Ex Parte Bohler et al

Patent Trial and Appeal Board

Jan 26, 2017

13866678 (P.T.A.B. Jan. 26, 2017)

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.
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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).
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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
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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
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