Ex Parte Lyngsø et al

Patent Trial and Appeal Board

Dec 21, 2016

12717509 (P.T.A.B. Dec. 21, 2016)

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.
12/717,509 03/04/2010 Jens Kristian LYNGS0 1034279-000067.001 2942
21839 7590 12/23/2016
BUCHANAN, INGERSOLL & ROONEY PC
POST OFFICE BOX 1404
ALEXANDRIA, VA 22313-1404
EXAMINER
JORDAN, ANDREW
ART UNIT PAPER NUMBER
2883
NOTIFICATION DATE DELIVERY MODE
12/23/2016 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):
ADIPDOCl@BIPC.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JENS KRISTIAN LYNGS, CHRISTIAN JAKOBSEN, JESPER
SKOV GRETLUND, and HARALD R. SIMONSEN
Appeal 2015-001953
Application 12/717,509
Technology Center 2800
Before JEFFREY S. SMITH, JOHN KENNY, and SCOTT BAIN,
Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-001953
Application 12/717,509
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134(a) from the rejection of
claims 1, 3-10, 12, 13, 16-18, 20, 22, 26, 27, 39, 40, 58, 59, 61, and 62.
Claims 28, 30—37, and 60 have been withdrawn. We have jurisdiction under
35 U.S.C. § 6(b). An oral hearing was held on December 13, 2016.
We affirm-in-part.
Illustrative Claims
Claims 1, 7, and 26 are illustrative of the claimed subject matter:
1. A micro structured optical fiber adapted to guide light
at a wavelength X, in the range from 800 nm to 2500 nm, said
optical fiber having an axial direction and a cross section
perpendicular to said axial direction, said optical fiber
comprising:
a core region,
an inner cladding region surrounding said core region,
an end facet at an end of the optical fiber, and
at least a portion of the optical fiber is comprised of a
first type of feature comprising a void and a surrounding first
silica material, said first type of feature extending along at least
a part of said axial direction, said first silica material having a
first attenuation coefficient, ai, at X, and a first chlorine
concentration, Ci, of about 300ppm or less,
whereby diffusion of chlorine to the end facet and
resulting chlorine-induced degradation of the fiber end facet is
mitigated.
7. The optical fiber according to claim 1, wherein said
first type of feature further comprises a second silica material
with a second attenuation coefficient, a2, at X, and second
chlorine concentration, C2.
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Application 12/717,509
26. The optical fiber according to claim 7, wherein said
first silica material is arranged to provide a diffusion barrier for
Chlorine situated in said second silica material, thereby
mitigating the diffusion of said Chlorine into said voids of said
at least a first feature.
Fekety
Komine
Gaeta
Yamagata
Prior Art
US2004/0096173 A1
US 5,707,908
US 2004/0228592 A1
US 5,410,428
May 20, 2004
Jan. 13, 1998
Nov. 18, 2004
Apr. 25, 1995
Examiner’s Rejections
Claims 1, 3-10, 12, 13, 16-18, 20, 22, 26, 27, 39, 40, 58, 59, 61, and
62 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fekety,
Komine, Gaeta, and Yamagata.
ANALYSIS
For the rejection of claims 1, 3—10, 12, 13, 16—18, 20, 22, 27, 39, 58,
59, 61, and 62, we adopt the findings of fact made by the Examiner in the
Final Action and Examiner’s Answer, and concur with the conclusions
reached by the Examiner for the reasons given in the Examiner’s Answer.
For the rejection of claims 26 and 40, we find Appellants’ contentions
persuasive for the reasons given in the Appeal Brief. We highlight the
following for emphasis.
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Application 12/717,509
Section 103 rejection of claims 1, 3—6, 8—10, 12, 13, 16—18, 20, 22,
27, 58, 59, and 61
Claim 1 recites a “microstructured optical fiber adapted to guide light
at a wavelength X, in the range from 800 nm to 2500 nm,” comprising “first
silica material having ... a first chlorine concentration, ci, of about 300ppm
or less.”
The Examiner relies on the teachings of Fekety and Gaeta to show a
microstructured optical fiber to guide light in the range of 800 nm to 2500
nm. Final Act. 4—5. The Examiner relies on the teachings of Yamagata and
Komine to show silica having a chlorine concentration of 300 ppm or less,
for use with a light source having a wavelength between 248 nm to 1064 nm.
Final Act. 5—7. The Examiner finds that using the silica material with low
chlorine content as taught by Yamagata and Komine to form the
microstructured optical fiber of Fekety and Gaeta yields the predictable
result of a microstructured optical fiber having low chlorine content to guide
light within the claimed wavelength. Ans. 5—6.
Appellants contend Fekety teaches away from using the low chlorine
silica of Komine, because Fekety teaches cleaning the silica with chorine.
App. Br. 4—7; Reply Br. 1^4 (citing the Broeng declaration and Fekety || 44
and 45). Appellants also contend Gaeta similarly teaches silica having a
high chlorine content. App. Br. 8; Reply Br. 4. Appellants further contend
Yamagata teaches a traditional optical fiber. App. Br. 8—9. Appellants also
contend that, although Yamagata teaches an optical member that can be used
with a light source of 1064 nm, Yamagata does not prompt a person of
ordinary skill to do so. App. Br. 9; Reply Br. 4.
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Application 12/717,509
Appellants’ arguments against the references individually do not
persuasively rebut the Examiner’s combination. In particular, Appellants
have not provided persuasive evidence or argument rebutting the Examiner’s
finding that using low chlorine silica material which can guide 1,064 nm
light as taught by Yamagata, to make a microstructured optical fiber as
taught by both Fekety and Gaeta, does anything more than yield the
predictable result of a “microstructured optical fiber adapted to guide light at
a wavelength X, in the range from 800 nm to 2500 nm,” comprising “first
silica material having ... a first chlorine concentration, ci, of about 300ppm
or less” as recited in claim 1. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398,416 (2007).
Cumulative to the Examiner’s findings, we highlight that Paragraph 7
of Fekety teaches microstructured optical fibers are fabricated using methods
roughly analogous to the manufacture of all-glass optical fiber. Although
Appellants contend Yamagata teaches a traditional optical fiber (App. Br. 8—
9), Appellants do not provide persuasive evidence or argument to show
using the low chlorine silica material of Yamagata to make a
microstructured optical fiber that guides light in the range from 800 nm to
2500 nm as taught by Gaeta using the fabrication methods taught by Fekety
was “uniquely challenging or difficult for one of ordinary skill in the art.”
See Leapfrog Enters., Inc. v. Fisher—Price, Inc., 485 F.3d 1157, 1162 (Fed.
Cir. 2007) (citing KSR Inti., 550 U.S. at 419).
We sustain the rejection of claim 1 under 35 U.S.C. § 103. Appellants
present arguments for the patentability of claim 39 similar to those presented
for claim 1, which we find unpersuasive. See App. Br. 12. Appellants do
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not present arguments for separate patentability of claims 3—6, 8—10, 12, 13,
16—18, 20, 22, 27, 58, 59, and 61, which fall with claim 1.
Section 103 rejection of claim 7
Claim 7 depends from claim 1 and recites “a second silica material
with a . . . second chlorine concentration.” Appellants contend Figure 2 of
Komine does not teach silica glass having a range of concentrations of
chlorine in a single fiber within the meaning of claim 7. App. Br. 10—11.
The Examiner finds Figure 2 of Fekety shows first and second elements 36,
46 in a single microstructured optical fiber, and Komine teaches different
silica materials have different chlorine concentrations. Final Act. 8—9; Ans.
8—9. Appellants’ argument against Komine alone does not persuasively
rebut the Examiner’s findings that the different elements of Fekety have
different chlorine concentrations as taught by Komine.
We sustain the rejection of claim 7 under 35 U.S.C. § 103.
Section 103 rejection of claims 26 and 40
Claim 26 depends from claim 7 and recites “said first silica material is
arranged to provide a diffusion barrier for Chlorine situated in said second
material, thereby mitigating the diffusion of said Chlorine into said voids of
said at least a first feature.” The Examiner finds that a layer of solid
material including silica glass with a certain chlorine content or absence
would inherently provide a barrier to the flow of chlorine atoms across it as
the solid material provides a physical barrier. Final Act. 14. Appellants
contend the Examiner has not provided evidence that the subject matter of
claim 26 is in the prior art. App. Br. 11.
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We agree with Appellants. The Examiner has not provided persuasive
evidence to show that the prior art inherently discloses “said first silica
material is arranged to provide a diffusion barrier for Chlorine situated in
said second material, thereby mitigating the diffusion of said Chlorine into
said voids of said at least a first feature” as recited in claim 26.
We do not sustain the rejection of claim 26 under 35 U.S.C. § 103.
Claim 40, which depends from independent claim 39, recites a limitation
similar to that recited in claim 26 for which the rejection fails.
Section 103 rejection of claim 62
Claim 62 recites “wherein the silica glass is substantially free of
chlorine.” Appellants contend a reasonable interpretation of Paragraph 22 of
Appellants’ Specification is that the claimed “substantially free of chlorine”
would be in the neighborhood of 0.01 ppm or less. App. Br. 14. The
Examiner finds Paragraph 22 of Appellants’ Specification does not provide a
limiting definition of “substantially free of chlorine” as claimed that
excludes the low chlorine levels taught by the prior art. Ans. 9—10.
We agree with the Examiner. During prosecution before the USPTO,
claims are to be given their “broadest reasonable interpretation,” and the
scope of a claim cannot be narrowed by reading disclosed limitations into
the claim. See In re Morris, 111 F.3d 1048, 1054 (Fed. Cir. 1997). “Giving
claims their broadest reasonable construction ‘serves the public interest by
reducing the possibility that claims, finally allowed, will be given broader
scope than is justified.’” In re Am. Acad, of Sci. Tech Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004) (citations omitted). “Construing claims broadly
during prosecution is not unfair to the applicant. . . because the applicant
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Application 12/717,509
has the opportunity to amend the claims to obtain more precise claim
coverage.” Id.
Here, claim 62 does not limit “substantially free of chlorine” to 0.01
ppm or less, and Paragraph 22 of Appellants’ Specification does not provide
adefmition that limits this claim term to 0.01 ppm or less.
We sustain the rejection of claim 22 under 35 U.S.C. § 103.
DECISION
The rejection of claims 1, 3—10, 12, 13, 16—18, 20, 22, 27, 39, 58, 59,
61, and 62 is affirmed.
The rejection of claims 26 and 40 is reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. §
41.50(f).
AFFIRMED-IN-PART
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