CommScope Technologies LLC

Patent Trials and Appeals Board

May 18, 2020

2019004564 (P.T.A.B. May. 18, 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.
15/254,596 09/01/2016 Alan N. Moe 9833-68 1044
79207 7590 05/18/2020
MYERS BIGEL, P.A.
P.O. BOX 37428
RALEIGH, NC 27627
EXAMINER
NGUYEN, CHAU N
ART UNIT PAPER NUMBER
2847
NOTIFICATION DATE DELIVERY MODE
05/18/2020 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):
uspto@myersbigel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte ALAN N. MOE
____________
Appeal 2019-004564
Application 15/254,596
Technology Center 2800
____________
Before KAREN M. HASTINGS, JEFFREY R. SNAY, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 7–12 of Application 13/956,054, which
constitute all the claims pending in this application. We have jurisdiction
under 35 U.S.C. § 6(b).

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
15/254,596 filed Sept. 1, 2016; the Final Office Action dated Sept. 12, 2017
(“Final Act.”); the Appeal Brief filed June 29, 2018 (“Appeal Br.”); and the
Examiner’s Answer dated Sept. 12, 2018 (“Ans.”). Appellant did not file a
Reply Brief.
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as CommScope
Technologies LLC. Appeal Br. 1.
Appeal 2019-004564
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For the reasons set forth below, we AFFIRM.

The subject matter of the invention relates to coaxial cable. Spec. ¶ 2.
The Specification relates that coaxial cable typically includes an inner
conductor, an outer conductor, a dielectric layer separating the inner and
outer conductors, and a jacket that surrounds the outer conductor. Spec. ¶ 3.
The outer conductor may be made from copper and have a corrugated form.
Spec. ¶¶ 3–4. Each of the corrugations in the outer conductor has a root and
a crest connected by a transition section. Spec. ¶ 8.
FIG. 1 of the ’596 Application is reproduced belowː

FIG. 1 is a side view of a portion of a corrugated outer conductor for a
conventional coaxial cable. Spec. ¶ 12. In the typical annular corrugated
design shown in FIG. 1, the root (14) has a small U-shaped arc (RR)
defining the minor diameter and the crest has a larger arc (RC) forming the
major diameter at the crest (12). Spec. ¶ 26.
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The Specification states the desirability of improving the design of
coaxial cable and reducing the copper content of such cables without
reducing copper thickness and sacrificing cable bending performance. Spec.
¶ 7. The material thickness of the outer conductor is largely determined
based on manufacturing needs. Spec. ¶ 25. When designing a cable, the
inner and outer diameters of the corrugations of the outer conductor can be
set to different values, which will have an effect upon the electrical and
mechanical performance of the cable. Spec. ¶ 25. The shape of the
corrugation can beneficially impact the mechanical properties and cost of a
coaxial cable. Spec. ¶ 25.
According to the Specification, conventional corrugated cables fail as
a result of repeated bending performance with metal fatigue in the root of the
corrugation. Spec. ¶ 30. In a corrugation in which the root diameter (RR) is
relatively small and the crest diameter (RC) is relatively large (such as the
conductor 10 of FIG. 1), the stress concentration factor associated with the
small root diameter (RR) properly predicts higher stresses in the root (14)
during cable bending, while the lower stress concentration factor associated
with the gentle, more generous arc (RC) in the crest (12) suggests that lower
stresses will appear in the crest (12) during the same overall cable bending
curvature level. Spec. ¶ 31. The volume of the copper per unit cable length
is far greater in the crest than in the root, due to the greater diameter at the
crest, with the result that less copper is available in the root area to absorb
the fatigue damage than is available in the crest area. Spec. ¶ 31. “By re-
designing the shape of the corrugation, it is possible to reduce the stress at
the root and intentionally shift more of the deformation and stress to the
crest, where it can be better absorbed by this greater volume of material
available there.” Spec. ¶ 31.
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For reasons not clear to us, denomination of the “root” and “crest” is
not standard, at least this is the case in the cited art. The references cited by
the Examiner use differing—even directly contradictory—definitions of
these designations. For instance, Artbauer describes the radius of curvature
of the “inwardly directed, convex corrugation crests.” Artbauer, col. 3, ll.
10–11 (emphasis added). Artbauer’s use of the term “crest” is the direct
opposite of the use of the term in the ’596 Application, which identifies the
“outer/major diameter” of the corrugations of the outer conductor as the
“crest” and the inner/minor diameter” of the corrugations of the outer
conductor as the “root.” Spec. ¶ 15. Miller uses the same designation of
“crest” and “root” as the ’596 Application. Miller col. 2, ll. 19–26
(describing “the root or inner diameter” of the corrugation as compressing
the foam dielectric). Johnson also uses these designations. Johnson, col. 1,
l. 65–col. 2, l. 2 (describing the roots of the corrugation but not the crests of
the corrugation as bonded to the foam dielectric). Strunk takes yet a third
tack, referring to “corrugation peaks” and “corrugation valleys.” Strunk,
col. 2, ll. 22–24.
For our discussion, we employ the terminology adopted in the ’596
Application: the outermost diameter of the corrugated outer conductor (that
part farthest from the inner conductor) is the “crest,” and the innermost
diameter of the corrugated outer conductor (that part closest to the inner
conductor) is the “root.” We note, where necessary, the difference from the
terminology used in the reference.
The claims require, inter alia, that “the root has a first radius of
curvature, the crest has a second radius of curvature, and the ratio of the first
radius of curvature to the second radius of curvature is greater than 1.” See
Appeal Br. 10–12 (Claims App’x).
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FIG. 6 of the ’596 Application, reproduced below, illustrates this
limitation:

FIG. 6 is a side section view of a portion of a corrugated outer
conductor for a coaxial cable according to an embodiment of the invention.
Spec. ¶ 19. FIG. 6 shows outer conductor 410, root 414 with radius RR, and
crest 412 with radius RC. Spec. ¶ 33. The ratio of RR to RC is greater than
1. Spec. ¶ 33.
Claim 1, reproduced below from the Claims Appendix of the Appeal
Brief, represents the claimed subject matter:
1. A coaxial cable, comprising:
an inner conductor;
a dielectric layer surrounding the inner conductor; and
an outer conductor having a plurality of corrugations;
wherein each of the corrugations has a root and a crest
connected by a transition section, and wherein the root has a
first radius of curvature, the crest has a second radius of
curvature, and the ratio of the first radius of curvature to the
second radius of curvature is greater than 1.
Appeal Br. 10 (Claims App’x.).
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REFERENCES
The Examiner relies on the following prior art in rejecting the claims:
Name Reference Date
Miller US 3,582,536 June 1, 1971
Johnson et al.
(“Johnson”)
US 3,745,232 July 10, 1973
Artbauer US 3,777,045 Dec. 4, 1973
Strunk US 9,541,225 B2 Jan. 10, 2017
REJECTIONS
The Examiner maintains the following rejections:
A. Claims 1, 5, 7, and 9 under 35 U.S.C. § 102(a)(1) as anticipated by
Artbauer;
B. Claims 6 and 10 under 35 U.S.C. § 103 as obvious over Artbauer;
C. Claims 1, 5–7, 9, and 10 under 35 U.S.C. § 103 as obvious over
Johnson in view of Strunk;
D. Claims 11, 13, and 14 under 35 U.S.C. § 103 as obvious over
Miller in view of Artbauer; and
E. Claims 11 and 13 under 35 U.S.C. § 103 as obvious over Miller in
view of Strunk. Final Act. 3–8.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. 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))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
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not persuaded that Appellant identifies reversible error in each of the
Examiner’s rejections.
A. Rejection of claims 1, 5, 7, and 9 as anticipated by Artbauer
Claims 1 and 7 are independent, claim 7 including the same
limitations as claim 1 but with the additional limitation that “the transition
section is concave.” See Appeal Br. 10–11. Claims 5 and 9 depend
respectively from claims 1 and 7, and further require that the root is
generally flattened. See id.
The Examiner finds that claims 1, 5, 7, and 9 are anticipated by
Artbauer. Final Act. 3. Inter alia, the Examiner finds that Artbauer
discloses “wherein the root has a first radius of curvature, the crest has a
second radius of curvature, and the ratio of the first radius of curvature to the
second radius of curvature is greater than 1” (hereinafter, “the ratio
limitation”). Id. (citing Artbauer, col. 3, ll. 10–13 (“The radius of curvature
of the inwardly directed, convex corrugation crests should be substantially
smaller than the radius of curvature of or on the inner conductor.”). In the
Answer, the Examiner finds that the cited passage of Artbauer describes the
outer conductor structure, and that the quoted language means that “the ratio
of the first radius (radius of curvature of the root) to the second radius
(radius of curvature of the crest) is greater than 1.” Ans. 4. With respect to
claims 5, 7, and 9, the Examiner finds that Artbauer discloses the root being
generally flattened (“not pointy”) and the transition being concave. Final
Act. 3. The Examiner cites to nothing in the reference in support of these
findings.
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Appellant argues that claims 1 and 7 and their dependent claims are
patentable over Artbauer. Appeal Br. 3–4. Specifically, Appellant contends
that Artbauer fails to disclose the ratio limitation. Appeal Br. 4.
The Appellant persuades us of reversible error in the Examiner’s
interpretation of Artbauer.
Artbauer concerns reducing maximum field strength on the surface of
electrodes by making the field strength on both electrodes (the inner and
outer conductors in a coaxial cable) similar. Artbauer, col. 1, ll. 57–61 col.
2, ll. 4–8; see also Appeal Br. 4. The inner conductor has a relatively small
radius of curvature. Artbauer, col. 1, ll. 43–45. Artbauer teaches that the
electric field strength is very high adjacent the inner conductor, and drops
off relatively rapidly along a radius toward the outer conductor. Id., col. 1,
ll. 46–49. Artbauer seeks to reduce the maximum field strength along the
inner conductor by providing the outer conductor with inwardly-directed
convexities in the form of corrugations. Id., col. 2, ll. 8–16. According to
Artbauer:
The invention is to be seen in the intentional elimination of local
field strength differences as resulting, for example, from
differently curved electrodes, and that is carried out by
intentionally increasing the local field strength on the electrode
with the (initially) larger radius of curvature, such as by
providing convexities in a concavely shaped electrode.

Id., col. 2, ll. 36–44. To accomplish this goal, Artbauer teaches that “[t]he
radius of curvature of the inwardly directed, convex corrugation crests3

3 Artbauer describes “inwardly directed, convex corrugation crests”
(Artbauer, col. 3, l. 11), but each of the ’596 Application, Miller, and
Johnson denominate inwardly directed corrugation projections as “roots”
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should be substantially smaller than the radius of curvature of or on the inner
conductor.” Id., col. 3, ll. 10–13; see also Appeal Br. 4. Artbauer claims:
[I]nwardly projecting corrugation crests in the second [outer]
conductor, having convex contour in a cross section plane,
extending towards the tubular interior and having a radius of
curvature of its convex contour which is substantially smaller
than the radius of the inner conductor.

Artbauer, col. 5, l. 20–col. 6, l. 2 (claim 1).
Employing the terminology used in the ’596 Application, we interpret
Artbauer as teaching that the radius of curvature of the root is substantially
smaller than the radius4 of the inner conductor. Artbauer does not
specifically address a ratio of the first radius of curvature (that of the root)
and the second radius of curvature (that of the crest). We do not sustain the
rejection of claims 1, 5, 7, and 9 as anticipated by Artbauer.
B. Rejection of claims 6 and 10 as obvious over Artbauer
Claims 6 and 10 depend, respectively, from independent claims 1 and
7. See Appeal Br. 10–11.
As with claims 1 and 7, the Examiner relies on Artbauer to teach the
ratio limitation. Final Act. 4. The Examiner concludes that claims 6’s and
10’s recitation of “wherein the first radius is between about 0.030 and 0.038
inches, and the second radius is between about 0.022 and 0.026 inches”
would have been obvious to one of ordinary skill in the art at the time of the

(see ’596 App., ¶ 5; Miller, col. 2, ll. 20–26; Johnson, Fig. 1, col. 3, ll. 22–
25).
4 For a circle—such as the cross section of an inner conductor—“radius” is
the same as “radius of curvature.”
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invention because “discovering the optimum or workable ranges involves
only routing skill in the art.” Id.
Appellant makes no response to the Examiner’s rejection of claims 6
and 10 over Artbauer. See generally Appeal Br. 4. Therefore, we
summarily sustain the rejection of claims 6 and 10 over Artbauer.5
C. Rejection of claims 1, 5–7, 9, and 10 as obvious over Johnson in
view of Strunk
The Examiner finds that Johnson discloses a coaxial cable that meets
the limitations of claims 1, 5–7, 9, and 10, except that Johnson does not
teach the ratio limitation, which the Examiner relies on Strunk to teach.
Final Act. 5. Specifically, the Examiner finds that “Strunk discloses a
corrugated tube (102) having a plurality of corrugations, each having a root
(106) and a crest (104)” with radii of curvature and ratio of radii of curvature
as claimed. Id. (citing Strunk, Fig. 6A).
Appellant argues that Johnson is directed to a cable that is attempting
to adhere to both sides of the corrugated outer conductor. Appeal Br. 6.
According to Appellant, increasing the radius of curvature of the crest
reduces the radius of curvature of the root, and vice versa. Id. Appellant
contends that such change in the ratio of the radius of curvature necessarily
reduces the surface area available for adhesion, resulting in a natural
disincentive to have roots and crests with different radii of curvature. Id.
Appellant argues that Johnson is concerned with migration of fluid on both
sides of the outer conductor, rather than only on the inside, and modification

5 In any event, see our discussion below with respect to the obviousness of
claims 11, 13, and 14 regarding Artbauer, which would similarly apply to
these claims.
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of Johnson with Strunk would make the outer side of the outer conductor
more vulnerable to migration of fluid. Id. Appellant contends, therefore,
that one of ordinary skill in the art at the time of the invention would have
recognized that Strunk’s configuration would not be helpful. Id. at 7.
Appellant also argues that neither Johnson nor Strunk recognize the benefit
of the claimed configuration in improving bending stress in the outer
conductor. Id.
We note initially that none of the rejected claims recite an
improvement in bending stress in the outer conductor. See Appeal Br. 10–
11. Limitations not appearing in the claims cannot be relied upon for
patentability. In re Self, 671 F.2d 1344, 1348 (CCPA 1982).
In response to Appellant’s arguments, the Examiner finds that
modifying the roots of the corrugated outer conductor of Johnson to have a
radius of curvature larger than that of the crest (as taught by Strunk) would
increase the bonding area between the roots and the dielectric, which would
improve the blocking of fluid. Ans. 5–6. The Examiner finds that such
modification would not reduce the total surface area of bonding between the
crests and the jacket, thus the modified cable still would have the function of
preventing water from migrating on both sides of the outer conductor. Id. at
6.
“The fact that the motivating benefit comes at the expense of another
benefit, . . . should not nullify its use as a basis to modify the disclosure of
one reference with the teachings of another. Instead, the benefits, both lost
and gained, should be weighed against one another.” Winner Int’l Royalty
Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000). The Examiner’s
explanation is persuasive. Moreover, Appellant does not challenge the
Examiner’s finding in the Answer.
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We sustain the Examiner’s rejection of claims 1, 5–7, 9, and 10 as
obvious over Johnson in view of Strunk.
D. Rejection of claims 11, 13, and 14 as obvious over Miller in view
of Artbauer
Claim 11 is similar to claim 1, but requires that the transition section
is “substantially straight.” Appeal Br. 11 (Claims App’x). Claim 13
depends from claim 11. Claim 14 depends from claim 12, which has been
cancelled.
The Examiner finds that Miller discloses a coaxial cable comprising
an inner conductor, a dielectric layer surrounding the inner conductor, and
an outer conductor having a plurality of corrugations, wherein each of the
corrugations has a root and a crest connected by a transition section which is
substantially straight. Final Act. 6. The Examiner relies on Artbauer as
disclosing the ratio limitation. Id. at 6–7.
Appellant argues that Artbauer does not disclose the radius of
curvature ratio recited in the claims. Appeal Br. 7. Appellant also argues
that Miller lacks any disclosure of the root radius of curvature being greater
than the crest radius of curvature. Id.
Artbauer teaches that the radius of the curvature of the crests
(“roots” in the terminology of the ’596 Application) should be substantially
smaller than the radius of curvature of or on the inner conductor. Artbauer
col. 3, ll. 10–13. Although this disclosure does not discuss a difference in
the radius of the curvature of roots in comparison to crests, which would be
necessary to support an anticipation rejection, it suggests that they may be
different, whether larger or smaller. “[W]here the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation.” In re Aller, 220
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F.2d 454, 456 (CCPA 1955); see also In re Boesch, 617 F.2d 272, 276,
(CCPA 1980) “[D]iscovery of an optimum value of a result effective
variable in a known process is ordinarily within the skill of the art.”
Appellant has not shown any criticality to the claimed ratios (which include
1 and all greater numbers). See, e.g., In re Peterson, 315 F.3d at 1329; In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990).
We sustain the rejection of claims 11 and 13 over Miller in view of
Artbauer.
Claim 14 depends from cancelled claim 12. Our review of the file
history indicates that original claims 11 and 12 were combined into the
claim 11 now pending. As it stands, claim 14 is not patentable. Were claim
14 amended to depend from claim 11, it would be obvious over the
combination of Miller and Artbauer.
E. Rejection of claims 11 and 13 as obvious over Miller in view of
Strunk
The Examiner finds that claim 11 and its dependent claim 13 are
obvious over Miller in view of Strunk. Final Act. 7–8. The Examiner finds
that Miller discloses the invention as claimed, except does not disclose the
ratio limitation. Id. The Examiner relies on Strunk to teach the ratio
limitation, concluding that it would have been obvious to modify Miller with
Strunk’s disclosure because a change in size or shape is generally recognized
as being within the level of ordinary skill in the art. Id. at 8.
Appellant argues that Miller lacks any disclosure of the root radius of
curvature being greater than the crest radius of curvature. Appeal Br. 8.
Appellant argues that Strunk is directed to corrugated tubing used in gas and
liquid, which has very different performance characteristics than coaxial
cable. Id. Appellant contends that in Strunk “the tube is adhered to the
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crests only, which are smaller than the roots.” Id. Therefore, according to
Appellant, Strunk suggests that a smaller, rather than larger, surface is more
desirable for adhesion, which teaches away from the Examiner’s proposed
modification of Miller. Id.
In response, the Examiner notes that the rejection does not propose
combining the bonding between the jacket layers and the internal ribs of the
bushing taught in Strunk with Miller’s coaxial cable. Ans. 7. Rather, the
proposed combination would modify the outer conductor of Miller’s coaxial
cable such that the radius of curvature of the root is greater than the radius of
curvature of the crest, increasing the contact area between the root and the
dielectric. Id.
We understand Appellant’s argument to be that Strunk discloses
adherence of the jacket to the roots (“valleys” is the term used in Strunk),
which are smaller than the crests. See Appeal Br. 8. However, this
disclosure does not teach away from the Examiner’s combination.
“Teaching away” requires that a reference “criticize, discredit, or otherwise
discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed.
Cir. 2004). “Whether or not a reference teaches away from a claimed
invention is a question of fact.” In re Mouttet, 686 F.3d 1322, 1333 (Fed.
Cir. 2012) (citing In re Napier, 55 F.3d 610, 613 (Fed. Cir. 1995). We find
nothing in Appellant’s argument that supports a conclusion that Strunk
teaches away from a combination with Miller.
We sustain the rejection of claims 11 and 13 over Miller in view of
Strunk.

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DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. §
Reference(s)/Basis Affirmed Reversed
1, 5, 7, 9 102(a)(1) Artbauer 1, 5, 7, 9
6, 10 103 Artbauer 6, 10
1, 5–7, 9,
10 103
Johnson, Strunk 1, 5–7, 9,
10
11, 13, 14 103 Miller, Artbauer 11, 13, 14
11, 13 103 Miller, Strunk 11, 13
Overall
Outcome
1, 5–7, 9–
11, 13, 14
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED