Ex Parte Brown et alDownload PDFPatent Trial and Appeal BoardJun 29, 201714310413 (P.T.A.B. Jun. 29, 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. 14/310,413 06/20/2014 Scott M. Brown 39795-1006 7681 77001 7590 ULMER & BERNE LLP c/o Diane Bell 600 Vine Street SUITE 2800 Cincinnati, OH 45202 EXAMINER NGUYEN, CHAU N ART UNIT PAPER NUMBER 2847 NOTIFICATION DATE DELIVERY MODE 07/03/2017 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): ipdocketing@ulmer.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GENERAL CABLE TECHNOLOGIES CORPORATION Appeal 2016-004297 Application 14/310,413 Technology Center 2800 Before MICHAEL P. COLAIANNI, CHRISTOPHER L. OGDEN, JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claims 1—20. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 In this decision, we refer to the Final Office Action mailed January 28, 2015 (“Final Act.”), the Appeal Brief filed September 10, 2015 (“Appeal Br.”), the Examiner’s Answer mailed January 14, 2016 (“Ans.”), and the Reply Brief filed March 14, 2016 (“Reply Br.”). Appeal 2016-004297 Application 14/310,413 Claim 1, reproduced below, is illustrative of the claims on appeal. 1. A cable separator, comprising: a preshaped body having a longitudinal length, wherein the preshaped body is substantially entirely formed of a foamed material, wherein the foamed material is selected from the group consisting of polysulfone, polyethersulfone, polyphenylsulfone, poly(arylether sulfone), poly(biphenylether sulfone), and combinations thereof. Appeal Br. 16 (Claims App’x). REJECTIONS ON APPEAL The Examiner maintains the following rejections on appeal: Rejection 1: Claims 1—7, 9-11, 13—15, and 17—20 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wiebelhaus et al. (US 2009/0236120 Al, published September 24, 2009) (“Wiebelhaus”) in view of Kratzmuller (US 2006/0125136 Al, published June 15, 2006) (“Kratzmuller”). Ans. 3. Rejection 2: Claims 8, 12, and 16 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Wiebelhaus in view of Kratzmuller and Ashida et al. (US 2005/0255741 Al, published November 17, 2005) (“Ashida”). DISCUSSION Of the appealed claims, claims 1,10, and 14 are independent. See App. Br. 16—17 (Claims App’x). Claim 1, directed to a cable separator, and claim 14, directed to a data communication cable, each require a separator comprising a preshaped body, “wherein the preshaped body is substantially entirely formed of a foamed material, wherein the foamed material is 2 Appeal 2016-004297 Application 14/310,413 selected from the group consisting of polysulfone, polyethersulfone, polyphenylsulfone, poly(arylether sulfone), poly(biphenylether sulfone), and combinations thereof.” Claim 10, directed to a cable separator, includes a similar requirement albeit with slightly different wording—requiring a body to comprise a first material, “wherein the first material is at least partially foamed, and wherein the first material is selected from the group consisting of polysulfone, polyethersulfone, polyphenylsulfone, poly(arylether sulfone), poly(biphenylether sulfone), and combinations thereof.” The respective positions of the Examiner and Appellant raise the following issue on appeal: Did the Examiner reversibly err in finding one of ordinary skill in the art at the time of the invention would have used Kratzmuller’s foamed polysulfone as the material for Wiebelhaus’s separator, as recited in claims 1,10, and 14? See Appeal Br. 9; Reply Br. 1— 2; Ans. 4—5. We answer this question in the affirmative for the reasons discussed below. The Examiner finds Wiebelhaus discloses a cable separator comprising a preshaped body having a longitudinal length, wherein the preshaped body is substantially entirely formed of a foamed material, such as a polyolefin or fluoropolymer. Final Act. 3 (citing Wiebelhaus 144). The Examiner finds that Wiebelhaus does not disclose polysulfone as the foamed material. The Examiner, however, finds that Kratzmuller discloses a foam web which is formed of foamed polysulfone. Final Act. 3; Kratzmuller Abstract. The Examiner further finds that Kratzmuller teaches that polysulfone is a high temperature resistant polymer. Ans. 4 (citing Kratzmuller 12). Based on this teaching, the Examiner finds that one of 3 Appeal 2016-004297 Application 14/310,413 ordinary skill in the art would have been motivated to use Kratzmuller’s polysulfone material to form Wiebelhaus’s separator. Ans. 4. Appellant has persuasively argued that “the Examiner has failed to show that high temperature resistance is a relevant, or important, attribute for the construction of cable separators,” and thus, one of ordinary skill in the art would not have had a reason to form Wiebelhaus’ separator of Kratzmuller’s foamed polysulfone. See Appeal Br. 9; Reply Br. 1—2. As argued by Appellant, neither Wiebelhaus nor Kratzmuller identify high temperature resistance as a relevant factor in the selection of cable separator materials. Appeal Br. 9. Contrary to the Examiner’s contentions, Kratzmuller does not teach polysulfone is a high temperature resistant polymer. Rather, the disclosure relied upon by the Examiner teaches that using combustible liquids as blowing agents in its mixture presents a considerable safety risk at the high temperatures used to form its foam webs. Kratzmuller 12. To reduce such risk, Kratzmuller teaches using water, a mixture of water and an inert gas or organic liquid as an ancillary blowing agent. Id. 3^4. The Examiner does not identify, nor do we find, any disclosure in Kratzmuller that teaches polysulfone is a high temperature resistant polymer. Similarly, the Examiner does not identify, nor do we find, any disclosure in Wiebelhaus that high temperature resistance is a relevant or important attribute for the construction of cable separators. Although Wiebelhaus teaches a desire to reduce smoke emission from cables in the event of a fire (Wiebelhaus 1 8), Appellant persuasively points out that bum resistance and high-temperature resistance are different attributes associated with cables. Appeal Br. 10. Bum resistance relates to flame and smoke 4 Appeal 2016-004297 Application 14/310,413 propagation whereas high temperature resistance relates to melt temperature and thermal degradation. Id. Because the Examiner has not identified support in the prior art for finding that one of ordinary skill in the art would have used Kratzmuller’s foamed polysulfone web as the material for Wiebelhaus’s separator, we cannot sustain the Examiner’s rejection of independent claims 1—7, 9—11, 13-15, and 17-20. The Examiner’s findings regarding Ashida, which the Examiner relies on for teaching foamed polysulfone having a foam rate of about 30% to about 80%, do not cure the deficiency in the combined teachings of Wiebelhaus and Kratzmuller. See Final Act. 4 (citing Ashida 1 55). Thus, we also do not sustain the Examiner’s rejection of claims 8, 12, and 16. DECISION For the above reasons, the Examiner’s rejections of claims 1—20 are reversed. REVERSED 5 Copy with citationCopy as parenthetical citation