Ex Parte Vo et al

Patent Trial and Appeal Board

Feb 26, 2014

11320023 (P.T.A.B. Feb. 26, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte CHANH C. VO, BRAD N. GRUNWALD, JOHN A. KEENUM,
JOHN J. NAPIORKOWSKI, and RODGER A. TENHOLDER
__________

Appeal 2011-013032
Application 11/320,023
Technology Center 2600
__________

Before TONI R. SCHEINER, DEMETRA J. MILLS, and JEFFREY N.
FREDMAN, Administrative Patent Judges.

MILLS, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134. The Examiner has rejected
the claims for obviousness. We have jurisdiction under 35 U.S.C. § 6(b).

STATEMENT OF CASE
The present invention relates generally to a network interface device
used in a telecommunications network, and more specifically, to a universal
network interface device capable of accommodating conventional line
modules and protectors and including independent subscriber and
telecommunications service provider access. (Spec. 1.)

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Application 11/320,023

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Claim 1 is representative.
1. A network interface device, comprising:
a base defining an interior cavity having a provider portion and a
subscriber portion for housing terminating equipment and wiring
connections, and wherein the base is fabricated
from a first material;
a partition movably attached to the base between an opened position
and a closed position,
the partition comprising an inner cover for preventing unauthorized
access to the terminating equipment and wiring housed within the provider
portion and a rim forming an opening and
extending from the inner cover and at least partially along the walls of
the subscriber portion of the base;
a protective outer cover movably attached to the partition for
movement between an opened position and a closed position, and wherein the
outer cover is fabricated from a second material different from the first
material;
a subscriber access for releasably locking the outer cover to the
partition; and
a provider access for releasably locking the outer cover and the
partition to the base,
wherein the provider access permits direct access to the provider
portion of the interior cavity of the network interface device.

Cited References

Poster, Jr. US 4,800,588 Jan. 24, 1989
Thomann et al. US 6,510,226 B1 Jan. 21, 2003
Book et al. US 4,679,113 Jul. 7, 1987
Napiorkowski et al. US 5,567,916 Oct. 22, 1996
Shuey et al. US 6,475,004 B2 Nov. 5, 2002
McHutchinson US 6,896,137 B2 May 24, 2005
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Grounds of Rejection
1. Claims 1-6, 10-11, and 35-37 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Poster in view of Thomann.
2. Claim 7 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Poster in view of Thomann and Book.
3. Claims 8-9 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Poster in view of Thomann and Napiorkowski.
4. Claims 12, 15 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Poster in view of Thomann and Shuey.
5. Claim 13 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Poster in view of Thomann, Shuey, and
McHutchinson.
6. Claim 14 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Poster in view of Thomann, Shuey and Book.

FINDINGS OF FACT
The Examiner’s findings of fact are set forth in the Answer at pages 3-
13.

Discussion
ISSUE
The Examiner finds that Poster discloses each element claimed except
Poster fails to disclose wherein the base is
fabricated from a first material, and wherein the outer
cover is fabricated from a second material different from
the first material.
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Application 11/320,023

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However, Thomann discloses wherein the base
(Fig. 4B, base 30) is fabricated from a first material (col.
7 line 56 - col. 8 line 47; Thomann explains that the
material used to create the internal parts does not need to
be the same as the material used on the outer parts
because it would be unnecessary to incorporate a weather
resistant design on the internal components), Even
though neither Poster or Thomann teach an outer cover
with two materials it would have been obvious to make it
with two materials depending on the designer's choice
(col. 6 lines 29-55).
Thus it would have been obvious to one of
ordinary skill in the art at the time the invention was
made to modify Poster with fabricating the base and
outer cover with different materials as taught by
Thomann for the purposes of properly fabricating
materials that directly related to the functional
capabilities of each of the pieces, i.e. making the outer
cover weather resistant.

(Ans. 4-5.)

Appellants content that, “Poster in Combination with Thomann Fails
to Disclose or Suggest a Base Fabricated from a First Material and an Outer
Cover Fabricated from a Second Material Different from the First Material.”
(Br. 8.)

The issue is: Does the cited prior art support the Examiner’s finding
that the claimed subject matter is obvious?

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PRINCIPLES OF LAW
In making our determination, we apply the preponderance of the
evidence standard. See, e.g., Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427
(Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings
before the Office).
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prima facie case of obviousness. Only if that
burden is met, does the burden of coming forward with evidence or
argument shift to the applicant.” In re Rijckaert, 9 F.3d 1531, 1532 (Fed.
Cir. 1993) (citations omitted). In order to determine whether a prima facie
case of obviousness has been established, we consider the factors set forth in
Graham v. John Deere Co., 383 U.S. 1, 17 (1966): (1) the scope and content
of the prior art; (2) the differences between the prior art and the claims at
issue; (3) the level of ordinary skill in the relevant art; and (4) objective
evidence of nonobviousness, if present.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
ANALYSIS
We agree with the Examiner’s fact finding, statement of the rejection
and responses to Appellants arguments as set forth in the Answer. We
applaud the Examiner’s search and Answer which has provided highly
relevant references and argument. We find that the Examiner has provided
evidence to support a prima facie case of obviousness. We provide the
following additional comment to argument set forth in the Answer.
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We essentially agree with the Examiner’s response to arguments on
pages 14 -15 of the Answer, that it was well known to those of ordinary skill
in the network housing art in view of Thomann to use different materials for
the outer covering and base materials. We agree with the Examiner that
The obviousness is derived from the fact that Thomann
discloses that it's the designer's choice to choose from a variety
of materials to fabricate the base and the cover of the network
interface device (col. 6 line 56 - col. 7 line 64). The designer
has the option of choosing different materials based on the
reasons listed by Thomann which included weather and
temperature. Therefore, one of ordinary skill in the art can
deduce from Thomann that the base can be fabricated from a
different material because it will most likely be exposed to
different conditions than the out cover since the base is most
likely mounted against the wall of a structure and has wires
connected through it. Thus, the combination of Poster in view
of Thomann discloses all the limitations of claim 1, specifically
that a base be fabricated from a first material and the outer
cover be fabricated from a second material.

(Ans. 15.)

Appellants do not present additional argument for rejections 2-6
which fall for the same reasons as claim 1.

CONCLUSION OF LAW
The cited references support the Examiner’s obviousness rejections,
which are affirmed for the reasons of record.

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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

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