DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Double Patenting Rejection
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 obviousness-type 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 claims. 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); and 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 a nonstatutory double patenting ground provided the conflicting application or patent either is shown to be commonly owned with this application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/forms/. The filing date of the application will determine what form 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/process/file /efs/guidance/eTD-info-I.jsp.
Claims 1-17 of the instant application are rejected on the ground of nonstatutory double patenting over the US Patent 11923895, since the claims, if allowed, would improperly extend the “right to exclude”.
The subject matter claimed in the instant application is fully disclosed in the US Patent 11923895 and is covered by the US Patent 11923895 since the US Patent 11923895 and the instant application are claiming common subject matter.
As an example, see how Claim 1 of the instant application and Claim 1 of the US Patent 11923895 are claiming common subject matter.
Claim 1 of the instant application
Claim 1 of the US Patent 11923895
A test and measurement system, comprising:
a test and measurement instrument, including a port to receive a signal from a device under test (DUT); and
one or more processors, configured to execute code that causes the one or more processors to:
adjust a set of operating parameters for the DUT to a first set of reference parameters;
acquire, using the test and measurement instrument, a waveform from the DUT;
repeatedly execute the code to cause the one or more processors to adjust the set of operating parameters and acquire a waveform, for each of a predetermined number of sets of reference parameters;
build one or more tensors from the acquired waveforms;
send the one or more tensors to a machine learning system to obtain a set of predicted optimal operating parameters;
adjust the set of operating parameters for the DUT to the set of predicted optimal operating parameters; and
determine whether the DUT passes a predetermined performance measurement when adjusted to the set of predicted optimal operating parameters.
A test and measurement system, comprising:
a test and measurement device; a connection to allow the test and measurement device to connect to an optical transceiver; and
one or more processors, configured to execute code that causes the one or more processors to:
set operating parameters for the optical transceiver to reference operating parameters by sending the reference operating parameters to the optical transceiver;
acquire a waveform from the optical transceiver;
repeatedly execute the code to cause the one or more processors to set operating parameters and acquire a waveform, for each of a predetermined number of sets of reference operating parameters;
build one or more tensors from the acquired waveforms;
send the one or more tensors to a machine learning system to obtain a set of predicted operating parameters;
set the operating parameters for the optical transceiver to the predicted operating parameters by sending the predicted operating parameters to the optical transceiver; and
test the optical transceiver using the predicted operating parameters by receiving a waveform from the optical transceiver to determine whether the optical transceiver passes or fails.
As shown, besides minor differences in wording, Claim 1 of the instant application is merely a broader version of Claim 1 of the US Patent 11923895. Therefore, Claim 1 of the US Patent 11923895 teaches Claim 1 of the instant application. Consequently, Claim 1 of the instant application is not patentably distinct from Claim 1 of the US Patent 11923895.
Furthermore, Claims 2-20 of the US Patent 11923895 teach the features of claims 2-17 of the instant application. Consequently, Claim 2-17 of the instant application are not patentably distinct from Claims 2-20 of the US Patent 11923895.
Allowable Subject Matter
Claims 1-17 would be allowable if the double patenting rejection as described above is overcome (e.g. by filing a terminal disclaimer).
Conclusion
No prior art was found to reject the claims.
The prior art considered pertinent to the Applicant’s disclosure is the following:
Su et al (US Pub 20230023101) and more specifically Fig 6.
Varughese et al (US Pub 20220407595) and more specifically Fig 1B.
Xu et al (US Pub 20220239371) and more specifically Fig 8.
Zhang et al (US Pub 20220182139) and more specifically Fig 6.
Sasagawa (US Pub 20210209470) and more specifically Fig 3.
Huang et al (US Pub 20210111794) and more specifically Fig 4.
Ye et al (US Pub 20210105548) and more specifically Fig 2.
Gao et al (US Pub 20200335029) and more specifically Fig 8.
Kumar et al (US Pat 10727973) and more specifically Fig 2.
Ye et al (US Pub 20200195353) and more specifically Fig 3.
Schornack (US Pub 20200133817) and more specifically Fig 2A and Fig 2B.
Mentovich et al (US Pat 10270527) and more specifically Fig 9.
Zhuge et al (US Pub 10236982) and more specifically Fig 3.
Cote et al (US Pat 10171161) and more specifically Fig 3.
Ishizaka (US Pub 20180006721) and more specifically Fig 3.
Gao et al (US Pub 20140093233) and more specifically Fig 1 and Fig 8A.
Zhang et al (US Pub 20110161738) and more specifically Fig 2.
Oomori (US Pub 20110085793) and more specifically Fig 1.
Ota et al (US Pub 20080212979) and more specifically Fig 4.
Noble et al (US Pub 20080159737) and more specifically Fig 1.
French et al (US Pat 7298463) and more specifically Fig 4.
Yorks (US Pat 7181146) and more specifically Fig 1.
Hauenschild et al (US Pub 20060120720) and more specifically Fig 1A and Fig 1B.
Sanchez (US Pub 20050249252) and more specifically Fig 5.
Lu (US Pub 20040165622) and more specifically Fig 4.
Mahowald et al (US Pub 20040136422) and more specifically Fig 2 and Fig 3.
Lee et al (US Pub 20040131365) and more specifically Fig 2.
Hidaka et al (US Pub 20040032889) and more specifically Fig 1.
Levinson et al (US Pub 20030053170) and more specifically Fig 2A.
Any inquiry concerning this communication or earlier communications from the Examiner should be directed to DIBSON J SANCHEZ whose telephone number is (571)272-0868. The Examiner can normally be reached on Mon-Fri 10:00-6:00.
If attempts to reach the Examiner by telephone are unsuccessful, the Examiner’s Supervisor, Kenneth Vanderpuye can be reached on 5712723078. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/DIBSON J SANCHEZ/
Primary Examiner, Art Unit 2634