CenturyLink Intellectual Property LLC

Patent Trials and Appeals Board

Apr 9, 2020

14539592 - (D) (P.T.A.B. Apr. 9, 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.
14/539,592 11/12/2014 Hector Rojo 1041-US-I1-D1-I1-D1 1016
83809 7590 04/09/2020
CenturyLink Intellectual Property LLC
Patent Docketing
1025 Eldorado Blvd.
Broomfield, CO 80021
EXAMINER
PARVEZ, AZM A
ART UNIT PAPER NUMBER
3729
NOTIFICATION DATE DELIVERY MODE
04/09/2020 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@level3.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HECTOR ROJO,
RAYMOND LEE KINLEY, and STEPHEN SATTLER
Appeal 2019-004467
Application 14/539,592
Technology Center 3700
Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and
GEORGE C. BEST, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision twice rejecting claims 1–15 under 35 U.S.C. § 103(a) as
unpatentable over Manto (US 2007/0105445, pub. May 10, 2007) in view of

1 This Decision includes citations to the following documents: Specification
filed Nov. 12, 2014 (“Spec.”); Non-Final Office Action dated Sept. 7, 2018
(“Final”); Appeal Brief filed Dec. 5, 2018 (“Appeal Br.”); Examiner’s
Answer dated Mar. 21, 2019 (“Ans.”); and Reply Brief filed May 16, 2019
(“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. The Appellant identifies the real party in interest as Century Link
Intellectual Property LLC. Appeal Br. 3.
Appeal 2019-004467
Application 14/539,592

2
MIL–STD–188–125–1 (July 17, 1998) and Miller (US 2005/0128722, pub.
June 16, 2005).3, 4
We AFFIRM.
CLAIMED SUBJECT MATTER
The invention relates to a method of making a protective
telecommunications enclosure. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
1. A method of producing a high-altitude
electromagnetic pulse (HEMP) protected enclosure for holding
an electronic device, comprising:
building a test HEMP protected enclosure according to
an enclosure design;
performing an acceptance testing procedure on the test
HEMP protected enclosure;
determining whether the test HEMP protected enclosure
meets a HEMP protection level according to MIL-STD-188-
125-1; and
producing a plurality of HEMP protected enclosures
according to the enclosure design if the test HEMP protected
enclosure meets the HEMP protection level according to MIL-
STD-188-125-1;
wherein the test HEMP protected enclosure comprises a
cabinet width dimension of not more than about 90 inches wide,
a cabinet height dimension of not more than about 94 inches,
and a cabinet depth dimension of not more than about 30
inches.
Appeal Br. 21 (Claims Appendix).

3 We have jurisdiction under 35 U.S.C. § 6(b).
4 The present application is related to Application No. 11/780,045, now US
8,867,234. This Board panel reversed the examiner’s rejections in a decision
on appeal in the related application. See Ex parte Heimann, Appeal 2012-
001768 (Mar. 24, 2014).
Appeal 2019-004467
Application 14/539,592

3
OPINION
The Examiner rejected the claims as unpatentable over the
combination of Manto, MIL–STD–188–125–1, and Miller. Non-Final 3. The
Appellant argues the claims as a group. See generally Appeal Br. 14–19.
Accordingly, we decide the appeal as to all claims on the basis of claim 1.
See 37 C.F.R. § 41.37(c)(iv) (2018).
Manto discloses a method for developing a shielded enclosure, e.g., a
container or a room (Manto ¶ 53), “to protect devices, equipment and people
from electromagnetic interference such as electromagnetic pulse, and
directed energy attack” (id. ¶ 3). Manto’s exemplary method steps include
determining requirements for the enclosure, building a test enclosure, and
performing testing to ensure the enclosure meets user requirements. See id.
¶¶ 54–66. Manto discloses that “[t]he invention can provide significant value
by meeting the military spec range of frequency values known to be of
concern.” Id. ¶ 44. Manto notes, for example, that for compliance with
“MIL-STD-188-125, frequencies should be simulated from 1000 Hz to 1
GHz to establish that shields diminish a field hitting the outside of the shield
by 100 decibels (dB) by the time the field is measured at the inside of the
shield.” Id.
The Examiner found that Manto discloses the claim 1 method except
that Manto does not disclose testing to determine if the container meets the
MIL-STD-188-125-1 HEMP protection level, or the specifically recited
enclosure dimensions. Non-Final 3–4. As to the MIL-STD-188-125-1
HEMP protection level, the Examiner found that the ordinary artisan would
have modified Manto’s method to produce an enclosure that would meet this
standard (Non-Final 4), explaining in the Answer that “[o]ne of ordinary
Appeal 2019-004467
Application 14/539,592

4
skill in the art would [have] appreciate[d] . . . that the new and available
MIL-STD-188-125-1 standard replaces the old MIL-STD-188-125 standard
in authority, effectiveness and sets the old MIL-STD-188-125 [standard]
aside as void, useless, or obsolete.” Ans. 11 (citing the front pages of
Military Standard and Department of Defense Interface Standard5
(indicating that MIL-STD-188-125-1 supersedes MIL-STD-188-125 (June
26, 1990))).
The Appellant argues that MIL-STD-188-125-1 defines a standard,
but not how to implement that standard. Appeal Br. 16. The Appellant
contends that “the mere existence and definition of additional and more
stringent requirements of a superseding military standard (e.g. MIL-STD-
188-125-1) does not automatically make obvious the modifications needed
to be made to an enclosure to meet that standard.” Id. at 17. The Appellant
argues that “unlike MIL-STD-188-125-1, MIL-STD-188-125 does not
include any requirements regarding a maximum permissible peak current
value as measured within the enclosure for incident EM pulses or signals; a
maximum rate of rise value for the same; and a maximum root action value
for the same.” Id. at 15.
The Appellant’s argument is not persuasive because it is not
commensurate in scope with the claim language. Claim 1 does not require
building a test HEMP protected enclosure that meets a HEMP protection
level according to MIL-STD-188-125-1. Rather, claim 1 recites “building a
test HEMP protected enclosure” and “determining whether the test HEMP
protected enclosure meets a HEMP protection level according to MIL-STD-

5 Copies provided on page 9 of the Answer.
Appeal 2019-004467
Application 14/539,592

5
188-125-1.” The Appellant has not argued that the ordinary artisan at the
time of the invention lacked the knowledge or ability to perform testing of
an enclosure to determine whether the MIL-STD-188-125-1 requirements
were met.
As to the claim 1 enclosure dimensions—not more than 94” H × 90”
W × 30” D—Manto discloses that enclosure “[s]izes may range from brief-
case-sized to larger shipping container.” Manto ¶ 24. The Examiner found
that Miller discloses methods of constructing telecommunication enclosures,
and describes a sample enclosure configuration having overall exterior
dimensions of 77” H × 48” W × 31” D. Non-Final 4 (citing Miller ¶ 56
(Table 2)); see Miller ¶ 42. Miller discloses that the enclosure “can be
designed to be smaller or larger depending on the needs of the remote site or
remote lease site.” Miller ¶ 43. The Examiner determined that it would have
been obvious to modify Manto’s enclosure dimensions to fall within the
claimed dimensions to achieve any one of the goals outlined in Miller’s
abstract. Non-Final 4–5.
The Appellant does not dispute that Miller’s sample enclosure’s
height and width fall within the claim 1 range, but argues that the cabinet
depth is 31 inches, whereas claim 1 requires a depth of no more than 30
inches. Appeal Br. 19. The Appellant contends that the Examiner has not
demonstrated that it would have been obvious to have modified Manto in
view of Miller to arrive at an enclosure having a cabinet depth of no more
than 30 inches. Id.
A prima facie case of obviousness exists where the prior art and
claimed ranges overlap, as well as in those cases where the claimed range
and the prior art range, though not overlapping, are sufficiently close that
Appeal 2019-004467
Application 14/539,592

6
one skilled in the art would have expected them to have the same properties.
In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). We find that 31 inches
is sufficiently close to, if not encompassed by, “about 30 inches” (claim 1
(emphasis added)) such that the burden was shifted to the Appellant to show
criticality in the claimed range. See Playtex Prods., Inc. v. Procter &
Gamble Co., 400 F.3d 901, 907 (Fed. Cir 2005) (explaining that when words
of degree, such as “generally,” “approximately,” and “about” modify a claim
term, they are generally interpreted as allowing for some amount of
deviation from an exact boundary); In re Geisler, 116 F.3d 1465, 1469–70
(Fed. Cir. 1997). We agree with the Examiner that the Appellant has not met
this burden. Ans. 13.
The Appellant cites Specification paragraphs 64, 73, 123, 129, 133,
153, and 167 as evidence of criticality in the claim 1 enclosure dimensions.
Reply Br. 6. The Appellant argues that the recited dimensions are not
arbitrary but correspond to “‘maximums’ and/or ‘limits’ on dimension[s] for
standard telecommunications applications and/or requirements on
component sizing.” Id.
We have reviewed the cited Specification disclosure and are not
persuaded of criticality in the claimed dimensions. The Specification
describes exemplary enclosures configured for installation in standard
telecommunications rooms or spaces. In particular, the Specification
discloses enclosure embodiments that are described as having no greater
than the following dimensions: 84” H × 26” W × 22 3/8” D (Spec. ¶ 73); 84”
H × 24” W × 38” D (id. ¶ 123); 84” H × 65” W × 30” D (id. ¶ 129); 84” H ×
26” W × 20 1/4” D (id. ¶ 133); 94” H × 90” W × 30” D (id. ¶¶ 153, 167).
Notably, each of these descriptions uses the term “about” in stating the
Appeal 2019-004467
Application 14/539,592

7
enclosure’s height, width, and depth. The Specification discloses that
“[e]mbodiments of the present invention include enclosures and component
elements thereof that are constructed according to certain procedures or
standard specifications such as MIL-HDBK-423.” Spec. ¶ 64. Claim 1,
however, does not require that the enclosure dimensions satisfy a particular
standard. Further, by reciting that each enclosure dimension is “not more
than” a specified number, claim 1 encompasses a broad range of enclosure
dimensions that are not limited to the exemplary embodiments described in
the Specification as configured for installation in a standard
telecommunications room or space.
In sum, for the reasons stated above and in the Answer (see Ans. 7–
13), we are not persuaded of reversible error in the Examiner’s conclusion of
obviousness.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–15 103(a) Manto, Military Standard, Miller 1–15

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).
AFFIRMED