Level 3 Communications, LLC

Patent Trials and Appeals Board

Aug 26, 2020

2020000179 (P.T.A.B. Aug. 26, 2020)

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.
15/282,624 09/30/2016 Joel S. Skoglund 0589-US-01 1060
83579 7590 08/26/2020
LEVEL 3 COMMUNICATIONS, LLC
Attn: Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
GARFT, CHRISTOPHER
ART UNIT PAPER NUMBER
3632
NOTIFICATION DATE DELIVERY MODE
08/26/2020 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):
patent.docketing@centurylink.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOEL S. SKOGLUND and JOSEPH NGUYEN
Appeal 2020-000179
Application 15/282,624
Technology Center 3600
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
PESLAK, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5, 6, 9–11, 13, and 14.2 See Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Level 3
Communications, LLC, which is a subsidiary of CenturyLink, Inc. Appeal
Br. 3.
2 Claims 2–4, 7, 8, and 15–18 are withdrawn from consideration. Final Act.
1.
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Application 15/282,624

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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to an elevated cable support structure.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A cable support device comprising:
a first member comprising a base portion, a first portion,
and a second portion spaced apart from the first portion, the first
portion and the second portion extending upwards from opposite
ends of the base portion; and
a support member downwardly extending from the base
portion of the first member and configured to couple with a
safety cone, wherein the support member comprises:
a post, connected to the base portion at an upper end
of the post and to a lower member at a lower end of the
post such that the post terminates at the lower member,
wherein the lower member has a frustum shape, wherein
an upper portion of the lower member defines a ledge, and
wherein a cross-sectional area of the lower member at the
ledge is configured to be larger than a cross-sectional area
of an opening in the safety cone; and
a hollow conical member connected to the post at a
connection position that defines a space between the
connection position and the ledge.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Neil US 4,840,345 June 20, 1989
Adams US 7,503,528 B2 Mar. 17, 2009
Henderson US 8,777,512 B2 July 15, 2014
REJECTIONS
1. Claims 1, 5, 9–11, 13, and 14 are rejected under 35 U.S.C.
§ 103 as unpatentable over Adams and Henderson.
2. Claim 6 is rejected under 35 U.S.C. § 103 as unpatentable over
Adams, Henderson, and Neil.
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Application 15/282,624

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ANALYSIS
Rejection 1; Adams and Henderson
The Examiner finds that Adams discloses many of the limitations of
claim 1 including, inter alia, a post connected to a lower member having an
upper portion that defines a ledge, wherein a cross-sectional area of the
lower member at the ledge is configured to be larger than a cross-sectional
area of an opening, albeit, not in a safety cone. Final Act. 2–3 (citing
Adams, 3:50–51, Fig. 13). The Examiner relies on Henderson to disclose an
alternate cable support that is configured to couple with a safety cone. Id. at
4 (citing Henderson, Figs. 6, 7).
Appellant argues that the portion of Adams upon which the Examiner
relies only discloses that wedge 20 requires a greater amount of force than
that applied to projections 18 to free the cable mount after installation.
Appeal Br. 9. According to Appellant, this is not a disclosure of the size of
the cross-sectional area of wedge 20, and because wedge 20 is made up of
projections 54 and 56 having a gap there between, the cross-section of
wedge 20 would likely be smaller than the opening due to the gap. Id. at 10.
Appellant asserts, moreover, because Adams does not define the “thickness”
of wedge 20 or describe opening 58 into which wedge 20 is inserted, the
Examiner’s assertions as to the cross-sectional area at the top of the opening
is based on speculation. Id. at 11. Appellant further asserts that the way
Adams removes the cable mount would require tilting the cable mount,
which would explain the increase in force. Id. at 11–12. Appellant, thus,
asserts that the Examiner’s characterization of Adams is unreasonable, and
that Henderson does not remedy the deficiencies of Adams. Id. at 12.
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In response, the Examiner provides copies of Figures 3 and 4 of
Adams with annotations added to explain the “thickness” and why the width
(and thus, the cross-section) of wedge 20 is greater than the opening. See
Ans. 7. Specifically, the Examiner explains that the thickness of projections
54 and 56 of wedge 20 in Adams is measured across the top surfaces of the
projections 54 and 56 so that these surfaces have an increased thickness
compared to projections 18. Id. at 8. According to the Examiner, this
increased thickness corresponds to an increased diameter, otherwise there
would be no effect on the removing force. Id. The Examiner asserts that
wedge 20 having a larger cross-sectional area than the opening is also
supported by Adams’ disclosure of centering tabs 40. In particular, the
Examiner states that because centering tabs 40 contact the opening to keep
the mount centered and have a smaller width than wedge 20, the projections
54 and 56 must be larger than the opening. Ans. 8–9. For the reasons
discussed below, we are not apprised of Examiner error.
Although we appreciate that Adams discloses that “projections 54 and
56 comprise a smaller width dimension W than plurality of projections 18,”
we agree with the Examiner that because Adams further discloses that the
thickness of projections 54 and 56 is greater than that of the plurality of
projections 18, the cross-sectional area of projections 54 and 56 must be
greater than the cross-sectional area of the opening. Specifically, we agree
with the Examiner that if this were not the case, no force, let alone an
increased force, would be required to free cable mount 10 once projections
18 were free of opening 58. Indeed, wedge 20 having opposing projections
54, 56 is formed as a frustum to aid insertion and “act as a lead-in,” but this
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Application 15/282,624

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same shape requires increased force for removal due to the contact force it
creates with the opening. See Adams, 3:47–54; see also Ans. 8.3
In addition, we agree with the Examiner that because Adams’
centering tabs 40 are “for centering cable mount 10 within an aperture”
(Adams, 3:4–5) and because tabs 40 appear to have a smaller cross-sectional
area than projections 54, 56 (see Ans. 7), projections 54, 56 would be larger
than the opening. In view of the above, the Examiner’s finding that Adams’
wedge 20 defines a ledge with a cross-sectional area larger than that of
opening 58 is supported by the requisite preponderance of the evidence.
Therefore, we sustain the rejection of claim 1. Appellant does not argue
separately for the patentability of dependent claims 5, 9–11, 12, and 14.
Appeal Br. 7–14. We sustain the rejection of claims 5, 9–11, 12, and 14 for
the same reasons.

Rejection 2; Adams, Henderson, and Neil
Claim 6 depends from claim 1. Appeal Br. 16 (Claims App.).
Appellant does not argue separately for the patentability of dependent claim
6. Appeal Br. 13. We, therefore, sustain the rejection of claim 6 as
unpatentable over Adams, Henderson, and Neil for the same reasons
discussed above in connection with Rejection 1.
DECISION
The Examiner’s rejections are affirmed.

3 We note that wedge 20 is split at its perimeter. See Adams, Figs. 1–3. The
split supports the Examiner’s finding that the cross-sectional area of wedge
20 is larger than the cross-sectional area of the opening because the split
would allow wedge 20 to contract as it is inserted into the opening.
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More specifically,
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5, 9–11,
13, 14
103 Adams, Henderson 1, 5, 9–11,
13, 14

6 103 Adams,
Henderson, Neil
6
Overall
Outcome:
1, 5, 6, 9–11,
13, 14

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