Xtera Communications, Inc.

Patent Trials and Appeals BoardMar 31, 2020

14341323 - (D) (P.T.A.B. Mar. 31, 2020)

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. 14/341,323 07/25/2014 HERVE FEVRIER XTER01-00526 1069 137016 7590 03/31/2020 Xtera Communications, Inc. 500 West Bethany Drive Suite 100 Allen, TX 75013 EXAMINER MCCOY, RICHARD ANTHONY ART UNIT PAPER NUMBER 2431 NOTIFICATION DATE DELIVERY MODE 03/31/2020 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 sarita.teitelbaum@xtera.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte HERVE FEVRIER ____________ Appeal 2019-001872 Application 14/341,323 Technology Center 2400 ____________ Before CAROLYN D. THOMAS, JEFFREY S. SMITH, and MICHAEL J. ENGLE, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL1 1 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 Neptune Subsea IP Limited. Appeal Br. 2. Appeal 2019-001872 Application 14/341,323 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134(a) from the rejection of claims 1–5 and 7–26, which are all the claims pending in the application. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. Representative Claim 1. A method comprising: receiving network element data from a network management system running on a server over an encrypted communication channel into an external system, the network element data comprising parameter samples including one or more of performance data and settings of multiple optical network elements that form an optical telecommunications network and that are configured to transport information between the optical network elements and through the optical telecommunications network using optical signals and to report to the network management system, the external system outside of the network management system and outside of the optical telecommunications network; and processing at least some of the received network element data in the external system; wherein the network element data is collected by the network management system from the optical network elements over a closed and private data communications network connecting the server to the optical network elements; and wherein the network element data is received from the network management system via a security appliance that enables the encrypted communication channel between the network management system and the external system while protecting against ingress communication by intruders into the network management system, the closed and private data communications network, and the optical telecommunications network. Appeal 2019-001872 Application 14/341,323 3 Prior Art Venkatraman US 2002/0133636 A1 Sept. 19, 2002 Clapp US 2004/0146299 A1 July 29, 2004 Castaldo US 2008/0143489 A1 June 19, 2008 Ree US 2013/0046414 A1 Feb. 21, 2013 Dahlfort US 2014/0105600 A1 Apr. 17, 2014 Examiner’s Rejections Claims 1–5, 7–22, and 26 stand rejected under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, and Ree. Claims 23 and 24 stand rejected under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, Ree, and Dahlfort. Claim 25 stands rejected under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, Ree, and Clapp. ANALYSIS Section 103 rejection of claims 1–5, 7–22, and 26 Appellant contends that Castaldo does not teach “an optical telecommunications network comprising multiple optical network elements that are configured to transport information between the optical network elements and through the optical telecommunications network using optical signals” as claimed. Appeal Br. 11–16; Reply Br. 3–16. The Examiner finds that Castaldo’s disclosure of coupling an external client to an appliance using an optical fiber smart cable including a smart coupler teaches this limitation. Ans. 7 (citing Castaldo ¶ 145; see id. at Fig. 28). Appellant contends that “simply showing a single cable component utilizing an optical fiber for itself does not disclose or suggest multiple optical network elements Appeal 2019-001872 Application 14/341,323 4 that transport information between the optical network elements and through an optical telecommunications network using optical signals.” Reply Br. 11. We disagree with Appellant. The Examiner construes the scope of “telecommunications” as claimed to encompass “the transmission and reception of information of any type, including data, pictures, sounds, and facsimiles, using electrical or optical signals sent over wires or fibers or through the air.” Final Act. 6 (quoting Microsoft computer dictionary fifth edition, page 513). The Examiner construes the scope of the claimed “network” to encompass “one or more data links that enable the transport of electronic data between computer systems and/or modules and/or electronic devices.” Ans. 6 (quoting Spec. ¶ 34). We agree with the Examiner’s construction of “telecommunications” and “network” as claimed. Appellant’s Specification does not use the term “optical network elements,” but does use the term “network elements,” and discloses that network elements include electronics and hardware modules. Spec. ¶¶ 6, 11. Examples of hardware modules that communicate over a network include computers and appliances. Spec. ¶ 27. We construe the scope of the claimed “optical network element,” read in light of the Specification, to encompass a hardware module such as an appliance or computer that communicates over an optical network. We construe the scope of an “optical telecommunications network comprising multiple optical network elements that are configured to transport information between the optical network elements and through the optical telecommunications network using optical signals,” read in light of the Specification, to encompass one optical Appeal 2019-001872 Application 14/341,323 5 data link that enables the transport of electronic data between two hardware modules using optical signals. See Spec. ¶¶ 6, 11, 27, 34. We find that the claimed “optical telecommunications network comprising multiple optical network elements that are configured to transport information between the optical network elements and through the optical telecommunications network using optical signals” is taught by an optical fiber smart cable that couples an external appliance to a client as taught by Castaldo in paragraph 145 and Figure 28. We find that the teachings of Ree are cumulative to those of Castaldo. Ree explicitly discloses what is already taught by Castaldo, namely, that the network that enables hardware modules such as appliances and computers to transport data can be an optical telecommunications network. Ree ¶¶ 26, 33. Appellant contends that Castaldo does not teach “parameter samples including one or more of performance data and settings of optical network elements reported to a network management system by the optical network elements” as claimed. Appeal Br. 16–17; Reply Br. 17–18. In particular, Appellant contends that Castaldo’s disclosure of a “price threshold at which the user would prefer to reduce the level of consumption of a resource” does not teach “performance data” as claimed. Reply Br. 17 (quoting Castaldo ¶ 171). The Examiner finds that Castaldo’s disclosure of communicating information about the response to a message to reduce consumption teaches “performance data” as claimed. Ans. 12 (citing Castaldo ¶ 171). We agree with the Examiner. Castaldo discloses that a resource can be electricity, and that operational data about the electrical consumption of the resource can be monitored and transmitted. Castaldo discloses that a response to a message Appeal 2019-001872 Application 14/341,323 6 to reduce consumption includes changing the operation of the appliance to reduce consumption of electricity. Castaldo ¶¶ 111, 114, 115, 118, 166, 170, 171. We agree with the Examiner, that Castaldo’s disclosure of monitoring and transmitting operational data such as the electrical consumption of an appliance teaches “performance data” as claimed. We highlight that Ree also discloses that operational data of an appliance, such as electrical consumption, can be monitored and transmitted by a smart meter. Ree ¶ 26. Appellant contends that Castaldo does not teach “a closed and private data communications network connecting a server to optical network elements” as claimed. Appeal Brief 18–19; Reply Br. 18–19. According to Appellant, Castaldo discloses that the connection elements create an open network, not a closed network. Reply Br. 18 (citing Castaldo ¶ 48). The Examiner finds that Castaldo’s disclosure of a “proprietary appliance network protocol” teaches the “closed and private data communications network” as claimed. Final Act. 16 (citing Castaldo ¶ 138); Ans. 16–18 (citing Castaldo ¶¶ 44–54, 138, 165, Figs. 27, 33, 34). Although paragraph 48 of Castaldo does disclose creating an open network, the network is open in the sense that Castaldo’s connection elements allow additional components to be added to the network, in contrast to the prior art hard-wired connectors that formed a closed system, preventing the addition of more components. See Castaldo ¶¶ 6, 47, 48, 51. Although components can be added to the network, Castaldo’s network is “closed and private” within the meaning of claim 22, because the network uses a proprietary protocol, and the connector elements provide encryption and authentication capabilities to prevent unauthorized components from connecting to the network. See id. ¶¶ 47, 138, 153 (“[U]nauthorized persons Appeal 2019-001872 Application 14/341,323 7 who do not have the smart cable 120, 220 or smart wireless coupler cannot couple an unauthorized external client with the appliance.”). Appellant contends that Castaldo is not analogous to the claimed invention. Appeal Br. 19–20; Reply Br. 20–22. According to Appellant, claim 22 relates to network management of an optical telecommunications network, and Castaldo relates to household appliances. Reply Br. 20. Appellant’s contention is based on the premise that Castaldo does not teach network management of an optical telecommunications network, which we find unpersuasive as discussed above. Appellant also contends that Castaldo is directed to the problem of employing a software architecture that enables communication between an external component and internal components of an appliance, and claim 22 is directed to the problem of allowing a user to gain the ability to access the results of data processing relating to optical telecommunications network data. Reply Br. 21. As discussed above, Castaldo teaches transmitting operational data for an appliance over an optical telecommunications network to an external system, which is reasonably pertinent to the problem identified by Appellant. See Ans. 18. We are not persuaded by Appellant’s contention that Castaldo is non-analogous to the claimed invention. Appellant contends that Venkatraman is not analogous to the claimed invention, because Venkatraman is directed toward embedding web access functionality into devices, and the claimed invention is directed to allowing a user to gain the ability to access results of data processing related to optical telecommunication network data. Appeal Br. 20–21; Reply Br. 22–23. According to Appellant, someone skilled in the art of optical telecommunications networks who is looking at the problem of effectively Appeal 2019-001872 Application 14/341,323 8 managing optical telecommunications networks would never look to a reference related to embedding a web server into home, office, or lab equipment. Reply Br. 22. Appellant has not persuasively explained why a person who wants a user to gain the ability to access data from a device in an optical telecommunications network would not turn to Venkatraman’s disclosure of embedding web access functionality into the device, so that the user could access data from the device over the web. See Venkatraman, Abstract, ¶¶ 19, 20, 24, 25, 42, 51, 52, 54, 55, Figs. 2, 5. Appellant contends that the Examiner has not provided motivation to combine the teachings of Castaldo and Venkatraman. App. Br. 21–22; Reply Br. 23–24. According to Appellant, incorporating the web server of Venkatraman into the appliance of Castaldo would add an additional component to the appliance, and Castaldo teaches away from modifying internal components. Reply Br. 23 (citing Reply Brief 19–20). Appellant contends that Castaldo already teaches using a smart coupler to connect to the Internet. Reply Br. 19 (citing Castaldo ¶ 162). Appellant contends that Castaldo discloses a hard-wired network that is not practical to expand or modify, and therefore teaches away from modifying the internal components of an appliance to include the server taught by Venkatraman. Id. at 19–20 (citing Castaldo ¶ 6). Paragraph 6 of Castaldo, which teaches that hard-wired networks are not practical to modify, is the problem with the prior art that was addressed by Castaldo. Contrary to Appellant’s contention, Castaldo teaches that smart connectors allow the networks to be modified to include additional components. See Castaldo ¶¶ 44–54. The Examiner finds that embedding web access functionality into an appliance of Castaldo using the web server Appeal 2019-001872 Application 14/341,323 9 taught by Venkatraman yields the predictable benefit of allowing the appliance to communicate over the web using Hyper-Text Transfer Protocol, which reduces the number of protocol conversions and simplifies the network of Castaldo. Ans. 19 (citing Castaldo Figs. 14, 33; Venkatraman ¶¶ 19, 56). Appellant does not provide persuasive evidence or argument to rebut the Examiner’s findings. We sustain the rejection of claim 22 under 35 U.S.C. § 103. Claims 2–5, 7–21, and 26, which were not separately argued, fall with claim 1. Section 103 rejection of claims 23 and 24 Claim 23 recites “transport the information . . . using Dense Wavelength Division Multiplexed (DWDM) optical channels.” The Examiner finds that Paragraphs 32 and 33 of Dahlfort teach this limitation. Final Act. 20. Appellant contends that one of ordinary skill in the art would not have used DWDM optical channels within a dishwasher or other appliance. Reply Br. 25. Castaldo and Ree teach an optical telecommunications network as discussed above. Paragraph 32 of Dahlfort discloses that, in fiber optic communications, wavelength-division multiplexing (WDM), including Dense WDM (DWDM), is a technology which multiplexes a number of optical carrier signals onto a single optical fiber by using different wavelengths (i.e., colors) of laser light. Using the DWDM technology taught by Dahlfort in the optical telecommunications network of Castaldo and Ree yields the predictable benefit of multiplexing a number of optical carrier signals onto a single optical fiber as taught by Dahlfort. Appeal 2019-001872 Application 14/341,323 10 Claim 24 recites “the optical network elements include Reconfigurable Optical Add/Drop Multiplexers (ROADMs).” The Examiner finds that Paragraph 37 of Dahlfort teaches this limitation. Final Act. 21. Appellant contends that one of ordinary skill in the art would not have used ROADMs within a dishwasher or other appliance. Reply Br. 25. Castaldo and Ree teach an optical telecommunications network as discussed above. Paragraph 37 of Dahlfort discloses that a known implementation of the architecture for optical telecommunications networks typically includes reconfigurable optical add/drop multiplexers (ROADMs) that enable any WDM traffic to be selectively added or dropped from a node. Using the ROADMs taught by Dahlfort in the optical telecommunications network of Castaldo and Ree yields the predictable benefit of enabling any WDM traffic to be selectively added or dropped from a node as taught by Dahlfort. We sustain the rejection of claims 23 and 24 under 35 U.S.C. § 103. Section 103 rejection of claim 25 Claim 25 recites “the performance data includes a quality of optical transmission and the settings include parameter settings of hardware in the optical network elements.” The Examiner finds Paragraph 24 of Clapp teaches this limitation. Final Act. 23–24. Appellant contends that a person of ordinary skill in the art would not have used the checksum of Clapp in the network of Castaldo. Reply Br. 26–27. Castaldo and Ree teach an optical telecommunications network as discussed above. Paragraph 24 of Clapp discloses that packets can be protected by a checksum that can provide performance monitoring of the Appeal 2019-001872 Application 14/341,323 11 optical signal as well as error detection in packets. Using the checksum of Clapp in the optical telecommunications network of Castaldo and Ree yields the predictable benefit of monitoring the performance of the optical signal as well as detect errors in packets as taught by Clapp. We sustain the rejection of claim 25 under 35 U.S.C. § 103. DECISION The rejection of claims 1–5, 7–22, and 26 under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, and Ree is affirmed. The rejection of claims 23 and 24 under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, Ree, and Dahlfort is affirmed. The rejection of claim 25 under 35 U.S.C. § 103 as unpatentable over Castaldo, Venkatraman, Ree, and Clapp is affirmed. Claims Rejected 35 U.S.C. § References Affirmed Reversed 1–5,7–22, 26 103 Castaldo, Venkatraman, Ree 1–5, 7–22, 26 23, 24 103 Castaldo, Venkatraman, Ree, Dahlfort 23, 24 25 103 Castaldo, Venkatraman, Ree, Clapp 25 Overall Outcome 1–5, 7–26 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. § 41.50(f). AFFIRMED