Ex Parte Lewallen et al

Patent Trial and Appeal Board

Oct 11, 2016

12946139 (P.T.A.B. Oct. 11, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/946,139 11/15/2010 C. Paul Lewallen
21495 7590 10/13/2016
CORNING INCORPORATED
INTELLECTUAL PROPERTY DEPARTMENT, SP-TI-3-1
CORNING, NY 14831
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.
HI09-121 9312
EXAMINER
JORDAN, ANDREW
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
10/13/2016 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
Exparte C. PAUL LEWALLEN, JAMES P. LUTHER,
STUART R. MELTON, MARTINE. NORRIS, and
THOMASTHEUERKORN 1
Appeal2015-005022
Application 12/946,139
Technology Center 2800
Before PETER F. KRATZ, CHRISTOPHER C. KENNEDY, and
LILAN REN, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-11 and 13-26. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, the real party in interest is Coming Cable
Systems LLC, which is a wholly owned subsidiary of Coming Incorporated.
Br. 2.
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Application 12/946, 13 9
The subject matter on appeal relates to fiber optic assemblies. E.g.,
Spec. i-f 3; Claim 1. Claim 1 is reproduced below from page 14 (Claims
Appendix) of the Appeal Brief:
1. A fiber optic module assembly, comprising:
a fiber optic cable assembly having a fiber optic cable, at least
one optical fiber, and at least one optical connector assembly on
an end of the at least one optical fiber;
a module assembly receiving the fiber optic cable assembly,
wherein the module assembly attaches to a mounting structure;
and
an articulated strain relief boot assembly, wherein the articulated
strain relief boot assembly pivots and rotates relative to the fiber
optic module assembly.
REJECTIONS ON APPEAL
1. Claims 1-6 and 13-21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Luther et al. (US 2006/0147172 Al, published July 6,
2006) in view of Huang (US 2006/0160377 Al, published July 20, 2006).
2. Claim 22 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Luther in view of Huang, further in view of Zimmel (US 2006/0269206
Al, published Nov. 30, 2006).
3. Claims 7-11 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Spaulding (US 4,239,316, issued Dec. 16, 1980) in view
of Freeman et al. (US 5,366,388, issued Nov. 22, 1994), Luther, Huang, and
Zimmel.
4. Claims 23, 25, and 26 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Luther in view of Huang, further in view of Vrondran et
al. (US 2010/0012671 Al, filed July 15, 2008).
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Application 12/946, 13 9
5. Claim 24 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Spaulding in view of Freeman, Luther, Huang, and Zimmel, further in
view of Vrondran.
ANALYSIS
The Appellants present separate arguments for limitations appearing
in claims 1 and 23. We limit our discussion to those claims. The remaining
claims on appeal will stand or fall with claim 1.
After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner's
rejections. Accordingly, we affirm the rejections for reasons set forth below,
in the Final Action, and in the Examiner's Answer. See generally Final Act.
2-15; Ans. 3-11.
Claim 1.
The Examiner finds, inter alia, that Luther discloses a fiber optic
module assembly comprising each element of claim 1 except "an articulated
strain relief boot assembly, wherein the articulated strain relief boot
assembly pivots and rotates relative to the fiber optic module assembly."
Final Act. 3. The Examiner finds that "Huang discloses an electronic device
having a pivotable electrical connector, and electrical connector assembly
that includes ... a connector for signal transmission lines that both rotates
and pivots so as to accommodate installation in a limited space." Id. at 4.
The Examiner concludes that "[i]t would have been obvious ... to include a
connector along the lines of Huang in conjunction with a strain relief boot in
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Application 12/946, 13 9
a system along the lines of Luther in order to enable articulation and to both
protect the incoming cable and to accommodate limited space." Id.
The Appellants argue that modification of Luther in view of Huang
"would result in an inoperable device." Br. 9. For example, they argue that
"the bend radii of 'optical fibers 46' disclosed by Luther are too large to be
routed through the connector of Huang without damaging the 'optical fibers
46' of Luther." Id.
We are not persuaded by that argument because it focuses on whether
Huang's articulated connector could be bodily incorporated into Luther's
fiber optic module assembly. "The test for obviousness is not whether the
features of a secondary reference may be bodily incorporated into the
structure of the primary reference." In re Keller, 642 F.2d 413, 425 (CCPA
1981 ). "Rather, the test is what the combined teachings of the references
would have suggested to those of ordinary skill in the art." Id.; see also In
re Sneed, 710 F.2d 1544, 1550 (Fed. Cir. 1983) ("[I]t is not necessary that
the inventions of the references be physically combinable to render obvious
the invention under review.").
As the Examiner explains, "the combining of the mechanism of
Huang with the structures of Luther do not necessarily import the
dimensions asserted by Appellant as being in Huang." See Ans. 7. The
Examine further explains:
[T]he person of ordinary skill in the art at the time of Appellant's
invention would certainly take into account the concerns stated
by Appellant according to the context of the transmission
medium, electrical wire or optical fiber. In so doing, the
mechanism of Huang may be combined with the structures of
Luther without damaging any optical fibers while still
completely reading on Appellant's claim 1. Preserving utility
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Application 12/946, 13 9
and operability is seen as well within the skill of the person of
ordinary skill in the art at the time of Appellant's invention.
Id. at 8-9. The Appellants concede that bending issues were well known in
the fiber optic field, see Br. 10, and they fail to argue that it would have been
beyond the ordinary level of skill in the art to modify Huang's connector to
function with optical fibers. Nor do they persuasively rebut the Examiner's
finding that a person of ordinary skill would have been motivated to make
the proposed modification "to enable articulation and to both protect the
incoming cable and to accommodate limited space." See Final Act. 4.
On this record, we are not persuaded of reversible error in the
Examiner's rejection of claim 1.
Claim 23.
Claim 23 indirectly depends from claim 1 and recites in relevant part
"wherein a cable component of the articulated strain relief boot assembly is
translatable from the pivoted installed position to a pivoted locked position
with respect to the module assembly."
The Examiner finds that Vrondran "discloses a manhole cover hinge
assembly that includes a hinge component which is translatable from a
pivoted installed position ... to a pivoted locked position ... with respect to
the frame assembly." Final Act. 11. The Examiner concludes that "[i]t
would have been obvious ... to use a hinging mechanism along the lines of
Vrondran in a system according to Luther in view of Huang ... in order to
provide a movable hinging mechanism lockable into a position." Id.
Concerning whether Vrondran is analogous art to the claimed invention, the
Examiner finds:
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Application 12/946, 13 9
Id.
Vrondran is seen to be analogous art as the articulated portion of
the strain relief boot is seen as being a basic mechanical
component applicable to a wide spectrum of technologies (from
the accompanying cited prior art: manhole covers, wheelchairs,
temple hinges for eyeglasses, among others), including those of
optical fiber enclosures.
The Appellants first argue that "it is self-evidence that Vrondran is not
analogous art for this feature, because a person of ordinary skill in the fiber
optic art would not have looked to a 'manhole cover hinge."' Br. 12.
That argument is not persuasive because it is essentially a naked
assertion with no supporting explanation that identifies reversible error in
the Examiner's findings described above. Cf In re Lovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (undeveloped "naked assertion[s]" typically are not
persuasive); In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long
been the Board's practice to require an applicant to identify the alleged error
in the examiner's rejections .... "). The Examiner finds that Vrondran
would have been reasonably pertinent to the claimed invention at least to the
extent that it teaches a hinge and lock mechanism that is translatable to other
technologies, including cables. Final Act. 11. The Appellants' assertion,
with no elaboration or meaningful response to the Examiner's findings, is
not persuasive of reversible error. See, e.g., In re Icon Health & Fitness,
Inc., 496 F.3d 1374, 1380 (Fed. Cir. 2007) (affirming Board's finding that
folding mechanism of exercise equipment is reasonably pertinent to folding
mechanism of bed); In re Paulsen, 30 F.3d 1475, 1481-82 (Fed. Cir. 1994)
(affirming Board's rejection of a laptop computer hinge as obvious over
hinged furniture cabinets, piano lids, and other non-computer hinged devices
because the "problem is not unique to portable computers").
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The Appellants' remaining arguments focus on whether Vrondran's
hinge mechanism could be bodily incorporated into the fiber optic module
assembly of Luther as modified by Huang. See Br. 12. However, the
Appellants fail to persuasively refute the Examiner's stated motivation for
combining the references, and they fail to argue that it would have been
beyond the ordinary level of skill in the art to modify Vrondran's hinge
mechanism to function with optical fibers and the articulated strain relief
boot of Luther as modified by Huang. Accordingly, for reasons similar to
those stated above with respect to claim 1, we are not persuaded of
reversible error in the Examiner's rejection of claim 23.
CONCLUSION
We AFFIRM the Examiner's rejections of claims 1-11 and 13-26.
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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