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 1-20 of the instant application are rejected on the ground of nonstatutory double patenting over the US Patent 12267106, 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 12267106 and is covered by the US Patent 12267106 since the US Patent 12267106 and the instant application are claiming common subject matter.
Claim 1 of the instant application and Claim 1 of the US Patent 12267106 are claiming common subject matter. Claim 1 of the instant application is similar to Claim 1 of the US Patent 12267106. The difference between Claim 1 of the instant application and Claim 1 of the US Patent 12267106 is that Claim 1 of the instant application recites the limitation “calculating,…, skew of the FUT based on Pout(t)”, however, Claim 17 of the US Patent 12267106 recites the limitation “calculating skew of the FUT based on Pout(t)”. Therefore, Claim 1 and Claim 17 of the US Patent 12267106 teaches Claim 1 of the instant application. Consequently, Claim 1 of the instant application is not patentably distinct from Claim 1 and Claim 17 of the US Patent 12267106.
Claim 11 of the instant application and Claim 1 of the US Patent 12267106 are claiming common subject matter. Claim 11 of the instant application is similar to Claim 1 of the US Patent 12267106. The difference between Claim 11 of the instant application and Claim 1 of the US Patent 12267106 is that Claim 11 of the instant application recites the limitation “calculating,…, chromatic dispersion of the FUT based on Pout(t)”, however, Claim 18 of the US Patent 12267106 recites the limitation “calculating chromatic dispersion of the FUT based on Pout(t)”. Therefore, Claim 1 and Claim 18 of the US Patent 12267106 teaches Claim 11 of the instant application. Consequently, Claim 11 of the instant application is not patentably distinct from Claim 1 and Claim 18 of the US Patent 12267106.
Furthermore, Claims 2-16 of the US Patent 12267106 teach the features and limitations of Claims 2-10 and 12-20 of the instant application. Consequently, Claim 2-10 and 12-20 of the instant application are not patentably distinct from Claims 2-16 of the US Patent 12267106.
Allowable Subject Matter
Claims 1-20 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:
Nguyen et al (US Pat 11451304) and more specifically Fig 3.
Yoshida et al (US Pub 20200067598) and more specifically Fig 2.
Morie (US Pub 20200052795) and more specifically Fig 1.
He et al (US Pub 20190342028) and more specifically Fig 1.
Ishida et al (US Pub 20170205575) and more specifically Fig 1.
Yao et al (US Pub 20160269108) and more specifically Fig 1(b).
Chen et al (US Pub 20160124149) and more specifically Fig 1.
Li et al (US Pub 20160097903) and more specifically Fig 1.
Randel (US Pub 20150256267) and more specifically Fig 2.
Chen et al (US Pub 20140368809) and more specifically Fig 1.
Bickham et al (US Pub 20140086578) and more specifically Fig 1.
Stojanovic (US Pub 20120213510) and more specifically Fig 5.
Tudury et al (US Pub 20120099099) and more specifically Fig 2.
Sakamoto et al (US Pub 20110229127) and more specifically Fig 2.
Zhang et al (US Pub 20110064421) and more specifically Fig 1(c).
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
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