Ex Parte Stratton et al

Patent Trial and Appeal BoardFeb 21, 2019

14238378 (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/238,378 02/11/2014 22827 7590 02/25/2019 DORITY & MANNING, P.A. POST OFFICE BOX 1449 GREENVILLE, SC 29602-1449 FIRST NAMED INVENTOR Craig Stratton 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 ATTORNEY DOCKET NO. CONFIRMATION NO. AFLACS-122-PCT-US 7000 EXAMINER YAGER, JAMES C ART UNIT PAPER NUMBER 1782 NOTIFICATION DATE DELIVERY MODE 02/25/2019 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): USDOCKETING@DORITY-MANNING.COM PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CRAIG STRATTON, BRIAN HERBST, JOE CIGNARALE, BRETT VILLIGER, and MICHAEL TURENNE Appeal2018-005737 Application 14/238,378 Technology Center 1700 Before JEFFREY R. SNAY, BRIAND. RANGE, and LILAN REN, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1, 3-15, and 30. We have jurisdiction under 35 U.S.C. Â§ 6(b). We affirm. 1 We refer to the Specification ("Spec.") filed February 11, 2014; Final Office Action ("Final Act.") dated August 4, 2017; Appellant's Appeal Brief ("App. Br.") filed January 2, 2018; Examiner's Answer ("Ans.") dated March 16, 2018; and Appellant's Reply Brief ("Reply Br.") dated May 14, 2018. 2 Appellant is Applicant, APL Telecommunications LLC, which is identified in the Appeal Brief as the real party in interest. App. Br. 1. Appeal2018-005737 Application 14/238,378 BACKGROUND The subject matter on appeal relates to an abrasion-resistant cable, such as may be deployed in oil and gas well applications. Spec. ,r 1. According to the Specification, cables housing optical fibers typically include a plastic jacket surrounding a metal tube that contains the optical fibers. Id. ,r 4. High pressure water can penetrate the plastic jacket, leading to erosion of the metal tube. Id. ,r,r 4, 5. The Specification discloses a reinforced cable which includes a strength member, such as an additional metal tube, within the cross-section of the cable to serve as a protective barrier against erosion. Claim I-the sole independent claim on appeal- reads as follows: 1. A cable, comprising: a core, the core comprising a metal tube and at least one optical fiber disposed within the metal tube, wherein the metal tube has a continuous solidly uniform cross-section and is an innermost tube of the cable; a first strength member surrounding said core, the first strength member comprising a metal tube, the core disposed within the metal tube, wherein a space is defined between the metal tube of the first strength member and the metal tube of the core; and an outer layer surrounding said first strength member; wherein said outer layer comprises a polycarbonate material. App. Br. Claims Appendix. 2 Appeal2018-005737 Application 14/238,378 REJECTIONS I. Claims 1 and 3-15 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Anderson, 3 James, 4 and Siddhamalli. 5 II. Claim 30 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Anderson, James, Siddhamalli, and Hodge. 6 III. Claims 1, 3-5, 12, and 13 stand rejected under 35 U.S.C. Â§ 103(a) as unpatentable over James, and Siddhamalli. IV. Claim 30 stands rejected under 35 U.S.C. Â§ I03(a) as unpatentable over James, Siddhamalli, and Hodge. OPINION Rejection I With regard to Rejection I, Appellant's arguments solely address claim 1. App. Br. 3---6. Claims 3-15 stand or fall with claim 1. Relevant to Appellant's arguments on appeal, the Examiner finds that Anderson discloses a composite cable which differs from claim 1 in that Anderson's inner tube surrounding the optical fibers is formed of plastic rather than metal. Final Act. 4--5 (citing Anderson Fig. 3). The Examiner finds that James provides a reason to use an inner metal tube for surrounding optical fibers in a composite data transmission cable because the metal tube is capable of withstanding high pressure conditions. Id. Appellant argues that Anderson's purpose is to facilitate access to the optical fibers within the cable, and that providing a metal inner tube- 3 US 6,195,487 Bl, issued February 27, 2001. 4 US 2003/0169179 Al, published September 11, 2003. 5 US 2009/0239987 Al, published September 24, 2009. 6 US 5,082,338, issued January 21, 1992. 3 Appeal2018-005737 Application 14/238,378 whether in place of or within Anderson's plastic inner tube-would frustrate that purpose. App. Br. 4--5: Reply Br. 2-3. We disagree. Anderson's disclosed composite cable includes a core, comprising optical fibers loosely held within a tube, which is surrounded by, inter alia, a plurality of insulated conductors. Anderson 4:1-16, 22-24. Anderson explains that, "[a]lthough the insulated conductors 20 can be helically wound or disposed longitudinal ... such helical winding or longitudinal disposition of the conductors 20 makes it difficult to obtain access to the optical fibers" because "there is no slack in the conductors 20 permitting them to be separated." Id. 4:30-41 ( emphasis added). "Therefore, preferably, the conductors 20 are wound around the layer 18 in S-Z fashion," to provide slack in the conductors. Id. 4:48-53 ( emphasis added). Appellant does not persuade us that ease of access to the optical fibers is Anderson's essential purpose, rather than merely a preferred embodiment. Moreover, even in Anderson's preferred embodiment involving conductors wrapped to provide slack, accessing the interior optical fibers still requires removing at least part of all the outer material layers-including a steel armor layer-as well as cutting the inner tube. See id. 4:62---65, 5:55---60, Fig. 1 C. Appellant does not persuasively explain why the addition of a metal inner tube would frustrate access to Anderson's optical fibers, particularly where Anderson already contemplates the need to remove a metal armor layer and the plastic inner tube to access the optical fibers. Appellant also argues that the Examiner's justification for providing a metal inner tube to withstand high pressure conditions ignores the environment in which Anderson's cable is used. App. Br. 5. However, Appellant does not explain why Anderson's disclosed data transmission 4 Appeal2018-005737 Application 14/238,378 cable would not have found use in high pressure conditions, such as those taught by James. For the foregoing reasons, Appellant does not persuade us of reversible error. Rejection I is sustained. Rejection II Appellant does not argue Rejection II, except to state that depending claims should be deemed allowable based on their dependence from claim 1. Accordingly, we sustain Rejection II for the reasons given in connection with claim 1 above. Rejection III The Examiner also finds that James discloses a cable having all of the claimed features, except that James does not specify that the outer layer comprises polycarbonate. Final Act. 7 (citing James Fig. 1). We reproduce James' Figure 1 below: /0 I {Figure 1 shows a downhole data transmission line with components removed to show underlying layers and elements. James ,r 17.} 5 Appeal2018-005737 Application 14/238,378 Particularly, with reference to Figure 1, the Examiner finds that James depicts a cable which includes, in the following order, optical fibers 12, a metal containment tube 14, a copper braided layer 16, and a large metal tube 22 coated with a protective plastic layer. Final Act. 7. The Examiner finds that both the braided layer 16 and large metal tube 22 correspond to the claimed "strength member comprising a metal tube." Id. Appellant argues that because the layer 16 in James is "wrapped or tightly braided'' about the metal tube 14, there is no "space between a metal tube of a first strength member and a metal tube of a core, as required by independent claim 1." App. Br. 7; see also Reply Br. 4--5. The Examiner finds that braiding of the material forming layer 16 necessarily and intrinsically would have formed spaces between the interwoven strands, such that space would have existed between the braided material and the metal tube at the points where the strands overlap. Final Act. 7; Ans. 11. Appellant does not dispute that braiding necessarily would have created voids or spaces due to overlapping strands. Nor does Appellant persuasively show that the term "space" as claimed should be narrowly construed in a manner that excludes space formed by overlapping strands of a braid. Moreover, Appellant does not address the Examiner's finding that the metal layer 22 in James, which is separated from the metal tube 14 by multiple other material layers, also meets the claimed strength layer. Appellant does not contend, and we do not see, that the term "space" in claim 1 precludes the existence of other material layers within that space. For the foregoing reasons, Appellant does not persuade us of reversible error. Rejection III is sustained. 6 Appeal2018-005737 Application 14/238,378 Rejection IV Appellant does not argue Rejection IV, except again to state that depending claims should be deemed allowable based on their dependence from claim 1. Accordingly, we sustain Rejection IV for the reasons given in connection with claim 1 above. DECISION The Examiner's decision rejecting claims 1, 3-15, and 30 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 7