HUAWEI TECHNOLOGIES CO., LTD.

Patent Trials and Appeals Board

Dec 22, 2021

2020003323 (P.T.A.B. Dec. 22, 2021)

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.
15/635,428 06/28/2017 Mohammad Mehdi Mansouri Rad HUA.0004US
(85293542US01)
9595
154720 7590 12/22/2021
TROP, PRUNER & HU, P.C.
PO Box 41790
HOUSTON, TX 77241
EXAMINER
LIU, LI
ART UNIT PAPER NUMBER
2636
NOTIFICATION DATE DELIVERY MODE
12/22/2021 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):
aipatent@huawei.com
tphpto@tphm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MOHAMMAD MEHDI MANSOURI RAD and
HAMID MEHRVAR
Appeal 2020-003323
Application 15/635,428
Technology Center 2600
Before BRADLEY W. BAUMEISTER, JENNIFER MEYER CHAGNON,
and ROBERT J. SILVERMAN, Administrative Patent Judges.
CHAGNON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4, 6–13, and 15–19.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a).
Appellant identifies the real party in interest as Huawei Technologies, Co.,
Ltd. Appeal Br. 2.
2 Pending claims 21–23 stand objected to as being dependent upon a rejected
base claim. Final Act. 22; Ans. 17.
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CLAIMED SUBJECT MATTER
The Specification describes a “method and apparatus for modifying
channels in an optical medium.” Spec.3 1 (Title). In an optical network,
“[a]n optical medium span[4] may include capacity for multiple channels,
where each channel occupies a different portion of an optical spectrum.” Id.
¶ 28. It may be necessary to add or remove channels, however, “such
channel modifications may cause a power perturbation in the optical
medium.” Id.
The Specification describes “techniques or systems . . . for reducing
the power perturbation resulting from channel modifications.” Id. ¶ 29.
“[O]ptical node 102-1 may include transition logic 110 to perform channel
modifications (e.g., adding or removing channels across the optical medium
span 104).” Id. ¶ 30; Fig. 1. “[T]ransition logic 110 may use one or more
transition strategies to reduce the power perturbation resulting from a
channel modification.” Id. ¶ 31. The Specification provides examples,
including “spectrum-based transitions, power-based transitions, and/or a
combination thereof.” Id.
“[A] spectrum-based transition may include dividing a data channel
into multiple sub-channels,” where “[e]ach sub-channel may occupy a
different portion of a spectrum carried by an optical medium.” Id.; see also

3 In this Decision, we refer to the Specification filed June 28, 2017
(“Spec.”); Final Office Action dated July 31, 2019 (“Final Act.”); Appeal
Brief filed December 23, 2019 (“Appeal Br.”); Examiner’s Answer dated
January 30, 2020 (“Ans.”); and Appellant’s Reply Brief filed March 27,
2020 (“Reply Br.”).
4 “An optical medium span can refer to a segment of an optical medium
terminated at both ends with devices that add, subtract, filter, route, or
otherwise process an optical signal.” Spec. ¶ 28.
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id. ¶ 34 (“[R]eferring to FIG. 3A, the new channel may be specified to
occupy an available portion 320 of an optical spectrum of the medium.”),
¶ 35 (“Block 220 may optionally include, in response to a receipt of the
indication, dividing the data channel into a plurality of sub-channels.”),
Figs. 2, 3.
Such “a spectrum-based transition may include initiating transmission
in each sub-channel in a sequential order (i.e., one sub-channel at a time).”
Id. ¶ 31; see also id. ¶ 37 (“Block 230 may include sequentially adding or
establishing of each of the plurality of sub-channels across the optical
medium in a particular order.”). “[T]he transition logic 110 may determine
an order for initiating the establishment of sub-channels using any number of
strategies and/or parameters.” Id. ¶ 38. “For example, the sub-channels may
be established according to an order of increasing perturbation impact (e.g.,
from the sub-channel that results in the least power perturbation when
established to the sub-channel that results in the most power perturbation
when established).” Id.
Claim 12, reproduced below, is illustrative of the claimed subject
matter:
12. A method comprising:
receiving, by an optical node, an indication of a data
channel to be added across an optical medium;
responsive to a receipt of the indication, dividing, by the
optical node, the data channel into a plurality of sub-channels;
determining, by the optical node, a sequential order in
which to add the plurality of sub-channels based on an order of
increasing perturbation impact of the plurality of sub-channels;
and
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adding, by the optical node, the plurality of sub-channels
according to the sequential order.
Appeal Br. 17.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Roberts US 6,031,647 Feb. 29, 2000
Taneda US 2003/0113117 A1 June 19, 2003
Inoue et al. (“Inoue”) US 2005/0024715 A1 Feb. 3, 2005
Furst US 2006/0263089 A1 Nov. 23, 2006
Xia et al. (“Xia”) US 2013/0336658 A1 Dec. 19, 2013
Al Sayeed et al.
(“Al Sayeed”)
US 2015/0117858 A1 Apr. 30, 2015
Gangxiang (Steven) Shen & Qi Yang, From Coarse Grid to Mini-Grid to
Gridless: How Much can Gridless Help Contentionless?, Optical Soc. of
Am. (2011) (“Shen”)

REJECTIONS
I. Claims 1–3, 6, 7, 9–13, and 16–18 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Inoue, Xia, Taneda, and Furst.
II. Claims 4, 15, and 19 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Inoue, Xia, Taneda, Furst, and Shen.
III. Claim 8 stands rejected under 35 U.S.C. § 103 as being unpatentable
over Inoue, Xia, Taneda, Furst, Roberts, and Al Sayeed.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
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(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
argued claims in light of each of Appellant’s arguments, we are not
persuaded Appellant has identified reversible error in the appealed rejections
of claims 1, 2, 4, 6–13, 15–17, and 19. We are persuaded Appellant has
identified reversible error in the appealed rejection of claims 3 and 18.
Obviousness in view of Inoue, Xia, Taneda, and Furst
Appellant argues claim 12 as representative of claims 1, 2, 6, 7, 9–13,
16, and 17.5 See Appeal Br. 7–12. Appellant presents separate arguments as
to dependent claims 3 and 18. Id. at 12–13.
Claim 12 – The Examiner’s Findings
The Examiner finds that Inoue discloses the claimed:
receiving, by an optical node (Figure 1), an indication of a
data channel to be added (e.g., Figure 6, the data channel Ad3 is
added) across an optical medium (fiber 12);
responsive to a receipt of the indication, dividing, by the
optical node, the data channel into a plurality of sub-channels
(Figure 5, the plurality of channels/signal lights in the sub-band);

5 Appellant notes that “[i]ndependent claim 12 is representative of claims 1–
2, 6–7, 9–13 and 16–18.” Appeal Br. 7. Dependent claim 18, however,
includes the same limitation as dependent claim 3, which Appellant argues
separately. We consider Appellant’s arguments directed to claim 3 also with
respect to claim 18.
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adding, by the optical node, the plurality of sub-channels
(Figure 5, the sub-channels/signal lights in the band Ad3 are
added).
Final Act. 14.
The Examiner admits that Inoue “does not expressly disclose the node
determines a sequential order in which to add the plurality of sub-channels
based on an increasing perturbation impact of the plurality of sub-channels;
and adds the plurality of sub-channels according to the sequential order.” Id.
To teach these limitations, the Examiner relies on Inoue in combination with
Xia, Taneda, and Furst. See id. at 14–16.
At the outset, the Examiner finds that “the transient effect[6] is
common in an optical amplifier (e.g., EDFA) etc. It [was . . .] textbook
knowledge that the transient effect occurs when total power of the
transmitted channels change.” Id. at 3 (citing Roberts, Kilper et al.
(US 2006/0024057 A1) (“Kilper”), and Al Sayeed “[f]or background
knowledge of the transient effect”7).
The Examiner finds that Xia discloses “a processing logic in the
optical node . . . to receive a request of a data channel to be added and assign
the data channel into a plurality of sub-channels.” Id. at 14 (citing Xia,
Abstract, ¶¶ 18, 32, Figs. 3, 4); see Xia ¶ 18 (“the number of carriers in a
superchannel may change . . . When a change in the light path configuration
is detected, the use of the leftover spectrum may be adapted based on the
detected change.”).

6 The Examiner equates the claimed “power perturbation” with “transient
effects.” See, e.g., Final Act. 2; Ans. 21. Appellant does not dispute this.
7 Both Roberts and Al Sayeed also are cited in the rejection of dependent
claim 8.
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The Examiner finds that Taneda discloses
an optical transmission system, and data channel can be divided
into a plurality of sub-channels (e.g., e.g., [sic] Figures 3 and 5,
each data channel has 4 sub-channels), and “control of the two
kinds of optical attenuators and switching control of a
[continuous wave (“CW”)] light source and the signal light
enable signal lights to be sequentially added without cutting off
in-service signal lights.”
Final Act. 15 (citing Taneda ¶¶ 55, 92).
The Examiner finds that Furst discloses
a system/method (Figures 1-4) to change the plurality of filling
channels (6-1 and 6-2), “if an information carrier channel fails,
this is detected, and the optical power of the filling channel is
adapted so that the total optical power of information carrier
channels and filling channels remains constant. Abrupt changes
of the gain of the information carrier channels are thus avoided.”
Id. at 15 (citing Furst ¶ 3).
Regarding the claimed sequential order, the Examiner determines that
the combination of Inoue, Xia, and Taneda or the combination of Inoue, Xia,
Taneda, and Furst “teaches/suggests to add the sub-channels sequentially so
that the transient effects and influence to the existing channels or in-service
channels can be reduced.” Ans. 20; see also Final Act. 10, 15–16. In this
regard, the Examiner explains
Inoue . . . discloses to maintain an approximately same total
power level, then the fluctuation of the gain profile and channel
power of the existing signal is controlled or reduced. And “Rapid
changes in the power of an optical signal” is eliminated. This is
actually a scheme of “reducing “transient effects” or “power
perturbation”.
. . . .
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. . . [T]he procedure/scheme provided by Taneda is to
reduce the rapid changes in the power while a channel is added
or removed, which actually reduces the transient effects and
influence to the in-service channels.

. . . Furst teaches “to avoid instabilities in the concurrent
power control by the two control circuits, it is useful if the control
circuits can be switched between two different reaction speeds
for the power control of their respective filling light sources”.
Ans. 21–24 (citing Inoue ¶¶ 7, 10, Figs. 2–6; Taneda ¶¶ 11, 23, 31, 41, 51,
77, 84, 87, 91, 93, Fig. 5; Furst ¶¶ 2, 9); see also Final Act. 4–5.
The Examiner, thus, finds that the combination of Inoue, Xia, Taneda,
and Furst “teaches/discloses ‘to reduce transient effects.’” Ans. 24; see also
Final Act. 5. Based on these teachings, and the express disclosure in Furst
that “[a]brupt changes of the gain of the information carrier channels are
thus avoided” (Furst ¶ 3), the Examiner determines that
the adding/removing of the filling channels must be coordinated
to avoid abrupt changes, or a particular order should be followed
when adding/removing of the filling channels so that the
perturbations/disturbances to the existing or in-service channels
can be maximally reduced. Therefore, while a group of channels
are added, a channel with least perturbation impact should be
added since it has least perturbation to the in-service channels;
as all other channels have been stabilized, the channel with most
perturbation impact should be added; at this time, the
perturbation to all other channels (already added and previous
existing channels) will be relatively reduced because
perturbation of the last one is against all other channels (added
and previous existing channels).
Final Act. 15–16; see also id. at 6–7 (“The combination of Inoue et al and
Xia et al and Taneda et al and Furst teaches/suggests that while
adding/removing channels, the perturbation to existing channels must be
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controlled to be as little as possible. Therefore, it would [have been]
obvious to one skilled in the art to add channels according to a particular
order of the plurality of sub-channels based on an increasing perturbation
impact of the plurality of sub-channels so that the perturbations/disturbances
to the existing or in-service channels can be maximally reduced.”); Ans. 25–
26.
The Examiner further finds that it would have been obvious to apply
the teachings of Xia, Taneda, and Furst to the system/method of Inoue “so
that the bandwidth can be efficiently used, and the sub-carrier can be
sequentially added in a particular order to reduce transient effect, and
influence to existing channels can be reduced.” Final Act. 16.
Claim 12 – Appellant’s Arguments and our Analysis
Appellant presents several arguments against the Examiner’s
rejection. See Appeal Br. 7–12; Reply Br. 2–6. We address each in turn.
Appellant first argues “the rejection characterized cited par. [0055] of
Taneda as allegedly disclosing that ‘sub-channels can be sequentially added
so that the transient effects and influence to the in-service channels can be
reduced.’ However, this assertion is clearly erroneous.” Appeal Br. 8.
According to Appellant, “Taneda describes something substantially
different, namely a transmission device which applies continuous wave
(CW) lights before multiplexing, which allows signal lights to be added as
needed based on growing demand.” Id. at 9 (emphasis Appellant’s) (citing
Taneda ¶¶ 11, 92). Appellant contends that “Taneda clearly does not
disclose adding sub-channels in a sequence in order to reduce transient
effects, but rather describes a device that uses CW lights before multiplexing
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to allow signal lights to be added as needed based on growing demand.” Id.
(emphasis Appellant’s).
Appellant next argues “the rejection characterized cited par. [0003] of
Furst as allegedly disclosing that ‘a particular order should be followed
when adding/removing of the filling channels.’ However, this assertion is
clearly erroneous. Specifically, Furst does not disclose that a particular
order should be followed to add filling channels.” Appeal Br. 9 (emphasis
Appellant’s). According to Appellant, “Furst describes something
substantially different, namely that the power level of an existing filling
channel can be adjusted to reduce the power fluctuation from a dropped
carrier channel.” Id. (citing Furst ¶¶ 2–3). Appellant contends that “Furst
clearly does not disclose that a particular order should be followed to add
filling channels, but rather describes adjusting the power level of an existing
filling channel to reduce power fluctuations.” Id. at 10 (emphasis
Appellant’s).
Appellant’s arguments are not persuasive. The Examiner’s rejection
relies on the combination of Inoue, Xia, Taneda, and Furst as
“teach[ing]/suggest[ing] to add the sub-channels sequentially so that the
transient effects and influence to the existing channels or in-service channels
can be reduced.” Ans. 20; see also id. at 17–24; Final Act. 4–5, 15–16.
Appellant cannot show nonobviousness by attacking references individually
when the rejection is based on the combined teachings of those references.
See In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986); In re
Keller, 642 F.2d 413, 426 (CCPA 1981).
Appellant also argues that “the cited references are silent regarding
‘an order of increasing perturbation impact of the plurality of
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sub-channels’” and that “the rejection failed to cite any specific portion of
the references that is alleged to disclose this subject matter.” Appeal Br. 10
(emphasis Appellant’s); see Reply Br. 4. Appellant asserts that the
Examiner “apparently assert[s] that the missing element is disclosed by
‘common sense’ as to the optimum order for adding channels based on
asserted relative impacts that change as channels are added.” Appeal Br. 10
(citing Final Act. 15–16); see Reply Br. 4. Appellant contends that “the
missing subject matter is clearly not ‘unusually simple’ and does not
involve technology that is ‘particularly straightforward,’” as required by
Federal Circuit case law. Appeal Br. 10–11 (quoting DDS Tech. Mgmt. v.
Apple Inc., 885 F.3d 1367, 1374 (Fed. Cir. 2018); citing Arendi S.A.R.L. v.
Apple Inc., 832 F.3d 1355, 1362 (Fed. Cir. 2016)) (emphasis Appellant’s).
Appellant further contends that, “at best,” the combination of Inoue,
Xia, Taneda, and Furst
modify Inoue to include: (1) changing the number of carriers in
a superchannel, as taught by Xia, (2) applying continuous wave
(CW) lights before multiplexing to allow signal lights to be
added as needed, as taught by Taneda, and (3) changing the
power level of an existing filler channel to buffer a power
fluctuation from a dropped carrier channel, as taught by Furst.
Appeal Br. 11.
Appellant’s arguments are not persuasive. First, the specification
does not describe, nor do the claims recite, how to determine the amount of
perturbation impact of a particular channel. See, e.g., Spec. ¶ 38. The
claims merely recite that the sub-channels should be added “based on an
order of increasing perturbation impact.”
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We agree with the Examiner that the combination of references
teaches “that while adding/removing channels, the perturbation to existing
channels must be avoided or controlled to be as little as possible.” Ans. 26;
id. at 28. As the Examiner explains, to accomplish this goal,
while a group of channels are added, a channel with least
perturbation impact should be added since it has least
perturbation to the in-service channels; as all other channels have
been stabilized, the channel with most perturbation impact
should be added; at this time, the perturbation to all other
channels (already added and previous existing channels) will be
relatively reduced because perturbation of the last one is against
all other channels (added and previous existing channels).
Id. at 26.
That the desire to control transients (i.e., perturbation) was well within
the skill of one of ordinary skill in the art is supported by the record. For
example, Roberts, cited in Final Act. 3; Ans. 20, describes that the “power
level of an optical signal in an optical transmission system limits the
distance between regenerators or amplifiers, and needs to be controlled
carefully to avoid errors in the detected bits.” Roberts 1:13–16. Roberts
continues,
Erbium Doped Fibre Amplifiers can cause amplitude transients
when amplifying several wavelengths at once. Consider the
simple example of two wavelengths. If one wavelength is
removed while the pump power remains constant, then the output
power at the other wavelength will increase by 3 dB. The speed
of this transient is determined by the pump power and by the
response of the erbium doped fibre, and is measured in
microseconds.
Roberts 1:27–34; Final Act. 3; see also id. (“It is a textbook knowledge that
the transient effect occurs when total power of the transmitted channels
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changes.”); Ans. 20 (same). Roberts further describes that “[r]apid changes
in the power of an optical signal at one wavelength can move another signal
away from its optimum power level towards too high or too low a power.”
Roberts 1:42–44; Final Act. 3; Ans. 20. “Even if remaining within an
appropriate static power range, rapid power transients can still cause bit
errors.” Roberts 1:53–55; Final Act. 3; Ans. 21.
In addition to Roberts, the Examiner also points to Kilper and
Al Sayeed “[f]or background knowledge of the transient effect.” Final
Act. 3; Ans. 20.
Kilper describes a “channel-growth plan for an optical transmission
system [that] selects channels such that the transients that result . . . are
either minimized or effectively handled by some transient-control
technique.” Kilper, Abstract (emphasis added); see also id. ¶ 110 (“Channel
sets are prioritized based on a goal of controlling transients . . . .”).
Al Sayeed supports that a person of skill in the art would have known
how to determine the relative amount of perturbation impact of each of the
sub-channels before they are added, using for example, simulations or
models. See Al Sayeed ¶¶ 25–27 (describing Figure 2, which “illustrates
typical examples of relative power offset on in-service channel(s) due to a
capacity change”; the analysis to determine the power offset “can be
performed through simulations, algorithms, and/or experimentation”), Fig. 2
(showing the results of an analysis).
Al Sayeed further supports that it was known to a person of skill in the
art that the relative amount of perturbation impact of adding a particular
channel may differ depending on, for example, the added channel’s size as
compared to the size of the currently in-service channels. See id. ¶ 3 (“In
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conventional gridded systems, adding or deleting a channel has minimal
impact on existing in-service channels since there are many channels in such
gridded systems and adding or deleting a single channel has a manageable
impact overall. This capacity change problem (i.e., adding or deleting a
channel) is significantly more pronounced in flexible spectrum networks
since it is no longer adding one channel among many as in gridded systems,
but could be adding or deleting a significant portion of the spectrum.”).
Al Sayeed also describes that it was known that the amount of offset
may depend on other factors, such as
(1) the number of cascaded amplifiers in the line system, and
(2) the location of the in-service channel(s) and the part of the
spectrum where the capacity change will take place, and is
dominated by the spectral hole burning effect, SRS, tilt, and
ripple introduced by each amplifier.
Id. ¶ 27.
We, therefore, agree that the Examiner has sufficiently supported the
determination that, based on the teachings of the cited art and the knowledge
of one of skill in the art, “it would be obvious . . . to add channels according
to a particular order for the plurality of sub-channels based on an increasing
perturbation impact of the plurality of sub-channels so that the
perturbations/disturbances to the existing or in-service channels can be
maximally reduced.” Ans. 26; id. at 28.
Finally, Appellant argues that “the rejection lacks valid rationales to
explain why it would have been obvious to modify Inoue to include the
different teachings of Xia, Taneda, and Furst.” Appeal Br. 11. According to
Appellant, because “the cited portions of Xia, Taneda, and Furst describe
three different techniques,” “the rejection must provide a sufficient
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explanation of why it would have been obvious to combine each of these
different teachings in the particular asserted manner.” Appeal Br. 11–12
(citing MPEP § 2143.01.IV) (emphasis Appellant’s); see Reply Br. 5–6.
Appellant asserts that “[i]nstead, the rejection . . . made the conclusory and
unsupported assertion that combining all four references would allow
‘bandwidth can be efficiently used,’ ‘reduce transient effect,’ and reduce
‘influence to existing channels.’” Appeal Br. 12.
Appellant’s argument is not persuasive. We agree with the Examiner
that each of the cited references relates to “controlling the total power of the
. . . signals transmitted in the optical medium/amplifier to a desired level and
to avoid abrupt changes/fluctuation, and without influence to
in-service/existing channels.” Ans. 30. Further, the Examiner’s asserted
reasons for combining are not unsupported, as Appellant asserts, but come
from the references themselves. See, e.g., Xia ¶ 1 (“[E]fficient use of the
bandwidth for allocating channels in an optical fiber is highly desirable.”
(emphasis added)); Taneda ¶ 85 (“Although CW light power of two waves
out of the total signal power of 48 waves is cut off, the amount of resultant
variation is as small as about 0.18 dB, so that no substantial effect will be
exerted.” (emphasis added)); Furst ¶ 3 (“[I]f an information carrier channel
fails, this is detected, and the optical power of the filling channel is adapted
so that the total optical power of information carrier channels and filling
channels remains constant. Abrupt changes of the gain of the information
carrier channels are thus avoided.” (emphasis added)).
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Claims 1, 2, 6, 7, 9–13, 16, and 17 – Conclusion
For the reasons discussed, we are not persuaded of error in the
Examiner’s rejection of claim 12. We, therefore, sustain the rejection. We
also sustain the rejection of claims 1, 2, 6, 7, 9–11, 13, 16, and 17 which are
not argued separately.
Claims 3 and 18
Independent claim 1 recites an optical node, comprising transition
logic configured to perform a method similar to that recited in independent
claim 12. See Appeal Br. 16. Claim 3 depends from claim 1, and further
recites “wherein the transition logic is configured to determine a count of the
plurality of sub-channels based on an available margin of power
perturbation.” Id.; see also id. at 18 (claim 18, which depends from claim 17
and includes a similar limitation).
The Examiner finds:
With regard to claim 3, Inoue and Xia et al and Taneda et
al and Furst disclose all of the subject matter as applied to claim 1
above. And the combination of Inoue and Xia et al and Taneda
et al and Furst further discloses wherein the transition logic is
configured to determine a count of the plurality of sub-channels
based on an available margin of power perturbation (Inoue:
Abstract, [0008]-[0010] etc., total power is “maintained
approximately to a fixed level”; and Taneda: Figure 6, “to have
constant total power of all the signal lights multiplexed by the
wavelength multiplexing unit, the first optical attenuator has
attenuation adjusted according to the number of the signal lights
in question”).
Final Act. 12; id. at 20 (similar discussion for claim 18).
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Appellant argues that “the cited portions of Inoue and Taneda say
nothing regarding an available margin of power perturbation, much less
determining a count of sub-channels based on this available margin.”
Appeal Br. 13 (emphasis Appellant’s). Appellant further argues that the
Examiner “failed to provide any rationale for combining Inoue and Taneda
in a manner that would allegedly disclose” the limitations recited in claim 3.
Id.
The Specification describes “available margin of power perturbation”
as “e.g., a power perturbation tolerance of an optical node.” Spec. ¶ 35. In
the Examiner’s Answer, the Examiner explains that “the count of
sub-channels is determined based on the power perturbation tolerance.”
Ans. 32 (citing Spec. ¶ 35). We agree with Appellant, however, that the
portions of the references cited by the Examiner do not sufficiently teach or
suggest determining the number of sub-channels based on the “available
margin of power perturbation,” or in other words, the “power perturbation
tolerance.” Rather, as the Examiner admits, Inoue, Xia, and Taneda
“disclose that the number of sub-channels to be added is based on the
available spectrum bandwidth and the bandwidth of each channel.” Ans. 32
(emphasis added). To be sure, and as discussed above, we agree with the
Examiner that the cited references teach “control[ling] the total power of the
. . . signals . . . to be a desired level,” “avoid[ing] abrupt
changes/fluctuation,” and avoiding “influence to in-service/existing
channels.” See id. However, adding channels resulting in an acceptable
amount of variation, is not the same as “determin[ing] the count of the
plurality of sub-channels based on an available margin of power
perturbation,” as claimed. See Reply Br. 7.
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The rejection of claims 3 and 18 is reversed.
Obviousness in view of Inoue, Xia, Taneda, Furst, and Shen
Appellant does not separately argue dependent claims 4, 15, and 19.
See Appeal Br. 14. The rejection of these claims is sustained.
Obviousness in view of Inoue, Xia, Taneda, Furst, Roberts, and Al Sayeed
Appellant does not separately argue dependent claim 8. See Appeal
Br. 14. The rejection of this claim is sustained.
CONCLUSION
The Examiner’s rejections of claims 1, 2, 4, 6–13, 15–17, and 19 are
affirmed. The Examiner’s rejection of claims 3 and 18 is reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 6, 7, 9–
13, 16–18
103 Inoue, Xia,
Taneda, Furst
1, 2, 6, 7,
9–13, 16, 17
3, 18
4, 15, 19 103 Inoue, Xia,
Taneda, Furst,
Shen
4, 15, 19
8 103 Inoue, Xia,
Taneda, Furst,
Roberts, Al Sayeed
8
Overall
Outcome
1, 2, 4, 6–
13, 15–17,
19
3, 18

Appeal 2020-003323
Application 15/635,428

19
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART