Ex Parte Stipes

Board of Patent Appeals and Interferences

Mar 31, 2004

09885086 (B.P.A.I. Mar. 31, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JASON STIPES
____________
Appeal No. 2003-1485
Application No. 09/885,086
____________
HEARD: January 22, 2004
____________
Before TORCZON, GROSS, and BLANKENSHIP, Administrative Patent
Judges.
GROSS, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 1 through 10, which are all of the claims
pending in this application.
Appellant's invention relates to a high speed data cable.
Claim 1 is illustrative of the claimed invention, and it reads as
follows:
1. A high speed data cable comprising:
a plurality of individual twisted pairs, each individual
twisted pair includes a first insulated conductor twisted about a
second insulated conductor;
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a jacket surrounding said plurality of individual twisted
pairs,
at least two of said twisted pairs each being laterally
wrapped with a metal composite shield having a polymer layer and
a metal layer, and said metal layer having a thickness of from
about 0.0003 inches to 0.001 inches,
each of said shields has an inner surface and an outer
surface opposite the inner surface and said outer surface facing
said jacket,
each shield has a first overlapping longitudinal side and a
second overlapping longitudinal side, and
said first and second overlapping sides being bonded
together by a bonding agent.
The prior art references of record relied upon by the
examiner in rejecting the appealed claims are:
Dembiak et al. (Dembiak) 3,703,605 Nov. 21, 1972
Krabec et al. (Krabec) 4,477,693 Oct. 16, 1984
Gareis 5,486,649 Jan. 23, 1996
Deitz, Sr. et al. (Deitz) 5,956,445 Sep. 21, 1999
Claims 1 and 7 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Deitz in view of Dembiak.
Claims 2 and 3 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Deitz in view of Dembiak and Gareis.
Claims 4 through 6 and 8 through 10 stand rejected under
35 U.S.C. § 103 as being unpatentable over Deitz in view of
Dembiak and Krabec.
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Reference is made to the Examiner's Answer (Paper No. 9,
mailed January 29, 2003) for the examiner's complete reasoning in
support of the rejections, and to appellant's Brief (Paper No. 8,
filed November 18, 2002) and Reply Brief (Paper No. 10, filed
April 1, 2003) for appellant's arguments thereagainst.
OPINION
As a preliminary matter we note that appellant indicates on
page 4 of the Brief that claims 1 and 7 stand or fall together,
claims 2 and 3 stand or fall together, and claims 4 through 6 and
8 through 10 stand or fall together. As appellant likewise
argues the claims according to the proposed groupings, we will
treat the claims as falling into the three groups with claims 1,
2, and 4 as representative.
We have carefully considered the claims, the applied prior
art references, and the respective positions articulated by
appellant and the examiner. As a consequence of our review, we
will affirm the obviousness rejections of claims 1 through 10.
Appellant argues (Brief, page 5, and Reply Brief, page 4)
that Deitz fails to disclose that each individual shield is
bonded along its longitudinal length, as recited in claim 1. We
disagree. Deitz shows the seam for the shield three different
ways - as the two edges overlapping, for shields 16 and 16A in
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Figures 1 and 6, as the two edges meeting but not overlapping,
for shields 36 and 36A in Figures 4 and 5, and as no seam at all,
for shield 18 in Figure 1. Thus, the embodiment of Figures 1 and
6 includes an overlap along the longitudinal length of the
individual shield.
Appellant further argues (Brief, page 6) that Deitz and
Dembiak do not have the required motivation or suggestion "to
allow an artesian [sic] to extrapolate from Dembiak's bonded
overall shield into Deitz' individual shield." Yet, according
to appellant (Brief, page 5), "even if Dembiak provided teaching
and motivation to bond the individual shields of Deitz, one
relying on Dembiak and Deitz, would not use an aluminum layer
between .0003 and .001 inches." In particular, appellant
explains (Brief, page 6) that Dembiak teaches a thickness of .008
inches for an overall moisture barrier, whereas Deitz uses a thin
individual shield for controlling electricals (rather than water
prevention). Appellant concludes (Brief, pages 6-7) that to use
Dembiak's teaching of bonding an overlapping edge, the skilled
artisan would use aluminum with a thickness of .008 inches for
the overall shield and would bond an overlapping edge thereof to
prevent water penetration rather than bond an overlapping edge of
the individual shield.
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We disagree with appellant. Dembiak discloses (column 2,
lines 12-15) that "slippage along the seam may be eliminated and
the effectiveness of the strip as a moisture barrier or shield
enhanced substantially if the seam between the overlapping edges
is sealed" (emphasis ours). Further, Dembiak teaches (column 2,
lines 32-37) that "to improve the corrosion resistance of the
barrier or shield and eliminate the slippage along the
overlapping seam, a special adhesive copolymer . . . may be
applied to both sides of the metallic tape to form a shielding
layer" (emphasis ours). Thus, Dembiak teaches bonding an
overlapping edge to prevent slippage as well as to create a more
effective moisture barrier. The skilled artisan would have
desired the prevention of slippage for the individual shield as
well as for the overall shield without regard for the thickness
of the layers. Further, the bonding of the overlap to prevent
slippage would not require any particular thickness of the layer.
Accordingly, the skilled artisan would have applied Dembiak's
teaching to bond an overlapping edge to Deitz's individual
shield.
Appellant alleges (Brief, page 7) that the examiner used
improper hindsight in combining the two references. We have
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already indicated supra that the examiner appropriately applied
the explicit teachings of the references.
Appellant additionally contends (Brief, page 7, and Reply
Brief, pages 3-4) that the references fail to disclose
appellant's unexpected advantages of "improved resistance to
deformation, and in turn, increased impedance stability over
conventional design cables." However, Dembiak teaches
elimination of slippage which one would expect would reduce
deformation. Further, for unexpected results to be given
substantial weight in the determination of obviousness, the
burden is upon appellant to show a nexus between the merits of
the claimed invention and objective evidence of unexpected
results. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281, 305 n.42, 227 USPQ 657, 673-674 n.42 (Fed. Cir.
1985), cert. denied, 475 U.S. 1017 (1986). Objective evidence of
unexpected results must be factually supported by an appropriate
affidavit or declaration to be of probative value. See In re De
Bauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984).
Arguments of counsel cannot take the place of evidence in the
record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718
(CCPA 1965). As appellant has provided no factual evidence to
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support arguments of unexpected results, we are unpersuaded by
this argument.
Appellant asserts (Brief, page 8) that Dembiak is not
analogous art. Appellant argues that the field of endeavor is
different because the invention relates to "data cables with
individually shielded twisted pairs" whereas Dembiak relates to
"communication cables with sealed moisture barriers." However,
both the invention and Dembiak are in the field of communication
cables, and, therefore, are within the same field of endeavor.
Thus, we are unconvinced that the examiner erred in rejecting
claims 1 and 7 over Deitz in view of Dembiak. Accordingly, we
will sustain the obviousness rejection of claims 1 and 7.
For the rejection of claims 2 and 3, the examiner adds
Gareis to the primary combination of Deitz and Dembiak.
Appellant contends (Brief, pages 8-9) that Gareis "has nothing to
do with preventing water penetration" and, thus, "[o]ne modifying
the Deitz cable, to prevent water penetration would therefore
utilize the Dembiak design." However, Dembiak uses an
overlapping edge not just to prevent water penetration, but also
to reduce slippage. Gareis (column 1, lines 33-35) explains that
prior art designs with overlaps still have a loosening of the
shield where it overlaps (which in turn causes impedance
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instability). Gareis solves the problem of the prior art by
having the longitudinal side folded as recited in claims 2 and 3.
Accordingly, Gareis improves upon the design of Dembiak in terms
of slippage. Therefore, it would have been obvious to combine
Gareis with Deitz and Dembiak, and we will sustain the
obviousness rejections of claims 2 and 3.
Regarding claims 4 through 6 and 8 through 10, the examiner
combines Krabec with Deitz and Dembiak. Appellant argues (Brief,
pages 9-10) that since Krabec relates to an overall shield,
rather than to individual shields of twisted pairs, the skilled
artisan at best would modify Deitz's overall shield with Krabec's
teachings rather than the individual shields.
Krabec (column 1, lines 32-46) teaches that thin metal foils
are generally made as a laminate with a polyester or
polypropylene member to prevent structural failure. Further, the
polyester or polypropylene member causes a nonconductive gap or
slot through the shield which allows transmission of RF energy
therethrough. Krabec teaches using metal layers on both sides of
the polyester or polypropylene member to reduce the leakage.
Although Krabec's disclosure relates to the overall shield, the
skilled artisan would expect the same issues to occur for the
overlapping edge of Deitz's individual shields. Accordingly, the
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skilled artisan would have applied the teachings of Krabec to the
individual shields. The level of the skilled artisan should not
be underestimated. See In re Sovish, 769 F.2d 738, 743, 226 USPQ
771, 774 (Fed. Cir. 1985).
Appellant contends (Brief, page 10, and Reply Brief, page 7)
that Krabec requires that the aluminum layers have a thickness of
0.0035 inches, which is greater than appellant's layer thickness,
and that the skilled artisan would not ignore such thickness
requirements. However, the relevant teachings of Krabec are in
the background section and are applicable to any thickness of
aluminum.
Last, appellant asserts (Brief, page 10, and Reply Brief,
page 6) that Krabec is nonanalogous art because it concerns
"multiple shielded coaxial cables with very low transferred
impedance," whereas the invention relates to individually
shielded twisted pair cables. However, both are in the field of
electrical cables. Accordingly, they are in the same field of
endeavor. Thus, we will sustain the obviousness rejections of
claims 4 through 6 and 8 through 10.
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CONCLUSION
The decision of the examiner rejecting claims 1 through 10
under 35 U.S.C. § 103 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).
AFFIRMED
RICHARD TORCZON )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
ANITA PELLMAN GROSS ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
HOWARD B. BLANKENSHIP )
Administrative Patent Judge )
AG/RWK
Appeal No. 2003-1485
Application No. 09/885,086
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Lee, Mann, Smith, McWilliams,
Sweeney & Ohlson
P.O. Box 2786
Chicago, IL 60690