Elford, Michael et al.Download PDFPatent Trials and Appeals BoardOct 30, 201914181073 - (D) (P.T.A.B. Oct. 30, 2019) Copy Citation 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. 14/181,073 02/14/2014 Michael Elford 1391-US-U1 4115 83809 7590 10/30/2019 CenturyLink Intellectual Property LLC Patent Docketing 1025 Eldorado Blvd. Broomfield, CO 80021 EXAMINER TRAN, HOANG Q ART UNIT PAPER NUMBER 2874 NOTIFICATION DATE DELIVERY MODE 10/30/2019 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@level3.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL ELFORD and JOSEPH FIFE ____________ Appeal 2019-000942 Application 14/181,073 Technology Center 2800 ____________ Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from a final rejection of claims 1–3, 6, 8, 9, 11–16, and 18. 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 Century Link Intellectual Property LLC. Appeal Br. 3. Appeal 2019-000942 Application 14/181,073 2 The invention relates to tamper resistant secure single fiber hubs providing a fiber parking lot for a fiber line to prevent any injury by or tampering of a fiber line. Spec. ¶ 4. Claim 1 is illustrative of the subject matter claimed and is reproduced below from the Claims Appendix to the Appeal Brief: 1. A tamper-resistant secure single fiber hub comprising: a base; a removable lid that when coupled with the base forms an aperture operable to receive a fiber line; and a female parking lot operable to couple with a male connector located at an end of the fiber line, wherein the fiber line is lit but not in use and wherein the female parking lot is adapted to receive the lit fiber line but provide no connectivity for the lit fiber line to prevent injury to a user from light emitted by the lit fiber line. Appeal Br. 17 (Claims Appendix). Independent claim 8 is directed to a tamper-resistant secure single fiber apparatus essentially comprising the tamper-resistant secure single fiber hub of claim 1. Independent claim 16 is directed to a tamper-resistant secured single fiber parking lot essentially used in the inventions of claims 1 and 8. Appellant requests review of the following rejections from the Examiner’s Final Office Action: I. Claims 1–3, 8, 9, 11, 12, 14, and 15 rejected under 35 U.S.C. § 103 as unpatentable over Tomino (US 2004/0047581 A1, published March Appeal 2019-000942 Application 14/181,073 3 11, 2004) and Shannon (US 2012/0207436 A1, published August 16, 2012). II. Claim 6 rejected under 35 U.S.C. § 103 as unpatentable over Tomino, Shannon, and Robinson (US 5,647,045, issued July 8, 1997). III. Claims 13, 16, and 18 rejected under 35 U.S.C. § 103 as unpatentable over Tomino, Shannon, and Alston (US 2013/0287358 A1, published October 31, 2013). Appellant presents arguments for claim 1 and relies on these arguments to address the patentability of independent claims 8 and 16 as well as all of the dependent claims. Appeal Br. 15–16. Accordingly, we select claim 1 as representative of the subject matter claimed and decide the appeal as to all grounds of rejection based on the arguments presented for independent claim 1. OPINION After review of the respective positions Appellant provides in the Appeal and Reply Briefs and the Examiner provides in the Final Action and the Answer, we AFFIRM the Examiner’s prior art rejections of claims 1–3, 6, 8, 9, 11–16, and 18 under 35 U.S.C. § 103 for essentially the reasons the Examiner presents in the Final Office Action and the Answer. We add the following for emphasis. Claim 1 The Examiner finds that Tomino teaches the structure of the claimed tamper-resistant secure single fiber hub except for the inclusion of a female parking lot adapted to receive a lit fiber line that does not provide connectivity for the lit fiber line to prevent injury to a user for light emitted Appeal 2019-000942 Application 14/181,073 4 by the lit fiber line. Final Act. 2–3. The Examiner finds Shannon teaches a dummy terminal within an equipment housing comprising a port containing an opaque material to prevent optical transmission of light. Final Act. 3; Shannon ¶¶16, 35–37, Figure 2. According to the Examiner, this functionality allows the installer to plug a fiber line temporarily into the port to prevent the fiber from laying loose on the ground, wherein it can become a tripping hazard for the installer. Final Act. 3; Shannon ¶ 13. Shannon also discloses that the SFP dummy connector can be used to plug in live fiber optic cables so that transmission of data is blocked through the connector to substantially reduce danger of an unintended connection or damage to the piece of equipment. Shannon ¶ 26. The Examiner concludes it would have been obvious to one of ordinary skill in the art to modify Tomino’s device to have a dummy terminal because it would allow for repair or inspection of Tomino’s equipment when needed. Final Act. 3–4; Ans. 8. Appellant argues that Tomino cannot be modified to include Shannon’s safety feature because the entire purpose of Tomino’s disclosed secure converter is to provide connectivity between a single optical fiber and other media and, thus, there is no motivation for a person of ordinary skill in the art to modify Tomino by including additional fibers connected to a dummy port. Appeal Br. 12–14. Appellant further asserts that Tomino’s active port would serve equally well to store that single unused fiber in the secure media converter, making the addition of Shannon’s dummy port redundant and not useful. Id. at 13. Appellant additionally argues that there is no mention in the cited art nor does the Examiner point to where Tomino or Shannon mentions the problems arising from having an unsecured fiber Appeal 2019-000942 Application 14/181,073 5 line or the benefits of providing a secure fiber terminal adapted to receive the lit fiber line to prevent any injury by or tampering of a fiber line. Id. at 15. Thus, Appellant contends that the Examiner improperly relies on Appellant’s own disclosure as the reason to combine the references, which themselves never mention the problems arising from having an unsecured fiber line. Id. Appellant’s arguments do not persuade us of reversible error in the Examiner’s determination of obviousness. “[A]pparatus claims cover what a device is, not what a device does.” Hewlett-Packard Co. v. Bausch & Lomb, Inc., 909 F.2d 1464, 1468 (Fed. Cir. 1990). Therefore, the patentability of an apparatus claim depends on the claimed structure, not on the use or purpose of that structure, Catalina Mktg. Int’l Inc. v. Coolsavings.com Inc., 289 F.3d 801, 809 (Fed. Cir. 2002), or the function or result of that structure. In re Danly, 263 F.2d 844, 848 (CCPA 1959); In re Gardiner, 171 F.2d 313, 315–16 (CCPA 1948). If the prior art structure possesses all the claimed characteristics including the capability of performing the claimed function, then there is a prima facie case of unpatentability. In re Ludtke, 441 F.2d 660, 663–64 (CCPA 1971). Claim 1 is directed to an apparatus comprising a female parking lot operable to couple with a male connector located at an end of a lit fiber line, wherein the female parking lot is adapted to receive the lit fiber line but provide no connectivity for the lit fiber line to prevent injury to a user from light emitted by the lit fiber line. As claimed, the fiber line is not part of the apparatus and, thus, the claim language stating that the apparatus is used to receive a fiber line that is active (lit) does not bear on the patentability of the Appeal 2019-000942 Application 14/181,073 6 apparatus because it merely states a use or purpose for that structure. That is, whether the fiber line is active or inactive does not change the structure of the apparatus. As the Examiner notes, there is a reasonable basis for one skilled in the art to modify Tomino’s hub to incorporate Shannon’s dummy terminal. See Final Act. 3–4; Ans. 8 (“the dummy port provides utility while the active port is being repair[ed] or inspected”); see also Shannon ¶ 26. Thus, one skilled in the art would have reasonably expected that Shannon’s dummy terminal, once incorporated in Tomino’s hub, would be capable of providing a female parking lot to receive a fiber line (lit or unlit) as claimed. In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is required is a reasonable expectation of success.”). While Appellant argues that there is no mention in the cited art of the problems arising from having an unsecured fiber line or the benefits of providing a secure fiber terminal adapted to receive the lit fiber line to prevent any injury by or tampering of a fiber line (Appeal Br. 15), one skilled in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings. Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005). See also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining that any need or problem known in the art can provide a reason for combining the elements in the manner claimed). Moreover, Shannon acknowledges that “live fiber optic cables may be plugged into the SFP dummy connector with a substantially reduced danger of an unintended connection or damage to the piece of equipment.” Shannon ¶ 26. One Appeal 2019-000942 Application 14/181,073 7 skilled in the art would have inferred from Shannon’s disclosure that the SFP dummy connector would also prevent any injury by or tampering of a fiber line. See In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992) (holding that a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). Accordingly, we AFFIRM the Examiner’s prior art rejections of claims 1–3, 6, 8, 9, 11–16, and 18 under 35 U.S.C. § 103 for the reasons presented by the Examiner and given above. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1–3, 8, 9, 11, 12, 14, 15 § 103 Tomino, Shannon 1–3, 8, 9, 11, 12, 14, 15 6 § 103 Tomino, Shannon, Robinson 6 13, 16, 18 § 103 Tomino, Shannon, Alston 13, 16, 18 Overall Outcome 1–3, 6, 8, 9, 11–16, 18 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 Copy with citationCopy as parenthetical citation