Ex Parte Travis

Patent Trial and Appeal Board

May 1, 2018

14628244 (P.T.A.B. May. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/628,244 02/21/2015 Peter T. TRAVIS
82442 7590 05/01/2018
CommScope by Muncy, Geissler, Olds & Lowe, P.C.
4000 Legato Road
Suite 310
Fairfax, VA 22033
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.
4799/0478PUS2 9108
EXAMINER
CHU,CHRIS H
ART UNIT PAPER NUMBER
2874
MAIL DATE DELIVERY MODE
05/01/2018 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 PETER T. TRAVIS
Appeal2017-007724
Application 14/628,244
Technology Center 2800
Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner's decision to finally reject claims 1-20. We have jurisdiction over
this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the applicant, CommScope, Inc., which, according to the
Appeal Brief, is the real party in interest. Appeal Brief filed November 19,
2016 ("App. Br."), 1.
Appeal2017-007724
Application 14/628,244
STATEMENT OF THE CASE
Appellant claims a module for a fiber optic patching system
(independent claims 1 and 8) and a shutter assembly (independent claim 15).
Claims 1 and 8 illustrate the subject matter on appeal and are reproduced
below with contested limitations italicized:
1. A module for a fiber optic patching system comprising:
a housing having a front face presenting a first row of
ports and a second row of ports;
an opening formed in said front face of said housing
between said first row of ports and said second row of ports;
and
a shutter assembly which slides into said opening and is
retained within said opening, said shutter assembly including:
a first shutter which resides in front of a first port
in said first row of ports, said first shutter being movable
between a first position substantially covering said first port and
a second position wherein said first shutter has pivoted into
said first port to a position closer to a bottom side within said
first port adjacent said opening; and
a second shutter which resides in front of a second
port in said second row of ports, said second shutter being
movable between a third position substantially covering said
second port and a fourth position wherein said second shutter
has pivoted into said second port to a position closer to a top
side within said second port adjacent said opening.
8. A module for a fiber optic patching system comprising:
a housing having a front face presenting a first row of
ports and a second row of ports; and
a shutter assembly residing between said first row of
ports and said second row of ports, said shutter assembly
including:
a frame;
a first panel pivotably mounted to said frame, said
first panel forming a first shutter and a second shutter, said first
panel being pivotable between a first position wherein said first
and second shutters substantially cover first and second ports in
2
Appeal2017-007724
Application 14/628,244
said first row of ports and a second position wherein said first
and second shutters have pivoted into said first and second
ports to positions closer to bottom sides within said first and
second ports to allow access to said first and second ports; and
a second panel pivotably mounted to said frame,
said second panel forming a third shutter and a fourth shutter,
said second panel being pivotable between a third position
wherein said third and fourth shutters substantially cover third
and fourth ports in said second row of ports, and a fourth
position wherein said third and fourth shutters have pivoted into
said third and fourth ports to positions closer to top sides within
said third and fourth ports to allow access to said third and
fourth ports.
App. Br. 17, 19--20 (Claims Appendix) (emphasis added).
The Examiner sets forth the rejection of claims 1-20 under 35 U.S.C.
§ 103 as unpatentable over Mudd et al. (US 2011/0038581 Al, published
February 17, 2011) in view of Sanders et al. (US 2013/0121643 Al,
published May 16, 2013) in the Final Office Action entered May 19, 2016
("Final Act."), and maintains the rejection in the Examiner's Answer entered
March 23, 2017 ("Ans.").
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant's contentions, we affirm the Examiner's rejection of
claims 1-20 under 35 U.S.C. § 103(a) for the reasons set forth in the Final
Action, the Answer, and below.
Claims 1-7
Appellant argues claims 1-7 as a group on the basis of claim 1, to
which we accordingly limit our discussion. App. Br. 6-14; 37 C.F.R.
§ 4I.37(c)(l)(iv).
3
Appeal2017-007724
Application 14/628,244
Mudd discloses a fiber optic component having a body including a
front wall 12 containing a plurality of receptacles 14 configured to receive
fiber optic connectors. ,r,r 2, 6, 21; Fig. 1. Mudd discloses that the
receptacles 14 are arranged in first 16 and second 18 rows spaced apart from
each other by an opening 20 that contains a plurality of shutter components
22. ,r,r 21, 22; Fig. 1. Mudd discloses that the shutter components 22
include upper and lower shutters 3 8 that shift between first and second
positions. ,r,r 22, 23. Mudd discloses that in the first position, the shutters
38 are against the front wall 12 and cover the receptacles 14, while in the
second position the shutters 3 8 are away from the front wall 12, leaving the
receptacles 14 exposed. ,r 23; Figs. 1 and 3.
Appellant does not dispute the Examiner's finding that the fiber optic
component disclosed in Mudd includes all the features recited in claim 1
"except for the shutter pivoting to a position closer to a bottom side and a
top side within the ports [receptacles]." Compare Final Act. 3--4 with, App.
Br. 6-14. The Examiner relies on Sanders for suggesting this feature
missing from Mudd's fiber optic component. Final Act. 4--5.
Sanders discloses a fiber optic adapter 100 that includes a standard
housing 110, a shutter housing 120 having ports for receiving fiber optic
connectors 180, a shutter sub-assembly frame 160, and shutter doors 150,
151 attached to the frame 160. ,r,r 10, 24; Figs. 1 and 7. Sanders discloses
that the standard housing 110 can be attached to the shuttered housing 120
via complimentary snap features, or using "other known means in the art" to
secure two housings together. ,r 28; Fig. 1.
Sanders discloses that the shutter doors 150, 151 extend into and
cover the ports when fiber optic connectors 180 are not inserted ( first
4
Appeal2017-007724
Application 14/628,244
position), but the connectors 180 push the shutter doors 150, 151 inwards
towards each other when inserted into the ports, until the shutter doors 150,
151 reside within an opening 165 in the shutter sub-assembly frame 160
(second position). ,r,r 10, 29; Figs. 11-13.
The Examiner determines that it would have been obvious to one of
ordinary skill in the art before the effective filing date of the present
application to "modify the existing shutters of Mudd to pivot inwards [ as
disclosed in Sanders] rather than outwards," in order to keep the shutters
closed "until the force of the connector being inserted pushes against the
shutter causing it to pivot inwards," so as protect Mudd's optical receptacles
from dust and debris at all times. Ans. 2-3; Final Act. 4. The Examiner
explains that the shutters in this proposed combination-rather than pivoting
outwardly as disclosed in Mudd-would pivot into the receptacles of
Mudd's fiber optic component as disclosed in Sanders, and in so doing, the
upper shutter would pivot into the receptacle to a position closer to the
bottom side of the receptacle, while the lower shutter would pivot into the
receptacle to a position closer to the top side of the receptacle, as recited in
claim 1. Final Act. 4--5.
Appellant argues that if one of ordinary skill in the art wanted Mudd' s
shutters to open internally instead of externally, rather than making the
modifications proposed by the Examiner, the skilled artisan would have
removed the first and second rows of receptacles from Mudd's fiber optic
component and replaced them with the snap-in shutter housing disclosed in
Sanders, 2 which would not have resulted in the fiber optic patching system
2 Appellant refers to the elements of the devices disclosed in Mudd and
Sanders using terminology that differs from the terminology used in the
5
Appeal2017-007724
Application 14/628,244
recited in claim 1. App. Br. 6-10; Reply Br. 2-3. Appellant contends that
Appellant's proposed modification would have been obvious because
Sanders teaches that the shutter housing is equipped with resilient latches to
allow it to snap into a module, and seems "completely compatible" with the
body ofMudd's fiber optic component. App. Br. 9-10.
However, as the Examiner correctly explains, it is well-settled that
"[ t ]he test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of a primary
reference ... Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art." Ans.
2; In re Keller, 642 F.2d 413,425 (CCPA 1981); see also In re Sneed, 710
F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that the inventions of
the references be physically combinable to render obvious the invention
under review."); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973)
("Combining the teachings of references does not involve an ability to
combine their specific structures."). Sanders' disclosure of a fiber optic
adapter having shutter doors that cover ports for fiber optic connectors when
connectors are not inserted into the ports, but pivot inwards towards each
other when connectors are inserted, would have led one of ordinary skill to
modify Mudd's fiber optic component so that the upper and lower shutters
would pivot into the receptacles (ports) towards each other, as recited in
claim 1, when connectors are inserted, in order to protect the receptacles
from dust and debris at all times.
references. Rather than adopting Appellant's terminology, we use the terms
set forth in the references.
6
Appeal2017-007724
Application 14/628,244
Although the modification proposed by Appellant may have been
obvious to one of ordinary skill in the art before the effective filing date of
Appellant's application, this would not have negated the obviousness of
modifying Mudd's fiber optic component so that the upper and lower
shutters would pivot inwards as disclosed in Sanders, as proposed by the
Examiner. Even assuming that one of ordinary skill in the art would have
found the modifications proposed by Appellant to be more desirable than the
modifications proposed by the Examiner, that "better alternatives exist in the
prior art does not mean that an inferior combination is inapt for obviousness
purposes." In re Mouttet, 686 F.3d 1322, 1334 (Fed. Cir. 2012); see also
Par Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1197-98 (Fed. Cir.
2014) (Obviousness "does not require that the motivation be the best option,
only that it be a suitable option from which the prior art did not teach
away.").
Appellant argues that the modification proposed by the Examiner
would involve "changing almost all of the parts of internally mounted and
internally opening shutters within the Sanders duplex adapter, so that the
shutters are externally mounted and cover ports in first and second rows of
adapters, rather than ports in a same row of adapters, as described in the
Sanders' text and illustrated in the Sanders' drawings." App. Br. 9-10.
Appellant contends that "such a redesign path would only be obvious after
one of ordinary skill in the art read the present patent application, and would
be based entirely upon hindsight." App. Br. 10.
However, Appellant appears to misapprehend the Examiner's
proposed modification. As discussed above, rather than proposing
modifying components of Sanders' fiber optic adapter as Appellant appears
7
Appeal2017-007724
Application 14/628,244
to assert, the Examiner proposes modifying Mudd' s fiber optic component
so that the upper and lower shutters would pivot into the receptacles towards
each other. To the extent that Appellant asserts that one of ordinary skill in
the art would not have had sufficient skill to appropriately adapt the
structure of Mudd's fiber optic component to enable the upper and lower
shutters to pivot into the receptacles, Appellant's arguments do not
demonstrate that the proposed modifications would have been "uniquely
challenging or difficult for one of ordinary skill in the art." Leapfrog
Enters., Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1162 (Fed. Cir. 2007)
(citing KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418-19 (2007)).
Although Sanders does disclose shutter doors that cover adjacent ports
in the same row, and Mudd discloses shutters that cover receptacles
positioned above and below each other in different rows-thus differing
from the configuration of Sanders' shutters by a 90Q rotation-Sanders'
disclosure that the shutter doors pivot inwards would nonetheless have
suggested modifying Mudd's shutter system to enable the shutters to pivot
inwards so that Mudd's receptacles would always be covered when a
connector is not inserted. Therefore, the Examiner's rejection is not
grounded on impermissible hindsight as Appellant contends. In re Kahn,
441 F.3d 977, 988 (Fed. Cir. 2006) (requiring "some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness") (cited with approval in KSR, 550 U.S. at 418).
Appellant argues that one of ordinary skill in the art would need to
make numerous modifications to Sanders' internally mounted and internally
opening shutter system to permit it to function in Mudd's module as an
externally mounted shutter system that "can still operate as an internally
8
Appeal2017-007724
Application 14/628,244
opening shutter system." App. Br. 11-12. Appellant discusses three such
modifications that Appellant asserts would need to be made to Sanders'
shutter system, and argues that the Examiner should have acknowledged the
modifications as differences between the claimed invention and the prior art,
and should have addressed the motivation and obviousness of each
modification. App. Br. 11-14; Reply Br. 3--4.
However, we note initially that, as discussed above, the Examiner's
proposed combination of Mudd and Sanders is not based on modifying
Sanders' shutter system, but instead involves modifying Mudd's fiber optic
component so that the upper and lower shutters pivot into the receptacles
towards each other. Ans. 2-3. To the extent that Appellant's arguments are
directed to modification of Mudd's fiber optic component rather than
Sanders' shutter system, Appellant does not challenge the Examiner's
determination that one of ordinary skill in the art would have had "the
requisite skill and knowledge to make the necessary structural modifications
to accommodate" the proposed modification of Mudd's shutters. Compare
Ans. 2, with Reply Br. 1-5.
In addition, as discussed above, the Examiner identifies differences
between the fiber optic patching system module of claim 1 and the fiber
optic component disclosed in Mudd, finding that Mudd's fiber optic
component includes all the features of claim 1 "except for the shutter
pivoting to a position closer to a bottom side and a top side within the ports."
Final Act. 3--4. The Examiner relies on Sanders for suggesting this feature,
and articulates a reason (motivation) for why one of ordinary skill in the art
would have modified Mudd's fiber optic component so that the upper and
lower shutters would pivot into the receptacles towards each other as
9
Appeal2017-007724
Application 14/628,244
disclosed in Sanders-to "allow the shutters to be maintained at positions
which block the receptacles, thus preventing any dust or debris from
entering." Ans. 2-3. Contrary to Appellant's arguments, the Examiner thus
acknowledges the differences between claim 1 and the applied prior art
(Mudd), and addresses the obviousness of the proposed modifications of
Mudd's fiber optic component.
Considering the totality of the evidence relied upon in this appeal, a
preponderance of the evidence weighs in favor of the Examiner's conclusion
of obviousness. We accordingly sustain the Examiner's rejection of claims
1-7 under 35 U.S.C. § 103(a).
Claims 8, 9, 12-20
Appellant argues claims 8, 9, and 12-20 as a group on the basis of
claim 8, to which we accordingly limit our discussion. App. Br. 14--15;
37 C.F.R. § 4I.37(c)(l)(iv).
As set forth above, the fiber optic patching system module of claim 8
comprises, inter alia, a first panel forming a first shutter and a second
shutter, and a second panel forming a third shutter and a fourth shutter.
Mudd discloses that the upper and lower shutters 3 8 in the fiber optic
component described in the reference each cover two receptacles 14. Based
on this disclosure, the Examiner finds that Mudd's upper and lower shutters
correspond to first and second panels that form first and second shutters, and
form third and fourth shutters, respectively, as recited in claim 8. Mudd Fig.
1; Final Act. 3--4; Ans. 3--4.
Appellant argues that "Sanders fails to teach a first panel forming first
and second shutters attached to a frame, and a second panel forming third
and fourth shutters attached to the same frame, as required in Applicant's
10
Appeal2017-007724
Application 14/628,244
independent claim 8." App. Br. 15. Appellant contends that Sanders
discloses a first shutter that covers only a single port and a second shutter
that covers only a single port, and asserts that Sanders' shutters would
therefore need to be modified in size to cover two ports, and further
modified to include a slit to accommodate a wall between the two ports of a
duplex adapter, to meet the limitations of claim 8. Id.
However, Mudd-rather than Sanders----discloses upper and lower
shutters that each cover two receptacles, corresponding to the first and
second panels recited in claim 8. In view of Sanders' disclosure of inwardly
pivoting shutter doors, one of ordinary skill in the art would have been led to
modify Mudd's upper and lower shutters to pivot inwards in order to prevent
dust or debris from entering the receptacles at all times. Appellant does not
dispute the Examiner's finding that "[ m ]odifying the shutter of Mudd to
incorporate the teaching of Sanders would merely require changing the
direction of rotation so that the shutter pivots inwards rather than outwards,
as well as including a slit in the shutter to accommodate a wall between
adjacent receptacles, which is well within the capability of one of ordinary
skill in the art." Compare Ans. 4, with Reply Br. 1-5.
We accordingly sustain the Examiner's rejection of claims 8, 9, and
12-20 under 35 U.S.C. § 103(a).
Claims 10 and 11
Appellant argues claims 10 and 11 together on the basis of claim 10,
and asserts that "claim 10 should be considered to be allowable for the
reasons as argued above with regard to independent claim 8 and also for the
reasons as argued with regard to the third example in the comments
regarding independent claim 1." App. Br. 15. Because we are unpersuaded
11
Appeal2017-007724
Application 14/628,244
of reversible error in the Examiner's rejection of claims 1 and 8 for the
reasons discussed above, Appellant's position as to claim 10 is also without
merit. We accordingly sustain the Examiner's rejection of claims 10 and 11
under 35 U.S.C. § 103(a).
DECISION
We affirm the Examiner's rejection of claims 1-20 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
12