Berk-Tek, LLC v Belden Inc.

Patent Trial and Appeal Board

Mar 18, 2014

08841440 (P.T.A.B. Mar. 18, 2014)

Trials@uspto.gov Paper 46
571-272-7822 Entered: March 18, 2014

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

BERK-TEK, LLC
Petitioner

v.

BELDEN INC.
Patent Owner
____________

Case IPR2013-00057
Patent 6,074,503
____________

Before JAMESON LEE, JOSIAH C. COCKS, and RICHARD E. RICE,
Administrative Patent Judges.

RICE, Administrative Patent Judge.

FINAL WRITTEN DECISION
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

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I. BACKGROUND
A. Introduction
Petitioner, Nexans, Inc. (“Nexans”), filed a petition on November 19, 2012,
for an inter partes review of claims 1-6 of U.S. Patent No. 6,074,503 (“the ’503
patent”) pursuant to 35 U.S.C. §§ 311-319. Nexans filed a revised petition on
November 28, 2012. Paper 4 (“Pet.”). On April 16, 2013, the Board instituted a
trial for claims 1-6, on one or more grounds of unpatentability. Paper 11 (“the
Institution Decision” or “Inst. Dec.”). On April 18, 2013, Nexans informed the
Board of Nexans’s successor in interest, Berk-Tek, LLC (“Berk-Tek”), which is
now the real party in interest for Petitioner. Paper 13.
After institution of trial, Belden Inc. (“Belden”) filed a patent owner
response (“PO Resp.”) to the petition. Paper 25. Berk-Tek filed a reply to the
patent owner response (Paper 28) and, subsequently, a revised reply to the patent
owner response (Paper 30, “Reply to PO Resp.”). Belden later filed a motion to
exclude evidence (Paper 36, “Mot. Excl.”), to which Berk-Tek filed a response
(Paper 40). Belden then filed a reply to Berk-Tek’s response to the motion to
exclude evidence. Paper 44.
An oral hearing was held on November 20, 2013.
1

The Board has jurisdiction under 35 U.S.C. § 6(c). This final written
decision is issued pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
Berk-Tek has shown that claims 1-4 are unpatentable.
Berk-Tek has not shown that claims 5 and 6 are unpatentable.

1
A transcript of the oral hearing is included in the record as Exhibit 3001.
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Belden’s motion to exclude is denied.

B. The ’503 Patent
The challenged claims are directed to a method of producing a cable.
Ex. 1002, 3:3-4. The method includes a step of passing a plurality of transmission
media, such as a plurality of twisted pairs of individually-insulated conductors, and
a core through a first die that aligns the plurality of transmission media with
surface features of the core and prevents twisting motion of the core. Id. at 3:4-8,
34-35. The method includes a subsequent step of bunching the aligned plurality of
transmission media and core using a second die that forces each of the plurality of
transmission media into contact with the surface features of the core, such that the
core maintains a spatial relationship between each of the plurality of transmission
media. Id. at 3:8-13. In the last recited steps of the method, the bunched plurality
of transmission media and core are twisted to close the cable, and the closed cable
is jacketed. Id. at 3:13-15.
An embodiment of the method of producing cable is illustrated in Figure 4
(id. at 3:27-29), which is reproduced below:
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Figure 4 illustrates a die system used to
practice a method of the ’503 patent for making a cable

According to the specification, it was well known in the art that, when plural
elements are cabled together, an overall twist is imparted to the assembly in order
to improve geometric stability and to help prevent separation. Id. at 4:56-58. As
described in the specification, the “twisting of the profile of the core along with
individual twisted pairs is controlled” in embodiments of the invention, such that
the core maintains a physical spacing between the twisted pairs. Id. at 4:59-63. It
is represented that “the process assists in the achievement of and maintenance of
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high crosstalk isolation by placing a conductive core in the cable to maintain pair
spacing.” Id. at 4:64-67.
In the embodiment of Figure 4, the plurality of transmission media are four
twisted pairs of individually-insulated conductors (id. at 3:33-35); the profile of an
extruded core has the initial shape of a “+,” providing four channels (id. at 3:47-
49); and each channel carries one twisted pair (id. at 3:49-51). That configuration
is illustrated in Figure 1 of the ’503 patent, reproduced below:

Figure 1 illustrates a cross-sectional view of a cable core
with four twisted pairs, shown in phantom lines, separated thereby

As illustrated in Figures 1 and 4, core 101 (see Fig. 1) is brought through
opening 407 of die 411 (see Fig. 4) and each of four twisted conductor pairs 103
(see Fig. 1) is brought through respective openings 409 of die 411 (see Fig. 4). Id.
at 5:8-10. Then, a bunching operation is performed in which the four twisted pairs
are pushed into channels 105 of the core (see Fig. 1) by die 413 (see Fig. 4). Id.
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at 5:12-14. A final twist is imparted to the cable after the bunching. Id. at 5:14-17.
According to the specification, “die 411 eliminates back twist, which is inherent in
bunching operations, thus allowing . . . die 413 to place the pairs in the channels
prior to the twisting” and “[t]he cable twist is imparted to the cable assembly after
the second die 411, which locates the twisted pairs relative to the extruded core
profile.” Id. at 5:14-19.
Figure 4 also illustrates use of die 403 to provide initial alignment of the
core and the four twisted pairs upstream of die 411. Id. at 5:6-11. As illustrated in
Figure 4, the core passes through central opening 401, and the four twisted pairs
pass through respective openings 405. Id. at 5:6-11, Fig. 4.

C. The Alleged Grounds of Unpatentability
The prior art references as applied to claims 1-6 are:
the ’582 patent US 4,393,582 July 19, 1983 Ex. 1003
JP ’694 Japanese S52(1977)-76694
English Translation June 28, 1977 Ex. 1007
JP ’910 Japanese Sho57(1982)-19910
English Translation Feb. 2, 1982 Ex. 1008
CA ’046 Canadian 2,058,046 Aug. 22, 1992 Ex. 1010

Citations to JP ’694 and JP ’910 refer to their English translations, Ex. 1007
and Ex. 1008, respectively.
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The Board instituted trial on the following grounds of unpatentability:

Reference(s) Basis Claims
Challenged
the ’582 patent § 102 1 and 2
JP ’910 § 103 1 and 4
JP ’910 and either the ’582
patent or JP ’694
§ 103 2 and 3
JP ’910 and CA ’046 § 103 5 and 6
II. DISCUSSION
A. Introduction
Determining appropriate constructions of the claim terms “a plurality of
transmission media,” “twisting motion,” and “surface features” is a first step to the
patentability analysis of claims 1-6.
Claim 1, which is the sole independent claim, is reproduced below
(emphasis added):
1. A method of producing a cable, comprising steps of:

passing a plurality of transmission media and a core through a
first die which aligns the plurality of transmission media with surface
features of the core and prevents twisting motion of the core;

bunching the aligned plurality of transmission media and core
using a second die which forces each of the plurality of transmission
media into contact with the surface features of the core which
maintain a spatial relationship between each of the plurality of
transmission media;

twisting the bunched plurality of transmission media and core
to close the cable; and
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jacketing the closed cable.

As quoted above, claim 1 requires: passing a plurality of transmission media
and a core through a first die; bunching the aligned plurality of transmission media
and core using a second die; twisting the bunched plurality of transmission media
and core to close the cable; and jacketing the closed cable. Claims 2, 4, and 5
depend from claim 1; claim 3 depends from claim 2; and claim 6 depends from
claim 5.

B. Claim Construction
1. Principles of Law
In an inter partes review, claim terms in an unexpired patent are interpreted
according to their broadest reasonable construction in light of the specification of
the patent in which they appear. 37 C.F.R. § 42.100(b); Office Patent Trial
Practice Guide, 77 Fed. Reg. 48,756, 48,766 (Aug. 14, 2012). Claim terms also are
given their ordinary and customary meaning as would be understood by one of
ordinary skill in the art in the context of the entire disclosure. In re Translogic
Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007).
If an inventor acts as his or her own lexicographer, the definition must be set
forth in the specification with reasonable clarity, deliberateness, and precision.
Renishaw PLC v. Marposs Societa’ per Azioni, 158 F.3d 1243, 1249 (Fed. Cir.
1998). Neither Berk-Tek nor Belden contends that the specification of the ’503
patent, as filed, coined a new meaning for any term.
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The challenge is to interpret claims in view of the specification without
unnecessarily importing limitations from the specification into the claims. See E-
Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1369 (Fed. Cir. 2003). If a
feature in the disclosure is not necessary to give meaning to what the inventor
means by a claim term, it would be “extraneous” and should not be read into the
claim. Renishaw PLC, 158 F.3d at 1249; E.I. du Pont de Nemours & Co. v.
Phillips Petroleum Co., 849 F.2d 1430, 1433 (Fed. Cir. 1988). The construction
that stays true to the claim language and most naturally aligns with the inventor’s
description is likely the correct interpretation. See Renishaw PLC, 158 F.3d
at 1250.
2. “a plurality of transmission media”
The crux of the dispute between the parties is not over the meaning of “a
plurality” or “transmission media,” but whether the combined term “a plurality of
transmission media” as used in claim 1 selectively can be applied to less than all of
the transmission media of the cable under production. The Board agrees with
Belden (PO Resp. 13) that the term “a plurality of transmission media,” recited in
claim 1, encompasses “all of the media that are closed into the cable, not merely a
subset of that media.” That is, the term “a plurality of transmission media” cannot
be satisfied by “a subset of the media in the cable, such that it would be sufficient
for the core to separate any two of the media.” Id.
Belden argues that, “[c]onsistent with the core’s purpose of reducing
crosstalk, every embodiment described in the ’503 Patent has a core that
individually separates each of the twisted conductor pairs from one another.” Id. at
10 (citing Clark Decl., Ex. 2003, ¶ 46; Ex. 1002). Belden also argues that
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construing “a plurality of transmission media” to encompass “just two transmission
media” within a larger group of transmission media comprising a cable would be
inconsistent with the teaching of the ’503 patent to isolate individually each
twisted conductor pair, as well as inconsistent with the language of claim 1 that
recites “passing a plurality of transmission media and a core through a first die,”
“bunching the aligned plurality of transmission media and core using a second die,
and then “twisting the bunched plurality of transmission media and core to close
the cable.” Id. at 12-13.
Berk-Tek contends that Belden’s arguments “are based not only on a
misreading of the plain language of the claims, but also on [Belden’s] attempts to
read limitations from the specification into the claims.” Reply to PO Resp. 5.
Berk-Tek argues that “the express language of claim 1 does not require that every
single transmission media within the jacket needs to be individually separated by a
core, but rather claim 1 only includes various steps including passing ‘a plurality’
of transmission media and core through a first die and maintaining a spatial
relationship between those ‘plurality.’” Reply to PO Resp. 6 (emphasis in
original). Berk-Tek further argues that nothing in the specification limits the claim
language and that, “although the specification of ’503 does have an example of a
‘+’ shaped separator that separates every one of the transmission media from each
other, this is only a single embodiment of the specification and does not limit the
scope of the claims.” Id. at 6-7 (citing Golight Inc. v. Wal-Mart Stores Inc., 355
F.3d 1327 (Fed. Cir 2004)). Berk-Tek additionally argues that the following
language of the specification confirms that the embodiments are not limiting:
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“However, the invention is not limited to the number of pairs or
the profile used in this embodiment. The inventive principles can be
applied to cables including greater or fewer numbers of twisted pairs
and different core profiles.[”] ([quoting] Ex 1002 ’503 patent at col. 3,
line 35-38, emphasis added)[.]
Id. at 7 (emphasis in original).
We are persuaded by Belden’s arguments, however, that Berk-Tek’s
proposed claim construction is inconsistent with the context of the surrounding
language of claim 1. See, e.g., ACTV, Inc. v. Walt Disney Co., 346 F.3d 1082,
1088 (Fed. Cir. 2003) (“the context of the surrounding words of the claim also
must be considered”). Claim 1 recites “passing a plurality of transmission media
and a core through a first die which aligns the plurality of transmission media . . .
and prevents twisting of the core,” “bunching the aligned plurality of transmission
media and core using a second die . . . which maintains a spatial relationship
between each of the plurality of transmission media,” “twisting the bunched
plurality of transmission media and core to close the cable,” and “jacketing the
closed cable.” As Belden argues (PO Resp. 13), these recited steps suggest a
process of producing a complete, jacketed cable, not a part or subset of the cable,
contrary to Berk-Tek’s asserted claim construction.
We also are persuaded that Berk-Tek’s proposed claim construction is
inconsistent with the specification. The specification states that, “when plural
elements are cabled together, an overall twist is imparted to the assembly.”
Ex. 1002, 4:57-58. The use of “plural elements” in that statement refers to a
plurality of transmission media and implies that the referenced plurality is nothing
less than all of the elements that are cabled together. The specification next states
that, “[i]n embodiments of the present invention, twisting of the profile of the core
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along with the individual twisted pairs is controlled,” in order “to maintain a
physical spacing between the twisted pairs.” Id. at 4:59-63. That statement
describes the process of the invention that is depicted in Figure 4 and indicates
that, in the disclosed method, twisting of all of the twisted pairs to be cabled
together is controlled, and a physical spacing is maintained between each of those
twisted pairs, contrary to Berk-Tek’s asserted claim construction.
Berk-Tek’s reliance on Golight, Inc. is misplaced. In that case, Wal-Mart
argued that the specification of the patent at issue required a claim to be construed
as limited to horizontal rotation through 360°, even though the claim did not
expressly recite the limitation. Golight, Inc., 355 F.3d at 1330-31. Wal-Mart
relied on a statement in the specification that “the present invention includes . . .
rotating the lamp unit in a horizontal direction through at least 360°.” Id. at 1331.
The Federal Circuit rejected Wal-Mart’s argument, finding “no clear definition or
disavowal of claim scope in the written description” of the patent that would limit
the claim to horizontal rotation through 360°. Id.
Golight, Inc. is inapplicable to the present case, because the issue here is not
“clear definition or disavowal,” but rather the degree to which the competing claim
constructions stay true to the claim language and align with the inventor’s
description. See Renishaw PLC, 158 F.3d at 1250. After considering the parties’
arguments and evidence, we determine that Belden’s asserted construction of “a
plurality of transmission media” stays true to the claim language and most
naturally aligns with the inventor’s description. See id.
Berk-Tek does not address Belden’s argument that Berk-Tek’s asserted
claim construction is inconsistent with the claim language. PO Resp. 13. Further,
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while asserting that Belden’s construction unnecessarily imports limitations into
the claim from the specification (Reply to PO Resp. 6-7), Berk-Tek fails to refute
Belden’s argument that, in “every embodiment” (PO Resp. 10, emphasis added; see
also id. at 11-13), not just “a single embodiment” as Berk-Tek argues (Reply to PO
Resp. 7), each of the transmission media to be cabled together is separated from all
of the others. As Belden contends, every embodiment disclosed in the
specification shows an individual space or channel for each of the transmission
media that are to be cabled together. See, e.g., Ex. 1002, 3:44-56; 4:57-67;
Figs. 1-4.
We are not persuaded by Berk-Tek’s reliance on the statement in the
specification that the invention is not limited to the preferred embodiment and that
the inventive principles can be applied to cables including greater or fewer
numbers of twisted pairs and different core profiles than employed in that
embodiment. See Reply to PO Resp. 7. Nothing in that statement or elsewhere in
the specification suggests maintaining a spatial relationship between each of only a
subset of the transmission media to be cabled together.
For the foregoing reasons, we construe “a plurality of transmission media”
in claim 1 to encompass all of the transmission media that are enclosed in the cable
under production, not merely a subset of the transmission media.
3. “twisting motion”
Claim 1 recites the step of “passing a plurality of transmission media and a
core through a first die which aligns the plurality of transmission media with
surface features of the core and prevents twisting motion of the core” (emphasis
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added). Belden implicitly argues that the term “twisting motion,” as recited in
claim 1, means “back twist.” In particular, Belden argues that:
[A] person of ordinary skill in the art would understand claim 1’s
requirement that there be a first die that ‘aligns the plurality of
transmission media with surface features of the core and prevents
twisting motion of the core’ to mean that the first die prevents back
twist from propagating beyond the die, towards the core’s payoff reel.
PO Resp. 15 (citing Ex. 2003, ¶ 55 (emphasis added; bold and original italics
omitted)). For the reasons discussed below, we disagree with Belden’s implicit
construction of “twisting motion.”
The plain meaning of “motion” is “an act, process, or instance of changing
place,” and the plain meaning of “twisting” is “turning or changing shape under
torsion.” See MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 759, 1277 (10th ed.
1993).
2
The words “motion” and “twisting” must be given these plain meanings
unless the plain meanings are inconsistent with the specification. See In re Zletz,
893 F.2d 319, 321 (Fed. Cir. 1989).
The specification of the ’503 patent appears to use the words “twisting” and
“motion” in accordance with their plain meanings in stating that “a first die . . .
prevents twisting motion of the core.” Ex. 1002, 3:8 (emphasis added). The word
“motion” does not appear elsewhere in the specification. The word “twisting”
additionally appears in two places. The specification states that “twisting of the
profile of the core along with the individual twisted pairs is controlled.” Ex. 1002,
4:60-62 (emphasis added). The specification also states that “[t]he second die 411

2
The cited pages of MERRIAM WEBSTER’S COLLEGIATE DICTIONARY are included
in the record as Exhibit 3002.
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eliminates back twist, which is inherent in bunching operations, thus allowing the
third die 413 to place the pairs in the channels prior to the twisting.” Id. at 5:14-17
(emphasis added).
Belden argues that, when a cabling operation imparts an overall helical twist
to the cable’s components, e.g., the transmission media and the core, “that twist
can propagate back up the manufacturing line, placing tension on the cable’s
components and potentially causing them to deform or break,” and that
“[p]ropagation of the twist back up the manufacturing line is referred to as ‘back
twist.’” PO Resp. 14 (citing Ex. 2003, ¶ 52). Belden then argues that, because the
specification teaches that die 411 in Figure 4 eliminates back twist (see Ex. 1002,
5:14), the person of ordinary skill would understand that “aligns the plurality of
transmission media with surface features of the core and prevents twisting motion
of the core” means “prevents back twist from propagating beyond the die, towards
the core’s payoff reel.” PO Resp. 15 (citing Ex. 2003, ¶ 55).
Belden’s argument does not persuade us that the plain meanings of the
words “twisting” and “motion” are inconsistent with the specification.
Accordingly, we give the claim terms “twisting” and “motion” their plain
meanings. See Zletz, 893 F.2d at 321.
4. “surface features”
We initially determined that the term “‘surface features’ is on its face broad
and does not require any particular structure, shape or configuration,” and that
“[a]pplication of the broadest reasonable construction rule also results in the
conclusion that any surface feature qualifies, including the plain profile of a flat or
curved surface area.” Inst. Dec. 12. Neither Berk-Tek nor Belden has raised any
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issue with respect to our initial construction of the term “surface features.”
Accordingly, we adhere to our initial construction.

C. Claims 1 and 2 as anticipated by the ’582 patent
As noted in section I.C above, Berk-Tek contends that the ’582 patent
anticipates claims 1 and 2 of the ’503 patent. However, we agree with Belden that
the ’582 patent does not disclose “surface features of the core which maintain a
spatial relationship between each of the plurality of transmission media” (emphasis
added).
1. The ’582 patent
The ’582 patent is directed to a method of making an internally-shielded, or
screened, cable comprising two groups of multi-conductor pair units that are
separated from each other by a metallic strip or shield. Ex. 1003, 2:49-56. A
typical screened cable is illustrated in Figure 2 (id. at 4:17-18), which is
reproduced below:

Figure 2 depicts a cross-sectional end view of a screened cable
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Screen cable 21, which is shown in Figure 2, includes a plurality of stranded
units 23−23, each of which includes “a plurality of pairs of twisted individually
insulated conductors 25−25.” Id. at 4:17-21. As illustrated in Figure 2,
units 23−23 are divided into two groups, 24 and 26, which are separated by
S-shaped screen 30. Id. at 4:25-27, 33. Group 24 carries signals in one direction,
and group 26 carries signals in the other direction. Id. at 4:38-40. Screen 30 is a
laminate comprising aluminum strip 31 with a plastic coating. Id. at 4:28-32.
“The plastic coating on the metallic strip 31 acts as a dielectric to keep unwanted
currents, which may be emitted from pinholes in the insulation of individual
insulated conductors, from reaching the shield [metallic strip 31].” Id. at 4:41-45.
The S-shaped screen includes a center portion 33 and two arcuately extending end
portions or tails 34 and 36. Id. at 4:33-35. Units 23−23 of group 24 are enclosed
between tail 34 and center portion 33, while units 23−23 of group 26 are enclosed
between tail 36 and center portion 33. Id. at 4:35-38.
2. Anticipation analysis
To anticipate a patent claim under 35 U.S.C. § 102, “a single prior art
reference must expressly or inherently disclose each claim limitation.” Finisar
Corp. v. DirecTV Group, Inc., 523 F.3d 1323, 1334 (Fed. Cir. 2008); see also
In re King, 801 F.2d 1324, 1326 (Fed. Cir. 1986) (“It is axiomatic that anticipation
of a claim under § 102 can be found only if the prior art reference discloses every
element of the claim.”).
Belden contends that that the ’582 patent discloses “separating groups of
transmission media within the cable” and “does not teach a core with a cross-
sectional profile that creates channels that individually separate the transmission
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media from one another, as required by the plain language of the claim.” PO Resp.
11. Belden points out that “many of the transmission media [in the ’582 patent]
are [actually] adjacent to one another.” Id. at 13. Belden relies on its asserted
claim construction, discussed in section II.B above, that the term “a plurality of
transmission media” in claim 1 refers to “all of the media that are closed into the
cable, not merely a subset of the media.” Id.
Berk-Tek does not dispute Belden’s assertion that the ’582 patent discloses
separating groups of transmission media enclosed within a cable, or that the ‘582
patent does not disclose separating individually each of the transmission media
enclosed within the cable from one another. See Reply to PO Resp. 2, 6-7.
Instead, Berk-Tek relies on its asserted claim construction, discussed in section
II.B above, that “claim 1 does not require that every single transmission media
within the jacket needs to be individually separated by a core.” Id. at 6. Berk-Tek
contends that “the specification and figures of the’582 [patent] teach a core that
separates a plurality of transmission media.” Id. at 2.
As discussed above, the claim term “a plurality of transmission media” in
claim 1 encompasses all of the transmission media that are enclosed in the cable
under production, not merely a subset of the transmission media. Under that claim
construction, the limitation “surface features of the core which maintain a spatial
relationship between each of the plurality of transmission media” (emphasis
added) requires surface features that maintain a spatial relationship between each
of the plural transmission media that are enclosed in the cable under production.
Thus, as Belden contends, merely separating two groups of the transmission media
that are enclosed in the cable does not meet the claim requirement, because
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transmission media within either group may not be separated from one another.
That is, irrespective of whether the plurality of transmission media in the ’582
patent are considered to be the plurality of individually-insulated conductors, the
plurality of pairs of twisted individually-insulated conductors, or the plurality of
stranded units, many of the transmission media are adjacent to one another. As
such, a spatial relationship is not maintained between each of the plurality of
transmission media, as claim 1 requires.
For the foregoing reasons, we determine that the ’582 patent does not
anticipate claim 1 of the ’503 patent. Because dependent claim 2 incorporates by
reference the method of claim 1, it follows that the ’582 patent does not anticipate
claim 2 for the same reasons as claim 1.

D. Claims 1 and 4 as unpatentable over JP ’910
As noted in section I.C above, Berk-Tek contends that claims 1 and 4 of the
’503 patent are unpatentable as obvious over JP ’910. For the reasons that follow,
we agree.
1. JP ’910
According to JP ’910, in the conventional method of manufacturing cable, it
is first necessary to produce single communication wires by jacketing them with
plastic insulation by extrusion, then to strand two or four of the insulated wires into
a pair or quad, and finally to bind a number of pairs or quads. Ex. 1008, ¶ 3:2-4.
JP ’910 teaches that such a conventional manufacturing method has certain
disadvantages:
Above all, great care must be taken when stranding 4 single
communication wires into a quad in the process. That is, when the
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conductor of each single cable is not placed at each of the vertex [sic]
of a square on the cross-section of the quad stranded wire, cross talk
occurs by electromagnetic coupling and capacitive coupling.
Id. at ¶ 3:4-6. JP ’910 discloses that, before single communication wires are
stranded into a quad, it is sometimes necessary for those reasons to add a
preparatory process called “back-stranding,” or to wind a securing thread or tape
around the quad-stranded wire to retain the arrangement of the quad-stranded wire.
Id. at ¶ 3:7-8.
The purpose of the invention of JP ’910 “is to provide a method of
manufacturing plastic insulated communication cable that advantageously
eliminates the shortcomings described above.” Id. at ¶ 3:10-11. Figure 1 of
JP ’910 shows a side view of an embodiment and is reproduced below:

Figure 1 illustrates an assembly for carrying
out the method of forming a cable disclosed in JP ’910
As illustrated in Figure 1, “an electrically insulating thread-like object 1”
(core 1) made of a material that is easily deformable by heat, such as rubber or
plastic, is extruded to heating rolls 2a, 2b, 2c, and 2d, which form corresponding
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longitudinal grooves 3a, 3b, 3c, and 3d thereon; the grooves are placed “so that
their bottom portions align to the vertices of a square.” Id. at ¶ 3:13-18; Figs. 1
& 2 (emphasis added). Then, core 1 and communication cable conductors 4a, 4b,
4c, and 4d “are guided to a wire-splitting board 5, and each of them [is] placed in a
correct location.” Id. at ¶ 3:19-20 (emphasis added). JP ’910 further discloses:
That is, there is a hole through which thread-like object 1 passes at the
center of wire-splitting board 5, and 4 holes are placed on the board at
intervals of 90 degrees, through which the communication cable
conductors pass, thereby each of the 4 communication cable
conductors is inserted into each of the grooves on the thread-like
object 1 at the location where the communication cable conductors
converge (the entrance of the left-right alternating stranding device
described below).
Id. at ¶ 3:20-24 (emphasis added).
A person of ordinary skill would have understood from this disclosure that
the four conductors are passed through the board at intervals of 90 degrees such
that they are aligned with the four grooves, which are placed on core 1 at intervals
of 90 degrees, and in which the conductors respectively will be inserted at the
entrance of the stranding device. See Ex. 1012, ¶ 121. JP ’910 refers to this
alignment as the “correct location” and discloses that “thereby” each of the
conductors is inserted into the appropriate groove at the next step in the
manufacturing process. The patent claim of JP ’910 is consistent with this
understanding and recites “guiding the thread-like object with the grooves with
4 cable conductors 4a, 4b, 4c, and 4d to a wire-splitting board 5 thereby inserting
each communication cable conductor into each groove on the thread-like object
followed by stranding them alternately (left and right).” Id. at ¶ 2:3-5.
After wire-splitting board 5, the core and the four conductors “are stranded
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into SZ with a left-right alternating stranding device 8.” Id. at ¶ 3:25-26. Finally,
cable jacket 7 is formed over the cables and core 1 by extruder 6. Id. at ¶ 3:26; see
also Fig. 4. Figure 4 is reproduced below:

Figure 4 shows a cross-section of the finished cable
2. Obviousness analysis
A patent claim is unpatentable under § 103(a) if the differences between the
claimed subject matter and the prior art are such that the subject matter as a whole
would have been obvious at the time the invention was made to a person having
ordinary skill in the art to which the subject matter pertains. KSR Int'l Co. v.
Teleflex Inc., 550 U.S. 398, 406 (2007). The question of obviousness is resolved
on the basis of underlying factual determinations, including: (1) the scope and
content of the prior art; (2) any differences between the claimed subject matter and
the prior art; (3) the level of skill in the art; and (4) where in evidence, so-called
secondary considerations. Graham v. John Deere Co. of Kansas City, 383 U.S. 1,
17-18 (1966). “[H]owever, the analysis need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in the art
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would employ.” KSR, 550 U.S. at 418; see also In re Preda, 401 F.2d 825, 826
(CCPA 1968) (“[I]n considering the disclosure of a reference, it is proper to take
into account not only specific teachings of the reference but also the inferences
which one skilled in the art would reasonably be expected to draw therefrom.”).
The level of ordinary skill in the art usually is evidenced by the references
themselves. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re
GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91
(CCPA 1978).
Belden argues that claim 1 of the ’503 patent is not unpatentable for
obviousness over JP ’910 because that reference does not suggest any reason, and
there would have been no reason, to use the first die to prevent twisting motion of
the core, as claim 1 requires. PO Resp. 24-28. It is not disputed that JP ’910
discloses “passing a plurality of transmission media and a core through a first die
which aligns the plurality of transmission media with surface features of the core,”
as recited in claim 1. Id. It also is not disputed that JP ’910 discloses the
additionally recited, bunching, twisting, and jacketing steps of claim 1. Id.
As discussed above, JP ’910 teaches aligning, at board 5, the four grooves
on core 1 with the four conductors. This requires orienting each of the grooves on
core 1, as it passes through the center hole in board 5, to face in the direction of
one of the four holes (placed on board 5 at intervals of 90 degrees) through which a
corresponding conductor passes. A person with ordinary skill in the art would
have recognized that such alignment of the grooves on core 1 with the fixed
positions of the conductors on board 5 cannot be maintained if core 1 twists in
relation to board 5. See Ex. 1012, ¶ 121.
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Therefore, by teaching alignment of the grooves and the conductors at
board 5, JP ’910 suggests using board 5 to prevent twisting motion of core 1. That
is, a person of ordinary skill in the art would have recognized that preventing
twisting motion of core 1 in relation to board 5 would maintain alignment between
grooves 3a, 3b, 3c, 3d and conductors 4a, 4b, 4c, 4d, in accordance with the
teaching of JP ’910. Further, as Berk-Tek argues, “since one of the most important
concerns, as stated in the reference[,] is to avoid any misplacement of the
conductors in relation to the core, it would [have been] prudent to prevent any
twisting of the core relative to the conductors at the first possible instance during
the manufacturing.” Pet. 35-36.
That board 5 could have been used to prevent twisting of core 1 as it passes
through board 5 need not be stated explicitly in JP ’910. See KSR, 550 U.S. at 418.
We are persuaded that board 5 could have been used to prevent twisting of core 1
by one with ordinary skill in the art exercising ordinary creativity. See id. at 421;
Reply to PO Resp. 11-14; Ex. 1012, ¶¶ 118-131. For example, as explained by
Berk-Tek’s expert, Mr. Baxter, a person skilled in the art would have recognized
that a material, such as a heat recoverable polymer that changes shape by
extrusion, could have been used as a core to separate the conductors of the quad
disclosed in JP ’910. Ex. 1012, ¶¶ 124-126. Such a material, according to Mr.
Baxter’s testimony, “solidifies into a new form that would engage the die so as to
prevent the back twisting motion of the core.” Id. at ¶ 126.
Belden’s first argument, which we discuss below, focuses on our Institution
Decision. In our Institution Decision, we stated that Nexans [Berk-Tek’s
predecessor in interest] had presented logical reasoning with rational
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underpinnings as to why it would have been obvious to one with ordinary skill in
the art to configure wire-splitting board 5 such that it would prevent twisting of the
core where the core passes through the board. Inst. Dec. 30. As an example, we
noted that Nexans had indicated in its petition that JP ’910 states:
Above all, great care must be taken when stranding 4 single
communication wires into a quad in the process. That is, when the
conductor of each single cable is not placed at each of the vertex [sic]
of a square on the cross-section of the quad stranded wire, cross talk
occurs by electromagnetic coupling and capacitive coupling.
Id. (quoting Ex. 1008, ¶ 3:4-6 and citing Pet. 35). We reasoned that:
Given that JP ’910 articulates a special need to have the wires aligned
at precise locations on the core during stranding after passing through
wire-splitting board 5, one with ordinary skill in the art would have
known that the passage of core 1 through wire-splitting board 5
preferably should be made such that twisting of the core causing
misalignment of the wires would be prevented. One with ordinary
skill is presumed to be skilled and would have known that twisting of
the core at the wire-splitting board would cause misalignment of the
wires on the core for subsequent stranding at stranding and twisting
die 8.
Id. at 31.
Belden contends that the Board, in granting an inter partes review,
misinterpreted the statement in JP ’910 quoted above. PO Resp. 25-26. More
specifically, Belden contends that the Board misinterpreted the statement as
showing that “JP ’910 articulates a special need to have the wires aligned at precise
locations on the core during stranding after passing through wire-splitting board 5”
and that the Board, based on such misinterpretation, adopted Nexans’s argument
that it would have been obvious to prevent the core from twisting at wire-splitting
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board 5. Id. at 25 (citing Inst. Dec. 31). Belden’s position is that “[t]he passage
cited by the Board does not support the idea that it would have been obvious to
prevent the core from twisting at wire-splitting board 5 because JP ’910 states that
the cited problem was solved by his use of the thread-like object, without any
mention of twisting.” Id. at 26.
We are not persuaded by Belden’s first argument. Viewed as a whole,
JP ’910 does teach the importance of avoiding any misplacement of the conductors
in relation to the core, as Berk-Tek contends. See Pet. 35-36. The purpose of
forming the grooves on core 1 and aligning the grooves with the conductors at
board 5 is to avoid problems of misplacement, such as cross talk. See, e.g., Ex.
1008, ¶ 3:4-6, 10-32.
JP ’910 states that the “purpose” of the invention is to eliminate the
shortcomings of a conventional manufacturing method. Id. at ¶ 3:10-11 (emphasis
added). However, JP ’910 does not state that the invention necessarily eliminates
all potential for misplacement of the conductors, and certainly does not state that it
eliminates problems due to twisting motion of core 1, which was not used in the
conventional manufacturing method. Berk-Tek’s argument that it would have been
prudent, in order to avoid any misplacement of the conductors in relation to the
core, to prevent any twisting of the core relative to the conductors at board 5, is not
inconsistent with the teachings of JP ’910 regarding problems solved. See
Pet. 35-36.
Further, it is not disputed that JP ’910 discloses “a first die which aligns the
plurality of transmission media with surface features of the core,” as recited in
claim 1. By teaching alignment of the grooves and the conductors at board 5,
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JP ’910 suggests using board 5 to prevent twisting motion of core 1, as discussed
above. In arguing that JP ’910 does not provide any motivation or suggestion of a
first die that “prevents twisting motion of the core,” Belden overlooks the
significance of the teaching of JP ’910 with respect to alignment. See PO Resp.
24-28; Ex. 1012, ¶ 121. Moreover, an express motivation or suggestion is not
required to support a conclusion of obviousness. See KSR, 550 U.S. at 418 (“[T]he
[obviousness] analysis need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.”).
Belden next argues that “there would be no reason to control twist at wire-
splitting board 5” (id. at 26), and raises a number of factual or technical issues in
that regard (id. at 26-28).
Belden argues, relying on the declaration of its expert, Mr. Clark, who is an
inventor of the patent at issue, that “[o]ne of ordinary skill in the art would
recognize that the grooves [shown in figures 2-4 of JP ’910] are not deep enough to
control twisting of the thread-like object using a first die with a corresponding core
profile,” particularly “because JP ’910 teaches that the ‘threadlike object 1 [is]
composed of a material easily deformable by heat such as rubber or plastic.’” Id.
at 26-27 (citing Ex. 2003, ¶ 73). Belden also argues that “[o]ne of ordinary skill in
the art would know that a first die as taught in the ’503 Patent would not be able to
get enough grip on the thread-like object to prevent twisting during JP ’910’s high-
speed manufacturing operation.” Id. at 27 (citing Ex. 2003, ¶ 73; Ex. 1008, p. 52
(¶ 3:13-14)). “And, if the die was constructed in a way that would prevent
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backtwist, it would create forces that would deform the soft core.” Id. (citing Ex.
2003, ¶ 73). Belden additionally argues that:
one of ordinary skill in the art would recognize that it would be
desirable that the hole in wire-splitting board 5 through which the
thread-like object passes create no friction whatsoever, in order to
minimize any residual heat in the thread-like object from JP ’910’s
groove cutting step before the thread-like object reaching [sic] the
stranding operation (8).
Id. (citing Ex. 2003, ¶ 74).
In responding to these factual/technical issues, Berk-Tek relies on the reply
declaration of its expert, Mr. Baxter. Reply to PO Resp. 11-14. Berk-Tek argues
that “Clark’s contention that it is not possible to prevent the twisting of the JP ’910
thread-like object (core) because it is small, is speculative” and “[t]he size and
shape of the thread-like object in JP ’910 has significant enough mass and
dimensions to be gripped by a die and to withstand the prevention of twisting.”
Reply to PO Resp. at 13 (citing Ex. 1012, ¶¶ 126-131). Berk-Tek also argues that
“[i]f the walls surrounding the grooves are strong enough to keep the wires within
their intended grooves during the twisting operation, then they would likewise be
strong enough to hold a grip against a die.” Id. at 13-14 (citing Ex. 1012, ¶ 128).
Berk-Tek further argues that “Clark’s proposition that the JP ’910 thread-like
object (core) is too deformable because of extrusion and thus would not be able to
withstand a die that prevents its rotation is incorrect” because “[w]hen making a
cable component such as a separator, a polymer or other material would be
selected that can withstand the stresses of the cable manufacturing process.” Id. at
14 (citing Ex. 1012, ¶¶ 123-124).
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Belden raises an additional factual/technical issue with respect to S-Z
stranding. Belden argues that “a person of skill in the art would recognize that
there would be no reason to control twisting using wire-splitting board 5, because
JP ’910’s quad wire is S-Z stranded, meaning any tension placed on the thread-like
object would be relieved when the stranding process is reversed throughout the
method.” PO Resp. 27-28 (citing Ex. 2003, ¶ 75).
With respect to Belden’s S-Z stranding argument, Berk-Tek replies that
“back-twisting of the thread-like object (core) along its own longitudinal axis . . .
propagates back up the JP ’910 manufacturing line as a result of S-Z strander (8)”
and that, “[a]ccording to JP ’910 it is extremely important for each conductor to
fall in its corresponding groove, thus it would be imperative to prevent
backtwisting of the thread-like object (core).” Reply to PO Resp. 13 (citing Ex.
1012, ¶¶ 117-120). “The fact that the stranding in JP ’910 is S-Z instead of uni-
directional helical is immaterial.” Id. (citing Ex. 1012, ¶¶ 118-119).
As discussed above, we are persuaded by Berk-Tek and its expert, Mr.
Baxter, that board 5 could have been used by one with ordinary skill in the art
exercising ordinary creativity to prevent twisting of core 1 as it passes through
board 5. Further, we find Mr. Baxter’s testimony with respect to S-Z stranding
more credible than Mr. Clark’s testimony. Compare Ex. 1012, ¶¶ 119-120 with
Ex. 2003, ¶ 75. For example, we credit Mr. Baxter’s testimony that the relevant
technical issue “is not the ‘tension’ on the cable components,” as Mr. Clark
surmises, but rather “holding the core still enough so that the conductors (4a-4d)
can be placed in the grooves.” Ex. 1012, ¶ 119. We additionally note that
misalignment from “twisting motion” (see section II.B above) potentially may
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stem from any source and need not be caused exclusively by back twist, contrary to
Belden’s contentions. For the foregoing reasons, we do not agree with Belden’s
argument.
Accordingly, we determine that claim 1 is unpatentable as obvious over
JP ’910.
Berk-Tek contends that claim 4 also is unpatentable as obvious over JP ’910.
Claim 4 recites “[t]he method of claim 1, wherein the step of passing [a plurality of
transmission media and a core through a first die] further comprises[] extruding the
core so that the surface features thereof align with the plurality of transmission
media.” JP ’910 discloses using a heating die or heating rolls 2a, 2b, 2c, and 2d, to
form grooves 3a, 3b, 3c, and 3d, in core 1, so that the bottoms of the grooves
“align to the vertexes of a square.” See Ex. 1008, ¶ 3:13-18, Figs. 1-3. Petitioner
argues that JP ’910 “uses an extrusion/deformation process directly inline and
before assembly.” Pet. 43-44 (chart) (citing Ex. 1008, p. 52, ll. 4-9 [¶ 3:13-18],
Figs. 1-3).
Belden does not argue the separate patentability of claim 4, but rather relies
for patentability on the dependency of claim 4 from claim 1. PO Resp. 24-28.
In light of the need to insert transmission media 4a, 4b, 4c, and 4d into the
grooves created by heating rolls 2a, 2b, 2c, and 2d, it would have been obvious to
one with ordinary skill in the art to extrude core 1 in an in-line manner such that
the grooves thereon are aligned axially and radially with the transmission media to
facilitate insertion of the transmission media into the corresponding grooves. We
note that one with ordinary skill in the art possesses ordinary creativity. See KSR,
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550 U.S. at 421.
Accordingly, we determine that claim 4 is unpatentable as obvious over
JP ’910.
E. Claims 2 and 3 as unpatentable over JP ’910 and
either the ’582 patent or JP ’694
Claim 2 of the ’503 patent depends from claim 1 and additionally recites the
step of: “before passing the transmission media and the core through the first die,
passing the transmission media and the core through a third die which generally
centers the core relative to the plurality of transmission media.” Claim 3 of the
’503 patent depends from claim 2 and additionally recites that “the step of passing
the transmission media and the core th[ro]ugh the third die further comprises[]
extruding the core at a center position relative to the plurality of transmission
media.”
As noted in section I.C above, Berk-Tek contends that claims 2 and 3 are
unpatentable as obvious over JP ’910 and either the ’582 patent or JP ’694. For the
reasons that follow, we determine that claims 2 and 3 are obvious over both of the
asserted combinations: (i) JP ’910 and the ’582 patent; and (ii) JP ’910 and
JP ’694.
With respect to claim 2, the specification of JP ’910 does not disclose a third
die placed upstream of the wire-splitting board 5, through which both the
transmission media and the core pass and by which the core generally is centered
relative to the plurality of transmission media. However, as Berk-Tek indicates
(see Pet. 43), die 71 in the ’582 patent and die 31 in JP ’694 each suggests passing
the transmission media and the core through a third die that generally centers the
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core relative to the plurality of transmission media. Ex. 1003, Figs. 1, 3; Ex. 1007,
Figs. 1, 2. Berk-Tek’s position, as set forth in the revised petition, is that it would
have been obvious to add one of those dies prior to die 5 of JP ’910 “to further
align the components as a matter of obvious design choice.” Pet. 43. We agree.
Belden does not dispute that the ’582 patent and JP ’694 disclose the use of a
third die as recited in claim 2; rather, Belden contends that Berk-Tek has failed to
articulate an apparent reason to add the die prior to die 5 of JP ’910. See
PO Resp. 30.
Belden argues that “there is no suggestion in JP ’910 of using a third die
upstream of wire-splitting board 5.” PO Resp. 29. Belden also argues that the
petition “provides no testimony of a person of ordinary skill in the art, or any other
evidence, showing why it would have been obvious to add a third die to JP ’910.”
PO Resp. 30. First, these arguments are not persuasive, because they fail to
address or rebut Berk-Tek’s rationale that the third die would have been added to
align further the cable components. See Pet 43. Second, neither JP ’910 nor any
other evidence needs to have provided an express suggestion of using a third die,
because an express teaching, suggestion or motivation to combine is not required
to support a conclusion of obviousness based on a combination of references. See
KSR, 550 U.S. at 418.
Relying on Mr. Clark’s declaration, Belden further argues that “a person of
ordinary skill in the art would not recognize any problem in JP ’910 that [] placing
a third die upstream of wire-splitting board 5 would solve,” and “that without an
articulable reason to add a third die as recited in claim 2 of the ’503 Patent, the
combination of JP ’910 with the ’582 Patent or JP ’694 is not an appropriate basis
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for invalidity under § 103.” PO Resp. 30-31 (citing Ex. 2003, ¶ 78; case citations
omitted). Belden also argues, based on Mr. Clark’s declaration, that “one of
ordinary skill in the art would recognize in JP ’910’s manufacturing method a need
to reduce drag on the threadlike object in order to minimize friction and heat that
could cause the thread-like object to deform or stretch” and, “[t]herefore, a person
of ordinary skill in the art would not be motivated to add a third die to JP ’910,
because doing so would serve only to generate additional undesirable stress caused
by friction of the thread-like object against the opening of the third die, without
any apparent benefit.” Id. at 31 (citing Ex. 2003, ¶ 79).
In reply, Berk-Tek incorporates its arguments with respect to claim 1,
summarized above, and argues, based on Mr. Baxter’s declaration, that “using extra
dies to align and alleviate stresses in a cabling arrangement is simply routine.” Reply
to PO Resp. 14 (citing Ex. 1012, ¶ 133-135).
We are persuaded by Berk-Tek and its expert, Mr. Baxter, that a person of
ordinary skill in the art would have added a third die, as recited in claim 2, in order
to align further the cable components. The issue of obviousness does not depend
on whether JP ’910 expressly discloses a problem that placing a third die upstream
of wire-splitting board 5 would solve. See KSR, 550 U.S. at 418. We credit Mr.
Baxter’s testimony that:
Placing a third die upstream from the wire-splitting board would solve
the same problem it does in any other cable line production
arrangement, namely more accurately aligning the input wires with
the rest of the machine with less or lessened tensions and with better
angles, allowing the supply reels to be located farther from the wire-
splitting board, etc . . . .
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Ex. 1012, ¶ 133. Further, we agree with Berk-Tek that the ’582 patent and JP ’694
each teaches the benefit of a third die. See Pet. 43; Ex. 1012, ¶ 135. We also
credit Mr. Baxter’s testimony that:
[S]peculation about the inherent fragility of the thread-like object is
completely unfounded based on anything in the JP ’910 document.
Furthermore, as you go upstream towards the supply reels, the dies get
progressive[ly] looser fitting.
Ex. 1012, ¶ 134; see also id. ¶¶ 123-124.
In KSR, the Supreme Court stated:
When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a
predictable variation, §103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.
550 U.S. at 417. The operative question is “whether the improvement is more than
the predictable use of prior art elements according to their established functions.”
Id. The Court further stated that the obviousness analysis “need not seek out
precise teachings directed to the specific subject matter of the challenged claim, for
a court can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 550 U.S. at 418.
Here, inserting an additional die upstream of wire-splitting board 5 of the
assembly of JP ’910 involves merely a predictable use of a prior art element
disclosed in each of the ’582 patent and JP ’694, to perform the same function it
was known to perform and to yield no more than one of ordinary skill would
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expect from such use.
Accordingly, we determine that claim 2 is unpatentable as obvious over
both of the asserted combinations: (i) JP ’910 and the ’582 patent; and (ii) JP ’910
and JP ’694.
Claim 3 recites “[t]he method of claim 2 wherein the step of passing the
transmission media and the core th[ro]ugh the third die further comprises[]
extruding the core at a center position relative to the plurality of transmission
media.” JP ’910 discloses that core 1 “is extruded to a heating die or 4 heating
rolls 2a, 2b, 2c, and 2d,” which form grooves 3a, 3b, 3c, and 3d in core 1. See
Ex. 1008, ¶ 3:13-18, Figs. 1-3. Thus, JP ’910 discloses extruding core 1 at a center
position relative to the positions (i.e., grooves 3a, 3b, 3c, and 3d) where the
plurality of transmission media will be inserted. Petitioner argues that JP ’910
“uses an extrusion/deformation process directly inline and before assembly.” Pet.
43 (chart) (citing Ex. 1008, p. 52, ll. 4-9 [¶ 3:13-18], Figs. 1-3).
Belden does not argue the separate patentability of claim 3, but rather relies
for patentability on the dependency of claim 3 from claim 2. PO Resp. 28-31.
In light of the need to place transmission media 4a, 4b, 4c, and 4d into the
grooves created by heating rolls 2a, 2b, 2c, and 2d, it would have been obvious to
one with ordinary skill in the art to extrude core 1 in an in-line manner such that
the core is at a center position relative to the plurality of transmission media. We
again note that one with ordinary skill in the art possesses ordinary creativity.
KSR, 550 U.S. at 421.
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Accordingly, we determine that claim 3, like claim 2, is unpatentable as
obvious over both of the asserted combinations: (i) JP ’910 and the ’582 patent;
and (ii) JP ’910 and JP ’694.
F. Claims 5 and 6 as unpatentable over JP ’910 and CA ’046
Claim 5 of the ’503 patent depends from claim 1 and additionally recites:
“providing as the plurality of transmission media, a plurality of twisted pairs of
insulated conductors.” Claim 6 of the ’503 patent depends from claim 5 and
additionally recites “providing as the plurality of transmission media, four twisted
pairs of insulated conductors.”
Berk-Tek contends that claims 5 and 6 are unpatentable as obvious over
JP ’910 and CA ’046. However, for the reasons explained below, we agree with
Belden that a person of ordinary skill in the art would not have had sufficient
reason to apply the method of producing an insulated cable as disclosed in JP ’910
to make the helically-twisted cable of CA ’046 comprising twisted pairs of
individually-insulated conductors. See PO Resp. 32-35.
1. CA ’046
CA ’046 discloses an electrical telecommunications cable comprising a
plurality of pairs of individually-insulated conductors, the insulated conductors in
each pair being twisted together, and a spacer means such as a central core member
that separates the pairs of insulated conductors from one another. Ex. 1010,
2:1-20.
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Figures 2 and 3 of CA ’046, as reproduced at page 37 of Berk-Tek’s revised
petition, are reproduced below.

Figures 2 and 3 are cross-sectional views of embodiments of cables

In cable 20, illustrated in Figure 2, jacket 12 surrounds four pairs 14 of
insulated conductors 16 and central core member 20 (both the cable and the central
core member are labeled “20” in Figure 2). Id. at 3:36-4:4. The central core
member “extends axially along the cable and is formed from a tensile dielectric
material.” Id. at 4:4-5. The central core member includes central core mass 22 and
four tapered projections 24, with concave sides, that are angularly placed equally
around the axis of the central core member and define recesses 26 between them;
an individual pair of the conductors lies in each of the four recesses between the
projections. Id. at 4:5-14. “The projections 24 and thus the recesses 26 extend in
helical fashion along the core member 20 to allow the pairs 14 to lie within the
recesses in stranded fashion.” Id. at 4:14-17 (emphasis added).
In the embodiment of Figure 3, jacket 12 of cable 30 surrounds four
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circumferentially spaced pairs 14 of conductors 16. Id. at 4:22-25. The structure is
similar to the embodiment of Figure 2 except that body 32 is “+”-shaped. Id.
at 4:25-31; Fig. 3. That is, “body 32 [is] formed by four helically extending spokes
34 which lie, in cross-section, at right angles to one another in cruciform fashion.”
Id. at 4:28-31 (emphasis added).
2. Obviousness analysis
With respect to claims 5 and 6, Belden argues that there would be no reason
for a person of ordinary skill in the art to alter the quad cable described in JP ’910
to have twisted conductor pairs, with individually insulated conductors, and a
separator with a plus-shaped cross sectional profile. See PO Resp. at 33 (citing
Ex. 2003, ¶ 82). Belden further argues that “the method described in JP ’910 is
intended to be an alternative to jacketing and twisting wires into a pair or quad”
and teaches away from a method of producing a cable comprising a plurality of
twisted pairs of individually-insulated conductors. Id. at 34 (emphasis in original).
Belden points out that “JP ’910 teaches placing bare wires (4a-4d) in grooves of
[the] thread-like object, and then applying a jacket to insulate the entire structure.”
Id. (referencing Ex. 1008, Fig. 4). Belden contends that JP ’910 teaches away from
the use of individually-insulated conductors where it states:
[I]n a “conventional method of manufacturing plastic insulated
communication cables, it is necessary to include a process of a cable
core by producing single communication wires by jacketing them
with plastic insulator by extrusion, stranding two wires or 4 wires
into a pair or a quad, then binding a number of pairs or quads.”
Id. at 33-34 (quoting Ex. 1008, ¶ 3:2-4). Belden relies on its expert and inventor,
Mr. Clark, in further arguing that “[o]ne of ordinary skill in the art would
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understand [] JP ’910 to teach away from using insulated conductors; otherwise,
the jacketing step would be redundant.” Id. at 34 (citing Ex. 2003, ¶ 83). Belden
also argues that one skilled in the art “would not be motivated to modify the cable
shown in JP ’910 to include twisted pairs, which would destroy the circular shape
of JP ’910’s ‘quad’ wire.” Id. at 34-35 (citing Ex. 2003, ¶ 83).
In turn, Berk-Tek argues that one of ordinary skill in the art would have been
motivated to combine the teachings of JP ’910 and CA ’046 and to substitute
twisted pairs for the single conductors of JP ’910. Reply to PO Resp. 14. Berk-
Tek contends that Belden misunderstands the scope of the claims of the ’503 patent
and the nature of an obviousness analysis. Id. at 15 (citing Ex. 1012, ¶¶ 136-141).
Berk-Tek argues that dependent claims 5 and 6 are method claims that “simply
substitute twisted pairs for transmission media (claim 5) or specifically four
twisted pairs (claim 6)” in the method steps of claim 1. Id. at 15. Berk-Tek further
argues that:
[A] person skilled in the art who intended to implement a method to
twist a cable that has a separator, such that at a die location the
transmission media is aligned with the surface of the separator, would
make sure that the die would prevent back-twisting of the separator as
taught by JP’910.
Id. at 15 (citing Ex. 1012, ¶¶ 139-140). The implicit assumption of Berk-Tek’s
argument is that a skilled person would have understood the method of JP ’910 as
being applicable to any twisted cable that has a separator.
Based on Belden’s opposition to the petition, including the declaration of
Mr. Clark, and other evidence of record, we are persuaded that a skilled person
would not have understood the method of JP ’910 as being applicable to any
twisted cable that has a separator, contrary to Berk-Tek’s position.
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JP ’910 is directed to a method of producing an insulated cable comprising
the sequential steps of: (1) aligning four bare metal conductors with, and then
inserting them in, the corresponding grooves of an insulating core, (2) S-Z
stranding the core and the conductors with a left-right alternating stranding device,
and (3) jacketing the stranded core and conductors using an extruder. See
Ex. 1008, ¶ 3:13-32; Figs. 1-4. A purpose of the method is to manufacture plastic
insulated communication cable more efficiently. See PO Resp. 33-35; Ex. 1008,
¶ 3:2-11. In this regard, JP ’910 teaches that conventional cable includes
individually-insulated conductors, and that each insulated conductor must be
jacketed individually by extrusion so as to place it in the center of a plastic
insulator. Ex. 1008, ¶ 3:3, 8-9. Further, JP ’910 teaches that conventional cable
requires stranding two or four wires into a pair or a quad and then binding a
number of pairs or quads. Id. ¶ 3:3-4. For the purpose of eliminating these
“shortcomings” of conventional cables and the methods of making them, JP ’910
teaches a method of making a new type of cable that does not include individually-
insulated conductors, much less twisted pairs of individually-insulated conductors.
Id. at ¶ 3:10-32; Figs. 1-4; see also Ex. 1012, ¶ 113 (“the ‘910 reference teaches a
new arrangement where only conductors are placed in their corresponding
grooves”).
As such, contrary to Berk-Tek’s argument, the method of making the new
cable of JP ’910 cannot be understood reasonably as teaching or suggesting a
method of manufacturing all types of twisted cables having a separator. In
particular, JP ’910 does not teach or suggest a method of making a conventional
twisted cable, such as a helically-twisted cable having a separator that includes
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twisted pairs of individually-insulated conductors. It follows, therefore, that one of
ordinary skill, tasked to produce the conventional twisted cable of CA ’046, would
not have been motivated by the teachings of JP ’910 simply to substitute twisted
pairs of insulated conductors for the bare metal conductors in the method of
JP ’910, contrary to Petitioner’s argument. That is, combining the teachings of
JP ’910 with the teachings of CA ’046 would have “involve[d] more than the
simple substitution of one known element for another or the mere application of a
known technique to a piece of prior art ready for the improvement.” KSR,
550 U.S. at 417.
We are persuaded that Berk-Tek has not provided an apparent reason to
combine the known elements of JP ’910 and CA ’046. See KSR, 550 U.S. at 418.
In particular, Berk-Tek has not explained (see Reply to PO Resp. 14-15) why a
skilled person predictably would have substituted twisted pairs of individually-
insulated conductors as taught by CA ’046 for the bare-metal single conductors in
the method of JP ’910. See KSR, 550 U.S. at 418 (“Often, it will be necessary . . .
to look to interrelated teachings of multiple patents . . . and the background
knowledge possessed by a person having ordinary skill in the art, . . . in order to
determine whether there was an apparent reason to combine the known elements in
the fashion claimed by the patent at issue.”).
Further, even assuming that Berk-Tek’s argument sufficiently articulates a
reason to use the die of JP ’910 to align the twisted pairs of individually-insulated
conductors and the separator of CA ’046 and to prevent twisting of the separator,
Berk-Tek has not explained why a person of ordinary skill in the art would have
had sufficient reason to use the S-Z stranding step of JP ’910 to manufacture the
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helically-twisted cable of CA ’046. It is undisputed that the left-right S-Z
stranding device of JP ’910 twists the cable components “periodically in one
direction and then in the other direction,” which is different from “a uni-directional
stranding operation.” Ex. 1012, ¶ 120. It also is undisputed that CA ’046 discloses
“a helically twisted cable.” See Pet. 37; Ex. 1012, ¶ 138. As such, the S-Z
stranding step of JP ’910 is inconsistent with production of a helically-twisted
cable, such as disclosed in CA ’046.
Berk-Tek also has not explained why a person of ordinary skill in the art
would have had sufficient reason to use the final jacketing/extrusion step of
JP ’910, which serves to insulate electrically the bare-metal conductors of JP ’910,
to manufacture a cable comprising twisted pairs of individually-insulated
conductors that do not require additional electrical insulation. In this regard, Berk-
Tek has not replied to Belden’s argument that “the jacketing step [of JP ’910]
would be redundant,” if insulated conductors were substituted for the bare-metal
conductors in the method of JP ’910. See PO Resp. 34 (citing Ex. 2003, ¶ 83).
Nor has Berk-Tek responded to Belden’s argument that modifying the cable of
JP ’910 to include twisted pairs would “destroy the circular shape of JP ’910’s
‘quad’ wire.” Id. at 34-35 (citing Ex. 2003, ¶ 83). On the present record, Belden’s
arguments are unopposed.
For the foregoing reasons, we determine that claim 5 of the ’503 patent is
not unpatentable as obvious over JP ’910 and CA ’046. Because dependent
claim 6 incorporates by reference the method of claim 5, it follows that claim 6 in
not unpatentable as obvious over JP ’910 and CA ’046 for the same reasons as
claim 5.
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G. Belden’s motion to exclude.
Belden filed a motion (Paper 36, “Mot. Excl.”) seeking to exclude the
declaration of Berk-Tek’s expert, Mr. Baxter (Ex. 1012), the appendices to
Mr. Baxter’s declaration (“Exs. 1012A-1012S”), and Mr. Baxter’s curriculum vitae
(“CV”) (Ex. 1013). Mot. Excl. 1. In addition to raising evidentiary issues,
Belden’s motion seeks to exclude Berk-Tek’s reply evidence for “belatedly
identifying new arguments and evidence necessary to establish its prima facie case
for unpatentability.” Id. at 2.
Prior to filing its motion to exclude, Belden initiated a telephone conference
to object to Berk-Tek’s reply and supporting evidence. During the telephone
conference, the Board explained that it did not need special briefing on whether
Berk-Tek’s reply is improper for including information it should have submitted in
its petition, and that the Board would consider the matter when rendering its final
written decision. The Board issued an Order (Paper 29) authorizing Berk-Tek to
file a revised reply that “relies on less of the reply declaration currently of record.”
The Board did not require Berk-Tek to excise any portions of the reply declaration
on which it chose not to rely in its revised reply. Pursuant to the Board’s Order,
Berk-Tek filed a revised reply (Paper 30) along with a supplemental declaration of
Mr. Baxter (Paper 31).
After Belden filed its motion to exclude, Berk-Tek initiated a telephone
conference to object to Belden’s motion. During the telephone conference, the
Board explained that Belden should have sought prior authorization before
providing briefing on whether Berk-Tek’s revised reply or supporting evidence
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exceeded its appropriate scope. However, noting that Berk-Tek had indicated in
the telephone conference a readiness to respond to Belden’s briefing in an
opposition to the motion, the Board, nevertheless, issued an Order (Paper 39)
retroactively authorizing Belden to include in its motion to exclude a discussion of
why Berk-Tek’s revised reply to Belden’s patent owner response is improper for
including arguments and evidence that should have been presented in Berk-Tek’s
initial petition.
Berk-Tek filed a response (Paper 40, “Resp. Mot. Excl.”) to the motion to
exclude. Belden then filed a reply (Paper 44, “Reply Mot. Excl”) in support of its
motion.
Upon consideration of the parties’ arguments, we deny Belden’s motion to
exclude. We provide our reasons below.
First, Belden seeks to exclude the entirety of Mr. Baxter’s declaration, all of
its appendices, and Mr. Baxter’s CV on the ground that, in paragraphs 37-47 of his
declaration, Mr. Baxter offers various opinions about the ’503 prosecution history
that are not responsive to anything contained in the declaration of Belden’s expert,
Mr. Clark. Mot. Excl. (Paper 36) 3-4. However, Belden admits that Berk-Tek’s
revised reply does not cite to these paragraphs. Id. at 3. As such, Berk-Tek does
not rely on the challenged paragraphs, and we have not considered them in
reaching our final decision. Therefore, we consider the issue to be moot.
Second, Belden seeks to exclude the entirety of Mr. Baxter’s declaration, all
of its appendices, and Mr. Baxter’s CV on the ground that “Mr. Baxter’s assertion”
—in paragraph 63 of his declaration relating to asserted anticipation of claims 1
and 2 by the ’582 patent—“that claim 1 of the ’503 Patent does not require
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separation of all the cable’s transmission media represents a newly articulated
claim construction position that should have been in the Petition.” Id. at 5; see also
id. at 4 (citing Ex. 1012 ¶ 63). Belden’s argument is moot and need not be
reached, because even without excluding Mr. Baxter’s declaration, we have
determined that the ’582 patent does not anticipate claims 1 and 2 of the ’503
patent.
Third, Belden seeks to exclude the entirety of Mr. Baxter’s declaration, all of
its appendices, and Mr. Baxter’s CV on the ground that, in paragraph 138 of his
declaration (not identified by paragraph number in Belden’s motion), Mr. Baxter
belatedly presents evidence in support of the unpatentability of claims 5 and 6 over
JP ’910 and CA ’046. Id. at 6. However, Belden’s expert, Mr. Clark, testified, in
paragraphs 82 and 83 of his declaration (Ex. 2003), that a person of ordinary skill
would not have been motivated to combine the teachings of JP ’910 and CA ’046.
We determine that the cited testimony of Mr. Baxter fairly responds to Mr. Clark’s
declaration.
Fourth, Belden seeks to exclude Mr. Baxter’s declaration and his CV on the
general ground that “[i]t is improper for [Berk-Tek] to attempt to establish its
prima facie case through its reply declaration.” Mot. Excl. 7. Belden similarly
seeks to exclude all of the appendices to Mr. Baxter’s declaration and Mr. Baxter’s
CV on the general ground that Berk-Tek relies on them to support new arguments
that should have been identified in Berk-Tek’s revised petition. Id. at 7-15.
Belden raises a similar issue with respect to Exhibit 1012F specifically; in
particular, Belden argues that Berk-Tek relies on Exhibit 1012F to support new
arguments relating to the ’582 patent that should have been identified in Berk-
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Tek’s petition. Id. at 9. Belden has not persuaded us that Mr. Baxter’s testimony
was necessary for Berk-Tek to establish a prima facie case. Further, we are
satisfied that Mr. Baxter’s declaration, including the appendices and his CV,
generally are in fair reply to Mr. Clark’s declaration and/or Belden’s response to
the revised petition. See, e.g., our discussion of the parties’ competing positions
relating to JP ’910 in section II.D supra. Belden’s argument with respect to
Exhibit 1012F is moot and need not be reached because, even without excluding
Exhibit 1012F, we have determined that the ’582 patent does not anticipate claims
1 and 2 of the ’503 patent.
Belden next argues that Berk-Tek’s revised reply improperly relies on
Exhibits 1012A-1012S and Mr. Baxter’s CV. Id. at 7.
Belden has not identified where Berk-Tek’s revised reply cites or relies on
Exhibits 1012C-1012E, Exhibits 1012H-1012S, or Mr. Baxter’s CV. Accordingly,
Belden has not persuaded us that Berk-Tek has improperly relied on those exhibits.
See Reply Mot. Excl. 1 (stating that Berk-Tek did not rely on those particular
exhibits in its revised reply).
Exhibits 1012A and 1012B are transcripts of Mr. Clark’s testimony under
oath at a deposition and a trial, respectively. The exhibits are admissible under
Fed. R. Evid. 801(d)(2)(C), 806.
Exhibit 1012F and 1012G are U.S. patents and admissible. See 37 C.F.R.
§ 42.61(b).
For the foregoing reasons, Belden’s motion to exclude is denied.
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CONCLUSION
Berk-Tek has shown, by a preponderance of the evidence, that: (1) claims 1
and 4 of the ’503 patent are unpatentable under 35 U.S.C. § 103(a) as obvious over
JP ’910; and (2) claims 2 and 3 of the ’503 patent are unpatentable under 35 U.S.C.
§ 103(a) as obvious over (i) JP ’910 and the ’582 patent and (ii) JP ’910 and
JP ’694.
Berk-Tek has not shown, by a preponderance of the evidence, that claims 1
and 2 of the ’503 patent are unpatentable under 35 U.S.C. § 102 as anticipated by
the ’582 patent or that claims 5 and 6 of the ’503 patent are unpatentable under
35 U.S.C. § 103(a) as obvious over JP ’910 and CA ’046.
ORDER
In consideration of the foregoing, it is
ORDERED that claims 1, 2, 3, and 4 of the ’503 patent are unpatentable;
FURTHER ORDERED that claims 5 and 6 of the ’503 patent have not been
shown to be unpatentable; and
FURTHER ORDERED that Belden’s motion to exclude is DENIED.

This is a final decision. Parties to the proceeding seeking judicial review of
the decision must comply with the notice and service requirements of 37 C.F.R.
§ 90.2.

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For PETITIONER

Joseph Sofer
SOFER & HAROUN L.L.P
joesofer@soferharoun.com

David Soofian
James Blank
KAYE SCHOLER LLP
david.soofian@kayescholer.com
james.blank@kayescholer.com

For PATENT OWNER

Matthew B. Lowrie
Aaron W. Moore
FOLEY & LARDNER LLP
mlowrie-PTAB@foley.com
amoore-PTAB@foley.com