Panduit Corp.

Patent Trials and Appeals Board

Sep 28, 2021

2021000113 (P.T.A.B. Sep. 28, 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.
16/400,530 05/01/2019 Richard J. Pimpinella LCB986 1631
32915 7590 09/28/2021
PANDUIT CORP.
18900 Panduit Drive
Tinley Park, IL 60487
EXAMINER
PEACE, RHONDA S
ART UNIT PAPER NUMBER
2874
NOTIFICATION DATE DELIVERY MODE
09/28/2021 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):
patents@panduit.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RICHARD J. PIMPINELLA
__________

Appeal 2021-000113
Application 16/400,530
Technology Center 2800
____________

Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and
JAMES C. HOUSEL, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134 the final rejection of claims
1–11. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM and enter a New Ground of Rejection pursuant to
37 C.F.R. § 41.50(b).
Appellant’s invention is directed to optical fiber connectors,
specifically multi-fiber array connectors having an angle polished ferrule
designed to increase optical return loss (Spec. ¶ 2).

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 Panduit
Corp. (Appeal Br. 1).
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Application 16/400,530

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Claim 1 is illustrative:
1. A fiber optic cable assembly, comprising:
a plurality of substantially parallel optical fibers formed
into a ribbon, the ribbon extending in a longitudinal direction
and having first and second ends;
a termination assembly attached at each of the first and
second ends of the ribbon, wherein each of the termination
assemblies include a body and a ferrule, the body having a key
on an upper surface thereof, and when viewed facing the
contact surface with the key projecting upwardly, the
outermost one of the fiber positions located on the left side is
designated as fiber position 1 and the opposite outermost fiber
position is designated position n, and wherein when the contact
surface of the first end is viewed with the termination key up,
optical fiber 1 is located in position 1, and wherein the contact
surface of the second end when viewed with the termination
key up, optical fiber 1 is located in position n, and wherein,
the ferrule has a polished contact surface that exposes
ends of the optical fibers, and the contact surface forms an
oblique angle relative to a plane normal to axes defined by the
fibers, and
wherein either (a) each contact surface is slightly rotated
clockwise, or (b) each contact surface is slightly rotated
counter-clockwise with respect to the normal of the plane
defined by the fiber array, so that when the second end of one
cable assembly is mated to the first end of a second cable
assembly in Key-Up to Key-Up Method B adapter
configuration, angled ferrule surfaces abut.

Appellant appeals the following rejection:
Claims 1–11 are rejected under 35 U.S.C. § 102(a)(1) as anticipated
by Livingston (US 7,184,635 B2, issued Feb. 27, 2007).
Appellant’s arguments focus on the subject matter of claim 1 only
(Appeal Br. 4–5).
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In interpreting claim 1 we determine that the claim fails to provide
antecedent basis for the phrase “the normal of the plane defined by the fiber
array.” Because there is no prior recitation of a fiber array or a plane formed
by the fiber array, the claim is rendered indefinite. As such, it is not clear
what plane is defined by the fiber array or where “the normal” to such a
plane is located. We note that claim 1 recites “a plurality of substantially
parallel optical fibers formed into a ribbon, the ribbon extending in a
longitudinal direction.” However, claim 1 fails to recite that the parallel,
longitudinally extending fibers define a plane. In fact, an array of parallel,
longitudinally extending fibers may define a plurality of planes depending
on the arrangement of parallel fibers in the array. Therefore, we exercise our
discretion and enter a new ground of rejection under 35 U.S.C. § 112(b) for
claims 1–11 as failing to particular point out and distinctly claim the subject
matter which the inventor regards as the invention.
For the purposes of this appeal, however, we provide a conditional
interpretation of “the normal of the plane defined by the fiber array” and so
decide the merits of the § 102(a)(1) rejection. We conditionally construe
“the normal of the plane defined by the fiber array” as requiring a
perpendicular line extending from a plane that bisects in the longitudinal
direction each of the optical fiber axes, based on a single row of fibers as
shown in the drawings. Our conditional construction is reasonable based
upon Appellant’s Specification which describes Figures 6 and 7 as showing
a normal 620 to a plane formed by the fiber array 607/707 (Spec. ¶ 25).

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FINDINGS OF FACT & ANALYSIS
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 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”).
Appellant argues Livingston does not disclose each contact surface
being slightly rotated clockwise or counter-clockwise “with respect to the
normal of the plane defined by the fiber array.” (Appeal Br. 4). Appellant
argues that the normal defined by the fiber array is a line parallel to a line
starting above the connector, going through the top of the connector, and
then extending through the bottom of the connector (Appeal Br. 4).
Appellant contends that any rotated surface with the respect to the normal
would result in one that is slightly tilted to the left or right (Appeal Br. 4).
Appellant has not established reversible error in the Examiner’s
anticipation rejection of claim 1. The Examiner finds, inter alia, Livingston
teaches in column 5, lines 8–15 and column 6, lines 44–67 that plane FS is
normal to the axes of fibers 14 and the contact surface 28 is angled slightly
upwardly relative to plane FS (Final Act. 4–5; Ans. 3–4). In other words,
Livingston’s plane FS is normal to the plane formed by the axes of the
optical fibers 14 in the ribbon 12. Livingston’s Figure 1B shows a side view
of the optical fiber connector where the ribbon 12 extends into the page and
the plane FS is normal to the plane defined by the optical fiber axes in the
ribbon 12. Livingston’s plane FS includes a normal of the plane defined by
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Application 16/400,530

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the fiber array. Livingston’s Figure 1B shows the contact surface is angled
about 8° about the normal in the plane FS in a clockwise direction.
Appellant’s argument that claim should be construed as limited to the
embodiment shown in Figures 6 and 7 described in paragraph 25 of the
Specification is contrary to the full disclosure of the Specification (Reply Br.
4). Rather, the Specification discloses that the invention is not limited to the
precise construction and compositions disclosed and may include various
modifications or changes (Spec. ¶ 26). Moreover, as noted above,
Livingston teaches a plane FS with a normal that would meet the claim
requirements as presently drafted.
On this record, we affirm the Examiner’s § 102(a)(1) rejection of
claims 1–11 over Livingston and we enter a new ground of rejection under
35 U.S.C. § 112(b) of claims 1–11.

DECISION SUMMARY

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
of
Rejection
1–11 102(a)(1) Livingston 1–11
1–11 112(b) Indefiniteness 1–11

TIME PERIOD FOR RESPONSE
This Decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
rejection pursuant to this paragraph shall not be considered final for judicial
review.”
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37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the proceeding
will be remanded to the examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. . . .

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) and 41.50(f).
ORDER
AFFIRMED; 37 C.F.R. § 41.50(b)