Ex Parte Brown et al

Patent Trial and Appeal Board

Jun 29, 2017

14310413 (P.T.A.B. Jun. 29, 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.
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
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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
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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
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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
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