Ex Parte Nebendahl

Patent Trial and Appeal Board

Dec 11, 2017

14015121 (P.T.A.B. Dec. 11, 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.
14/015,121 08/30/2013 Bernd Nebendahl 20130171-01 8071
126149 7590
Key sight Technologies, Inc.
C/O CPA Global
900 Second Avenue South
Suite 600
Minneapolis, MN 55402
EXAMINER
SHALABY, MINAM
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
12/18/2017 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):
key sightdocketing @ cpaglobal. com
notice, legal @key sight, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERND NEBENDAHL
Appeal 2017-0069151
Application 14/015,121
Technology Center 2600
Before DENISE M. POTHIER, LARRY J. HUME, and
JOHN P. PINKERTON, Administrative Patent Judges.
POTHIER, Administrative Patent Judge.
DECISION ON APPEAL
1 Throughout this opinion, we refer to (1) the Final Action (Final Act.)
mailed June 22, 2016, (2) the Appeal Brief (App. Br.) filed November 7,
2016, (3) the Examiner’s Answer (Ans.) mailed January 26, 2017, and (4)
the Reply Brief (Reply Br.) filed March 27, 2017.
Appeal 2017-006915
Application 14/015,121
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1—4, 9, 14, 17-25, 27, and 28. App. Br. 4. Claims 5-8,
10-13, 15, 16, and 26 have been withdrawn from consideration. Reply
Br. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Invention
Appellant’s claimed invention relates to overcoming problems with
measuring optical signals and decoding, such as challenges with (1)
component bandwidth used to decode optical signals or (2) the ability to
decode at relatively high rates due to component speed or expense. See
Spec, im 1-5.
Claims 1 and 18 are reproduced below with emphasis added to
contested limitations:
1. A method of processing an optical input signal,
comprising:
transmitting the optical input signal through first and
second signal paths;
mixing the optical input signal with first and second local
oscillator (LO) signals in the respective first and second signal
paths to produce first and second electrical signals
corresponding to different portions of a frequency spectrum of
the optical input signal, the first and second electrical LO
signals having a discernible phase relationship; and
combining the first and second electrical signals to
produce a coherent time-domain output signal.
2 The real party of interest is identified as Key sight Technologies,
Incorporated. App. Br. 3.
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Application 14/015,121
18. A system configured to process an optical input signal,
comprising:
first and second signal paths configured to receive the
optical input signal;
first and second phase-quadrature (IQ) hybrids disposed
in the respective first and second signal paths and configured to
combine the optical input signal with respective first and
second local oscillator (LO) signals to produce first and second
signals, the first and second LO signals having a discernible
phase relationship;
first and second photodetectors (PDs) configured to
convert the first and second signals into corresponding first and
second down-converted electrical signals corresponding to
different portions of a frequency spectrum of the optical input
signal, respectively;
a plurality of analog to digital converters configured to
digitize the first and second down-converted electrical signals;
and
a stitching unit configured to combine the first and
second digitized electrical signals to produce a coherent time-
domain output signal.
The Examiner relies on the following as evidence of unpatentability:
US 2009/0067843 A1 Mar. 12, 2009
US 2012/0177383 A1 July 12, 2012
US 2013/0216239 A1 Aug. 22, 2013
Way
Tanimura
Zhang
The Rejections
Claims 1—4, 9, 14, 17-25, 27, and 28 are rejected under 35 U.S.C.
§ 112(b) as being indefinite. Ans. 2.
Claims 1 and 18 are rejected under 35 U.S.C. § 102(a)(1) as
anticipated by Tanimura. Ans. 3—4.
Claims 2, 14, 17, 19-23, 27, and 28 are rejected under 35 U.S.C.
§ 103 as unpatentable over Tanimura and Zhang. Ans. 4-7.
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Application 14/015,121
Claims 3, 4, 9, 24, and 25 are rejected under 35 U.S.C. § 103 as
unpatentable over Tanimura, Zhang, and Way. Ans. 7-9.
THE INDEFINITENESS REJECTION
Regarding independent claims 1 and 18, the Examiner finds the
recitation “discernible phase relationship” is vague because the phrase does
not identify the specific phase relationship and thus, the claimed phrase does
not clearly identify what phase relationship is discernible. Ans. 2. The
Examiner further contends the term “discernible” is a relative term, the
Specification does not provide a standard for this term, and one skilled in the
art would not have been apprised reasonably of the term’s scope. Id. at 10.
Appellant argues the phrase is definite. App. Br. 4-5. In the Reply
Brief, Appellant contends the term is defined in the Specification. Reply
Br. 4-5.
ISSUE
Under § 112(b), has the Examiner erred in concluding the phrase “a
discernible phase relationship” in independent claims 1 and 18 is indefinite?
ANALYSIS
Given the record, we agree that the term “discernible phase
relationship” has been defined. As noted by Appellant, the Specification
states:
As used herein, the term ‘discernible phase relationship’
denotes a relationship that allows the coherent baseband signal
to be reconstructed with proper phase alignment. As indicated
by examples shown in FIGS. 3 and 4, the discernible phase
relationship is typically established or maintained by either
generating the two LO signals from a single laser source and
processing those signals in ways that preserve the phase
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Application 14/015,121
relationship (FIG. 3), or by generating the LO signals with
different lasers and measuring their phase relationship (FIG. 4).
Spec. ^ 32, quoted in Reply Br. 4.
As such, when construing the phrase “first and second electrical LO
signals having a discernible phase relationship” in light of the disclosure, an
ordinarily skilled artisan would have reasonably understood the phrase to
mean the first and second electrical LO signals have a relationship that
allows the coherent baseband signal to be reconstructed with proper phase
alignment. The disclosure also provides examples to one skilled in the art of
how this relationship can be established. See Spec. 26-29 (discussing
two approaches used during reconstruction), 32 (discussing two examples of
how the discernible phase relationship is established).
Appellant appears to have changed positions regarding the meaning of
the recited phrase “discernible phase relationship” between the Appeal Brief
and the Reply Brief. Compare App. Br. 5 (stating “Appellant’s recited first
and second LO signals inherently have a phase relationship relative to one
another”) with Reply Br. 4 (stating the term is defined to mean “a
relationship that allows the coherent baseband signal to be reconstructed
with proper phase alignment”). These differing positions by Appellant
would generally illustrate that the precise scope of the recitation “discernible
phase relationship” is not clear. However, as noted above, the newly
identified passage provides a definition of the disputed phrase, and the
disclosure provides examples for the ordinarily skilled artisan of how the
recited phase relationship is established, such that the ordinary artisan is
reasonably apprised of the disputed limitation’s scope.
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On the record, we thus determine the phrase “discernible phase
relationship” points out and distinctly claims the claimed invention when
considered by one skilled in the art in light of the disclosure. Appellant
therefore has persuaded us of error in the rejection of (1) independent
claim 1, (2) independent claim 18, which recites a commensurate limitation,
and (3) dependent claims 2—4, 9, 14, 17, 19-25, 27, and 28 for similar
reasons.
THE ANTICIPATION REJECTION OVER TANIMURA
Regarding representative claim 18,3 the Examiner finds Tanimura
teaches “first and second phase-quadrature (IQ) hybrids . . . configured to
combine the optical input signal with respective first and second local
oscillator (LO) signals . . ., the first and second LO signals having a
discernible phase relationship.” Ans. 3 (citing Tanimura]} 44, Fig. 6).
Appellant argues Tanimura does not describe the relative phase of
signals 26a and 26b or that their phases are discernible. App. Br. 6 (citing
Tanimura ]}]} 42 43). Specifically, Appellant contests the Examiner’s
“putative finding of fact” {id. at 7) that Tanimura determines the phase
difference between the LO signals generated by lasers 22a,b. Id. at 6-7
(citing a December 14, 2015 Office Action, stating “the phase difference
between the two signals are [sic] determined” and referring to Tanimura’s
paragraphs 57-63). Rather, Appellant asserts the phase of the signal
component of partial bands 29a and 29b is adjusted to create synchronization
between the phases. Id. at 7-9 (citing Tanimura ]}]} 44, 57-63).
3 Appellant argues claims 1 and 18 collectively. App. Br. 5-9. We select
independent claim 18 as representative. 37 C.F.R. § 41.37(c)(l)(iv).
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ISSUE
Under § 102, has the Examiner erred in rejecting claim 18 by finding
that Tanimura discloses “first and second phase-quadrature (IQ) hybrids . . .
configured to combine the optical input signal with respective first and
second local oscillator (LO) signals . . ., the first and second LO signals
having a discernible phase relationship”?
ANALYSIS
Under the above claim construction, the recitation “the first and
second LO signals having a discernible phase relationship” means the first
and second electrical LO signals have a relationship that allows the coherent
baseband signal be reconstructed with proper phase alignment.
Additionally, we note the discussion of approaches or examples for
establishing the recited relationship in the disclosure (see Spec. 26-29,
32) are non-limiting. With that interpretation in mind, we turn to Tanimura.
The rejection relies on Tanimura’s paragraph 44 and figure 6 to
disclose “first and second phase-quadrature (IQ) hybrids . . . configured to
combine the optical input signal with respective first and second local
oscillator (LO) signals . . ., the first and second LO signals having a
discernible phase relationship.” Ans. 3 (citing Tanimura ^ 44, Tig. 6).
Tanimura discusses local oscillation light 26a (e.g., a first LO signal) is
inputted into hybrid circuit 23a and circuit 23a has a phase shifter that shifts
the phase of light 26a by 90 degrees. Tanimura ^ 44, Tig. 6. Given that
circuit 23a can shift the phase of local oscillation light 26a (e.g., a signal),
Tanimura also teaches the LO signal’s phase is perceptible and thus
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discernible.4 Although Tanimura does not discuss circuit 23b also shifting
local oscillator light 26b’s (e.g., a second LO signal) phase, we further
determine that its signal’s phase would be equally discernible to a circuit just
as LO light 26a is. See id. Thus, Tanimura discloses signals 26a and b have
discernible or perceptible phases. And because their phases are discernible,
Tanimura’s LO signals have a relationship that allows a coherent baseband
signal to be reconstructed with proper phase alignment (i.e., have “a
discernible phase relationship” as recited).
Appellant does not dispute Tanimura’s teachings in paragraph 44. See
App. Br. 6. Admittedly, Appellant cites paragraph 44. Id. at 7. But, the
related discussion of this paragraph by Appellant does match Tanimura’s
text. Compare id. (discussing processor 5 performing frequency and phase
compensation on bands 29a and b that frequency converted using a reference
signal) with Tanimura ^ 44 (as previously discussed).
Moreover, to the extent Appellant has not abandoned its position that
each of two LO signal is characterized by a frequency, each of the two
frequencies has a phase relationship relative to the other frequency that
identifies a phase difference in the range of 0 to 360 degrees, and these LO
signals inherently have a phase relationship identifying a phase difference
between the signals (App. Br. 5), we further agree with the Examiner that
Tanimura “satisfies the argued claim limitation.” Ans. 12.
Tanimura even further states phase compensator 33 can be used to
compensate for any phase error of local oscillation lights 26a and b and
4 The Examiner provided a definition of “discernible” that includes
perceptible. Ans. 10 (citing Oxford Dictionary). Appellant has not disputed
this definition. See generally Reply Br.
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Application 14/015,121
assists in signal synchronization. Tanimura ^ 62, 67. This further discloses
Tanimura’s LO lights (e.g., first and second LO signals) have an established
relationship that allows the coherent baseband signal be reconstructed with
proper phase alignment. See id. Granted, partial bands 29a and b are being
used in this compensation. See id. Even so, these passages teach the phase
error in signals 26a and b is known and thus, the signals’ phases are
perceptible, such that the two signals allow a coherent baseband signal to be
reconstructed with proper phase alignment (i.e., have “a discernible phase
relationship”). See id. Lastly, we agree with the Examiner that claim 18
does not recite determining the phase difference between the first and second
LO signals. Ans. 12. As such, the arguments related to a “putative finding
of fact” in this regard (see App. Br. 6-9) are not dispositive concerning
whether Tanimura discloses the disputed “first and second LO signals
having a discernible phase relationship” in claim 18.
Lor the foregoing reasons, Appellant has not persuaded us of error in
the rejection of independent claim 18 and claim 1, which is not separately
argued.
THE OBVIOUSNESS REJECTIONS
For the remaining rejections, Appellant does not present a separate
argument, relying on the previous discussion concerning independent
claims 1 and 18. App. Br. 9-10. For the above-stated reasons, we are not
persuaded the Examiner erred. Accordingly, we sustain the rejections of
claims 2—4, 14, 17, 19-25, 27, and 28.
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DECISION
We affirm the Examiner’s rejection of claims 1—4, 9, 14, 17-25, 27,
and 28 under §§ 102 or 103.
We reverse the Examiner’s rejection of claims 1—4, 9, 14, 17-25, 27,
and 28 under § 112(b).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). See 37
C.F.R. § 41.50(f).
AFFIRMED
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