GENERAL CABLE TECHNOLOGIES CORPORATION

Patent Trials and Appeals Board

Apr 23, 2021

2020004143 (P.T.A.B. Apr. 23, 2021)

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.
14/731,955 06/05/2015 Srinivas Siripurapu 39795-1004US02 7609
77001 7590 04/23/2021
ULMER & BERNE LLP
c/o Diane Bell
600 Vine Street
SUITE 2800
Cincinnati, OH 45202
EXAMINER
LEE, PETE T
ART UNIT PAPER NUMBER
2848
NOTIFICATION DATE DELIVERY MODE
04/23/2021 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 SRINIVAS SIRIPURAPU,
SCOTT M. BROWN, and STEPHEN A. THWAITES
____________

Appeal 2020-004143
Application 14/731,955
Technology Center 2800
____________

Before CATHERINE Q. TIMM, GEORGE C. BEST, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–7, 9–14, and 16–22.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42.
Appellant identifies General Cable Technologies Corporation as the real
party in interest. Appeal Brief filed November 22, 2019 (“Appeal Br.”), 1.
2 Final Office Action entered July 25, 2019 (“Final Act.”), 1.
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CLAIMED SUBJECT MATTER
Appellant claims a communication cable. Appeal Br. 2–3, 7–8.
Claims 1 and 22 illustrate the subject matter on appeal, and read as follows:
1. A communication cable comprising:
a plurality of conductors; and
a cable separator comprising an extruded body extending
along the length of the cable,
wherein the body is formed from a polycarbonate-
based material,
wherein the polycarbonate-based material is at
least partially foamed, and
wherein the cable separator physically separates
the plurality of conductors.
22. A communication cable comprising:
a cable separator comprising an extruded body extending
along the length of the cable,
wherein the body is formed from a polycarbonate-based
material,
wherein the polycarbonate copolymer comprises at least
one of polycarbonate-siloxane copolymer,
wherein the polycarbonate-based material is at least
partially foamed, and
wherein the at least partially foamed polycarbonate-
based material has a foam rate of about 25% to about 40%.
Appeal Br. 27, 29 (Claims Appendix) (emphasis added).
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REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered April 3, 2020 (“Ans.”):
I. Claims 1, 7, 16, 17, and 21 under 35 U.S.C. § 103 as
unpatentable over under 35 U.S.C. § 103 as unpatentable over Hampton3 in
view of Chadwick4 and Boucino;5
II. Claim 2 under 35 U.S.C. § 103 as unpatentable over Hampton
in view of Chadwick, Boucino, and Kato;6
III. Claims 3–77 under 35 U.S.C. § 103 as unpatentable over
Hampton in view of Chadwick, Boucino, and Vollenberg;8
IV. Claims 9–11 under 35 U.S.C. § 103 as unpatentable over
Hampton in view of Chadwick, Boucino, Vollenberg, and Shen;9
V. Claims 12 and 13 under 35 U.S.C. § 103 as unpatentable over
Hampton in view of Chadwick, Boucino, and Glew;10
VI. Claim 14 under 35 U.S.C. § 103 as unpatentable over Hampton
in view of Chadwick, Boucino, and Makadia;11
VII. Claim 18 under 35 U.S.C. § 103 as unpatentable over Hampton
in view of Chadwick, Boucino, Vollenberg, and Shen;

3 Hampton, EU 1280762, published July 5, 1972.
4 Chadwick et al., US 3,277,029, issued October 4, 1966.
5 Boucino et al., US 5,969,295, issued October 19, 1999.
6 Kato et al., US 2012/0090871 Al, published April 19, 2012.
7 Although the Examiner lists claim 8 in the heading of this rejection, claim
8 is not pending in the application.
8 Vollenberg et al., US 2009/0069489 A1, published March 12, 2009.
9 Shen et al., US 7,732,516 B2, issued June 8, 2010.
10 Glew et al., US 2007/0102188 A1, published May 10, 2007.
11 Makadia, US 2013/0330468 A1, published December 12, 2013.
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VIII. Claims 19 and 20 under 35 U.S.C. § 103 as unpatentable over
Hampton in view of Chadwick, Boucino, Vollenberg, and Ohira;12 and
IX. Claim 22 under 35 U.S.C. § 103 as unpatentable over Hampton
in view of Kato and Vollenberg.
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 1–7, 9–14, and 16–21 under 35 U.S.C. § 103 for reasons set forth in
the Final Action, the Answer, and below, and we reverse the Examiner’s
rejection of claim 22 under 35 U.S.C. § 103 for reasons set forth in the
Appeal Brief and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each issue the Appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637
F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections”)).
Rejections I–VIII
To address the Examiner’s rejections of claims 1–7, 9–14, and 16–21
under 35 U.S.C. § 103 as unpatentable over Boucino, Hampton, Chadwick,
and numerous additional prior art references, Appellant presents arguments

12 Ohira et al. US 2007/0299169 A1, published December 27, 2007.
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directed to the subject matter of claim 1 only, to which we accordingly limit
our discussion. Appeal Br. 21–22; 37 C.F.R. § 41.37(c)(1)(iv).
Boucino discloses a communication cable for transmitting high
frequency signals. Boucino col. 1, ll. 4–7. Boucino discloses that the cable
includes “a cable jacket, twisted pairs of insulated conductors within the
jacket, and a spacer separating the twisted pairs of insulated conductors.”
Boucino col. 1, ll. 40–43; Fig. 1. Boucino discloses that the spacer includes
a longitudinally extending center portion and a plurality of wall portions that
radiate from the center portion. Boucino col. 1, ll. 43–47; col. 3, ll. 13–17;
Figs. 1 and 2. Boucino discloses that “because the spacer extends
continuously from the center portion to the jacket,” the individual twisted
pairs of conductors are sufficiently insulated from one another to reduce
cross talk between the pairs of conductors. Boucino col. 2, ll. 26–32.
Boucino discloses manufacturing the communications cable “by extruding
the spacer using a suitable polymer material,” which Boucino discloses can
be “[a]ny of the polymer materials conventionally used in cable
construction.” Boucino col. 4, ll. 27–30; col. 3, ll. 2–6.
Hampton discloses an electric cable that includes an outer conductive
sheath, at least two conductors, and a spacer formed of an extruded dielectric
material, such as polycarbonate. Hampton pg. 1, ll. 76–83; pg. 3, ll. 55–62.
Similar to Boucino, Hampton discloses that the spacer has a longitudinally
extending center portion and webs that extend radially outwards from the
center portion (axis) between the conductors. Hampton pg. 1, ll. 85–90;
Fig. 1.
Chadwick discloses a foamed polycarbonate material used “in co-
axial cable insulation” that exhibits “good mechanical properties” and “poor
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heat conductivity,” is “highly resistant to aging,” and “add[s] relatively little
weight to the means being insulated.” Chadwick col. 1, ll. 10–13; col. 1, l.
65–col. 2, l. 5. Chadwick discloses producing the foamed polycarbonate
material by contacting polycarbonate with a foaming agent, and shaping the
foamed polycarbonate material by extrusion. Chadwick col. 2, ll. 27–43;
col. 4, ll. 3–12.
In view of these disclosures in Boucino, Hampton, and Chadwick, the
Examiner concludes that it would have been obvious to one of ordinary skill
in the art to form the spacer for Boucino’s communication cable from
polycarbonate as disclosed in Hampton, and to introduce foam into the
polycarbonate as disclosed in Chadwick, to yield a spacer that is light weight
and highly resistant to aging. Final Act. 4.
Appellant argues that “[n]either Hampton nor Chadwick refers to data
communication cables,” and “neither Hampton’s description of a
polycarbonate separator in an electric cable nor Chadwick’s recitation that
foamed polycarbonate can ‘exhibit good electrical insulation properties’
provides sufficient motivation to use at least partially foamed polycarbonate-
based material as a separator in a communication cable.” Appeal Br. 22.
Appellant argues that “one skilled in the art could not conclude, based on
Chadwick’s recitation of ‘good electrical insulation properties,’ that foamed
polycarbonate would prove to be an effective material for use as a separator
in a communication cable.” Id. Appellant argues that because “Boucino
also fails to teach use of an at least partially foamed polycarbonate cable
separator to reduce crosstalk in communication cables as described [in]
independent claim 1, Boucino fails to remedy the deficiencies of Hampton
and Chadwick.” Id.
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Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
As discussed above, Boucino discloses a communication cable that
includes a spacer that separates pairs of conductors for reducing cross talk
between the pairs of conductors, and Boucino explicitly discloses that the
spacer may be formed of any of the polymer materials conventionally used
in cable construction. Although Hampton and Chadwick do not explicitly
disclose communication cables, both references nonetheless disclose
insulating materials for cables, with Hampton disclosing a polycarbonate
spacer (insulator) for an electric cable, and Chadwick disclosing a foamed
polycarbonate insulator for a co-axial cable.
One of ordinary skill in the art reasonably would have been led to
form Boucino’s spacer of polycarbonate in view of Hampton’s disclosure of
a polycarbonate spacer for a cable having substantially the same structure as
Boucino’s spacer, and Boucino’s disclosure that any polymer material
conventionally used in cable construction may be used to form Boucino’s
spacer. Furthermore, one of ordinary skill in the art would have been led to
use foamed polycarbonate as the polycarbonate material for forming
Boucino’s spacer (as suggested by Hampton) in view of Chadwick’s
disclosure that using foamed polycarbonate as an insulator in co-axial cables
results in good mechanical properties, poor heat conductivity, and high
resistance to aging, while adding relatively little weight. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 417 (2007) (“When a work is available in one
field of endeavor, design incentives and other market forces can prompt
variations of it, either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
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patentability. For the same reason, if a technique has been used to improve
one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”).
Although Chadwick does disclose that foamed polycarbonate
“exhibit[s] good electrical insulation properties,” Chadwick nonetheless
discloses numerous other advantageous properties of this material, including
good mechanical properties, poor heat conductivity, and high resistance to
aging. One of ordinary skill in the art reasonably would have expected that
using foamed polycarbonate to form Boucino’s spacer would successfully
impart these advantageous properties to the spacer. In re Kubin, 561 F.3d
1351, 1360 (Fed. Cir. 2009) (“Obviousness does not require absolute
predictability of success . . . all that is required is a reasonable expectation of
success.”) (emphasis omitted, citing In re O’Farrell, 853 F.2d 894, 903‒04
(Fed. Cir. 1988)).
Appellant argues that the Declaration of inventor Stephen A. Thwaites
filed April 8, 2019 “has not been given its due consideration.” Appeal Br.
19. “Appellant maintains that the present claims are nonobvious and
patentably distinguishable over the cited art, at least in part, because of the
Thwaites Declaration.” Appeal Br. 20.
The Examiner, however, addresses the Thwaites Declaration in the
Answer, indicating that “[t]he declaration only recites an opinion of the
rejection of record.” Ans. 3.
We agree. Inventor Thwaites opines generally on the Examiner’s
finding of a reason to make the proposed combination. More specifically,
the Thwaites Declaration states that Hampton’s disclosure of “a
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polycarbonate separator in an electric cable does not, alone, provide
sufficient reason to use foamed polycarbonate in a separator for a data
communication cable.” Thwaites Decl. ¶ 4. The Declaration further states
“that Chadwick describes foamed polycarbonate to have good mechanical
properties, be highly resistant to aging, have good resistance to water, and be
a poor heat conductivity material does not provide an expectation that
foamed polycarbonate would be effective as a separator in a data
communication cable.” Id. The Declaration indicates “that which is
effective as a spacer in an electrical cable or as electrical insulation for
coaxial cables cannot be assumed to be effective for use as a cable
separation in data communication cables.” Id.
The Declaration, however, does not take into consideration Boucino’s
disclosures, and, therefore, does not address what a combination of the
relied-upon disclosures of Boucino, Hampton, and Chadwick reasonably
would have suggested to one of ordinary skill in the art. And by ignoring
Boucino’s disclosures, the Declaration does not accurately represent the
state of the art at the time of filing, and the level of ordinary skill in the art at
that time. Moreover, “Appellant’s opinion on the ultimate legal issue is not
evidence in the case.” In re Lindell, 385 F.2d 453, 456 (CCPA 1967).
Nor does the Declaration provide any objective evidence
corroborating the conclusory opinions set forth in the Declaration. It follows
that we give the unsupported opinions provided in the Thwaites Declaration
little to no weight. 37 C.F.R. § 42.65(a) (opinion testimony that does not
disclose underlying facts or data “is entitled to little or no weight”);
Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“[W]hat the
Board consistently did was accord little weight to broad conclusory
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statements that it determined were unsupported by corroborating references.
It is within the discretion of the trier of fact to give each item of evidence
such weight as it feels appropriate”); In re Am. Acad. of Sci. Tech Ctr., 367
F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to weigh the
declarations and conclude that the lack of factual corroboration warrants
discounting the opinions expressed in the declarations”); In re Altenpohl,
500 F.2d 1151, 1158 (CCPA 1974) (lack of factual support rendered an
affidavit of little probative value in overcoming obviousness rejection).
We, accordingly, sustain the Examiner’s rejections of claims 1–7, 9–
14, and 16–21 under 35 U.S.C. § 103.
Rejection IX
We turn now to the Examiner’s rejection of claim 22 under 35 U.S.C.
§ 103 as unpatentable over Hampton in view of Kato and Vollenberg.13
Independent claim 22 is similar to claim 1, but unlike claim 1, recites
that the at least partially foamed polycarbonate-based material has a foam
rate of about 25% to about 40%.

13 As Appellant points out (Appeal Br. 23–24), the Examiner’s rejection
appears to be based on Hampton, Chadwick, Boucino, Kato, and Vollenberg
rather than only on Hampton, Kato, and Vollenberg, due to the Examiner’s
discussion of Hampton in the Final Action followed by reference to
“modified Hampton,” and subsequent discussion of the basis for the
Examiner’s reliance on Kato and Vollenberg. Final Act. 15–16. It thus
appears that the Examiner proposes modifying Hampton based on Chadwick
and Boucino, and further modifying based on Kato and Vollenberg, although
the Examiner omitted any discussion of Chadwick and Boucino in the
rejection. Id. Given Appellant’s understanding of the rejection and our
reversal, the error was harmless. Nonetheless, in the event of further
prosecution of this application, we advise the Examiner to clarify the prior
art references relied upon in this rejection.
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The Examiner finds that “modified Hampton fails to disclose . . . a
partially foamed polycarbonate-based material ha[ving] a foam rate of about
25% to about 40%.” Final Act. 16. The Examiner finds, however, that Kato
discloses a partially foamed polycarbonate-based material having a foam
rate of about 50% to about 75%. Final Act. 16 (citing Kato ¶¶ 53, 80; Fig.
1). The Examiner indicates that the “Examiner found no persuasive
evidence in the applicant’s specification that the foam rate of about 25% to
about 40% was significant.” Final Act. 16. The Examiner concludes that “it
would have been obvious to one of ordinary skill in the art . . . to use the
teachings of Kato to modify the [polycarbonate-base] material of Hampton
in order to provide good electrical insulation while also having a higher
resistance to permanent heat.” Id.
We determine that the Examiner, however, does not provide reasoning
having a rational underpinning that explains why one of ordinary skill in the
art would have modified Hampton as proposed. Our reasons follow.
The “Description of the Related Art” section of Kato explains that
“for signal lines and the like, there has been a notable tendency to demand
higher speed transmission signals, and it is therefore desired that an
insulation layer for electric wires to be used in the signal lines is thin and has
as low a dielectric constant as possible so that transmission signals are
thereby designed to be high speed.” Kato ¶ 5. Kato’s invention addresses
this demand by providing insulated electric wire 1 comprising conductor 2
coated with porous insulating layer 3, which has a low dielectric constant.
Kato ¶¶ 15, 75; Fig. 1. Kato discloses that the porosity of insulating layer 3
is preferably from 50 to 70%, and Kato explains that “[t]he reason for setting
the porosity of the insulating layer 3 at from 50 to 70 percent is because
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when the porosity is lower than 50 percent, there tends to arise the problem
that the low dielectric constant porous layer effect is small, and because
when the porosity is higher than 70 percent, there tends to arise the problem
that . . . the coating is poor.” Kato ¶¶ 79, 80.
Although the Examiner states that “it would have been obvious to one
of ordinary skill in the art . . . to use the teachings of Kato to modify the
[polycarbonate-base] material of Hampton” because the “Examiner found no
persuasive evidence in the applicant’s specification that the foam rate of
about 25% to about 40% was significant,” the Examiner does not provide
sound technical reasoning supported by objective evidence to establish that
one of ordinary skill in the art would have disregarded Kato’s explicit
disclosure that problems occur when the porosity of Kato’s insulating layer
is lower than 50% and higher than 70%. In other words, the Examiner does
not persuasively show that one of ordinary skill in the art seeking to
optimize the porosity (or foam rate) of an insulating layer as disclosed in
Kato reasonably would have arrived at a porosity significantly below the
lower limit of Kato’s preferred—or optimal—porosity of 50%, so as to
arrive at a porosity (foam rate) of about 25% to about 40% as recited in
claim 22. In re Sebek, 465 F.2d 904, 907 (CCPA 1972) (“Where, as here,
the prior art disclosure suggests the outer limits of the range of suitable
values, and that the optimum resides within that range, and where there are
indications elsewhere that in fact the optimum should be sought within that
range, the determination of optimum values outside that range may not be
obvious.”).
Consequently, on the record before us, the Examiner does not provide
a persuasive, reasoned explanation, supported by objective evidence, for
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why one of ordinary skill in the art would have been led to modify
Hampton’s polycarbonate material to have a porosity (foam rate) of about
25% to about 40%, as required by claim 22. We, accordingly, do not sustain
the Examiner’s rejection of claim 22 under 35 U.S.C. § 103.
CONCLUSION
Claim(s)
Rejected

35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1, 7, 16, 17,
21
103 Hampton,
Chadwick,
Boucino
1, 7, 16, 17,
21

2 103 Hampton,
Chadwick,
Boucino, Kato
2
3–7 103 Hampton,
Chadwick,
Boucino,
Vollenberg
3–7
9–11 103 Hampton,
Chadwick,
Boucino,
Vollenberg,
Shen
9–11
12, 13 103 Hampton,
Chadwick,
Boucino, Glew
12, 13
14 103 Hampton,
Chadwick,
Boucino,
Makadia
14
18 103 Hampton,
Chadwick,
Boucino,
Vollenberg,
Shen
18
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Claim(s)
Rejected

35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
19, 20 103 Hampton,
Chadwick,
Boucino,
Vollenberg,
Ohira
19, 20
22 103 Hampton, Kato,
Vollenberg
22
Overall
Outcome
1–7, 9–14,
16–21
22
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)(iv).

AFFIRMED IN PART