DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
This application makes reference to Application No. 16/510528, filed 07/12/2029 and Provisional Application No. 62/697264, filed 07/12/2018 in paragraph [0001] and appears to claim subject matter similar to Application No. 17/403840, filed 08/16/2021. If applicant desires to claim the benefit of a prior-filed application under 35 U.S.C. 119(e), 120, 121, 365(c) or 386(c), the instant application must contain, or be amended to contain, a specific reference to the prior-filed application in compliance with 37 CFR 1.78. Since the application was filed on or after September 16, 2012, the specific reference must be included in an ADS in compliance with 37 CFR 1.76. For benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c), the reference must include the relationship (i.e., continuation, divisional, or continuation-in-part) of the applications.
If the instant application is a utility or plant application filed under 35 U.S.C. 111(a), the specific reference must be submitted during the pendency of the application and within the later of four months from the actual filing date of the application or sixteen months from the filing date of the prior application. If the application is a national stage application under 35 U.S.C. 371, the specific reference must be submitted during the pendency of the application and within the later of four months from the date on which the national stage commenced under 35 U.S.C. 371(b) or (f), four months from the date of the initial submission under 35 U.S.C. 371 to enter the national stage, or sixteen months from the filing date of the prior application. See 37 CFR 1.78(a)(4) for benefit claims under 35 U.S.C. 119(e) and 37 CFR 1.78(d)(3) for benefit claims under 35 U.S.C. 120, 121, 365(c), or 386(c). This time period is not extendable and a failure to submit the reference required by 35 U.S.C. 119(e) and/or 120, where applicable, within this time period is considered a waiver of any benefit of such prior application(s) under 35 U.S.C. 119(e), 120, 121, 365(c), and 386(c). A benefit claim filed after the required time period may be accepted if it is accompanied by a grantable petition to accept an unintentionally delayed benefit claim under 35 U.S.C. 119(e) (see 37 CFR 1.78(c)) or under 35 U.S.C. 120, 121, 365(c), or 386(c) (see 37 CFR 1.78(e)). The petition must be accompanied by (1) the reference required by 35 U.S.C. 120 or 119(e) and by 37 CFR 1.78 to the prior application (unless previously submitted), (2) the applicable petition fee under 37 CFR 1.17(m)(1) or (2), and (3) a statement that the entire delay between the date the benefit claim was due under 37 CFR 1.78 and the date the claim was filed was unintentional. The presentation of a benefit claim may result in an additional fee under 37 CFR 1.17(w)(1) or (2) being required, if the earliest filing date for which benefit is claimed under 35 U.S.C. 120, 121, 365(c), or 386(c) and 1.78(d) in the application is more than six years before the actual filing date of the application. The Director may require additional information where there is a question whether the delay was unintentional. The petition should be addressed to: Mail Stop Petition, Commissioner for Patents, P.O. Box 1450, Alexandria, Virginia 22313-1450.
If the reference to the prior application was previously submitted within the time period set forth in 37 CFR 1.78 but was not included in the location in the application required by the rule (e.g., if the reference was submitted in an oath or declaration or the application transmittal letter), and the information concerning the benefit claim was recognized by the Office as shown by its inclusion on the first filing receipt, the petition under 37 CFR 1.78 and the petition fee under 37 CFR 1.17(m)(1) or (2) are not required. Applicant is still required to submit the reference in compliance with 37 CFR 1.78 by filing an ADS in compliance with 37 CFR 1.76 with the reference (or, if the application was filed before September 16, 2012, by filing either an amendment to the first sentence(s) of the specification or an ADS in compliance with pre-AIA 37 CFR 1.76). See MPEP § 211.02.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims of U.S. Patent No. 11,824,632. Although the claims at issue are not identical, they are not patentably distinct from each other because of the following.
Regarding claim 1, claim 1 of U.S. Patent No. 11,824,632 recites the same limitations as highlighted below:
Claim 1 of the present application
Claim 1 of U.S. Patent No. 11,824,632
A system, comprising:
a Tier 1 switch that supplies a plurality of data channels;
a first transceiver that receives the plurality of data channels, the transceiver including a first transmitter, the first [1] transmitter including:
a laser, and an optical modulator that receives a plurality of radio frequency (RF) signals associated with the plurality of data channels, such that the optical modulator supplies a plurality of optical subcarriers based on the plurality of data channels;
an optical platform, including one of an optical demultiplexer or a splitter, that receives the plurality of optical subcarriers, the optical platform having a plurality of outputs, each of which supplying at least one of the plurality of subcarriers;
a plurality of second transceivers, each of which including a respective one of [2]
a plurality of receivers,
each of which being coupled to a respective one of the plurality of outputs of the optical platform, each of the plurality of receivers receiving one or more of the plurality of optical subcarriers and supplying one or more of the plurality of data channels based on the received one or more of the plurality subcarriers;
a plurality of servers, each of which receiving one or more of the plurality of data channels from one or more of the plurality of receivers;
each of the plurality of second transceivers including a respective one of [3]
a plurality of second transmitters
each of which being coupled to a respective one of the plurality of servers,
each of the plurality of second transmitters providing a respective one of a plurality of Nyquist subcarriers, such that each of the plurality of Nyquist subcarriers do not spectrally overlap with one another; and
an optical combiner operable to combine the plurality of Nyquist subcarriers onto an optical fiber, which directs the plurality of Nyquist subcarriers to the Tier 1 switch.
A system, comprising:
a Tier 1 switch that supplies a plurality of data channels;
a first transmitter that receives the plurality of data channels, the [1] transmitter including:
a laser, and an optical modulator that receives a plurality of radio frequency (RF) signals associated with the plurality of data channels, such that the optical modulator supplies a plurality of optical subcarriers based on the plurality of data channels;
an optical platform, including one of an optical demultiplexer or a splitter, that receives the plurality of optical subcarriers, the optical platform having a plurality of outputs, each of which supplying at least one of the plurality of subcarriers;
a plurality of receivers,
each of which being coupled to a respective one of the plurality of outputs of the optical platform, each of the plurality of receivers receiving one or more of the plurality of optical subcarriers and supplying one or more of the plurality of data channels based on the received one or more of the plurality subcarriers;
a plurality of servers, each of which receiving one or more of the plurality of data channels from one or more of the plurality of receivers;
a plurality of second transmitters,
each of which being coupled to a respective one of the plurality of servers,
each of the plurality of second transmitters providing a respective one of a plurality of Nyquist subcarriers, such that each of the plurality of Nyquist subcarriers do not spectrally overlap with one another; and
an optical combiner operable to combine the plurality of Nyquist subcarriers onto an optical fiber, which directs the plurality of Nyquist subcarriers to the Tier 1 switch.
Regarding difference [1], claim 1 of U.S. Patent No. 11,824,632 recites a first transmitter while claim 1 of the present application recites a first transceiver comprising a first transmitter. One of ordinary skill in the art before the effective filing date of the invention would have found it obvious as a matter of simple substitution to replace the first transmitter of claim 1 of U.S. Patent No. 11,824,632 with a first transceiver comprising a first transmitter as claimed in claim 1, to yield the predictable results of successfully transmitting and receiving optical data.
Regarding differences [2] and [3], claim 1 of U.S. Patent No. 11,824,632 recites a plurality of receivers and a plurality of second transmitters while claim 1 of the present application recites such components comprised in a second plurality of transceivers. One of ordinary skill in the art before the effective filing date of the invention would have found it obvious as a matter of simple substitution to replace the sets of transmitters and receivers of claim 1 of U.S. Patent No. 11,824,632 with transceivers as claimed in claim 1, to yield the predictable results of successfully transmitting and receiving optical data while having a more compact design in the system.
Claims 2-4 and 6-9 of the present application are identical to claims 2-4 and 6-9 of U.S. Patent No. 11,824,632.
Claim 5 of the present application is identical to claim 5 of U.S. Patent No. 11,824,632 except for specifying the first transceiver instead of the first transmitter, which was rendered obvious above.
Claims 10 and 11 of the present application are identical to claims 11 and 10, respectively, of U.S. Patent No. 11,824,632.
Regarding claim 12, claim 12 of U.S. Patent No. 11,824,63 recites the same limitations as highlighted below:
Claim 12 of the present application
Claim 12 of U.S. Patent No. 11,824,632
A system, comprising:
a plurality of servers, each of which supplying a corresponding one of a plurality of data channels;
a plurality of first transceivers, each of which including a respective one of [1] a plurality of transmitters,
each of which receiving a corresponding one of the plurality of data channels, each of the plurality of transmitters providing a respective one of a plurality of optical Nyquist sub-carriers, each of the plurality of optical Nyquist sub- carriers being modulated in accordance with a respective one of a plurality of radio frequency (RF) signals each RF signal being based on a respective one of the plurality of data channels;
an optical platform including an optical combiner that combines the plurality of optical Nyquist sub-carriers onto an optical fiber, such that each of the plurality of optical Nyquist sub-carriers do not spectrally overlap with one another;
a second transceiver including [2]
a receiver that receives the combined plurality of optical Nyquist sub-carriers, the receiver including a local oscillator, such that based on the plurality of optical carriers and an output of the local oscillator, the receiver supplies the plurality of data channels; and
a Tier 1 switch that receives the plurality of data channels.
A system, comprising:
a plurality of servers, each of which supplying a corresponding one of a plurality of data channels;
a plurality of transmitters,
each of which receiving a corresponding one of the plurality of data channels, each of the plurality of transmitters providing a respective one of a plurality of optical Nyquist sub-carriers, each of the plurality of optical Nyquist sub-carriers being modulated in accordance with a respective one of a plurality of radio frequency (RF) signals each RF signal being based on a respective one of the plurality of data channels;
an optical platform including an optical combiner that combines the plurality of optical Nyquist sub-carriers onto an optical fiber, such that each of the plurality of optical Nyquist sub-carriers do not spectrally overlap with one another;
a receiver that receives the combined plurality of optical Nyquist sub-carriers, the receiver including a local oscillator, such that based on the plurality of optical carriers and an output of the local oscillator, the receiver supplies the plurality of data channels; and
a Tier 1 switch that receives the plurality of data channels.
Regarding differences [1] and [2], claim 1 of U.S. Patent No. 11,824,632 recites a transmitter and receiver while claim 1 of the present application recites such components comprised in a transceiver. One of ordinary skill in the art before the effective filing date of the invention would have found it obvious as a matter of simple substitution to replace the transmitter and receiver of claim 1 of U.S. Patent No. 11,824,632 with a transceiver as claimed in claim 1, to yield the predictable results of successfully transmitting and receiving optical data while having a more compact design in the system.
Claims 13-19 of the present application are identical to claims 13-19 of U.S. Patent No. 11,824,632.
Allowable Subject Matter
Claims 1 and 12 would be allowable if a terminal disclaimer listing U.S. Patent No. 11,824,632 is filed and approved in the application.
The following is a statement of reasons for the indication of allowable subject matter:
Independent claims 1 and 12 recite similar allowable features as independent claims 1 and 12 of Application No. 17/403840, now U.S. Patent No. 11,824,632 noted above (see claim amendments and Remarks filed for Application No. 17/403840 both dated 05/15/2023).
Conclusion
The Examiner was unable to contact Applicant to correct the issues above because it appears Applicant has legal representation but a valid power of attorney has not been filed in the present application. Providing representative information in an Application Data Sheet (ADS) does not constitute a power of attorney. See 37 CFR 1.76(b)(4) and MPEP § 408. For information on appointing a power of attorney, see MPEP § 402.02 et seq.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
All documents on the PTO-892 are references cited in Application No. 17/403840 noted above. For their relevance to the claims, see Non-Final Action dated 02/13/2023 for Application No. 17/403840.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to CASEY L KRETZER whose telephone number is (571)272-5639. The examiner can normally be reached M-F 10:00-7:00 PM Pacific Time.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, David Payne can be reached at (571)272-3024. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/CASEY L KRETZER/Primary Examiner, Art Unit 2635