Ex Parte Brown et al

Patent Trial and Appeal Board

Jun 20, 2017

13924124 (P.T.A.B. Jun. 20, 2017)

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.
13/924,124 06/21/2013 Scott M. BROWN 105967.01666 7793
77001 7590
ULMER & BERNE LLP
c/o Diane Bell
600 Vine Street
SUITE 2800
Cincinnati, OH 45202
06/22/2017 EXAMINER
NGUYEN, CHAU N
ART UNIT PAPER NUMBER
2847
NOTIFICATION DATE DELIVERY MODE
06/22/2017 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):
ipdocketing@ulmer.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHEW S. McLINN, ROBERT S. GOULD,
RICHARD CHAMBERLAIN, SCOTT M. BROWN,
SHAUN MILLER, and ALICE C. ALBRINCK
Appeal 2016-004496
Application 13/924,124
Technology Center 2800
Before JULIA HEANEY, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 request review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner rejecting claims 1—18 of Application 13/924,124.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 This Decision refers to the Specification filed June 21, 2013 (“Spec.”),
Final Rejection dated Oct. 21, 2014 (“Final Act.”), Appeal Brief filed July
21, 2015 (“App. Br.”), Examiner’s Answer dated Jan. 22, 2016 (“Ans.”), and
Reply Brief filed Mar. 22, 2016 (“Reply Br.”).
2 Appellants identify the real party in interest as General Cable Technologies
Corp. App. Br. 1.
Appeal 2016-004496
Application 13/924,124
BACKGROUND
The subject matter on appeal relates to a cable having a cable core
comprising a plurality of insulated pairs of twisted conductors. App. Br. 2.
The insulation of at least one pair of the plurality of insulated pairs of
twisted conductors may be a zero halogen material that is flame retardant,
and the insulation of at least another pair of the plurality of insulated pairs of
twisted conductors may be a zero halogen material that is not flame
retardant. Spec. 1 6. Use of a zero halogen material provides flame
suppression while avoiding release of toxic halogens, such as chlorine, into
the environment in the event of a fire. Id. 14. Claim 1, reproduced below,
is illustrative of the subject matter on appeal:
1. A cable, comprising:
a cable core comprising:
a plurality of insulated pairs of twisted conductors, said
plurality of insulated pairs of twisted conductors comprises one
or more of a primary pair and a secondary pair, wherein each of
the plurality of insulated pairs of twisted conductors comprising
insulation, wherein said insulation of said primary pair of said
plurality of insulated pairs of twisted conductors comprises an
inner layer and an outer layer, said inner layer being formed of
a zero halogen material that is not flame retardant, said outer
layer being formed of a zero halogen material that is
substantially flame retardant, and said insulation of said
secondary pair of said plurality of insulated pairs of twisted
conductors consists of a zero halogen material that is not flame
retardant,
wherein at least a portion of one of said inner layer and
said outer layer is foamed.
App. Br. 18 (Claims Appendix).
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Appeal 2016-004496
Application 13/924,124
THE REJECTIONS
1. Claims 1—3 and 5—16 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Starnes3 and Hudson.4 Final
Act. 3.
2. Claim 4 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Starnes, Hudson, and Grizante Redondo.5 Final
Act. 5.
3. Claims 17 and 18 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Starnes, Hudson, and
Peterson.6 Final Act. 5.
DISCUSSION
Rejection 1
Appellants argue for patentability of independent claims 1 and 10
together, and do not separately argue dependent claims 2, 3, 5—9, or 11—16.
App. Br. 11—14. We therefore limit our discussion to claims 1 and 10 as
argued by Appellants; all dependent claims stand or fall with the claim from
which they depend. 37 C.F.R. § 41.37(c)(l)(iv) (2013).
Upon consideration of the evidence presented in this Appeal in light
of each of Appellants’ contentions, we determine that a preponderance of the
evidence supports the Examiner’s conclusion that the subject matter of
3 Starnes et al., US 6,687,437 Bl, Feb. 3, 2004 (hereinafter “Starnes”).
4 Hudson, US 2004/0050578 Al, Mar. 18, 2004.
5 Grizante Redondo et al., US 2011/0240335 Al, Oct. 6, 2011 (hereinafter
“Grizante Redondo”).
6 Peterson, US 3,928,201, Dec. 23, 1975.
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Appeal 2016-004496
Application 13/924,124
Appellants’ claims is unpatentable over the applied prior art. Accordingly,
we affirm the rejections for the reasons set forth by the Examiner (Final Act.
3—5; Ans. 3—6), which we adopt as our own. We add the following primarily
for emphasis.
The Examiner finds that Starnes discloses a cable core comprising a
plurality of insulated pairs of twisted conductors, wherein the insulation for
all of the pairs is a zero halogen material that is not flame retardant. Final
Act. 3, citing Starnes 3:1—5, Fig. 1. The Examiner acknowledges that
Starnes does not disclose an insulation layer of zero halogen material that is
flame retardant, or foamed. Final Act. 3. The Examiner determines,
however, that it would have been obvious to a person of ordinary skill in the
art to substitute the insulation of one or two primary pairs of Starnes with the
zero halogen flame retardant insulation layer taught by Hudson, in order to
provide the cable with some degree of flame retardancy. Id. at 4, providing
citations to Hudson.
Appellants argue that Hudson teaches away from a combination with
Starnes because Hudson requires a fire-retardant outer layer on each of the
cores. App. Br. 12—13, citing Hudson || 19, 33, 58. Appellants further
argue that if Starnes were modified with the teachings of Hudson, then the
insulation on each pair of Starnes’ twisted conductors, not just a portion of
the pairs, would be substituted with insulation including flame retardants
because a person of ordinary skill in the art would not undermine Hudson’s
teaching that requires each conductor to have a flame-retardant outer layer,
and therefore the combination would not resemble the claimed invention.
App. Br. 13-14.
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Appeal 2016-004496
Application 13/924,124
Appellants’ arguments are not persuasive of reversible error. The
Examiner reasonably finds that a person of ordinary skill in the art would
have been able to extrapolate from Hudson that a cable with just some of the
twisted pairs having flame-retardant insulation would still provide added
protection to the cable from excessive heat due to fire, and thus it would
have been obvious to use flame-retardant insulation on just some of the
twistedpairs. Ans. 4—5. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007); see also id. at 421 (“A person of ordinary skill is also a person
of ordinary creativity, not an automaton.”). Additionally, the Examiner’s
reasoning that a person of ordinary skill would have understood that there
are manufacturing cost tradeoffs involving use of flame-retardant material
supports the determination of obviousness. See Medichem, S.A. v. Rolabo,
S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“a given course of action often
has simultaneous advantages and disadvantages, and this does not
necessarily obviate motivation to combine”).
Appellants’ further argument that increasing the flame retardancy of
Starnes’ insulation could lead to unintended consequences (Reply Br. 2,
citing Spec. 3 4) is insufficient to rebut the prima facie determination of
obviousness. The statements from the Specification relating to undesirable
stiffness associated with flame retardants and previous failed attempts to
make a suitable zero halogen cable with lower cost materials are of limited
probative value because they are unsupported by evidence, and Appellants
have not identified any averment in the Specification or any other
evidentiary submission showing that the results of adding flame retardancy
to cable insulation were unexpected. Accordingly, we sustain the rejection.
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Appeal 2016-004496
Application 13/924,124
Rejections 2 & 3
Rejections 2 and 3 are directed to dependent claims. Although
Appellants address those rejections under separate headings, their arguments
are based on the same arguments presented against Rejection 1, discussed
above. Accordingly, we sustain these rejections for the same reasons
discussed above.
SUMMARY
We affirm the rejections of claims 1—18 as unpatentable 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
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