Ex Parte Blazer et al

Patent Trial and Appeal Board

Jun 4, 2018

13130972 (P.T.A.B. Jun. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/130,972 08/11/2011 Bradley J. Blazer
21495 7590 06/06/2018
CORNING INCORPORATED
INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1
CORNING, NY 14831
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
HI08-092 2154
EXAMINER
TRAN, HOANG Q
ART UNIT PAPER NUMBER
2874
NOTIFICATION DATE DELIVERY MODE
06/06/2018 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):
usdocket@corning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRADLEY J. BLAZER, ANNE G. BRINGUIER,
MICHAEL J. GIMBLET, CORY F. GUENTER,
DOUGLAS S. HEDRICK, JASON C. LAIL,
CONOVER, and REGINALD ROBERTS
Appeal2017-009707
Application 13/130,972
Technology Center 2800
Before ADRIENE LEPIANE HANLON, ROMULO H. DELMENDO, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to reject claims 1-15 and 18-23 2. We have jurisdiction
over this appeal under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify Coming Optical Communications LLC as the real party
in interest. Appeal Brief filed December 20, 2016 ("App. Br."), 2.
2 Claims 16 and 17 stand withdrawn from consideration. Non-Final Office
Action entered July 7, 2016 ("Office Act."), 1.
Appeal2017-009707
Application 13/130,972
STATEMENT OF THE CASE
Appellants claim a method of making an armored fiber optic cable.
App. Br. 2-3. Claim 1 illustrates the subject matter on appeal and is
reproduced below with contested language italicized:
1. A method of making an armored fiber optic cable
compnsmg:
providing a fiber optic cable core, the fiber optic cable
core including at least one optical fiber capable of conveying
optical signals;
at least partially enclosing the fiber optic cable core in
armor;
applying particulate matter to an exterior surface of the
armor; and
after applying the particulate matter, forming a covering
over the armor.
App. Br. 18 (Claims Appendix).
The Examiner maintains the following rejections in the
Examiner's Answer entered May 19, 2017 ("Ans."):
I. Claims 1, 2, 9-11, 14, 15, 18, and 19 under 35 U.S.C. § 102(b)
as anticipated by Lail et al. (US 5,930,431, issued July 27, 1999);
II. Claims 3-8, 12, and 13 under 35 U.S.C. § 103(a) as
unpatentable over Lail in view of Field et al. (US 6,304,699 B2, issued
October 16, 2001) and Pieper et al. (US 5,028,224, issued July 2, 1991) and
III. Claims 20-23 under 35 U.S.C. § 103(a) as unpatentable over
Lail in view of Pieper.
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we affirm the Examiner's rejection of
claims 1, 2, 9-11, 15, 18, and 19 under 35 U.S.C. § 102(b) for the reasons
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set forth in the Office Action, the Answer, and below. We reverse the
Examiner's rejection of claim 14 under 35 U.S.C. § 102(b), and rejections of
claims 3-8, 12, 13, and 20-23 under 35 U.S.C. § 103(a), for the reasons set
forth below.
Rejection I
Claims 1, 2, 9-11, 15, 18, and 19
Appellants argue claims 1, 2, 9-11, 15, 18, and 19 as a group on the
basis of claim 1, to which we accordingly limit our discussion. App. Br. 5-
8; 37 C.F.R. § 41.37(c)(l)(iv).
Lail discloses a fiber optic cable 10 comprising a cable core 20 and a
jacket section 30. Col. 3, 11. 29-31; Fig. 1. Lail discloses that the jacket
section 30 includes a tape 34 having an overlapping-type seam 35, and a
seam guard 40 placed over the seam 35. Col. 3, 11. 47-50, 55---61; Fig. 1, 2,
3. The Examiner finds that the tape 34 and seam 35 together correspond to
the armor recited in claim 1. Office Act. 2-3. Lail discloses that an outer
jacket 36 surrounds both the tape 34 and the seam guard 40 (col. 3, 11. 62-
64; Figs. 1, 5), and the Examiner finds that the seam guard 40 and outer
jacket 36 together correspond to the covering recited in claim 1. Office Act.
3; Ans. 13.
Lail discloses that the seam guard 40 comprises a waterblocker 43
attached to a substrate 42. Col. 3, 1. 65---col. 4, 1. 3; Fig. 4. Lail discloses
that the waterblocker 43 includes a non-woven, porous substrate
impregnated with a superabsorbent polymer material 44. Id. Appellants do
not dispute the Examiner's finding that the superabsorbent polymer material
44 disclosed in Lail corresponds to the particulate matter recited in claim 1.
Compare Office Act. 3, with App. Br. 5-8.
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Lail discloses that during manufacture of the fiber optic cable 10,
"seam guard 40 is paid off a reel" and applied to the seam 35, and the jacket
36 is then extruded over the tape 34 and the seam guard 40. Col. 4, 11. 20-
23. The Examiner finds that Lail discloses that when the seam guard 40 is
applied to the seam 35 of the tape 34 (armor), the superabsorbent polymer
material 44 (particulate matter) is in direct contact with the seam 35 (armor),
meeting the requirement in claim 1 of applying particulate matter to an
exterior surface of the armor. Ans. 3.
Appellants argue that Lail does not disclose applying particulate
matter to an exterior surface of armor, but rather discloses applying a seam
guard 40 paid off a reel to the exterior surface of a seam 35. App. Br. 5-6.
Appellants contend that a seam guard 40 paid off a reel is not a particulate
material. App. Br. 6.
Appellants further assert that Lail discloses embedding the
superabsorbent polymer material 44 within a non-woven, porous substrate of
the waterblocker 43 to form the seam guard 40, at which point the
superabsorbent polymer material 44 is no longer particulate, but is part of a
composite material. App. Br. 7-8; Reply Br. 2. Appellants argue that the
Examiner's interpretation of "applying particulate matter to an exterior
surface of the armor" to include application of this composite material "that
includes a particulate material at one point in its manufacturing process" is
overly broad and inconsistent with paragraph 51 of Appellants'
Specification, which states that "the term 'particulate matter' is understood
to include mixtures of solid particulates of differing type and/or particle size
as well as single composition and size particulates." App. Br. 7-8.
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However, the step of "applying particulate matter to an exterior
surface of the armor" recited in claim 1 does not preclude application of
additional materials with the particulate matter to the exterior surface of the
armor. For example, claim 1 does not recite "applying only particulate
matter to an exterior surface of the armor." Nor does claim 1 recite, for
example, "applying material consisting of particulate matter to an exterior
surface of the armor." Accordingly, as the Examiner correctly finds, Lail's
disclosure of applying a seam guard 40 that includes superabsorbent
polymer material 44 (particulate matter) to the seam 35 of the tape 34
(armor) such that the superabsorbent polymer material 44 (particulate
matter) is in direct contact with the seam 35 of the tape 34 (armor),
corresponds to "applying particulate matter to an exterior surface of the
armor" recited in claim 1.
We accordingly sustain the Examiner's rejection of claims 1, 2, 9-11,
15, 18, and 19 under 35 U.S.C. § 102(b).
Claim 14
Claim 14 depends from claim 1 and recites that the particulate matter
becomes at least partially embedded in the covering during forming of the
covering over the armor.
As discussed above, the Examiner finds that the seam guard 40 and
the outer jacket 36 disclosed in Lail together correspond to the covering
recited in claim 14. Office Act. 3; Ans. 13. The Examiner finds that Lail
discloses applying the seam guard 40 over the seam 35 of the tape 34
(armor), and then applying the jacket 36 over the tape 34 and seam 35
(armor) such that "seam guard ( 40) is embedded into layer 3 6 to cover armor
layer (34)." Ans. 12-13 (citing Lail Figs. 4 and 6); see also Ans. 6 ("the
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seam guard 40 is embedded in and together with layer 3 6 covering over
armor 34/35").
However, as discussed above, Lail discloses that the seam guard 40
comprises a substrate 42 attached to a waterblocker 43 that includes a
superabsorbent polymer material 44. Lail discloses positing the seam guard
40 in the fiber optic cable 10 such that the superabsorbent polymer material
44 (particulate matter) directly contacts the seam 35 of the tape 34 (armor),
and the substrate 42 directly contacts the jacket 36 (covering). Figs. 2, 3, 5,
and 6. Lail further discloses that the substrate 42 prevents contact between
the jacket 36 and the tape 34 in the vicinity of the seam 35. Col. 4, 11. 53-55.
Therefore, as Appellants point out, and as illustrated in Figures 2, 3, 5, and 6
of Lail, because the substrate 42 is positioned between the superabsorbent
polymer material 44 (particulate matter) and the jacket 36 (covering), the
substrate 42 prevents the superabsorbent polymer material 44 (particulate
matter) from being at least partially embedded in the jacket 36 (covering), as
required by claim 14. App. Br. 15.
Accordingly, because the Examiner finds that the seam guard 40 and
the outer jacket 36 disclosed in Lail together correspond to the covering
recited in claim 14, the Examiner does not establish that the superabsorbent
polymer material 44 (particulate matter) disclosed in Lail becomes at least
partially embedded in both the seam guard 40 and the jacket 36 (covering)
during forming of the seam guard 40 and the jacket 36 (covering) over the
seam 35 of the tape 34 (armor), as required by claim 14.
Consequently, we do not sustain the Examiner's rejection of claim 14
under 35 U.S.C. § 102(b).
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Rejection II
Claim 3
Claim 3 depends indirectly from claim 1 and recites, inter alia, that
the particulate matter becomes at least partially embedded in the covering
during forming of the covering over the armor. We do not sustain the
Examiner's rejection of this claim under 35 U.S.C. § 103(a) because the
Examiner does not rely on Field and Pieper for any disclosure that remedies
Lail's lack of disclosure of at least partially embedding the superabsorbent
polymer material 44 (particulate matter) in both the seam guard 40 and the
jacket 36 (covering) during forming of the seam guard 40 and the jacket 36
(covering) over the seam 35 of the tape 34 (armor) (discussed above in
connection with claim 14). Office Act. 5-6.
Claims 4---8, 12, and 13
We need consider only claims 4 and 12, which depend from claim 1
and recite that applying particulate matter comprises blowing particulate
matter over an exterior surface of the armor. Claims 5-8 and 13 each
depend from claim 4 or claim 12.
The Examiner finds that Lail and Field do not disclose applying
particulate matter by blowing the particulate matter over an application
surface, and the Examiner relies on Pieper to address this feature. Office
Act. 6. The Examiner finds that Pieper discloses a method of applying super
absorbent particles over the surface of a forming layer or substrate by
blowing the particles out of a conduit onto the surface of the forming layer.
Office Act. 6; Ans. 6-7. The Examiner determines that it would have been
obvious to one of ordinary skill in the art to use the blowing process
disclosed in Pieper to apply the superabsorbent polymer material 44
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disclosed in Lail to the surface of the waterblocker 43 of Lail's seam guard
40 "in order to achieve even distribution" over the surface. Ans. 6-7, 9--10,
see also Ans. 14. The Examiner determines that it alternatively would have
been obvious to one of ordinary skill in the art to use Pieper's blowing
technique to apply Lail's superabsorbent polymer material 44 directly to the
surface of Lail's tape 34 (armor) to achieve evenness across the surface of
the tape 34 (armor), followed by application of Lail's seam guard 40 over
the superabsorbent polymer material 44. Ans. 6-7, 9--10, see also Ans. 14.
However, as discussed above, Lail discloses a composite material
seam guard 40 in which superabsorbent polymer material (particulate
matter) 44 is impregnated in a non-woven, porous substrate of a
waterblocker 43, and Lail discloses applying this composite seam guard
material to the seam 35 of a tape 34. Lail further discloses that the seam
guard 40 prevents zippering and inhibits the ingress of moisture into the
cable core. Col. 4, 11. 51-53.
As Appellants point out (App. Br. 13), the Examiner does not
articulate reasoning having rational underpinning as to why one of ordinary
skill in the art would have found Pieper' s "blowing technique" to be useful
for forming Lail's fiber optic cable seam guard composite material that
includes a superabsorbent polymer material 44 impregnated in a non-woven,
porous substrate. Although using the process disclosed in Pieper to either
apply the superabsorbent polymer material 44 disclosed in Lail to the surface
of the non-woven, porous substrate of the waterblocker 43 of Lail's seam
guard 40 (and then apply the seam guard 40 to the seam 35 of the tape 34
(armor)), or to apply the superabsorbent polymer material 44 directly to the
surface of Lail's tape 34 (armor), as proposed by the Examiner, may evenly
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distribute the superabsorbent polymer material 44 across the surface of the
tape 34 (armor) as the Examiner asserts, Lail discloses that the
superabsorbent polymer material 44 is impregnated in---or distributed
throughout-the non-woven, porous substrate of the waterblocker 43. As
Appellants correctly argue, the Examiner does not establish that distributing
the superabsorbent polymer material 44 only across the surface of the
waterblocker 43, or only across the surface the tape 34, would maintain the
seam guard's 40 functionality of preventing zippering and inhibiting the
ingress of moisture into the cable core.
Accordingly, the Examiner fails to establish that the combined
disclosures of Lail, Field, and Pieper would have led one of ordinary skill in
the art to modify Lail's method (as modified by Field) to include blowing
Lail's superabsorbent polymer material 44 as disclosed in Pieper onto the
surface of the non-woven, porous substrate 42 of the waterblocker 43 of
Lail's seam guard 40, or by blowing the material directly onto the surface of
Lail's tape 34 (armor). It follows that the Examiner fails to establish a prima
facie case of obviousness of the subject matter recited in claims 4 and 12
within the meaning of 35 U.S.C. § 103(a). In re Oetiker, 977 F.2d 1443,
1445 (Fed. Cir. 1992) ("[T]he examiner bears the initial burden, on review
of the prior art or on any other ground, of presenting a prima facie case of
unpatentability")
We accordingly do not sustain the Examiner's rejections of claims 4--
8, 12, and 13 under 35 U.S.C. § 103(a).
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Rejection III
Claims 20, 21, and 22
Claim 20 depends from claim 1 and recites that the particulate matter
becomes at least partially embedded in the covering. Claims 21 and 22
depend from claim 20. We do not sustain the Examiner's rejection of this
claim under 35 U.S.C. § 103(a) because the Examiner does not rely on
Pieper for any disclosure that remedies Lail's lack of disclosure of at least
partially embedding the superabsorbent polymer material 44 (particulate
matter) in both the seam guard 40 and the jacket 36 (covering) during
forming of the seam guard 40 and the jacket 36 (covering) over the seam 35
of the tape 34 (armor) (discussed above in connection with claim 14 ).
Office Act. 8-10.
Claim 23
Independent claim 23 recites, inter alia, blowing a plurality of
individual particles on to an exterior surface of the armor after deforming the
armor sheet. We do not sustain this rejection for the same reasons discussed
above in connection with claims 4 and 12 for Rejection II.
DECISION
We affirm the Examiner's rejection of claims 1, 2, 9-11, 15, 18, and
19 under 35 U.S.C. § 102(b), and reverse the Examiner's rejection of claim
14 under 35 U.S.C. § 102(b) and rejections of claims 3-8, 12, 13, and 20-23
under 35 U.S.C. § 103(a).
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-IN-PART
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