CommScope Technologies LLC

Patent Trials and Appeals Board

Jul 15, 2020

2019004610 (P.T.A.B. Jul. 15, 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.
15/246,200 08/24/2016 Alan N. Moe 9833-71 1730
79207 7590 07/15/2020
MYERS BIGEL, P.A.
P.O. BOX 37428
RALEIGH, NC 27627
EXAMINER
NGUYEN, CHAU N
ART UNIT PAPER NUMBER
2847
NOTIFICATION DATE DELIVERY MODE
07/15/2020 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):
uspto@myersbigel.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ALAN N. MOE
____________

Appeal 2019-004610
Application 15/246,200
Technology Center 2800
____________

Before JEFFREY T. SMITH, MICHELLE N. ANKENBRAND, 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 the
Examiner’s decision to reject claims l, 2, 4–6, 8–11, 13, and 14. 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
CommScope Technologies LLC. Br. 1.
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The invention relates to a coaxial cable. Spec. ¶ 2. Claim 1 illustrates
the subject matter on appeal and is reproduced below:
1. A coaxial cable, comprising:
an inner conductor;
a dielectric layer surrounding the inner conductor;
an outer conductor surrounding the dielectric layer and
having a plurality of corrugations, wherein each of the
corrugations has a root and a crest connected by a transition
section;
a jacket surrounding the outer conductor; and
a first adhesive layer interposed between the dielectric
layer and the roots of the corrugations of the outer conductor;
wherein each of the roots has a curved flattened portion
that is adhered to the first adhesive layer; and
wherein the root has a first radius of curvature, and the
crest has a second radius of curvature that is less than the first
radius of curvature.
The Examiner maintains the following rejections from the Final
Office Action dated August 31, 2017:
I. Claim 1 rejected under 35 U.S.C. § 103 as unpatentable over
Lamons (US 3,173,990, issued March 16, 1965) and Artbauer (US
3,777,045, issued December 4, 1973).

II. Claims 1, 2, 4–6, 8–11, 13, and 14 rejected under 35 U.S.C.
§ 103 as unpatentable over Johnson (US 3,745,232, issued July 10,
1973) and Strunk (US 9,541,225 B2, issued January 10, 2017).
For Rejection I, Appellant presents arguments for the sole claim
rejected, claim 1. Br. 3. For Rejection II, Appellant presents arguments
addressing all the claims together, with a focus on the independent claims 1,
6, and 10. Id. at 5, 8. We therefore select claim 1 as representative of the
subject matter claimed and decide the appeal as to all grounds of rejection
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based on the arguments Appellant makes in support of the patentability of
claim 1.

OPINION
Rejection I (Claim 1) (35 U.S.C. § 103) (Lamons and Artbauer)
After review of the respective positions the Appellant presents in the
Appeal Brief and the Examiner presents in the Final Office Action and the
Answer, we REVERSE the Examiner’s rejection of claim 1 under 35 U.S.C.
§ 103 as unpatentable over Lamons and Artbauer for essentially the reasons
Appellant presents. Our reasoning follows.
Claim 1 recites a coaxial cable comprising an outer conductor having
a plurality of corrugations wherein each of the corrugations having a root
and a crest connected by a transition section, with the root having a first
radius of curvature and the crest having a second radius of curvature that is
less than the first radius of curvature. Br. 9 (Claims Appendix).
The Examiner finds that Lamons teaches a coaxial cable that differs
from the recited subject matter in that Lamons does not disclose an outer
corrugated conductor where the radius of curvature of the crest is less than
the radius of curvature of the root. Final Act. 2–3. The Examiner finds that
Artbauer teaches it was known to provide an outer conductor of a high
voltage coaxial cable with corrugations, each having a root and a crest,
where the root has a first radius of curvature and the crest has a second
radius of curvature that is less than the first radius of curvature. Final Act. 3;
Artbauer col. 2, ll. 9–11, col. 3, ll. 10–13. The Examiner determines that it
would have been obvious to one skilled in the art to have modified the
corrugations of Lamons’s outer conductor such that the radius of curvature
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of the crest is less than the radius of curvature of the root to meet the specific
use of the resulting cable as Artbauer teaches. Final Act. 3.
Appellant argues that Artbauer does not teach corrugations having a
radius of curvature of the root greater than a radius of curvature of the crest.
Br. 4. According to Appellant, the portion of Artbauer that the Examiner
relies upon compares the radius of curvature of the root to the radius of the
inner conductor, not to the radius of curvature of the crest. Id. at 4–5;
Artbauer Figure 3, col. 2, l. 9–11, col. 3, l. 10–13.
Appellant’s arguments identify reversible error in the Examiner’s
determination of obviousness.
We have reviewed the portion of Artbauer that both the Examiner and
the Appellant rely upon to support their respective positions. The relevant
portion of Artbauer describes the following:
[The] convex profile [of the outer conductor’s corrugations]
may be established by inwardly protruding helical or annular
ridges or even by axial ridges, whereby the ridge to ridge
spacing should not be larger than the average radial distance
between the conductors. The radius of curvature of the
inwardly directed, convex corrugation crests should be
substantially smaller than the radius of [the] curvature of or
on the inner conductor.
Artbauer col. 3, ll. 6–14 (emphasis added).
The first sentence of the noted description clearly specifies a
relationship between the ridge to ridge spacing and the average radial
distance between the inner and outer conductors. The second sentence is
less clear. After review of Artbauer’s disclosure as a whole, we find that a
fair reading of the second sentence of the noted description, particularly the
portion describing “the radius of the curvature . . . on the inner conductor,”
describes a relationship between the radius of the crest and the average
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radial distance between the inner and outer conductors. This interpretation
is consistent with Artbauer’s disclosure that the inner and outer conductors
remain spaced apart to allow “pressurized gas [to fill] the space between
them for improving insulation.” Artbauer col. 4, ll. 3–6. Therefore, we
agree with Appellant that this sentence does not describe the claimed radii
relationship.
Accordingly, we reverse the Examiner’s prior art rejection of claim 1
for the reasons Appellant presents and the reasons we give above.2
Rejection II (Claim 1) (35 U.S.C. § 103) (Johnson and Strunk)
After review of the respective positions the Appellant presents in the
Appeal Brief and the Examiner presents in the Final Office Action and the
Answer, we AFFIRM the Examiner’s rejection of claim 1 under 35 U.S.C.
§ 103 as unpatentable over Johnson and Strunk for essentially the reasons
the Examiner presents. Our reasoning follows.
The Examiner finds that Johnson teaches a coaxial cable that differs
from the recited subject matter in that Johnson does not teach an outer
corrugated conductor for the coaxial cable where the radius of curvature of
the crest is less than the radius of curvature of the root. Final Act. 4. The

2 If prosecution is further continued, the Examiner may wish to reconsider
whether Lamons’s teachings, as a whole, suggest the claimed invention.
Lamons’s Figures 6 and 7 disclose different ways to configure the
corrugations of the outer conductor. Lamons’s Figure 6 appears to suggest a
corrugation configuration where the root has a first radius of curvature and
the crest has a second radius of curvature that is less than the first radius of
curvature. Lamons describes this embodiment as one where the longitudinal
distance between regions 44 of the outer conductor is greater that the
distance between the coupling points 42. Lamons col. 11, ll. 21–35. The
difference in this distance could imply that there is also a difference in the
respective radii of the region 44 and the coupling 42. See Lamons Figure 6.
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Examiner finds that Strunk teaches it was known to provide a corrugated
tube in protective conduit systems for cable carrying purposes, where the
corrugated tube has a plurality of corrugations, each having a root and a
crest, wherein the root has a first radius of curvature and the crest has a
second radius of curvature that is less than the first radius of curvature.
Final Act. 4; Strunk Figure 6A, col. 1, ll. 16–18, col. 7, l. 63–col. 8, l. 2.
The Examiner determines that it would have been obvious to one skilled in
the art to modify the corrugations of Johnson’s outer conductor such that the
radius of curvature of the crest is less than the radius of curvature of the root,
as Strunk teaches, to meet the specific use of the resulting cable. Final Act.
4–5.
As Appellant argues, Johnson is directed to coaxial cables having an
annularly corrugated outer conductor that blocks longitudinal passage or
migration of fluid along the inside and along the outside of an outer
conductor without impairment of electrical or mechanical characteristics or
complication of attachment of connectors. Br. 7–8; see Johnson Abstr., col.
1, ll. 3–23, 61–68, col. 2, ll. 1–12. Appellant asserts that incorporating
Strunk’s corrugated profile in Johnson’s outer conductor would make the
outer side of the outer conductor more vulnerable to the migration of fluid
because the modified outer conductor would have unequal surface area
available at the roots and crests for adhesion of the coaxial cable
components. Br. 6–7. Therefore, Appellant argues that one of skill in the
art looking to improve adhesion to both the inner and outer layers of
Johnson’s outer conductor would have recognized that Strunk’s
configuration would not be helpful, and therefore would not have modified
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the Johnson outer conductor to the configuration recited in the claims. Id. at
7.
Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness.
Johnson teaches bonding the roots and crests of the corrugated outer
conductor to respective inner and outer surfaces to block migration of fluids
along the longitudinal dimension of a coaxial cable. Johnson col. 1, l. 64–
col. 2, l. 2. In view of Johnson’s disclosure, Appellant has failed to explain
adequately why one skilled in the art, using no more than ordinary creativity,
would not have been capable of adhering an outer corrugated conductor
having any corrugated profile, including the one Strunk discloses, to ensure
that such a corrugated outer conductor is bonded adequately to prevent
undesirable fluid migration along the longitudinal dimension of a coaxial
cable. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”); see also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985)
(presuming skill on the part of one of ordinary skill in the art).
In addition, Appellant does not direct us to any objective evidence in
support of the assertion that a corrugated outer conductor having Strunk’s
corrugated profile would make the outer side of the outer conductor more
vulnerable to fluid migration once bonded. Appellant, at most, has provided
mere attorney arguments and such arguments of counsel cannot take the
place of evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984);
In re Payne, 606 F.2d 303, 315 (CCPA 1979).
Therefore, we agree with the Examiner’s determination that one
skilled in the art would have reasonably expected that modifying Johnson’s
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outer conductor in light of Strunk’s teachings would result in an outer
corrugated conductor that would prevent fluids from migrating along the
longitudinal dimension of a coaxial cable. Ans. 5; 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.”).
Accordingly, we AFFIRM the Examiner’s prior art rejection of claims
1, 2, 4–6, 8–11, 13, and 14 under 35 U.S.C. § 103 for the reasons the
Examiner presents and we give above.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
Because the affirmed rejection reaches all the claims presented for
review on appeal, our decision is an affirmance.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1 103 Lamons, Artbauer 1
1, 2, 4–6,
8–11, 13,
14
103 Johnson, Strunk 1, 2, 4–6,
8–11, 13,
14

Overall
Outcome
1, 2, 4–6,
8–11, 13,
14

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED