Bringuier, Anne Germaine. et al.

Patent Trials and Appeals Board

Feb 4, 2020

15190656 - (D) (P.T.A.B. Feb. 4, 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.
15/190,656 06/23/2016 Anne Germaine Bringuier HI13-162 4604
21495 7590 02/04/2020
CORNING INCORPORATED
INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1
CORNING, NY 14831
EXAMINER
RADKOWSKI, PETER
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
02/04/2020 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):
usdocket@corning.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANNE GERMAINE BRINGUIER,
RODNEY MAURICE BURNS, KEITH AARON GREER,
WARREN WELBORN McALPINE, and JOEL LAINE PARKER
____________

Appeal 2019-002213
Application 15/190,656
Technology Center 2800
____________
Before LINDA M. GAUDETTE, GEORGE C. BEST, and
MICHAEL G. McMANUS, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–20 of Application 15/190,656. Final
Act. (January 30, 2017). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we reverse.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Corning Optical Communications, LLC,
as the real party in interest. Appeal Br. 1.
Appeal 2019-002213
Application 15/190,656
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I. BACKGROUND
The ’656 Application describes a “dry” fiber optic cable. Spec. ¶¶ 2–
3. Such fiber optic cables use components that include water-swellable
material to block water flow through the spaces between cable components.
Id. ¶ 3. In a conventional dry fiber optic cable, the water-swellable powder is
carried on a yarn or between nonwoven laminates in a tape. Id. The dry fiber
optic cable described in the ’656 Application is constructed in a manner that
eliminates the need for the water-swellable powder carrier yarn or tape. Id.
¶¶ 3–5
Claim 1 is representative of the ’656 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A fiber optic cable, comprising:
a core assembly comprising:
an optical fiber, and
a tube through which the optical fiber extends; a polymeric
sleeve surrounding the core assembly, wherein the polymeric
sleeve is continuous peripherally around the core assembly,
forming a continuous closed loop when viewed in cross-section,
and continuous lengthwise along a length of the cable that is at
least 10 meters, wherein the polymeric sleeve conforms to an
exterior geometry of the core assembly, thereby limiting the
space for water to flow between the polymeric sleeve and the
core assembly;
water-swellable powder partially embedded in the polymeric
sleeve such that the particles of the water-swellable powder
have a portion thereof submerged in the polymeric sleeve
passing partly through a surface plane of the polymeric sleeve
and another portion thereof exposed partially projecting away
from the service plane of the polymeric sleeve; and
a jacket surrounding the polymeric sleeve.
Appeal Br. 18.
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II. REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1–5, 11, and 12 are rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Kang,2 Bambara,3 and
Bringuier.4 Final Act. 4.
2. Claims 6–10 and 13–20 are rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Kang, Bambara, Bringuier,
and Burns.5 Final Act. 8.
III. DISCUSSION
A. Rejection of claims 1–5, 11, and 12 under 35 U.S.C. § 103 over
the combination of Kang, Bambara, and Bringuier
Appellant argues that the rejection of claims 1–5, 11, and 12 should be
reversed based upon claim 1’s limitations. Appeal Br. 5–10. Claims 2–5, 11,
and 12 depend from claim 1. Because we reverse the rejection of
independent claim 1, we do not address Appellant’s additional arguments
regarding claims 4 and 11.
Appellant argues that the rejection of claim 1 should be reversed
because the combination of Kang, Bambara, and Bringuier does not describe
or suggest the claimed “polymeric sleeve surrounding the core assembly . . .
wherein the polymeric sleeve conforms to an exterior geometry of the core
assembly.” Id. at 5.

2 US 2009/0016687 A1, published January 15, 2009.
3 WO 02/074843 A2, published September 26, 2002.
4 US 5,684,904, issued November 4, 1997.
5 US 2011/0135816 A1, published June 9, 2011.
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In rejecting claim 1, the Examiner found that Kang describes a fiber
optic cable comprising a multilayer sleeve 40/50 that conforms to an exterior
geometry of the core assembly. Final Act. 4 (citing Kang Fig. 2). The
Examiner, however, found that Kang’s multilayer sleeve is not described as
polymeric. Id. at 5. The Examiner also found that Bambara describes a
multilayer polymeric sleeve 22/21/23. Id.; Answer 3–4 (citing Bambara Fig.
4). The Examiner further found that it would have been obvious to use
Bambara’s polymeric multilayer sleeve in Kang’s fiber optic cable to
facilitate optimization of physical properties and mission-specific additives.
Final Act. 5–6 (citing Bambara ¶¶ 14, 28). Thus, in the rejection, the
Examiner proposes replacing Kang’s multilayer sleeve 40/50 with
Bambara’s polymeric sleeve 22/21/23. Answer 4–5.
Appellant argues that the Examiner has not identified a sufficient
reason to replace Kang’s multilayer sleeve 40/50 with the sleeve made from
a polymeric material as described by Bambara. Appeal Br. 8–10. In
particular, Appellant argues that Bambara describes a foamed core material
that is used in rigid, load-bearing structures that resist bending and flexing.
Id. at 9–10. According to Appellant, “[t]here is simply no reason one would
modify ‘waterproof tape 40’ and the ‘ECCS tape 50’ to provide any of the
benefits of the laminate structure taught by Bambara et al.” Reply Br. 2.
We agree with Appellant. Bambara describes a multilayer laminate for
use in reusable pallets and/or containers. As the Examiner found, Bambara
describes its laminate as having enhanced physical properties such as shock
attenuation and stiffness. Bambara ¶ 14. These properties may be useful in a
material used to make shipping pallets. In this case, however, the record
before us is devoid of evidence that a person having ordinary skill in the art
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would have thought these properties important in a fiber optic cable. Nor has
the Examiner provided sufficient reasoning in lieu of this evidence.
The Examiner also found that a person having ordinary skill in the art
would have replaced Kang’s sleeve 40/50 with Bambara’s laminate to get
the ability to optimize the use of mission-specific additives. Final Act. 5–6
(citing Bambara ¶ 28). Bambara, however, describes incorporation of these
additives into an optional coating that can be applied to the multilayer
laminate. Bambara does not describe incorporation of these additives
directly in the material making up multilayer laminate 22/21/23. Thus, the
Examiner erred by finding that the use of mission-specific additives would
have motivated a person having ordinary skill in the art to combine Kang
and Bambara.
For these reasons, we reverse the rejection of claims 1–5, 11, and 12.
B. Rejection of claims 6–10 and 13–20 under 35 U.S.C. § 103 over
the combination of Kang, Bambara, Bringuier, and Burns
We divide the claims subject to this ground of rejection into two
groups: (1) claims 6–10 and (2) claims 13–20. We discuss each group of
claims separately.
1. Claims 6–10
Claims 6–10 depend from independent claim 1. As discussed above,
we have reversed the rejection of claim 1 as unpatentable over the
combination of Kang, Bambara, and Bringuier. Because the Examiner did
not find that Burns remedied the defects in the rejection of claim 1, we also
reverse the rejection of claims 6–10.
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2. Claims 13–20
Claim 13 is independent. Claims 14–20 depend from claim 13. We,
therefore, limit our discussion to claim 13.
Claim 13 reads:
13. A fiber optic cable, comprising:
a core assembly comprising an optical fiber;
a polymeric sleeve surrounding the core assembly, wherein the
polymeric sleeve is continuous peripherally around the core
assembly, forming a continuous closed loop when viewed in
cross-section, and continuous lengthwise along a length of the
cable that is at least 10 meters, wherein the polymeric sleeve
comprises:
water-swelling segments extending lengthwise along the
polymeric sleeve supporting water-swellable powder;
bare segments, wherein the bare segments extend
radially[6] around the full perimeter of the sleeve and are
located between the water-swelling segments in the
lengthwise direction; and
a jacket surrounding the polymeric sleeve.
Appeal Br. 20 (some indentation supplied).
Claim 13 includes the same polymeric sleeve limitation as claim 1. As
discussed above, the Examiner failed to explain why a person of ordinary
skill in the art would have replaced Kang’s sleeve 40/50 with Bambara’s
multilayer laminate 22/21/23. The rejection of claim 13 does not cure this
deficiency. We, therefore, also reverse the rejection of claim 13. Because we

6 Paragraph 62 of the Specification and Figure 8 suggest that the claimed full
loop extends circumferentially, i.e., along the sleeve’s circumference,
“around the full perimeter of the sleeve” rather than radially, i.e., outward
along the sleeve’s radius.
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reverse the rejection of claim 13, we also reverse the rejection of dependent
claims 14–20.
IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§ References/Basis Reversed
1–5, 11, 12 103 Kang, Bambara, Bringuier 1–5, 11, 12
6–10, 13–20 103 Kang, Bambara, Bringuier, Burns 6–10, 13–20
Overall
Outcome
1–20
REVERSED