Ex Parte Clark

Board of Patent Appeals and Interferences

Feb 24, 2010

11349482 (B.P.A.I. Feb. 24, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte WILLIAM CLARK
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Appeal 2009-003113
Application 11/349,482
Technology Center 2800
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Decided: February 24, 2010
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Before CHARLES F. WARREN, MARK NAGUMO, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-003113
Application 11/349,482
A. Introduction1
William Clark (“Clark”) timely appeals under 35 U.S.C. § 134(a)
from the final rejection2 of claims 1 and 3-17. We have jurisdiction under
35 U.S.C. § 6. We AFFIRM.
The subject matter on appeal relates to data cables comprising at least
four pairs of twisted pair insulated conductors. According to the inventor,
different “twist lay lengths” (the length along a twisted pair for a complete
revolution of the conductors around each other) and pair proximity control
(which pairs are kept close together, and which are kept farther apart) are
used to meet Category 5 and Category 6 transmission requirements.
Claim 12, reproduced from the Claims Appendix to the Brief on
Appeal, is representative.
12. A cable for data communications comprising:
a plurality of twisted pairs of insulated conductors
including a first twisted pair having a first twist lay
length, a second twisted pair having a second twist lay
length, a third twisted pair having a third twist lay length
and a fourth twisted pair having a fourth twist lay length;

1 Application 11/349,482, Multi-Pair Communication Cable Using
Different Twist Lay Lengths and Pair Proximity Control, filed
7 February 2006, claiming the benefit under 35 U.S.C. § 120 of an
application filed 27 May 2003 and the benefit under 35 U.S.C. § 119(e) of a
provisional application filed 5 February 2003. The specification is referred
to as the “482 Specification,” and is cited as “Spec.” The real party in
interest is listed as Belden Technologies, Inc. (Appeal Brief, filed
7 April 2008 (“Br.”), 3.)
2 Office action mailed 27 July 2007 (“Final Rejection”; cited as “FR”).
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Application 11/349,482
wherein the first and second twisted pairs of insulated
conductors are nested together such that
the first and second twisted pairs are in substantial
physical contact along the full length of the cable
and
substantially physically separate the third and
fourth twisted pairs.
(Claims App., Br. 19, indentation, paragraphing, and emphasis added.)
Figure 2a, from the 482 Specification, shown below,

{Fig. 2a is said to show a data cable in cross section}
is said to illustrate an embodiment within the scope of claim 12. Twisted
pairs are comprised of a pair of conductors 48, each covered by
insulation 50. Twisted pairs 40 and 46 are seen to be in substantial contact
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Application 11/349,482
with one another, and to separate twisted pair 42 from twisted pair 44.3 This
arrangement must be maintained along the full length of the cable.
Claim 13 depends from claim 12 and adds the limitation that the twist
delta between the first and second lay lengths is larger than the twist delta
between the third and fourth lay lengths.
Claim 1 is similar to claim 12 and adds the further limitations that the
twist lay length of each twisted pair is unique, and that at least five of the six
twist deltas are greater than 15%.
The Examiner has maintained the following grounds of rejection:4
A. Claim 12 stands rejected under 35 U.S.C. § 102(e) in view of
the teachings of Barton.
B. Claims 1, 6, and 7 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Barton5 and Horie 152.6
C. Claim 4 stands rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Barton, Horie 152, and Friesen.7
D. Claim 5 stands rejected under 35 U.S.C. § 103(a) in view of the
combined teachings of Barton, Horie 152, and Deitz.8

3 Labels are presented in bold for clarity, regardless of their presentation in
the original document.
4 Examiner’s Answer mailed 28 May 2008. (“Ans.”). The order of
rejections has been revised for clarity.
5 John A. Barton, Multiple Conductor Electrical Cable with Minimized
Crosstalk, U.S. Patent 6,378,283 B1 (30 April 2002).
6 Yasushi Horie et al., Communication Cable, U.S. Patent 5,659,152 (1997).
7 Harold Wayne Friesen et al., U.S. Patent 6,194,663 B1 (2001).
8 Gregory S. Dietz, Sr. and Timothy N. Berelsman, U.S. Patent 5,666,452
(1997).
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Application 11/349,482
E. Claims 1, 3, 8-11, and 13-16 stand rejected under
35 U.S.C. § 103(a) in view of 35 U.S.C. § 103(a) in view of the
combined teachings of Barton and Horie 573.9
F. Claim 17 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Barton, Horie 573, and Friesen.
G. Claim 12 stands rejected under 35 U.S.C. § 102(b) in view of
the teachings of Zerbs.10
Clark contends, inter alia, that the Examiner erred in finding
anticipation of claim 12, because, according to Clark, neither Barton nor
Zerbs describes first and second twisted pairs of insulated conductors that
are nested together and in physical contact along the full length of the cable.
In particular, Clark argues that Barton teaches that the “nesting” of pairs
shown in Figure 3 is “periodic or alternating, such that at some points
twisted pairs 1 and 3 may nest together, but at other points, pairs 2 and 4
may nest together.” (Br. 7, ll. 10-13.) Clark argues further that because
none of the applied secondary references cure this deficiency of Barton,
which also applies to claim 1, all of the Examiner’s obviousness rejections
must also be reversed.
The Examiner finds that Barton (in Figure 3) and Zerbs (Figure 1,
cable 19) each describe cables of multiple twisted pairs that are arranged as
required by claim 12. The Examiner finds that each of Horie 152 and
Horie 573 (collectively hereinafter, “Horie”) describe cables comprising four

9 Yasushi Horie et al., Communication Cable, U.S. Patent 6,300,573 B1
(2001).
10 Stephen Taylor Zerbs, Fire Resistant Cable for Use in Local Area
Network, U.S. Patent 5,739,473 (1998).
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Application 11/349,482
twisted pairs, each having a unique twist pair length and further meeting the
twist delta condition required by claims 1 and 13. The Examiner argues that
it would have been obvious to use the twisted pairs taught by Horie in the
arrangement described by Barton. The Examiner relies on the remaining
references as evidence of the obviousness of further limitations, but as those
limitations are not contested, we need not mention them further.
The dispositive issue in this case is whether Clark has shown
reversible error in the Examiner’s findings that Barton and Zerbs describe
cables in which a first pair of twisted pairs are substantially in contact with
one another along the length of the cable and that the first pair of twisted
pairs substantially physically separates a third twisted pair from a fourth
twisted pair.
We find that Clark has not supported the characterization of the
teachings of Barton with probative evidence, and that the preponderance of
the evidence of record supports the Examiner’s findings as to Barton. We
therefore AFFIRM Rejections A through F, based on Barton.
We find that Clark’s characterization of the teachings of Zerbs is
supported by the preponderance of the evidence of record, and we therefore
REVERSE Rejection G, based on Zerbs.
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Application 11/349,482
B. Findings of Fact
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The 482 Specification
1. In the words of the 482 Specification, “according to one embodiment
of the invention, illustrated in FIG. 2a [reproduced supra at 3], the twisted
pairs may be arranged such that twisted pairs 40, 46 are nested.” (Spec. 6,
ll. 4-5.)
2. The 482 Specification observes further that “the twisted pairs 40
and 46 may serve both to physically separate pairs 42 and 44 and to act as an
isolation shield between pairs 42 and 44. (Spec. 6, ll. 25-27.)
3. The 482 Specification does not define the terms “substantial physical
contact” or “substantially physically separate.”
4. The 482 Specification does not explain the significance of the circles
labeled 40, 42, 44, and 46, in Figure 2a, reproduced supra at 3, nor are
similar labeled features in Figures 1-5 explained.
Barton
5. According to Barton, crosstalk is an important but not well-
understood characteristic of paired cables. (Barton, col. 4, ll. 51-52.)
6. In Barton’s words, “[a] great deal of attention is paid to the individual
pairs in a cable, with respect to lay length and variation of lay length, but
little attention is paid to the overall geometry of the cable lay-up.” (Barton,
col. 4, ll. 53-56.)
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Application 11/349,482
7. According to Barton, such inattention is due to the difficulty of
maintaining a “specific geometry that allows for equal center-to-center
spacing of the individual pairs.” (Barton, col. 4, ll. 58-60.)
8. Barton’s invention is said to provide “a device that brings the
geometry of the pairs close[s]t to the desired center-to-center spacing to
provide improved crosstalk performance.” (Barton, col. 4, l. 67-col. 5, l. 2.)
9. Barton shows in Figure 3 “a cross section of a multiple conductor
electrical cable 300 produced without using the principles of the invention.”
(Barton, col. 9, ll. 36-38; emphasis added.)
10. Barton Figure 3 is shown below:

{Barton Figure 3 is said to show a conventional cable}
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11. Cable 300 is said to comprise four twisted pairs, 1, 2, 3, and 4,
wherein each twisted pair “is circumscribed with a dotted circle 350 which
denotes the projection of the periphery of a cylinder of revolution defined by
a rotation of the twisted conductor pair, if the twisted conductor pair were
free to rotate about the direction perpendicular to the plane of FIG. 3.”
(Barton, col. 9, ll. 46-51.)
12. Barton explains further that
if one were to follow a twisted pair, such as twisted pair 1,
along the length of multiple conductor electrical cable 300,
one would observe that the twisted pair 1 would appear to
“rotate” within the approximate confines of a cylinder
depicted at any point along the multiple conductor electrical
cable 300 by dotted circle 350.”
(Barton, col. 9, ll. 51-56.)
13. Barton remarks further that, “[i]n the geometry of the multiple
conductor electrical cable 300 of FIG. 3, the twisted pairs 1, 2, 3, and 4 are
positioned closely with regard to each other. Twisted pairs 1 and 3 are
depicted as having their respective insulation substantially in contact.”
(Barton, col. 9, ll. 61-65.)
14. Barton further describes the structure of Figure 3 as showing “twisted
conductor pairs that are disposed in a substantially rhombohedral array, and
that there is virtually no region in the ‘middle’ of the array of FIG. 3 that
does not comprise twisted conductor pairs.” (Barton, col. 10, ll. 29-33.)
15. Barton explains that because electromagnetic interference decreases
with increasing distance, there will be more interference between twisted
conductor pairs in the configuration shown in Barton Figure 3 than in the
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Application 11/349,482
configuration shown in Barton Figure 4, which shows a substantially square
array of twisted pairs. (Barton, col. 10, ll. 51-62.)
16. Barton explains further that the closer distance between the twisted
conductor pairs in Figure 3 leads to greater variations in electromagnetic
interactions between the twisted pairs than in Figure 4. (Barton, col. 10,
l. 62-col. 11, l. 7.)
17. Due to the twisting, “[t]he positions of the wires within a twisted
conductor pair change as one moves along the multiple conductor electrical
cable.” (Barton, col. 11, ll. 17-19.)
18. As Barton explains in more detail regarding the twisted pair cable
shown in Figure 3:
exchanging the relative positions of wire 332 of twisted
conductor pair 1 and wire 330 of twisted conductor pair 3
with the positions of wire 330 of twisted conductor pair 1 and
wire 332 of twisted conductor pair 3 causes a change of
distance between wire pairs that is substantially the sum of
the outside dimension of the insulated wire 330 and 332.”
(Barton, col. 11, ll. 21-27.)
Zerbs
19. Zerbs describes cables that comprise groups of twisted pairs of
insulated conductors for data transmission in local area networks.
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20. More particularly, Zerbs describes a cable 11 comprised of seven
groups of twisted pairs, shown in Figure 1, below:

{Zerbs Fig. 1 is said to show a cable}
21. Twisted-pair groups 12, 13, 14, 15, 16, 17, and 18 surround twisted
pair group 19; each pair of insulated conductors is indicated by reference
numeral 21.
22. Groups 13, 16, and 18 are said to have three twisted pairs each, while
groups 12, 14, 17, and 19 are said to have four twisted pairs each. (Zerbs,
col. 3, ll. 55-58.)
23. Groups 13, 16, and 18 are seen to have six conductors, while
groups 12, 14, 17, and 19 are seen to have seven conductors.
24. It is therefore not entirely clear how groups 12, 14, 17, and 19 can be
said to have four twisted pairs each.
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Application 11/349,482
25. Zerbs states that “[w]ithin each group, the twist length of the pairs
differs in order to minimize cross-talk, or inter-pair noise.” (Zerbs, col. 3,
ll. 58-59.)
26. Zerbs does not appear to describe further how any given twisted pair
relates to any other twisted pair in any group.
C. Discussion
As the Appellant, Clark bears the procedural burden of coming
forward with evidence and argument showing harmful error in the
Examiner’s rejections.
In this appeal, the critical limitation of the claims is that “the first and
second twisted pairs are in substantial physical contact along the full length
of the cable.” The 482 Specification does not provide an express definition
of the term “substantial physical contact.” Indeed, in Figure 2a, which is
said to show an embodiment within the scope of the claimed invention, none
of the twisted pairs are shown to be in physical contact with any of the other
twisted pairs. Moreover, the 482 Specification does not appear to explain
what is meant by circles 40, 42, 44, and 46, which surround the twisted cable
pairs. There is no necessary “filler” occupying the voids between any of the
insulated conductors or between the twisted pairs. It is therefore reasonable
to presume that circles 40-46 are similar to the dashed circles 320 shown in
Barton Figure 3—i.e., they represent encompassing cylinders of rotation in
which the twisted pairs lie. Alternatively, the circles merely “guide the eye”
to make clear which pairs are the twisted pairs. In any event, “substantial
physical contact” of one twisted pair with another thus corresponds to
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Application 11/349,482
contact between the corresponding encompassing cylinders of rotation.
Thus, in Fig. 2a, twisted pair 40 is in substantial physical contact with
twisted pairs 42, 44, and 46, while twisted pair 42 is in substantial physical
contact only with twisted pairs 40 and 46. As seen in Fig. 2a, twisted
pairs 40 and 46 substantially physically separate twisted pair 42 from twisted
pair 44. We note further that although the claims require substantial
physical contact along the full length of the cable, the claims do not set any
limitation on the length of the cable.
Regarding the rejections over Barton, Clark states repeatedly, but does
not point with specificity to any passage in Barton, that Barton teaches that
the “nesting” of pairs shown in Figure 3 is “periodic or alternating, such that
at some points twisted pairs 1 and 3 may nest together, but at other points,
pairs 2 and 4 may nest together.” (Br. 7, ll. 10-13; cf. 8, ll. 7-9; 11, ll. 15-17;
13, ll. 21-23.) While we find, in the passages cited by Clark, that Barton
does describe the changing distances between wire pairs, nowhere do we
find any credible evidence that Barton teaches that the “nesting” of wire
pairs 1 and 3 is “periodic,” and that, at other positions along the cable, wire
pairs 2 and 4 will be found to nest and to separate wire pairs 1 and 3.
In the Reply Brief,11 Clark argues for the first time that the Examiner
failed to consider Barton as a whole, and failed to account for Barton’s
remarks that maintaining “a specific geometry that allows for equal center-
to-center spacing of the individual pairs” is very difficult, and noting further
the degradation of the geometry during final assembly of the cable.
(Reply 6, quoting Barton, col. 4, ll. 51-65.) There are several difficulties

11 Reply Brief filed 28 July 2009, cited as “Reply.”
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Application 11/349,482
with this argument. First, it is arguably belated, as there is no apparent
reason it could not have been presented in the principal Brief on Appeal.
Such a belated argument is waived, absent a showing of good cause why it
could not have been timely presented. 37 C.F.R. § 41.37(c)(1)(vii).
Substantively, we do not find that Barton, in the passages cited in the Reply,
“clearly states that maintaining a specific geometry in conventional cables,
such as that illustrated in Figure 3, over the entire length of the cable is
difficult” (Reply 6, ll. 21-23). Rather, Barton appears to be discussing
cables such as those shown in Figure 4, in which the twisted pairs are not in
direct contact with one another. We agree that the latter geometry is likely
to be unstable and difficult to maintain. However, Clark has not supported
the argument that cables in which the twisted pairs are in substantial contact,
such as those illustrated by Figure 3, are difficult to maintain. This proposed
finding of fact, while not on its face unbelievable, is not supported by
credible evidence of record. Moreover, while snarls of computer cables and
audio-visual cables have been a common experience (at least prior to the
more compactly designed combined cables now provided with many
systems), we are not prepared to take Official Notice of such a fact in what
appears to be an area of special technical interest. Without credible evidence
of record, Clark’s arguments remain mere arguments of counsel that we
need not credit as fact.
In light of Barton’s concern with “the overall geometry of the cable
lay-up” (Barton, col. 4, ll. 56-56) and the express teachings that the cylinders
of revolution denoted by dotted circles 350 show the confines in which a
twisted pair would “rotate,” if it could, we find the weight of the evidence of
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Application 11/349,482
record supports the Examiner’s position that the geometry shown in Figure 3
is maintained over the length of the cable. Moreover, we note that the
claims do not require the cable to have any minimum length. Thus, they are
met by a short segment of cable having the cross section shown in Barton
Figure 3. For these reasons, we are not persuaded that Clark has
demonstrated that the Examiner’s findings regarding Figure 3 are erroneous
and we AFFIRM the rejection of claim 12 as anticipated by Barton.
Regarding the obviousness rejections, Clark does not dispute any of
the Examiner’s findings regarding the other references. Nor does Clark
dispute with particularity the combinations proposed by the Examiner,
except to argue that there would have been no motivation to modify cables
shown in Barton Figure 3. It is of no moment that Barton Figure 3 is a
comparative figure said to represent an embodiment that Barton seeks to
improve upon. Figure 3 stands as evidence that a configuration of twisted
pairs covered by claim 12 was known in the art prior to the filing date of
Clark’s application. Clark has not come forward with evidence and
argument showing why, for example, the use of twisted pairs such as those
taught by Horie would not have been obvious in a prior art cable having the
geometry of Figure 3. We therefore AFFIRM the rejection of claims 1
and 13 as obvious in view of the combined teachings of Barton and the other
references.
As Clark has waived all arguments against the rejections for
obviousness of claim 1, including any arguments against the Examiner’s
interpretation of the other applied references and the combination of the
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Application 11/349,482
teachings of those references with the teachings of Barton, we AFFIRM all
obviousness rejections based on Barton.
The rejection of claim 12 based on Zerbs stands differently. The
Examiner has merely recited the claim limitations and asserted that central
twisted pair group 19 meets all the limitations. It is true that there are
groupings of twisted pairs in group 19 that are similar to those shown in
Clark’s Figure 2a or to Barton’s Figure 3. However, as Clark correctly
points out, the Examiner has not pointed to any disclosure in Zerbs that
indicates any concern for the relative disposition of one twisted pair to
another. Put another way, the Examiner has not come forward with any
credible evidence to support the proposed findings of fact regarding Zerbs.
We therefore REVERSE the rejection of claim 12 as anticipated by Zerbs.
D. Order
We AFFIRM the rejection of claim 12 under 35 U.S.C. § 102(e) in
view of the teachings of Barton.
We AFFIRM the rejection of claims 1, 6, and 7 under
35 U.S.C. § 103(a) in view of the combined teachings of Barton and
Horie 152.
We AFFIRM the rejection of claim 4 under 35 U.S.C. § 103(a) in
view of the combined teachings of Barton, Horie 152, and Friesen.
We AFFIRM the rejection of claim 5 under 35 U.S.C. § 103(a) in
view of the combined teachings of Barton, Horie 152, and Deitz.
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We AFFIRM the rejection of claims 1, 3, 8-11, and 13-16 under
35 U.S.C. § 103(a) in view of 35 U.S.C. § 103(a) in view of the combined
teachings of Barton and Horie 573.
We AFFIRM the rejection of claim 17 under 35 U.S.C. § 103(a) in
view of the combined teachings of Barton, Horie 573, and Friesen.
We REVERSE the rejection of claim 12 under 35 U.S.C. § 102(b) in
view of the teachings of Zerbs.
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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