Ex Parte Helvenstein

Patent Trial and Appeal Board

Aug 14, 2014

12077186 (P.T.A.B. Aug. 14, 2014)

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.
12/077,186 03/17/2008 Real Helvenstein 979-357 5621
39600 7590 08/15/2014
SOFER & HAROUN LLP.
317 MADISON AVENUE, SUITE 910
NEW YORK, NY 10017
EXAMINER
TAVLYKAEV, ROBERT FUATOVICH
ART UNIT PAPER NUMBER
2883
MAIL DATE DELIVERY MODE
08/15/2014 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 REAL HELVENSTEIN
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Appeal 2012-008633
Application 12/077,186
Technology Center 2800
____________

Before BRADLEY R. GARRIS, TERRY J. OWENS, and
KAREN M. HASTINGS, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections under 35 U.S.C. § 103(a) of independent claim 1 as unpatentable
over Blew (US 5,345,526, Sept. 6, 1994) in view of Griffioen et al. (US
2002/0081083 A1, published June 27, 2002) and of dependent claims 3–14
and 19 as unpatentable over these references alone or in combination with
additional prior art. We have jurisdiction under 35 U.S.C. § 6.

We AFFIRM.

Appeal 2012-008633
Application 12/077,186

2
Appellant claims an optical cable comprising one or more main
optical fiber modules 11 of which a number n are disposed in at least one
tube 3, "said at least one tube including void space so that said n main
modules are free inside said at least one said tube over a long length for the
purpose of connection to feed points and are able to slide inside the tube and
to be extracted easily from said tube" (claim 1, Fig. 2).

A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. An optical cable comprising:
one or more main optical fiber modules, each having optical fibers
and an outer sheath, the optical fibers of each main module being surrounded
by said outer sheath;
a protective covering surrounding said main optical fiber module(s),
wherein n main optical fiber modules, where n is an integer such that 1 ≤ n
≤ 3, are disposed inside at least one tube that is specific thereto, said at least
one tube including void space so that said n main modules are free inside
said at least one said tube over a long length for the purpose of connection to
feed points and are able to slide inside the tube and to be extracted easily
from said tube; and
said cable further includes a carrier element inside said protective
covering, said at least one tube being held stationary between said carrier
element and said protective covering.

Appellant does not present separate arguments specifically directed to
the dependent claims under rejection (see Br. 21). Accordingly, these claims
will stand or fall with sole independent claim 1.

We sustain the above rejections based on the findings of fact,
conclusions of law, and rebuttals to arguments expressed by the Examiner in
Appeal 2012-008633
Application 12/077,186

3
the Final Office Action and in the Answer. The following comments are
added for emphasis.

In rejecting claim 1, the Examiner expresses the factual findings and
obviousness conclusion set forth below:
While Blew cites (col. 5, lines 10 - 15) that the main
optical fiber modules are in a loose-buffered relationship with
the tubes for the purpose of facilitating drop connections at feed
points (e.g., col. 2, lines 3 – 6; col. 3, lines 30 – 34), Blew does
not detail how loose the main optical fiber modules can be
within the tubes, in particular, whether a degree of "looseness"
can be sufficient over a long length (according to the instant
specification, 100 meters is considered a long length).
However, Griffoen [sic] discloses (e.g., Figs. 4 and 5) a
protective tube (10) enclosing a plurality of main optical fiber
modules, each having optical fibers (40) and an outer sheath
(14). Griffoen [sic] expressly teaches (e.g., Abstract; par.
[0061]) that the tube (10) includes void space so that main
modules are free inside the tube over a long length, e.g., 1200
meters (par. [0061]) and in particular, can move freely (e.g., by
fiber blowing) over at least that length of the cable. Therefore,
it would have been obvious to a person of ordinary skill in the
art that some or all of the plurality of tubes (16) disclosed by
Blew can have the structure of the tube (10) taught by Griffoen
[sic]. The benefits are that (i) each outer sheath can provide
protection (against water and/or contaminants related to soil)
for the optical fibers contained therein (par. [0032], [0055], and
[0056] of Griffoen) [sic] and (ii) installation/extraction (e.g., by
air blowing) of individual main optical fiber modules can be
facilitated by using a low fill ratio (e.g., Abstract of Griffoen)
[sic].

(Final Office Action (FOA) para. bridging 5–6)

Appeal 2012-008633
Application 12/077,186

4
Appellant argues that "the yarns 24 [sic, 26] of Blew are integral and
important to the structure of the Blew cable . . . [and] cannot be readily
replaced with alternative tube arrangements from other cables" (Br. 18) and
accordingly that the proposed modification would render the Blew cable
unsatisfactory for its intended purpose and would change its principle of
operation (id.).

Appellant does not explain with any reasonable specificity why the
Examiner's proposed modification of the Blew cable would render it
unsatisfactory or would change its principle of operation. On the other hand,
the Examiner explains that the proposed modification would continue to
perform the color identification function of the yarns and therefore would
make no change in the principle of operation of the Blew cable (Ans. 13). In
the record of this appeal, Appellant does not respond to, and thus does not
show error in, the Examiner's explanation (i.e., no Reply Brief has been
filed). For these reasons, Appellant's argument lacks persuasive merit.

Appellant also argues that, "even if . . . such an exchange of the tubes
of Griffiown [sic] are made into the structure of Blew, the resulting Blew
Griffioen structure would still not renders [sic] structure where the main
modules are able to slide inside the tube (eg tube 3) and to be extracted
easily from the tube" (Br. 20).

This argument is not accompanied by evidence or technical reasoning
of any kind and accordingly is little more than an unsupported assertion. In
Appeal 2012-008633
Application 12/077,186

5
contrast, the Examiner's opposing determination is supported by the
Griffioen reference, particularly paragraph 61 therein, which evinces that the
tube resulting from the Blew/Griffioen combination would enable
performance of the module sliding and extracting function recited in claim 1
(FOA 5–6, Ans. 14). Under these circumstances, the above argument fails
to persuade us that the Examiner's rejection of claim 1 is erroneous.

The decision of the Examiner is affirmed.

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

cdc