Ex Parte Fleming et al

Patent Trial and Appeal Board

Sep 4, 2018

13559016 (P.T.A.B. Sep. 4, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/559,016 07/26/2012 James W. Fleming
57040 7590 09/06/2018
OFS Fltel, LLC
(FORMERLY FURUKAWA ELECTRIC NORTH AMERICA, INC.)
2000 NORTHEAST EXPRESSWAY
NORCROSS, GA 30071
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
Fleming 50-49DIV 1315
EXAMINER
LUND, JEFFRIE ROBERT
ART UNIT PAPER NUMBER
1716
NOTIFICATION DATE DELIVERY MODE
09/06/2018 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):
Arochester@ofsoptics.com
PTOL-90A (Rev. 04/07)
UNITED ST ATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES W. FLEMING and GEORGE J. ZYDZIK
Appeal 2017-011760
Application 13/559,016
Technology Center 1700
BeforeCATHERINEQ. TIMM,JEFFREYR. SNAY, and
DEBRA L. DENNETT,Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants 2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-3, 5, 6, and 8. We have jurisdiction under
35 U.S.C. § 6(b).
We affrrm.
1 We refer to the Specification ("Spec.") filed July 26, 2012; Final Office
Action ("Final Act.") dated December 14, 2016; Appellants' Appeal Brief
("Br.") filed May 15, 2017; and Examiner's Answer ("Ans.") dated July 13,
2017.
2 Appellants identify OFS Pitel, LLC as the real party in interest. Br. 1.
Appeal 2017-011760
Application 13/559,016
BACKGROUND
The subject matter on appeal relates to plasma deposition. Spec. ,r 2.
According to the Specification, manufacture of optical fiber preforms
involves depositing a cladding of silica glass on the interior surface of a
substrate tube. Id. ,r 3. The Specification provides that, in conventional
plasma chemical deposition, reaction occurs within the plasma region,
resulting in variations in thickness and/or composition of deposited
components. Id. ,r 6. Appellants disclose performing deposition under
power and vacuum conditions sufficient to generate an isothermal plasma,
which, according to the Specification, causes the deposition to occur
immediately upstream of the plasma. Spec. ,r,r 24, 28. Claims 1 and 6 are
directed to an apparatus for use in performing the disclosed isothermal
plasma deposition:
1. An isothermal, low pressure deposition apparatus
compnsmg
a substrate tube;
an isothermal plasma generator including:
a concentrator coil;
an RF generator coupled to the concentrator coil for
providing an RF signal to the concentrator coil that creates an
electro-magnetic field with a power of about either one of 9. 6
kW or 10.7kWin the substrate tube, wherein the concentrator
coil is disposed to surround an extent of the substrate tube, the
concentrator coil shaping the electro-magnetic field to be
concentrated in a contained volume, the concentrator coil and
substrate tube configured to provide for lateral movement
therebetween; and
a vacuum-based exhaust system for maintaining a
sub-atmospheric pressure within the substrate tube; and
a chemical reactant delivery system for introducing
selected chemical reactants into the substrate tube through a
frrst end termination, the chemical reactants interacting with the
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Appeal 2017-011760
Application 13/559,016
electro-magnetic field to create an isothermal plasma within the
substrate tube, the combination of the chemical reactant
delivery system and the isothermal plasma generator creating a
narrow deposition zone for reactant products of the at least one
chemical reactant upstream of the created isothermal plasma.
6. An optical preform fabrication apparatus
compnsmg:
a reactant delivery system to introduce reactants into an
upstream side of a substrate tube;
a pressure-control system to maintain sub-atmospheric
pressure within the substrate tube; and
a concentrator coil configured to generate an electro-
magnetic field of a power of about 9. 6k W or 10. 7k W within the
substrate tube and shaped to concentrate a produced isothermal
plasma within a contained volume, such that the introduced
reactants deposit on the substrate tube inner wall in a narrow
zone upstream of the isothermal plasma.
Br. 11-12 (Claims Appendix).
Each remaining claim on appeal depends from claim 1 or 6.
REJECTION3
Claims 1-3, 5, 6, and 8 standrejectedunder35 U.S.C. § 102(b)as
anticipated by Sterling. 4
OPINION
Appellants direct their arguments to independent claims 1 and 6, and
do not separately argue the dependent claims. See Br. 8-10. We address
3 Rejections under 35 U.S. C. § 112 set forth in the Final Office Action have
been withdrawn. Advisory Action, dated February 24, 2017.
4 US 4,349,373, issued September 14, 1982 ("Sterling").
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Application 13/559,016
Appellants' arguments with regard to claims 1 and 6 below. Each remaining
claim stands or falls with the independent claim from which it depends.
The Examiner finds that Sterling describes an apparatus for
conducting low pressure plasma deposition that meets all of the structural
recitations set forth in each of claims 1 and 6. Final Act. 3-5.
Claim 1
With regard to claim 1, Appellants contend that Sterling fails to
describe creation of an isothermal plasma. Br. 8. In support of that
contention, Appellants argue that: (1) the work of Sterling is referenced in
an article directed toward non-isothermal plasmas; (2) Sterling's Figure 3(a)
depicts a plasma that is not contained within a vicinity of the resonant coil
which, according to Appellants, is characteristic of a non-isothermal plasma;
(3) Sterling characterizes the deposited material as being in a glassy
condition, whereas the Specification refers to isothermal plasma deposition
of glass particles; ( 4) Sterling teaches use of a lower power level than that
which Appellants contend is sufficient to produce isothermal plasma; ( 5)
Sterling teaches a coil ground orientation that is not necessary for creating
an isothermal plasma; and (6) Appellants' previously co-pending claims
directed to a method were found patentable over Sterling. Br. 8-10.
Appellants' arguments are not persuasive of reversible error.
"[ 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). Where there is reason to believe that a prior art apparatus
inherently would have been capable of performing a claimed function,
Appellant bears the burden to show that the prior art apparatus lacked such
capability. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. l997);In re
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Application 13/559,016
Hallman, 655 F.2d212, 215 (CCPA 1981). Here, the Examiner finds that
Sterling describes its RF generator power as adjustable over a range that
encompasses that which is claimed. Final Act. 4. The Examiner also fmds
that Sterling describes a range of operational vacuum levels. Id. In light of
these fmdings, the Examiner fmds that Sterling's apparatus would have been
"capable of being operated/employed to form an isothermal plasma by
merely setting required power and vacuum, and supplying the desired gas."
Ans. 6.
Appellants' arguments, enumerated above, purport to show that
Sterling describes a process involving non-isothermal plasma, but do not
address whether Sterling's described apparatus would have been capable of
producing isothermal plasma. Nor do Appellants challenge the Examiner's
fmdings that Sterling's RF generator and vacuum source are controllable
over ranges that include the claimed power and vacuum levels, or that
selection of appropriate power and vacuum levels in Sterling could
accomplish isothermal plasma. To the contrary, Appellants state that the
Specification describes obtaining isothermal plasma under conditions similar
to those of Sterling but with a power level "on the order of 10-12 kW." Br.
9. Appellants do not dispute that Sterling's apparatus is capable of operating
at 10-12kW.
For the fore going reasons, Appellants do not reveal error in the
Examiner's anticipation fmding as applied to claim 1.
Claim 6
With regard to claim 6, Appellants contend that Sterling fails to
describe a resonant coil that is configured to generate an isothermal plasma.
Br. 8. However, Appellants present no evidence or credible technical
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Application 13/559,016
reasoning that structurally distinguishes the claimed coil from that which is
described in Sterling. Rather, Appellants rely on the same arguments
enumerated above. Br. 8-10. Because we find Appellants' arguments
insufficient to show structural distinction between Sterling's apparatus and
that which is recited in claim 6, we are not persuaded of error in the
Examiner's anticipation fmding as applied to claim 6.
DECISION
The Examiner's decision rejecting claims 1-3, 5, 6, and 8 is affrrmed.
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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