Corning Optical Communications LLC

Patent Trials and Appeals BoardJun 30, 2021

2020005245 (P.T.A.B. Jun. 30, 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. 15/289,943 10/10/2016 Bradley Jerome Blazer HI12-099C 7171 21495 7590 06/30/2021 CORNING INCORPORATED INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1 CORNING, NY 14831 EXAMINER CHIEM, DINH D ART UNIT PAPER NUMBER 2883 NOTIFICATION DATE DELIVERY MODE 06/30/2021 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): usdocket@corning.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRADLEY JEROME BLAZER, RODNEY MAURICE BURNS, JAMES GARRETT DEWELL, JULIAN LATELLE GREENWOOD, III, KEITH AARON GREER, and WARREN WELBORN MCALPINE Appeal 2020-005245 Application 15/289,943 Technology Center 2800 Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and LILAN REN, Administrative Patent Judges. FRANKLIN, 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 1–17. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Corning Optical Communications LLC. Appeal Br. 1. Appeal 2020-005245 Application 15/289,943 2 CLAIMED SUBJECT MATTER Claim 1 is illustrative of Appellant’s subject matter on appeal and is set forth below: 1. A fiber optic cable, comprising: a cable core of core elements and a protective sheath surrounding the core elements, wherein the protective sheath is continuous peripherally around the core elements, forming a continuous closed loop when viewed in cross-section, and continuous lengthwise along a length of the cable, and wherein the cable core is devoid of any ripcords; an armor surrounding the cable core, the armor comprising a single overlap portion when the fiber optic cable is viewed in cross-section; and a jacket surrounding the armor, the jacket having at least two longitudinal discontinuities extruded therein. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Grulick US 5,904,037 May 18, 1999 Wagman US 7,289,704 B1 Oct. 30, 2007 Davies US 8,798,418 B2 Aug. 5, 2014 Park US 2005/0094953 A1 May 5, 2005 Blazer US 2009/0317039 A1 Dec. 24, 2009 REJECTIONS 1. Claims 1 and 16 are rejected under pre-AIA 35 U.S.C. § 102(b) as being anticipated by Blazer. 2. Claim 2 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer in view of Wagman. Appeal 2020-005245 Application 15/289,943 3 3. Claims 3 and 4 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer in view of Grulick. 4. Claims 5–7, 9, 10, and 17 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer. 5. Claim 8 is rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer in view of Park. 6. Claims 11–13 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer in view of Davies. 7. Claims 14 and 15 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Blazer in view of Davies as applied to claim 13 above, and further in view of Grulick. 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) (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.”). Upon review of the evidence and each of the respective positions set forth in the record, we find that the preponderance of evidence supports Appellant’s position in the record. Accordingly, we reverse each of the Examiner’s rejections on appeal for the reasons set forth in the record by Appellant, and add the following for emphasis only. Critical to our analysis is claim interpretation regarding the claim phrase “continuous closed loop”. The Examiner states that this phrase is not Appeal 2020-005245 Application 15/289,943 4 the same as “without joint”. Ans. 4. The Examiner also states that “[t]here is [are] no special definition given for the terms ‘continuous closed loop’ or ‘continuous lengthwise’.” Ans. 3. Appellant states that the lack of a “special” definition is not relevant when the plain meaning of the word is clear, particularly when considered in light of the Specification. Reply Br. 2. We agree. Absent a special definition, the terms are given their ordinary meaning as would be understood by a person of skill in the art. In re Translogic Tech., 504 F.3d, 1249, 1257 (Fed. Circ. 2007). Also, the words of a claim must be given their “plain meaning” unless the plain meaning is inconsistent with the Specification. The plain meaning is the ordinary and customary meaning that would be given to the term by one of ordinary skill in the art. Phillips v. AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005). Appellant states that the Specification discloses that “the binder film 126 is continuous peripherally around the core, forming a continuous closed loop (e.g., closed tube) when viewed from the cross-section, as shown in FIGS. 1-3.” Spec. ¶ [0066]. Reply Br. 2–3. Appellant also states that the Specification describes formation of such a continuous closed loop via extrusion of a continuous ring of material around the cable core. Spec. ¶ [0072] and Figures 4–6. Reply Br. 3. Appellant submits that thus it is impermissibly broad to interpret the claim language “continuous closed loop when viewed in cross-section” to encompass a structure that has a discontinuity when viewed in cross-section, such as the wrapped element 42 of Blazer. Id. We agree and reverse Rejection 1. We also reverse Appeal 2020-005245 Application 15/289,943 5 Rejections 2–5 for the same reasons as the other applied references do not cure the stated deficiencies of Blazer. With regard to Rejections 6 and 7, we refer to Appellant’s stated position made on pages 5–7 of the Reply Brief, and reverse these rejections for the reasons stated therein. CONCLUSION We reverse the Examiner’s decision. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 16 102 Blazer 1, 16 2 103 Blazer, Wagman 2 3, 4 103 Blazer, Grulick 3, 4 5–7, 9, 10, 17 103 Blazer 5–7, 9, 10, 17 8 103 Blazer, Park 8 11–13 103 Blazer, Davies 11–13 14, 15 103 Blazer, Davies, Grulick 14, 15 Overall Outcome 1–17 REVERSED