014 (“Br.”), 1.
2 Final Office Action mailed June 19, 2014 (“Final Act.”).
Appeal 2015-004860
Application 13/177,116
Claim 1, reproduced below, is illustrative of the claims on appeal.
1. A method of calibrating a polarimeter by creating a
calibration matrix C from a plurality of N detector output signals
(N>4) associated with a plurality of N detectors, the calibration
matrix C used to generate the Stokes parameters associated with
an optical signal propagating along a signal path, the method
comprising the steps of:
a) sequentially launching at least four optical signals into
the polarimeter, each launched optical signal having a different
state of polarization (SOP);
b) for each sequentially launched signal, measuring a
plurality of detector signals including at least the detector output
signals at each detector of the plurality of N detectors;
c) creating an initial calibration matrix of a plurality of
elements selected from the group consisting of: the plurality of
detector signals measured in step b), a plurality of values
defining a calibration matrix for a tetrahedral polarimeter, and a
plurality of random values; and
d) adjusting values of selected elements of the initial
calibration matrix to satisfy at least one predefined constraint to
determine the calibration matrix C.
App. Br. (Claims Appendix) 8.
DISCUSSION
The Examiner rejects claims 1 and 5 under 35 U.S.C. § 112, second
paragraph as being indefinite. Final Act. 2-3.
The Examiner rejects claims 1, 2, 27, 32, and 40 under 35 U.S.C.
§ 102(b) as anticipated by Heffner (US 5,296,913, issued Mar. 22, 1994)
(Br. 3-6)3, and rejects the remaining claims on appeal under 35 U.S.C.
3 Canceled claim 4 was mistakenly included in the statement of the rejection.
See Final Act. 3.
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Appeal 2015-004860
Application 13/177,116
§ 103(a) as unpatentable over Heffner alone or in combination with
additional prior art references {id. at 6-16).
Appellants present arguments specifically directed to independent
claim 1. Br. 4-6. No separate arguments for patentability are specifically
directed to the other claims on appeal {id. at 6). Therefore, we focus on
claim 1 in deciding this appeal.
Appellants do not contest the merits of the § 112, second paragraph
rejection in the record of this appeal, but instead state that they intend “to
address these issues subsequent to the ruling on this Appeal regarding the
applicability of the cited Heffner reference.” Br. 4, n.l. Because the Board
does not hold rejections in abeyance, we treat Appellants failure to provide
substantive arguments against the § 112, second paragraph rejection as a
waiver thereof. See Manual of Patent Examining Procedure (MPEP)
§ 1205.02 (9th ed., rev. July 2015) (“If a ground of rejection stated by the
examiner is not addressed in the appellant’s brief, that ground of rejection
will be summarily sustained by the Board.”); see also In re Berger, 279 F.3d
975, 984 (Fed. Cir. 2002) (affirming the Board’s decision to sustain an
uncontested rejection of claims under 35 U.S.C. 112, second paragraph and
finding the appellant had waived his right to contest the indefmiteness
rejection by not presenting arguments as to error in the rejection on appeal to
the Board). Thus, we summarily sustain the rejection.
In the § 102 rejection of claim 1, the Examiner finds Heffner discloses
all the elements of claim 1 including “creating an initial calibration matrix of
a plurality of elements selected from the group consisting of: the plurality of
detector signals measured in step b). . . ,” as recited in step c) of claim 1.
See Final Act. 3-5, citing Heffner 3:65—4:8, 4:3-29, 5:18-28.
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Appeal 2015-004860
Application 13/177,116
Appellants’ sole argument for reversal is that the Examiner erred in
finding that Heffner discloses “creating an initial calibration matrix,” as
required by step (c) of claim 1. In particular, Appellants contend that
Heffner teaches changing or recalibrating the initial calibration matrix [A]
rather than creating an initial calibration matrix. Br. 5-6.
Appellants’ argument is not persuasive of reversible error in the
Examiner’s rejection. According to the language of claim 1, the initial
calibration matrix created in step (c) can be based on “the plurality of
detector signals measured in step b),” which in turn includes “at least the
detector output signals at each detector of the plurality of N detectors.”
(App. Br. 8.) All polarimeters not only have to be initially calibrated, but
also need to be re-calibrated over time to ensure they are making accurate
measurements. Heffner 1:11-15. Heffner’s polarimeter has a plurality of
detectors (e.g., four detectors). Heffner 3:59-62, 4:4-6. As the Examiner
finds, Heffner teaches that typically, the values of the instrument matrix [A]
(calibration matrix) are determined during the original (initial) calibration of
the polarimeter, before the polarimeter is recalibrated (Heffner 3-8). Final
Act. 4; see also Krause et al. (US 2003/0193667 Al, published Oct. 16,
2003) (hereinafter “Krause”) ^ 20 (teaching it was known in the art that for
calibration of a polarimeter, known states of polarization and optical powers
are usually fed into the polarimeter, and the associated detector signals are
measured, and from the known states of the polarization and the associated
detector signals, a transmission function (calibration matrix) is calculated.).
Thus, the Examiner’s finding that Heffner teaches or suggests creating an
initial calibration matrix using a plurality of detector signals measured
during the original calibration, which is performed prior to recalibration, is
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Appeal 2015-004860
Application 13/177,116
supported by a preponderance of the evidence. Appellants have not
explained what limitation recited in claim 1 excludes the determination of
the elements of matrix [A] during the “original calibration” of the
polarimeter.
Moreover, the scope of the phrase “creating an initial calibration
matrix” as recited in step c) of claim 1, when read in light of Appellants’
Specification, encompasses a calibration matrix created during a re­
calibration method as long as the calibration matrix is derived from
measured detector output signals. See Spec. ^ 12 (teaching that “[i]n one
exemplary embodiment, an initial matrix is derived from the measured
detector output values.”); see also id. at 13-15 (teaching the measured
output values are subsequently adjusted to satisfy predefined constraints).
Heffner teaches a method of re-calibrating a polarimeter that begins with
sequentially launching input electromagnetic waves having different states
of polarization (SOP) into a polarimeter (Heffner Abstract) and then
measuring, using a plurality of detectors, raw values that indicate the state
and degree of polarization of each wave (Heffner 3:1-6, 57-64, Fig. 1A). A
calibration factor [C] is then calculated using those raw values (Heffner
3:17-21). The calibration factor [C] is used to re-calibrate the polarimeter
by creating an instrument matrix ([A] * [C]) to replace the original
instrument matrix [A] (Heffner 5:25-28). Thus, even if Heffner does not
perform the “original calibration,” as Appellants contend (Br. 6), a
preponderance of the evidence supports the Examiner’s finding that the
instrument matrix created in Heffner’s re-calibration method using a
plurality of measured detector signals falls within the scope of “creating an
initial calibration matrix,” as recited in step c) of claim 1 (Ans. 2—4).
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Appeal 2015-004860
Application 13/177,116
Although Heffner does not use the term “initial” instrument matrix, as the
Examiner points out, Heffner need not use the exact same language of the
claims for an anticipation rejection (Ans. 2). See In re Gleave, 560 F.3d
1331, 1334 (Fed. Cir. 2009) (“the reference need not satisfy an ipsissimis
verbis test”); Akzo N. V. v. U.S. Int’l Trade Comm ’n, 808 F.2d 1471, 1479
n.ll (Fed. Cir. 1986) (“An ‘ipsissimis verbis’ test requires the same
terminology in the prior art in order to find anticipation.”).
DECISION
For the above reasons, the Examiner’s rejections of claims 1, 5-16,
27, 29-32, and 34 40 are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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