Ex Parte Bradea et al

Patent Trial and Appeal Board

Mar 14, 2017

13206157 (P.T.A.B. Mar. 14, 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.
13/206,157 08/09/2011 Daniel Aurel Bradea HI09-009 3266
21495 7590 03/16/2017
CORNING INCORPORATED
INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1
CORNING, NY 14831
EXAMINER
ROJAS, OMAR R
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
03/16/2017 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 DANIEL AUREL BRADEA and
PETER CHARLES BALLHAUSSEN1
Appeal 2016-000768
Application 13/206,157
Technology Center 2800
Before ADRIENE LEPIANE HANLON, CHRISTOPHER C. KENNEDY,
and JULIA HEANEY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 13—20. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to fiber optic networks. E.g.,
Claim 13. Claim 13 is reproduced below from pages 19—20 (Claims
Appendix) of the Appeal Brief:
1 According to the Appellants, the real party in interest is Coming Cable
Systems LLC. App. Br. 2.
Appeal 2016-000768
Application 13/206,157
13. A multi-zoned fiber optic network, comprising:
a first zone, wherein the first zone is configured to provide
optical service from an optical service provider to at least one
subscriber premises in the first zone, the first zone, comprising,
at least one first terminal having an enclosure having a wall
defining an interior cavity and a plurality of connector ports
disposed through the wall, and at least one adapter positioned
within one of the plurality of connector ports, wherein the at
least one adapter has an interior end accessible from within the
interior cavity and an exterior end accessible external to the
enclosure, and wherein the adapter is configured to establish an
optical connection between at least one optical fiber in a first
multi-fiber optical connector attached to the end of a first fiber
optic cable and inserted in the interior end, and one or more
respective optical fibers in a second multi-fiber optical
connector, wherein the one or more respective optical fibers are
optically connected to one or more optical fibers of a first
distribution cable specific to the first zone, and wherein the
second multi-fiber optical connector is suitable for outside-
plant installation, and
wherein the first zone is reconfigurable based on at least one of,
a number of subscriber premises in the first zone, a
geographical relationship of the subscriber premises in the first
zone, and a demographic make-up of the subscriber premises in
the first zone; and
a second zone, wherein the second zone is configured to
provide optical service from an optical service provider to at
least one subscriber premises in the second zone, the second
zone, comprising, at least one second terminal having an
enclosure having a wall defining an interior cavity and a
plurality of connector ports disposed through the wall, and at
least one adapter positioned within one of the plurality of
connector ports, wherein the at least one adapter has an interior
end accessible from within the interior cavity and an exterior
end accessible external to the enclosure, and wherein the
adapter is configured to establish an optical connection between
one or more respective optical fiber in a third multi-fiber optical
connector, wherein the one or more respective optical fibers are
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Application 13/206,157
optically connected to one or more optical fibers of a second
distribution cable attached to the end of a third fiber optic cable
and inserted in the interior end, and one or more respective
optical fibers in a fourth multi-fiber optical connector, wherein
the one or more respective optical fibers are optically connected
to one or more optical fibers of a second distribution cable
specific to the second zone and separate from the first
distribution cable, and wherein the fourth multi-fiber optical
connector is suitable for outside-plant installation, and
wherein the second zone is reconfigurable based on at least one
of, a number of subscriber premises in the second zone, a
geographical relationship of the subscriber premises in the
second zone, and a demographic make-up of the subscriber
premises in the second zone.
ANALYSIS
Claims 13—20 stand rejected under 35 U.S.C. § 102(e) as anticipated
by Conner et al. (US 2010/0092146 Al, published Apr. 15, 2010). The
Appellants present separate arguments for claim 13—the only independent
claim—and claims 17 and 18. Claims 14—16 depend from claim 13 and will
stand or fall with claim 13. The Appellants argue claims 17 and 19 as a
group; claim 19 will stand or fall with claim 17. The Appellants also argue
claims 18 and 20 as a group; claim 20 will stand or fall with claim 18.
Accordingly, we limit our discussion to claims 13, 17, and 18.
After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner’s
rejection. Accordingly, we affirm the rejection for reasons set forth below,
in the Final Action, and in the Examiner’s Answer. See generally Final
Act. 2—6; Ans. 2—5.
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Claim 13.
Relying largely on Figures 10—12 and 16—19, the Examiner finds that
Conner teaches a multi-zoned fiber optic network that anticipates claim 13.
Final Act. 3—5.
Concerning the limitations that the first and second zones are
“reconfigurable based on at least one of [three options],” the Examiner finds
that Conner’s drop cables 24 in the first zone 216 can be reconfigured, that
the optical fibers in Conner’s branch cables 20 can be reconfigured, and that
“such reconfigurations would have to be based on the number of subscriber
premises (30) in the first zone (216) or the location of the subscriber
premises (30) in the first zone (216) as evidence from Fig. 10 of Connor
[sic].” Final Act. 4 (citing Conner || 43, 103). In the Answer, the Examiner
explains that claim 13 is directed to a network and not to a method, that the
term “reconfigurable” is a functional limitation requiring only “the ability to
be reconfigured,” and that the three recited bases or reasons for performing
the reconfiguration do “not impart a further structural difference to claim
13.” Ans. 3. The Examiner determines that, “because the First and Second
Zones of Conner are reconfigurable . . . they are also capable of being
reconfigured based on [one of the three recited options].” Id.
Concerning the limitations “a first distribution cable specific to the
first zone,” and “a second distribution cable specific to the second zone and
separate from the first distribution cable,” the Examiner determines that
upper branch cable 20 is specific to first zone 216, thereby meeting the
limitation of the “first distribution cable,” and that lower branch cable 20 is
specific to second zone 316 and separate from upper branch cable 20 of first
zone 216, thereby meeting the limitation of the “second distribution cable.”
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Final Act. 4; see also Conner Fig. 10. In the Answer, the Examiner further
explains that the claimed distribution cables can be “any type of cable,” and
that the definition of distribution cable provided in the Specification
encompasses the upper and lower branch cables of Conner. Ans. 3^4.
The Appellants first argue that Conner does not disclose a
reconfigurable zone or reconfiguration of a zone based on any of the three
options recited by claim 13 (i.e., “a number of subscriber premises in the
first zone, a geographical relationship of the subscriber premises in the first
zone, and a demographic make-up of the subscriber premises in the first
zone”). App. Br. 8—11.
The Appellants’ arguments are not persuasive. The Appellants
acknowledge that the “reconfigurable” limitation is a functional limitation.
Id. at 9. The Appellants concede that “Conner does disclose ‘reconfiguring
drop cables in the optical network’ or ‘optical fibers’ in general.” Id. at 8.
In the Appeal Brief, the Appellants provide no persuasive argument or
evidence as to why Conner’s admitted disclosure of reconfiguring drop
cables, which are part of the respective zones, see, e.g., Conner Fig. 10
(showing drop cables 24), does not constitute reconfiguring a zone under the
broadest reasonable interpretation of “reconfigurable” that is consistent with
the Specification.2 Cf. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(explaining that, even if the examiner had failed to make a prima facie case,
2 In the Reply Brief, the Appellants raise new arguments concerning whether
Conner’s zones are reconfigurable. See Reply Br. 3. Those arguments are
untimely, and the Appellants have not established good cause for failing to
present them in the opening Appeal Brief. See 37 C.F.R. § 41.41(b)(2).
Therefore, we decline to consider the arguments on appeal.
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the Board would not have erred in framing the issue as one of reversible
error because “it has long been the Board’s practice to require an applicant
to identify the alleged error in the examiner’s rejections”); cf also In re
Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“naked assertions” that claim
limitations are not taught by the prior art are unpersuasive);
Concerning the three recited bases upon which the zones are
reconfigurable, the Appellants argue that Conner does not expressly teach
“on what basis the drop cables would be reconfigured.” E.g., App. Br. 9—10.
However, claim 13 is directed to a fiber optic network, not to a method of
reconfiguration, and the Appellants provide no evidence or persuasive
reasoning in support of their contention that “[t]he zones in Conner would
not inherently be reconfigurable based on one of the claimed factors in
claim 13.” Id. at 10; see In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(“Attorney’s argument in a brief cannot take the place of evidence.”).
Contrary to the Appellants’ apparent contention, it is not necessary for
Conner to expressly recite any of the recited bases if the structure of
Conner’s network is inherently capable of performing the disputed
functional limitation. See, e.g., In re Schreiber, 128 F.3d 1473, 1477—79
(Fed. Cir. 1997) (“[Wjhere the Patent Office has reason to believe that a
functional limitation . . . may ... be an inherent characteristic of the prior
art, it [may] require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.”).
In that regard, we note that the relevant portions of the network
structures of Conner and claim 13 appear to be identical or nearly identical.
Compare Conner Fig. 10 with Spec. Fig. 1. The Appellants do not
persuasively identify a structural feature of the zones of Conner’s network
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that would prevent them from being reconfigured on bases that fall within
the scope of claim 13. While we agree with the Appellants that the
functional limitation of claim 13 cannot be ignored, see App. Br. 9—10, the
Appellants have not shown reversible error in the Examiner’s determination
that the zones of Conner’s network are inherently capable of being
reconfigured on bases that fall within the scope of claim 13. See Schreiber,
128 F.3d at 1477-79; In re Gardiner, 171 F.2d 313, 315-16 (CCPA 1948)
(“It is trite to state that the patentability of apparatus claims must be shown
in the structure claimed and not merely upon a use, function, or result
thereof.”).
The Appellants also argue that Conner does not teach “a first
distribution cable specific to the first zone” or “a second distribution cable
specific to the second zone and separate from the first distribution cable.”
App. Br. 12. More specifically, the Appellants argue that Conner discloses a
single distribution cable 12, and that Conner’s upper and lower branch
cables 20, see Conner. Fig. 10, are “branch” cables that do not fall within the
scope of the term “distribution” cable. Id. at 12—15.
We are not persuaded that Conner’s different nomenclature results in
a fiber optic network that falls beyond the scope of claim 13. As noted
above, the structure of Conner’s network is, in relevant part, essentially
identical to that of claim 13. It appears that what Conner refers to as
“distribution” cable 12 is equivalent to what the Appellants refer to as
“feeder” cable 28, and that what Conner refers to as upper and lower
“branch” cables 20 are equivalent to what the Appellants refer to as
“distribution” cables 32. Compare Conner Fig. 10 with Spec. Fig. 1, || 35—
36. The Appellants do not persuasively identify a distinction between
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Conner’s network and the network of claim 13 based on the differing
nomenclatures. There is no meaningful dispute that Conner’s upper and
lower branch cables are separate from each other and are specific to
respective first and second zones. See Conner Fig. 10.
The Specification defines “distribution cable” as “any cable optically
connected to a feeder cable or a transport cable, either directly or through a
fiber optic component, including, but not limited to, a splitter, and used to
further distribute the optical services toward a subscriber premises.” Spec.
125. Conner’s branch cables 20 optically connect to a parent cable 12 and
are used to further distribute optical services towards subscriber premises 30.
See Conner Fig. 10. Thus, the structure (i.e., “any cable optically connected
to”), function (i.e., “further distribute the optical services towards a
subscriber premises”), and relative position in the network (i.e., between a
terminal and a parent cable) of Conner’s branch cables appears to be
identical to that of the claimed “distribution” cables. On this record, the
Appellants have not persuaded us that Conner’s use of different words to
describe its cables establishes a patentable distinction between Conner’s
network and the claimed network.
We affirm the Examiner’s rejection of claim 13.3
3 To the extent that the Appellants raise new arguments in the Reply Brief
based on “public policy,” Reply Br. 6, those arguments are untimely, and the
Appellants fail to establish good cause for raising them for the first time in
the Reply Brief. See 37 C.F.R. § 41.41(b)(2). Therefore, we decline to
consider the arguments on appeal.
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Claim 17.
Claim 17 depends from claim 13 and further recites, “wherein the first
zone is reconfigured by including a plurality of first terminals.”
The Examiner finds that Conner’s disclosure of a network having
reconfigurable zones possessing a plurality of reconfigurable terminals 118,
318, and 418 meets the limitations of claim 17. Final Act. 6.
The Appellants argue, with limited explanation, (1) that Conner’s
disclosure of reconfiguring drop cables and optical fibers is not equivalent to
“reconfigurable terminals,” (2) that “the mere fact that Conner discloses
multiple [terminals] does not mean that Conner discloses that a first or
second zone ‘is reconfigured by including a plurality of first (or second)
terminals,” and (3) that “Conner is silent as to zones being reconfigured by
including a plurality of terminals in the zone.” App. Br. 16.
We are not persuaded by those arguments. As an initial matter, the
Appellants do not identify where the claims require “reconfigurable
terminals.” It appears that the claims require only reconfigurable zones. But
even if the claims did require reconfigurable terminals, the Appellants fail to
explain why Conner’s disclosure of reconfigurable drop cables would not be
indicative of reconfigurable terminals where the drop cables are themselves
part of, and extend from, the terminals. See Conner 143, Fig. 10.
Claim 17, like claim 13, is directed to a fiber optic network. It is not
directed to a method of reconfiguring a fiber optic network. Thus, consistent
with the Examiner’s rejection, any fiber optic network meeting the
limitations of claim 13 that additionally possesses a plurality of first
terminals in the first zone would meet the additional structural limitations of
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claim 17. There is no dispute that Conner’s first zone includes a plurality of
first terminals. See, e.g., Conner Fig. 10 (elements 118).
We are not persuaded of reversible error in the Examiner’s rejection
of claim 17.
Claim 18.
Claim 18 depends from claim 13 or 17 and further recites:
wherein the first zone is reconfigured by including a 1 X N
splitter in the first terminal, wherein an optical signal carried by
the optical fiber in the first fiber optic cable is split into N
optical signals, and wherein at least one of the N optical signals
is carried by the respective optical fiber in a second fiber optic
cable.
The Examiner finds that Conner’s disclosure of a network having
multiple splitters meets the limitations of claim 18. Final Act. 6. The
Examiner further finds that “[a]t least one of these splitters would also be
included in the First Zone (216) because the terminal (318) [see Fig. 5] can
be included in the first Zone (216).” Ans. 4 (citing Conner Figs. 5, 6 &
1160, 63,81).
The Appellants concede that Conner discloses splitters and do not
dispute that Conner teaches inclusion of such splitters in terminals of the
first zone. App. Br. 16. The Appellants argue that Conner’s disclosure of
splitters does not mean that those splitters “are used for reconfiguring the
first or second zones,” and that “Conner is silent as to zones being
reconfigured by the use of a splitter.” Id.
That argument is not persuasive for reasons similar to those stated in
our discussion of claim 17. Claim 18 is directed to a fiber optic network. It
is not directed to a method of reconfiguring a fiber optic network. Any fiber
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optic network meeting the limitations of claim 13 (or 17) that additionally
possesses a 1 X N splitter in the first terminal would meet the structural
limitations of claim 18. There is no dispute that Conner teaches a first zone
possessing a terminal that includes a 1 X N splitter. See, e.g., Conner Fig.
10 (elements 118).
On this record, we are not persuaded of a structural distinction
between the network of claim 18 and the network taught by Conner.
CONCLUSION
We AFFIRM the Examiner’s rejections of claims 13—20.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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