Ex Parte Brown et al

Patent Trial and Appeal Board

Jun 20, 2017

13924020 (P.T.A.B. Jun. 20, 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.
13/924,020 06/21/2013 Scott M. BROWN 105967.01665 7869
77001 7590
ULMER & BERNE LLP
c/o Diane Bell
600 Vine Street
SUITE 2800
Cincinnati, OH 45202
06/22/2017 EXAMINER
NGUYEN, CHAU N
ART UNIT PAPER NUMBER
2847
NOTIFICATION DATE DELIVERY MODE
06/22/2017 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 SCOTT M. BROWN, ROBERT S. GOULD,
MATTHEW S. McLINN, RICHARD CHAMBERLAIN,
SHAUN MILLER, and ALICE C. ALBRINCK
Appeal 2016-007558
Application 13/924,020
Technology Center 2800
Before JULIA HEANEY, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 request review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner rejecting claims 1—10 and 12—16 of Application
13/924,020. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 This Decision refers to the Specification filed June 21, 2013 (“Spec.”),
Final Rejection dated Oct. 22, 2014 (“Final Act.”), Appeal Brief filed Aug.
21, 2015 (“App. Br.”), Examiner’s Answer dated June 3, 2016 (“Ans.”), and
Reply Brief filed Aug. 3, 2016 (“Reply Br.”).
2 Appellants identify the real party in interest as General Cable Technologies
Corp. App. Br. 1.
Appeal 2016-007558
Application 13/924,020
BACKGROUND
The subject matter on appeal relates to a cable having a cable core
comprising a plurality of insulated pairs of twisted conductors. App. Br. 2—
3. The insulation of at least one pair of the plurality of insulated pairs of
twisted conductors may be a zero halogen material that is flame retardant,
and the insulation of at least another pair of the plurality of insulated pairs of
twisted conductors may be a zero halogen material that is not flame
retardant. Spec. 1 6. Use of a zero halogen material provides flame
suppression while avoiding release of toxic halogens, such as chlorine, into
the environment in the event of a fire. Id. 14. Claim 1, reproduced below,
is illustrative of the subject matter on appeal:
1. A cable, comprising:
a cable core comprising:
a plurality of insulated pairs of twisted conductors, said
plurality of insulated pairs of twisted conductors comprises one
or more of a primary pair and a secondary pair, wherein each of
the plurality of insulated pairs of twisted conductors comprising
insulation, wherein said insulation of said primary pair of said
plurality of insulated pairs of twisted conductors comprises an
inner layer and an outer layer, said inner layer being formed of
a zero halogen material that is not flame retardant, said outer
layer being formed of a zero halogen material that is
substantially flame retardant, and said insulation of said
secondary pair of said plurality of insulated pairs of twisted
conductors consists of a zero halogen material that is not flame
retardant.
App. Br. 17 (Claims Appendix).
THE REJECTIONS
The Examiner maintains the following rejections on appeal:
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Application 13/924,020
1. Claims 7 and 12 are rejected under 35 U.S.C. § 112, second
paragraph, for indefiniteness. Final Act. 2—3.
2. Claims 1—10 and 12—14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Starnes3 and Grizante
Redondo.4 Final Act. 4.
3. Claims 15 and 16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Starnes, Grizante Redondo,
and Peterson.5 Final Act. 6.
DISCUSSION
Rejection 1
Appellants do not argue this rejection. Accordingly, we summarily
affirm the rejection of claims 7 and 12 for indefmiteness. See Ex parte Frye,
94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (“If an appellant fails to
present arguments on a particular issue—or more broadly, on a particular
rejection—the Board will not, as a general matter, unilaterally review those
uncontested aspects of the rejection.”).
Rejection 2
Appellants argue for patentability of independent claims 1 and 9
together, and do not separately argue dependent claims 2—8, 10, or 12—14.
App. Br. 11—14. We therefore limit our discussion to claims 1 and 9 as
3 Starnes et al., US 6,687,437 Bl, Feb. 3, 2004 (hereinafter “Starnes”).
4 Grizante Redondo et al., US 2011/0240335 Al, Oct. 6, 2011 (hereinafter
“Grizante Redondo”).
5 Peterson, US 3,928,210, Dec. 23, 1975.
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Appeal 2016-007558
Application 13/924,020
argued by Appellants; all dependent claims stand or fall with the claim from
which they depend. 37 C.F.R. § 41.37(c)(l)(iv) (2013).
Upon consideration of the evidence presented in this Appeal in light
of each of Appellants’ contentions, we determine that a preponderance of the
evidence supports the Examiner’s conclusion that the subject matter of
Appellants’ claims is unpatentable over the applied prior art. Accordingly,
we affirm the rejections for the reasons set forth by the Examiner (Final Act.
3—5; Ans. 3—6), which we adopt as our own. We add the following primarily
for emphasis.
The Examiner finds that Starnes discloses a cable core comprising a
plurality of insulated pairs of twisted conductors, wherein the insulation for
all of the pairs is a zero halogen material that is not flame retardant. Final
Act. 4, citing Starnes 3:1—5, Fig. 1. The Examiner acknowledges that
Starnes does not disclose an insulation layer of zero halogen material that is
flame retardant, or foamed. Id. The Examiner determines, however, that it
would have been obvious to a person of ordinary skill in the art to substitute
the insulation of one or two primary pairs of Starnes with the zero halogen
flame retardant insulation layer taught by Grizante Redondo, in order to
further protect the conductor from the environment. Id. at 5, providing
citations to Grizante Redondo.
Appellants argue that Grizante Redondo teaches away from a
combination with Starnes because each of Grizante Redondo’s conductors
“relies on the flame-retardant coating to provide the desired flame-retardant
properties and an increase of thermopressure resistance without decreasing
processability and mechanical properties.” App. Br. 12, citing Grizante
Redondo ]Hf 10-13. Appellants further argue that if Starnes were modified
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Appeal 2016-007558
Application 13/924,020
with the teachings of Grizante Redondo, then the insulation on each pair of
Starnes’ twisted conductors, not just a portion of the pairs, would be
substituted with insulation including flame retardants because a person of
ordinary skill in the art would not undermine Grizante Redondo’s teaching
that requires each conductor to have a flame-retardant outer layer, and
therefore the combination would not resemble the claimed invention. App.
Br. 13.
Appellants’ arguments are not persuasive of reversible error. The
Examiner reasonably finds that a person of ordinary skill in the art would
have been able to extrapolate from Grizante Redondo that a cable with just
some insulated conductors having zero-halogen and substantially flame-
retardant outer layers would provide added protection to the cable from
excessive heat due to fire, and thus it would have been obvious to use flame-
retardant insulation on just some of the twisted pairs. Ans. 4—5. See KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also id. at 421 (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”). Additionally, the Examiner’s reasoning that a person of
ordinary skill would have understood that there are manufacturing cost
tradeoffs involving use of flame-retardant material supports the
determination of obviousness. See Medichem, S.A. v. Rolabo, S.L., 437 F.3d
1157, 1165 (Fed. Cir. 2006) (“a given course of action often has
simultaneous advantages and disadvantages, and this does not necessarily
obviate motivation to combine”). Ans. 5.
Accordingly, we sustain the rejection.
Rejection 3
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Application 13/924,020
Rejection 3 is directed to dependent claims. Although Appellants
address the rejection under a separate heading, their arguments are based on
the same arguments presented against Rejection 2, and do not rise to the
level of a separate argument for patentability. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”). Accordingly,
we sustain this rejection for the same reasons discussed above.
SUMMARY
We affirm the rejections of claims 1—10 and 12—16.
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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