Ex Parte Barish et alDownload PDFPatent Trial and Appeal BoardSep 25, 201312148891 (P.T.A.B. Sep. 25, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/148,891 04/23/2008 Eric L. Barish 5-8--9-9CON 4646 7590 09/26/2013 Law Office of Peter V.D. Wilde 301 East Landing Williamsburg, VA 23185 EXAMINER DEHGHAN, QUEENIE S ART UNIT PAPER NUMBER 1741 MAIL DATE DELIVERY MODE 09/26/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ERIC L. BARISH, ROBERT LINGLE, JR., DAVID PECKHAM, and FENGQING WU __________ Appeal 2012-006680 Application 12/148,891 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and JAMES C. HOUSEL, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1-6 and 15 (Notice of Appeal). We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to a method for making depressed index optical fibers (Spec. 1: 7-8). Claim 4 is illustrative: 4. Method comprising the steps of: Appeal 2012-006680 Application 12/148,891 2 (a) in a first VAD torch: (i) flowing together a flow of one or more glass precursor gases, and a flow of fuel gas, to form a first soot gas mixture, (ii) igniting the first soot gas mixture to form a first second flame thereby producing a first glass soot, (b) in a second VAD torch: (i) flowing together a flow of one or more glass precursor gases, and a flow fuel gas, to form a second soot gas mixture, the second soot gas mixture comprising a fluorine compound, (ii) igniting the second soot gas mixture to form a second soot flame thereby producing a second glass soot, (c) directing a support rod to the first and second VAD torches in tandem, with the first VAD torch preceding the second VAD torch so that the first VAD torch deposits the first glass soot to form a first soot coating, and the second VAD torch deposits the second glass soot on the first glass soot coating, (d) moving the support rod relative to the torches from a start point to an end point to produce a bi-layer of soot, (e) heating the bi-layer of soot to consolidate the soot into a glass rod, the glass rod having an outer layer comprising fluorine-doped glass, (f) inserting the glass rod into a glass tube, the glass consisting essentially of fluorine-doped glass, so that the fluorine-doped glass tube surrounds the fluorine-doped glass outer layer of the glass rod, and (g) heating the glass tube to collapse the glass tube around the glass rod and produce a preform with a fluorine-doped depressed index cladding region. Appellants appeal the following rejection: Claims 1-6 and 15 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Jablonowski et al. (Jablonowski, US 2003/0209038, pub. Appeal 2012-006680 Application 12/148,891 3 Nov. 13, 2003) in view of Cain et al. (Cain, US 6,574,994 B2, issued June 10, 2003). Appellants’ arguments focus solely on claim 4 (App. Br. 10-15). In the principal Brief, Appellants withdrew claims 1-3 from appeal (App. Br. 2). Accordingly, though claims 1-6 and 15 are being appealed, Appellants have waived any arguments rebutting the § 103 rejection of claims 1-3 over Jablonowski and Cain. We summarily affirm the § 103 rejection of claims 1-3 over Jablonowski and Cain. ISSUE Did the Examiner engage in impermissible hindsight in concluding that the combined teachings of Jablonowski and Cain would have suggested using a rod-in-tube (RIT) method to add a layer of glass consisting essentially of fluorine-doped glass to a consolidated preform comprised of a core of glass and a primary cladding of fluorine-doped glass as required by claim 4? We decide this issue in the negative. FINDINGS OF FACT AND ANALYSES Appellants argue that the Examiner engaged in impermissible hindsight in concluding that Jablonowski and Cain would have suggested the method of claim 4 (App. Br. 11-12). Appellants contend that neither Jablonowski nor Cain disclose forming a fluorine-doped cladding layer in two parts (App. Br. 11). The Examiner finds that Jablonowski discloses the method of claim 4 that includes, in relevant part, forming an optical fiber preform by soot depositing an up-doped core region surrounded by a down-doped cladding Appeal 2012-006680 Application 12/148,891 4 region (i.e., fluorine-doped) (Ans. 4). The Examiner finds that Jablonowski teaches that the soot formed core/cladding is consolidated into a glass rod, which is placed inside of a glass tube for further consolidation (Ans. 4). The Examiner finds that Jablonowski fails to teach using a glass tube comprising fluorine-doped glass in the rod-in-tube (RIT) steps (Ans. 4-5). The Examiner finds that Cain discloses a method of making an optical fiber preform that includes inserting a glass cane/core rod into a sleeve/glass tube, wherein the glass tube comprises fluorine as well as one or more down- doped (with fluorine) radial segments and the cane/core rod can also comprise a down-doped region (Ans. 5). The Examiner concludes that it would have been obvious to use a fluorine-doped glass tube as taught by Cain for the tube in the rod-in-tube process steps of Jablonowski in order to provide an overcladding layer in the preform with a controlled thickness of the fluorine layer in the cladding, thereby reducing attenuation losses in the fiber, and producing fibers with multiple segments (Ans. 5). Contrary to Appellants’ arguments, the Examiner did not rely on hindsight, but the teachings of the references. As noted above, the Examiner finds that Jablonowski and Cain each teach forming a core rod having an inner core that is up-doped and a cladding on the rod that is down-doped. The Examiner further finds that Cain teaches placing the rod in a tube that includes a down doped (i.e., fluorine-doped) radial segment (Ans. 5). The Examiner provides reasons for modifying Jablonowski’s process by using Cain’s fluorinated tube as taught by Cain (e.g., to allow for better control of the moat around the core) (Ans. 5). Appellants argue that Cain teaches that the tube used to surround the consolidated preform that corresponds to the rod includes an up-doped Appeal 2012-006680 Application 12/148,891 5 region (App. Br. 12). Appellants contend that this shows that Cain’s tube is not down-doped with fluorine as the Examiner finds. Id. However, Cain teaches that the tube is made with an inner down- doped fluorine-containing segment (67) and an outer up-doped segment (68) as shown in Figure 13 (Cain, col. 7, ll. 33-50; col. 3, ll. 30-44). Accordingly, the fluorinated inner segment 67 of the tube would be in contact with the down-doped fluorinated outer cladding of the rod. In other words, Cain’s tube has a dopant type and concentration that varies across its thickness. Appellants contend that a “layer” implies a stratified portion having a uniform composition made by a single glass forming method (App. Br. 12-13). Appellants argue that claim 4 requires forming a single layer in two parts with both parts containing fluorine and both parts being down doped in refractive index (App. Br.13). However, Appellants fail to cite any authority that substantiates that a layer must be of uniform composition. Appellants’ Specification appears to contradict this definition in that the core and cladding preform consolidated into a rod is described as having a wide variety of compositions and that tube portion doped with fluorine may have a graded composition (e.g., a portion along the tube thickness with a high amount of fluorine and a portion with little or no fluorine) (Spec. 6: 12-13; 8:20-21). In any event, Cain discloses that the tubular portion is formed by forming a layer of up-doped material on the outside of the tube and a layer of down-doped material on the inside of the tube (Cain col. 7, ll. 19-67, Fig. 13). Accordingly, Cain’s tube includes a layer of down-doped material (i.e., fluorinated material) adjacent the down-doped cladding of the consolidated rod as required by claim 4. While we agree with the Examiner that the claim does not require Appeal 2012-006680 Application 12/148,891 6 that a “single” fluorinated layer be formed as argued by Appellants, we fail to see how after consolidating Cain’s tube with the rod formed of the core and fluorinated cladding, a single fluorinated layer within the preform would not have been produced by such a process (Ans. 9). Appellants’ arguments that the claims require four process steps that produce a preform having a layered structure that includes up-doped (U), down-doped (D), down-doped (D), and up-doped (U) layers (i.e., UDDU according to Appellants) appears to be directed to claim 15 (Reply Br. 2). We find this argument directed to claim 15 because claim 4 only requires an up-doped core cladded with a down-doped material and a down-doped material formed by the fluorine-doped tube (Claim 4). In contrast, claim 15 requires the structure recited in claim 4 and an additional cladding layer of silica (Claim 15). Appellants further allege, for the first time, that the claimed invention yields unexpected results (Reply Br. 4). Because the arguments made regarding claim 15 and the allegation of unexpected results were not timely raised in the principal Brief, we shall not consider these arguments. Ex parte Borden, 93 USPQ2d 1473, 1474 (BPAI 2010). We further note that Appellants’ allegation of unexpected results is premised on mere attorney argument with no reference to any evidence to substantiate the claim. In re Schulze, 346 F.2d 600, 646 (CCPA 1965) (the arguments of counsel cannot take the place of evidence in the record). On this record and for the above reasons, we affirm the Examiner’s § 103 rejection of claims 4-6 and 15 over Jablonowski and Cain. DECISION The Examiner’s decision is affirmed. Appeal 2012-006680 Application 12/148,891 7 No time period for taking any subsequent action in connection with this appeal maybe extended under 37 C.F.R. § 1.136(a). ORDER AFFIRMED cam Copy with citationCopy as parenthetical citation