Ex Parte Bohler et alDownload PDFPatent Trial and Appeal BoardJan 26, 201713866678 (P.T.A.B. Jan. 26, 2017) Copy Citation 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. 13/866,678 04/19/2013 Gregory Blake Bohler HI08-080A1A 1043 21495 7590 01/30/2017 CORNING INCORPORATED INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1 CORNING, NY 14831 EXAMINER PETKOVSEK, DANIEL ART UNIT PAPER NUMBER 2874 NOTIFICATION DATE DELIVERY MODE 01/30/2017 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): u sdocket @ corning .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GREGORY BLAKE BOHLER, JULIAN LATELLE GREENWOOD III, KEITH ALAN GREER, ALLEN MICHAEL MILLER, WESLEY BRIAN NICHOLSON, and KIMBERLY DAWN SLAN Appeal 2015-004315 Application 13/866,678 Technology Center 2800 Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and JULIA HEANEY, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Applicants (hereinafter the “Appellants”)1 2 3appeal under 35 U.S.C. § 134(a) from a final decision of the Primary Examiner to reject claims 1—5 and 7—17.2,3 We have jurisdiction under 35 U.S.C. § 6(b). 1 The Appellants state that the real parties in interest are: Coming Cable Systems LLC and Coming Optical Communications LLC (Appeal Brief filed August 28, 2014, hereinafter “Appeal Br.,” 1). 2 Appeal Br. 1, 3—7; Final Office Action, notice delivered electronically on April 11, 2014, hereinafter “Final Act.,” 3—9; Examiner’s Answer, notice delivered electronically on December 31, 2014, hereinafter “Ans.,” 2—5. 3 Claims 18—20 have been indicated as allowable (Final Act. 7). Appeal 2015-004315 Application 13/866,678 We affirm. BACKGROUND The subject matter on appeal relates to an armored fiber optic cable (Specification, hereinafter “Spec.,” 1 3; Abst.). Representative claim 1 is reproduced from page 9 of the Appeal Brief (Claims Appendix), with key disputed limitations highlighted in italicized text, as follows: 1. An armored fiber optic cable, comprising: a fiber optic assembly comprising at least one optical fiber; dielectric armor in the form of an extruded polymeric tube surrounding the fiber optic assembly, wherein the dielectric armor has at least one layer formed from a rigid material having a Shore D hardness of about 65 or greater, wherein the fiber optic cable has an armor profile such that the fiber optic cable has an undulating exterior surface along its length. REJECTIONS ON APPEAL The Examiner rejected claims 1—5 and 7—17 under 35 U.S.C. § 103(a) (pre-AIA) as unpatentable over Hardwick, III, et al.4 (hereinafter “Hardwick”) in view of Register, III, et al.5 (hereinafter “Register”) (Final Act. 3—7; Ans. 2). DISCUSSION The Appellants rely on the same argument for all claims on appeal (Appeal Br. 5—7). Therefore, pursuant to 37 C.F.R. § 41.37(c)(l)(iv), the claims stand or fall together with representative claim 1. The Examiner found that Hardwick describes every limitation recited in claim 1 except for the specified Shore D hardness level (Final Act. 3). 4 US 6,404,962 Bl, issued June 11, 2002. 5 US 6,636,673 B2, issued October 21, 2003. 2 Appeal 2015-004315 Application 13/866,678 The Examiner found, however, that Hardwick discloses an extruded hard or rigid material such as high density polyethylene as the polymeric tube surrounding the fiber optic assembly (id. at 3—4). Relying on a finding that the normal range of Shore D hardness for polyethylene is 55.0—76.0, as evidenced by http://www.ehow.com/lisf-_6783922_mechanical-properties- polyethylene_.html, the Examiner concluded that “one having ordinary skill in the art . . . would have recognized that using a harder polyethylene (or other hard polymer/plastic)” would “improve durability and buffer outside sources of potential errors (to the inside fibers)” (id. at 4). Furthermore, the Examiner found that Register teaches protective outer/exterior cable jackets made from rigid materials with a Shore D hardness of 70 and concluded from this finding that a person having ordinary skill in the art “would have recognized that harder (ffame-of-reference) polymers would improve the protective ability of the jacket/armor/buffer” (id. at 4—5). The Appellants contend that a person having ordinary skill in the art would not have modified Hardwick to include a polymeric dielectric armor with “a Shore D hardness of about 65 or greater,” as recited in claim 1 (Appeal Br. 5). Specifically, the Appellants argue that “Hardwick . . . describes the buffer encasement as a thin sheath” that is a thin flexible material and can be easily tom so that the buffer encasement can be easily removed from a ribbon stack (id.). Thus, according to the Appellants, the Examiner’s proposed modification is in conflict with Hardwick’s disclosed requirements (id. at 6). For the reasons given by the Examiner (Ans. 2—5), the Appellants’ argument fails to identify a reversible error in the Examiner’s rejection of claim 1. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). 3 Appeal 2015-004315 Application 13/866,678 Hardwick’s Figure 7 is reproduced as follows: 34 71 A" 71 30b - x A m. . \ F/G. 7 • 71 71 Hardwick’s Figure 7 above depicts an optical module 306 including, inter alia, a buffer encasement 36b that is “sufficiently rigid to hold the ribbon stack 32b in its twisted configuration” (col. 8,1. 61—col. 9,1. 5) (italics added and bolding omitted). Thus, although Hardwick teaches other requirements such as elasticity, tear characteristics for the buffer encasement, and conformability (col. 4,11. 20-31; col. 6,1. 56—col. 7,1. 3; col. 8,11. 37—44), the buffer encasement must have sufficient rigidity or hardness to hold the twisted configuration in place. Here, the Appellants do not direct us to sufficient evidence that Hardwick’s requirements are, as a matter of fact, in direct conflict with “a Shore D hardness of about 65 or greater” as required by claim 1. Moreover, Register teaches that for cable performance characteristics, a preferred material hardness for a jacket 22, which is similar to Hardwick’s buffer encasement, is “about 70” (col. 3,11. 57—59; Fig. 1). Thus, notwithstanding Hardwick’s requirements, a person having ordinary skill in 4 Appeal 2015-004315 Application 13/866,678 the art would have found it obvious to substitute Hardwick’s buffer encasement with Register’s jacket having a Shore D hardness of about 70 based on a reasonable expectation that they would be interchangeable as known alternative jacketing materials. KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“[Wjhen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.”). Stated in a slightly different way, a fiber optic ribbon surrounded by a jacket having a Shore D hardness of about 70 was known in the art, as evidenced by Register. Thus, a person having ordinary skill in the art would have found it obvious to provide such a fiber optic cable using a jacket having sufficient rigidity in a well-known configuration, such as the twisted configuration shown in Hardwick. See In re Bush, 296 F.2d 491, 496 (CCPA 1961) (“[Wjhere a rejection is predicated on two references each containing pertinent disclosure which has been pointed out to the applicant, we deem it to be of no significance, but merely a matter of exposition, that the rejection is stated to be on A in view of B instead of on B in view of A . . For these reasons, we uphold the Examiner’s rejection of claim 1. SUMMARY The Examiner’s final decision to reject claims 1—5 and 7—17 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). AFFIRMED 5 Copy with citationCopy as parenthetical citation