AFL Telecommunications LLC

Patent Trials and Appeals Board

May 1, 2020

15204035 - (D) (P.T.A.B. May. 1, 2020)

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.
15/204,035 07/07/2016 Kyle Marchek AFLOCA-189 2199
22827 7590 05/01/2020
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
EXAMINER
KIANNI, KAVEH C
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
05/01/2020 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 KYLE MARCHEK and TOM SAWYWER

____________

Appeal 2019-003717
Application 15/204,035
Technology Center 2800
____________

Before ADRIENE LEPIANE HANLON, JEFFREY R. SNAY, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to reject claims 1–17.2 We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies AFL Telecommunications LLC. as the
real party in interest. Appeal Brief filed July 24, 2018 (“Appeal Br.”) at 1.
2 Non-Final Office Action entered February 1, 2018 (“Office Act.”) at 1.
Appeal 2019-003717
Application 15/204,035

2
CLAIMED SUBJECT MATTER
Appellant claims an optical fiber trunk cable breakout canister.
Appeal Br. 2. Claim 1, the sole pending independent claim, illustrates the
subject matter on appeal, and is reproduced below:
1. An optical fiber trunk cable breakout canister,
comprising:
a main canister body, the main canister body extending
between a first end opening and a second end opening and
comprising a first end portion defining the first end opening and
a second end portion defining the second end opening, the first
end opening having a maximum width that is less than a
maximum width of the second end opening;
a plate disposed within the second end portion;
a potting material disposed within the second end
portion; and
a retainer washer disposed within the main canister
body.

Appeal Br. 13 (Claims Appendix) (emphasis added).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered March 11, 2019 (“Ans.”):
I. Claims 1–3, 9, and 11–17 under 35 U.S.C. § 103 as
unpatentable over Compton et al. (US 8,737,786 B1, issued May 27, 2014);
and
II. Claims 4–8 and 10 under 35 U.S.C. § 103 as unpatentable over
Compton in view of Islam (US 2015/0346451 Al, published December 3,
2015).
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
Appeal 2019-003717
Application 15/204,035

3
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 1, 2, and 4–17 under 35 U.S.C. § 103, for the reasons set forth in the
Office Action, the Answer, and below, and we reverse the Examiner’s
rejection of claim 3 under 35 U.S.C. § 103, for the reasons set forth in the
Appeal Brief and below.
We review appealed rejections for reversible error based on the
arguments and evidence Appellant provides for each issue that Appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in 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, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Appellant presents arguments directed to independent claim 1, and to
claims 3 and 12, which each depend from claim 1. Appeal Br. 7–12. We,
therefore, address claims 3 and 12 separately, and select claim 1 as
representative of the remaining claims on appeal, which stand or fall with
claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
Claims 1, 2, 4–11, and 13–17
Compton discloses fiber optic cable assembly 110 comprising mold
162 (main canister body), trunk assembly 114, splice assembly 116,
furcation assembly 118, and leg assemblies 112. Compton col. 3, ll. 37–39;
Figs. 1 and 16. Compton discloses that mold 162 (main canister body) has
first and second ends that each include openings (first and second end
openings). Compton Figs. 16 and 17. Compton discloses that furcation
assembly 118 comprises first lock 144 that includes “end piece 148, such as
Appeal 2019-003717
Application 15/204,035

4
a plate, guide, and/or washer.” Compton col. 7, ll. 33, 42–45; Figs. 9 and
10. The Examiner finds that end piece 148 corresponds to the plate and
retainer washer recited in claim 1. Office Act. 5–6.
Appellant argues that “[t]he Examiner’s interpretation of the single
end piece 148 of Compton as both the plate 80 and the retainer washer 100
ignores the plain language of claim 1, which clearly establishes that the plate
80 and the retainer washer 100 are separate pieces.” Appeal Br. 8.
Appellant argues that “Compton fails to disclose a plate and a retainer
washer as set forth in claim 1.” Id.
As the Examiner explains in the Answer, however, Compton teaches
that end piece 148 may be comprised of both a plate and a washer by
disclosing that “furcation assembly 118 includes an end piece 148, such as a
plate, guide, and/or washer.” Ans. 3; see also Compton col. 7, ll. 42–45.
Contrary to Appellant’s arguments, Compton thus discloses that a plate and
a washer may be included as separate parts of end piece 148.
Appellant argues that “one of ordinary skill in the art would
understand the term ‘retainer washer’ to inherently include specific structure
in order to retain an element extending through the retainer washer.” Appeal
Br. 8–9. Appellant argues that the “generic” washer Compton “referenced in
passing” “lacks any retaining structure,” and, therefore, is not “structurally
capable” of being used to retain an element. Id.
Appellant, however, does not provide any objective evidence to
support Appellant’s assertion that the washer disclosed in Compton is not
“structurally capable” of being used to retain an element. Appellant’s
unsupported arguments do not constitute evidence necessary to establish that
Compton’s disclosure of a washer would not have suggested a washer that is
Appeal 2019-003717
Application 15/204,035

5
“structurally capable” of being used to retain an element. In re Geisler, 116
F.3d 1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow
from common experience is just attorney argument and not the kind of
factual evidence that is required to rebut a prima facie case of
obviousness.”); Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034,
1043 (Fed. Cir. 2017) (“Attorney argument is not evidence” and cannot
rebut other admitted evidence.).
Nor does Appellant direct us to a definition or limiting description of
a “retainer washer” in Appellant’s Specification. Rather, the Specification
states that “Referring again to FIGS, 3–8, in exemplary embodiments, a
retainer washer (i.e., a first retainer washer) 100 may be disposed within the
main canister body 52 . . . In exemplary embodiments, the retainer washer
100 is an internal tooth lock washer, also known as a star lock washer,
internal shake proof washer, or shaft retainer washer. Alternatively, other
suitable retainer washers 100 may be utilized.” Spec. ¶ 39 (emphasis
added).
Appellant’s Specification thus describes exemplary washers that may
be used as the retainer washer recited in claim 1, but also explicitly indicates
that suitable retainer washers other than those specifically mentioned may be
utilized. We, therefore, interpret the recited “retainer washer” according to
its plain and ordinary meaning as a washer that holds one or more elements
secure or intact. Merriam-Webster.com (accessed April 20, 2020),
https://www.merriam-webster.com/dictionary/ retain (“to hold secure or
intact.”); In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed.
Cir. 2007) (During prosecution of patent applications, “the PTO must give
claims their broadest reasonable construction consistent with the
Appeal 2019-003717
Application 15/204,035

6
specification. . . . Therefore, we look to the specification to see if it provides
a definition for claim terms, but otherwise apply a broad interpretation.”).
As discussed above, Compton discloses that end piece 148, which
may be a washer, is part of furcation assembly 118. Compton col. 7, ll. 33,
42–45; Figs. 9 and 10. Compton discloses disposing fibrous strength
members 124 of leg assemblies 112 between end piece 148 and fan-out
structure 142, and using fastener 150 to press end piece 148 toward fan-out
structure 142, so as to lock fibrous strength members 124 of leg assemblies
112 to furcation assembly 118. Compton col. 7, ll. 42–52; Fig. 10. End
piece 148, in cooperation with fan-out structure 142, thus functions to hold
fibrous strength members 124 secure or intact. Contrary to Appellant’s
arguments, end piece 148—which may be a washer—is thus “structurally
capable” of being used to retain (or hold secure or intact) fibrous strength
members 124, and, therefore, corresponds to a “retainer washer” as recited
in claim 1.
We, accordingly, sustain the Examiner’s rejection of claims 1, 2, 4–
11, and 13–17 under 35 U.S.C. § 103.
Claim 12
Claim 12 depends from claim 11, which depends from claim 1. Claim
11 recites “[t]he breakout canister of claim 1, wherein the second end
portion includes an internal stop, the stop disposed at a predetermined
distance from the second end opening, and wherein the plate engages the
stop.” Claim 12 recites “[t]he breakout canister of claim 11, further
comprising a plurality of nozzles extending from the plate within the second
end portion, and wherein a height of each of the plurality of nozzles is less
than the predetermined distance.”
Appeal 2019-003717
Application 15/204,035

7
The Examiner finds that leg assemblies 112 of Compton’s fiber optic
cable assembly 110 correspond to a plurality of nozzles that extend from end
piece 148 (plate). Office Act. 7 (citing Compton Figs. 2, 9, 10, and 16–18).
Appellant argues that claim 12 requires the nozzles to “extend from,
i.e., originate at, the plate” because “[t]he term ‘from’ indicates a point of
origin.” Appeal Br. 9 (citing https://ahdictionary.com/word/search.html?
q=from). Appellant argues that “[a]s shown in Fig. 10 of Compton and
described at col. 7, lines 30–32, the leg assemblies 112 extend through the
furcation assembly 118, including the end piece 148 thereof, rather than
extending from a plate” as recited in claim 12. Appeal Br. 9.
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
Although Appellant provides a dictionary definition of the term
“from,” we look to Appellant’s Specification to determine if the
Specification provides a definition or limiting description of “a plurality of
nozzles extending from the plate” as recited in claim 12. ICON Health, 496
F.3d at 1379. The Specification discloses that plate 80 may be disposed in
second end portion 64 of main canister body 52 of optical fiber trunk cable
breakout canister 50, and the Specification indicates that “in some
embodiments as illustrated in FIGS. 5 and 6, a plurality of nozzles 82 may
extend from the plate 80 within the second end portion 64 and towards the
second end opening 56.” Spec. ¶¶ 22, 29. Figures 5 and 6 are cross-
sectional views, and appear to illustrate a plurality of nozzles 82 that each
have one end positioned adjacent to one surface of plate 80. Appellant’s
Specification explicitly indicates, however, that embodiments of Appellant’s
invention illustrated in the drawings are exemplary only, and do not limit the
Appeal 2019-003717
Application 15/204,035

8
invention, which “covers such modifications and variations as come within
the scope of the appended claims and their equivalents.” Spec. ¶ 18.
The Specification and drawings thus describe and illustrate an
exemplary embodiment of “a plurality of nozzles extending from the plate.”
We must not interpret claim 12 as limited to this exemplary embodiment,
however, because under well-established principles of claim interpretation,
exemplary embodiments or limitations described in the Specification must
not be read into the claims. In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993) (“[L]imitations are not to be read into the claims from the
specification.”); see also Howmedica Osteonics Corp. v. Wright Med. Tech.,
Inc., 540 F.3d 1337, 1345 (Fed. Cir. 2008) (declining to impute a limitation
into a disputed claim term in the absence of a clear requirement in the
specification, even where “every disclosure of [the disputed term] in the
specification shows [the alleged limitation]”); Ventana Med. Sys., Inc. v.
Biogenex Labs., Inc., 473 F.3d 1173, 1181 (Fed. Cir. 2006) (“[T]he mere
fact that the [asserted] patent discloses [only certain] embodiments . . . does
not in and of itself mean that the method claims at issue are limited to the
disclosed embodiments.”); Phillips v. AWH Corp., 415 F.3d 1303, 1323
(Fed. Cir. 2005) (en banc) (“[W]e have expressly rejected the contention that
if a patent describes only a single embodiment, the claims of the patent must
be construed as being limited to that embodiment.”).
We, accordingly, interpret “a plurality of nozzles extending from the
plate” according to its plain and ordinary meaning, consistent with the
description provided in Appellant’s Specification and drawings. The term
“from” is “a function word to indicate a starting point of a physical
movement or a starting point in measuring or reckoning or in a statement of
Appeal 2019-003717
Application 15/204,035

9
limits,” consistent with the definition of “from” provided by Appellant.
Merriam-Webster.com (accessed April 20, 2020), https://www.merriam-
webster.com/dictionary/from. The term “from,” however, is also a word
“used to indicate the place that something comes out of.” Id.
Under a broadest reasonable interpretation consistent with the
Specification, “a plurality of nozzles extending from the plate” as recited in
claim 12 thus refers to a plurality of nozzles in which a portion of the
nozzles starts or originates at a plate, or a portion of the nozzles comes out
of a plate, and another portion of the nozzles reaches or stretches outward
(extends) from the plate.
As discussed above, Compton discloses fiber optic cable assembly
110 comprising furcation assembly 118 and leg assemblies 112. Compton
col. 3, ll. 37–39; Figs. 1 and 16. Compton discloses that furcation assembly
118 comprises generally circular end piece 148 that includes openings 158.
Compton col. 7, ll. 42–45; Fig. 3. Figures 2, 3, and 10 of Compton show
that leg assemblies 112 extend toward a first side of end piece 148, pass
through openings 158 in end piece 148, and extend from a second side of
end piece 148. Leg assemblies 112 (nozzles) thus come out of openings 158
in end piece 148 (plate) and reach or stretch outward (extend) from the
second side of end piece 148 (plate), corresponding to “a plurality of nozzles
extending from the plate” recited in claim 12, as we have interpreted this
phrase.
Although Appellant argues that Compton’s leg assemblies 112 extend
through end piece 148 rather than extending from a plate as recited in claim
12, leg assemblies (nozzles) that extend through an end piece or plate, and
leg assemblies (nozzles) that extend from an end piece or plate, are not
Appeal 2019-003717
Application 15/204,035

10
mutually exclusive. As discussed above, Compton discloses leg assemblies
112 (nozzles) that pass from a first side of end piece 148 through openings
158, and also extend from a second side of end piece 148. Claim 12 does
not exclude such leg assemblies 112 (nozzles) that both pass through and
extend from end piece 148 (plate). Gillette Co. v. Energizer Holdings, Inc.,
405 F.3d 1367, 1371–1372 (Fed. Cir. 2005) (“The word ‘comprising’
transitioning from the preamble to the body signals that the entire claim is
presumptively open-ended.”); Dow Chem. Co. v. Sumitomo Chem. Co., 257
F.3d 1364, 1380 (Fed. Cir. 2001) (“It is fundamental that the use of th[e]
phrase [comprising] as a transitional phrase does not exclude additional
unrecited elements.”)
Appellant argues that Compton’s leg assemblies 112 do not define a
height less than a predetermined distance of end piece 148 (plate) from the
second end opening of mold 162 (main canister body) as recited in claim 12
because “Compton discloses, e.g., at Figs. 16–18, that the leg assemblies 112
extend well beyond the mold 162, such that the height of each leg assembly
112 is greater than the distance between the end piece 148 and the end
opening of the mold 162.” Appeal Br. 10–11.
The Examiner responds to Appellant’s arguments in the Answer by
determining that the “‘height’ of the nozzles, as used in claim 12 is not
defined, and it may be interpreted as a dimension of the nozzle in either an
axial direction of the nozzle or a cross-sectional direction of the nozzle.”
Ans. 8. This interpretation of nozzle “height” is consistent with Appellant’s
Specification, which does not limit nozzle “height” to nozzle length in the
axial direction, as Appellant’s arguments imply. Rather, the Specification
indicates that in exemplary embodiments each nozzle 82 may have a height
Appeal 2019-003717
Application 15/204,035

11
83—which is the nozzle length in the axial direction, as shown in
Appellant’s Figures 5 and 6. Spec. ¶¶ 32; Figs. 5 and 6.
The Examiner further provides annotated copies of Compton’s
Figures 16 and 17 showing that the height of leg assemblies 112 (nozzles)
measured in the cross-sectional direction is less than the distance between a
bump/stop integrated with strength members 140 and attached to furcation
assembly 118 and the second end opening of mold 162 (main canister body)
(a stop disposed at a predetermined distance from the second end opening, as
recited in claim 11, and a height of each of the plurality of nozzles is less
than the predetermined distance, as recited in claim 12). Ans. 8–9; see also
Compton col. 8, ll. 5–10; Figs. 9, 14, 15, and 16.
Because Appellant declined to file a Reply Brief, Appellant does not
challenge the Examiner’s interpretation of nozzle “height” as recited in
claim 12, or the Examiner’s reliance on the dimensions illustrated in
Compton’s Figures 16 and 17. Nor does Appellant question the Examiner’s
factual findings or reasoning; consequently, Appellant’s arguments
presented in the Appeal Brief do not identify reversible error in the
Examiner’s rejection.
We, accordingly, sustain the Examiner’s rejection of claim 12 under
35 U.S.C. § 103.
Claim 3
Claim 3 depends from claim 1 and recites, in part, that potting
material surrounds each of the plurality of nozzles.
The Examiner finds that Compton teaches potting material in the form
of epoxy, and “further teaches that epoxy type potting material may be used
around the leg/nozzles 112 for sealing.” Office Act. 7 (citing Compton col.
Appeal 2019-003717
Application 15/204,035

12
8, ll. 27–35); Ans. 7 (citing Compton col. 5, ll. 61–65; col. 7, ll. 60–62; col.
8, ll. 31–36). Based on these disclosures in Compton, the Examiner
determines that “one skilled in the art would clearly surmise that Compton
teaches potting material (epoxy) surrounding each of the plurality of
nozzles/legs 112 as required in claim 3.” Ans. 7.
On the record before us, however, the Examiner does not provide a
sufficient factual basis to establish that Compton discloses or would have
suggested surrounding each of Compton’s leg assemblies 112 with potting
material, for reasons expressed by Appellant (Appeal Br. 10) and discussed
below.
Due to the absence of a definition or limiting description of potting
material that “surrounds” each of the plurality of nozzles in Appellant’s
Specification, we interpret “surround” according to its plain and ordinary
meaning as “to enclose on all sides: envelop.” See, e.g., Merriam-
Webster.com (accessed April 24, 2020), https://www.merriam-
webster.com/dictionary/surround. Compton discloses that “cable assembly
110 is overmolded, such as with a polymeric encapsulant 138.” Compton
col. 8, ll. 13–18. As Appellant argues, however, Compton discloses that a
portion of each leg assembly 112 extends beyond or outside mold 162, and,
therefore, leg assemblies 112 are not surrounded, or enclosed on all sides, by
encapsulant 138. Appeal Br. 10; Compton Figs. 16–17.
Furthermore, the passages of Compton cited by the Examiner to
support the Examiner’s rejection of claim 3 do not disclose surrounding, or
enclosing on all sides, Compton’s leg assemblies 112 (nozzles) with epoxy-
type potting material. Rather, the cited portion of column 5 discloses that
splice assembly 116 of Compton’s fiber optic cable assembly 110 includes
Appeal 2019-003717
Application 15/204,035

13
tube 136 “filled with a potting material, such as epoxy.” Compton col. 5, ll.
26–27, 62–63. The cited portion of column 7 discloses adhering leg
assemblies 112 to furcation assembly 118 with epoxy or another adhesive.
Compton col. 7, ll. 60–62. And the portion of column 8 cited by the
Examiner, considered in context by reading the cited portion along with
further disclosure in column 8, indicates that “encapsulant 138 fully
surrounds the splice assembly 116 and the furcation assembly 118,” but
“does not penetrate the tube 136 of the splice assembly 116.” Compton col.
8, ll. 20–25. Compton’s column 8 goes on to explain that “seals, sealants,
and gaskets may be used between the leg, furcation, splice, and trunk
assemblies 112, 114, 116, 118 to prevent or mitigate leakage of water,
encapsulant (e.g., epoxy, polyurethane), or other liquids between or around
components of the assemblies 112, 114, 116, 118.” Compton col. 8, ll. 32–
36 (emphasis added).
Compton thus discloses using epoxy to adhere leg assemblies 112
(nozzles) to furcation assembly 118, and using sealant between leg
assemblies 112 (nozzles) and furcation assembly 118 to prevent encapsulant
(such as epoxy) from leaking between or around components of leg
assemblies 112 (nozzles) and furcation assembly 118. Thus, rather than
disclosing surrounding or enclosing each side of each leg assembly 112
(nozzle) with potting material as recited in claim 3, Compton discloses
adhering leg assemblies 112 (nozzles) to furcation assembly 118 with epoxy,
and applying sealant between leg assemblies 112 (nozzles) and furcation
assembly 118 to prevent potting material from leaking between or around
components of leg assemblies 112 (nozzles).
Accordingly, the Examiner does not provide a persuasive, reasoned
Appeal 2019-003717
Application 15/204,035

14
explanation supported by objective evidence for why one of ordinary skill,
absent impermissible hindsight, would have arrived, based on the relied-
upon disclosures of Compton, at a breakout canister as recited in claim 3, in
which potting material surrounds each of a plurality of nozzles.
We, therefore, do not sustain the Examiner’s rejection of claim 3
under 35 U.S.C. § 103.

CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 9, 11–17 103 Compton 1, 2, 9, 11–
17

3 103 Compton 3
4–8, 10 103 Compton, Islam 4–8, 10
Overall
Outcome
1, 2, 4–17 3

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED IN PART