FORD GLOBAL TECHNOLOGIES, LLC

Patent Trials and Appeals Board

Apr 8, 2020

14923086 - (D) (P.T.A.B. Apr. 8, 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.
14/923,086 10/26/2015 Paul Kenneth Dellock 83577631 1096
121691 7590 04/08/2020
Ford Global Technologies, LLC/
King & Schickli, PLLC
800 CORPORATE DRIVE, SUITE 200
Lexington, KY 40503
EXAMINER
DELAHOUSSAYE, KEITH G
ART UNIT PAPER NUMBER
2875
NOTIFICATION DATE DELIVERY MODE
04/08/2020 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):
laura@iplaw1.net
uspto@iplaw1.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PAUL KENNETH DELLOCK, STUART C. SALTER,
MICHAEL A. MUSLEH, HARRY LOBO, and TALAT KARMO
Appeal 2019-003306
Application 14/923,086
Technology Center 2800
Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, 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 1–14. 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 Ford Global
Technologies, LLC. Appeal Br. 3.
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Application 14/923,086

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CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to light bars for use as
exterior accents for vehicles for use, for example, “as distinctive and
attractive exterior lighting trim.” Spec. ¶ 1. Claims 1 and 5 are the only
independent claims on appeal. Claim 1 is illustrative:
1. A light bar for a vehicle, comprising:
a light-transmitting and edge-emitting optical fiber; and
an at least partially light-transmitting single-layer coating
extruded or pultruded around the optical fiber.

REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:

Name Reference Date
Orcutt US 4,422,719 Dec. 27, 1983
Swessel et al. US 2011/0075441 A1 Mar. 31, 2011

Chen US 2014/0321137 A1 Oct. 30, 2014
Shih-Chang Shei Optical and Structural Properties of
Titanium Dioxide Films from TiO2
and Ti3O5 Starting Materials
Annealed at Various Temperatures,
Advances in Materials Sci. and
Eng., Article ID 545076
2013

REJECTIONS
The Examiner maintains (Ans. 3) the following rejections on appeal:

2 In this Decision, we refer to the Non-Final Office Action dated August 27,
2018 (“Final Act.”), the Appeal Brief filed December 19, 2018 (“Appeal
Br.”), the Examiner’s Answer dated February 14, 2019 (“Ans.”), and the
Reply Brief filed March 22, 2019 (“Reply Br.”).
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A. Claims 1–3, 5, 7–9, 11, 12, and 14 under 35 U.S.C. § 102(a)(1) as
anticipated by Orcutt. Non-Final Act. 3.
B. Claims 4 and 13 under 35 U.S.C. § 103 as obvious over Orcutt in
view of Shei. Id. at 6.
C. Claim 6 under 35 U.S.C. § 103 as obvious over Orcutt in view of
Chen. Id. at 7.
D. Claim 10 under 35 U.S.C. § 103 as obvious over Orcutt in view of
Swessel. Id. at 7.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in 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.”)). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Non-Final Office
Action and the Answer. We add the following primarily for emphasis.
Appellant does not present any substantively distinct arguments for
any claim or rejection. See Appeal Br. 9, 13. Therefore, consistent with the
provisions of 37 C.F.R. § 41.37(c)(1)(iv) (2013), we limit our discussion to
claim 1, and all other claims on appeal stand or fall together with claim 1.
The Examiner rejects claim 1 as anticipated by Orcutt. Non-Final
Act. 3. The Examiner finds, for example, that Orcutt teaches a light-
transmitting and edge-emitting optical fiber. Id. (citing Orcutt). The
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Examiner finds that Orcutt also teaches an extruded light-transmitting
single-layer coating for the fiber. Id.
Appellant argues that “optical fiber,” as claim 1 recites, should be
construed as a “flexible, transparent fiber made by drawing glass or plastic
to a diameter slightly thicker than that of a human hair.” Appeal Br. 9.
Appellant argues that, under this construction, Orcutt does not teach an
optical fiber because Orcutt’s core is one quarter inch in diameter. Id. at 9–
11; see also Reply Br. 1–4. The Examiner disagrees with Appellant’s
construction and maintains that Orcutt teaches an optical fiber. Ans. 5–9.
During prosecution, the PTO gives the language of the proposed
claims “the broadest reasonable meaning of the words in their ordinary
usage as they would be understood by one of ordinary skill in the art, taking
into account whatever enlightenment by way of definitions or otherwise that
may be afforded by the written description contained in the applicant’s
specification.” In re Morris, 127 F.3d 1048, 1054–55 (Fed. Cir. 1997); see
also Cuozzo Speed Tech., LLC v. Lee, __ U.S. __, 136 S. Ct. 2131, 2145
(2016) (noting that the Patent Office has used the broadest reasonable
construction standard for more than 100 years). “[W]ords in a claim are
generally given their ordinary and customary meaning, [but] a patentee may
choose to be his own lexicographer and use terms in a manner other than
their ordinary meaning, as long as the special definition of the term is clearly
stated in the patent specification or file history.” Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996).
Here, we agree with the Examiner that “optical fiber” should not be
construed so narrowly that Orcutt’s core would not be an optical fiber.
Appellant argues that the Specification supports that optical fibers must have
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a very small diameter (smaller than that of Orcutt). Appeal Br. 9. The
Specification, however, does not define “optical fiber” in a manner that
would prohibit optical fiber from having a one quarter inch diameter. Rather,
the Specification identifies “optical fiber . . . marketed by Corning®, Inc.
under the brand Fibrance®” as “representative” and states that such fiber is
“typically very thin (on the order of 0.5 mm or less in diameter).” Spec.
¶ 28. The Specification’s language indicates that 0.5 mm diameter fiber is
exemplary rather than being mandatory to optical fiber in the context of the
invention. See Phillips v. AWH Corp., 415 F.3d 1303, 1323 (Fed. Cir. 2005)
(en banc) (“[A]lthough the specification often describes very specific
embodiments of the invention, we have repeatedly warned against confining
the claims to those embodiments.”).
Appellant also argues that Wikipedia defines optical fiber as having “a
diameter slightly thicker than that of a human hair.” Id. (citing Appeal Br.,
Exhibit A). In this circumstance, we decline to credit Wikipedia as credible
extrinsic evidence. As the Examiner explains, Wikipedia is unreliable
because it can be edited from uncredited sources. See also, e.g., Badasa v.
Mukasey, 540 F.3d 909, 910 (8th Cir. 2008) (remanding where Board of
Immigration Appeals acknowledged that it was improper to consider
information from Wikipedia in evaluating submission yet BIA relied only on
Wikipedia to determine that Ms. Badasa failed to establish her identity);
Jacobsen v. Katzer, 535 F.3d 1373, 1378 (Fed. Cir. 2008) (“The Wikimedia
Foundation . . . estimates that the Wikipedia website has more than 75,000
active contributors. . . .”).
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The Examiner’s position (i.e., that even a one quarter inch core may
be an optical fiber) is better supported. The Examiner cites Zarian3 as a prior
patent whose optical fiber was thicker than Orcutt’s one quarter of an inch.
Ans. 7–8. The Examiner also finds that Technopedia has credited sources
and provides a definition of optical fiber consistent with the Examiner’s
position. Id. at 8. Appellant does not persuasively dispute the Examiner’s
use of these references. The Examiner also finds that the Specification’s 0.5
mm diameter embodiment is considerably thicker than a human hair. Ans. 8.
We decline to construe “optical fiber” so narrowly that it would exclude an
embodiment from the Specification. See, e.g., Vitronics Corp. v.
Conceptronic, Inc., 90 F.3d 1576, 1583 (Fed. Cir. 1996) (explaining that a
claim interpretation that excludes a preferred embodiment is “rarely, if ever,
correct”).
Because we decline to construe “optical fiber” in a manner that would
exclude Orcutt’s one quarter inch core, Appellant’s argument does not
identify error.
Appellant also argues that Orcutt does not teach claim 1’s recited
“single-layer coating extruded or pultruded around the optical fiber.” Appeal
Br. 11–13. The recitation is written in a product-by-process format: the
structure of the single-layer coating is defined “at least in part in terms of the
method or process by which [they are] made.” Smithkline Beecham Corp. v.
Apotex Corp., 439 F.3d 1312, 1315 (Fed. Cir. 2006) (internal quotes and

3 Zarian et al., U.S. 5,937,127, Aug. 10, 1999, 7:40–49 (explaining example
“Fiber Optic Conduit[]” having a diameter of 14 mm).
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citation omitted). Appellant does not dispute that this is a product-by-
process recitation.
The product-by-process recitation limits the scope of the claim, but
“determination of patentability is based on the product itself,” not on “its
method of production.” In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985).
“If the product in a product-by-process claim is the same as or obvious from
a product of the prior art, the claim is unpatentable even though the prior
product was made by a different process.” Id.
For product-by-process claims, the Examiner “bears a lesser burden of
proof in making out a case of prima facie obviousness for product-by-
process claims because of their peculiar nature than would be the case when
a product is claimed in the more conventional fashion.” In re Fessmann, 489
F.2d 742, 744 (CCPA 1974). Thus, “when the prior art discloses a product
which reasonably appears to be either identical with or only slightly different
than a product claimed in a product-by-process claim, a rejection based
alternatively on either section 102 or section 103 of the statute is eminently
fair and acceptable.” Id. (quote and citation omitted). Once the examiner
establishes a prima facie case of anticipation or obviousness, the burden “to
prove that the prior art products do not necessarily or inherently possess the
characteristics of his claimed product” shifts to the Appellant. Thorpe, 777
F.2d at 698 (citation omitted).
Here, the Orcutt coating is made by extrusion (Orcutt 2:56–59) and,
even if we read Orcutt as not explicitly teaching extrusion around the optical
fiber as claim 1 recites, the coating appears to be identical to (or
substantially identical to) the claimed coating. Thus, Appellant bears the
burden to prove that Orcutt does not necessarily possess the characteristics
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of the claimed coating. Appellant, here, does not meet that burden. Appellant
does not identify any evidence establishing a physical difference between
the coating of Orcutt and Appellant’s claim 1 coating.4 Appellant argues that
it is “highly unlikely that a pre-formed sleeve 12 as required by Orcutt could
even be applied to a fragile structure such as the optical fiber required by the
Appellant’s claims.” Appeal Br. 12; see also Reply Br. 4. Appellant,
however, cites no evidence to support this point. See Estee Lauder Inc. v.
L’Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997) (“[A]rguments of counsel
cannot take the place of evidence lacking in the record”). Moreover, as
explained above, claim 1 does not require that an “optical fiber” be as thin
(and, presumably, fragile) as Appellant argues.
Because Appellant’s arguments do not identify reversible error, we
sustain the Examiner’s rejections.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 7–9,
11, 12, 14
102 Orcutt 1–3, 5, 7–
9, 11, 12,
14

4, 13 103 Orcutt, Shei 4, 13,
6 103 Orcutt, Chen 6
10 103 Orcutt, Swessel 10
Overall
Outcome
1–14

4 Appellant explains where the Specification compares Appellant’s invention
to an all plastic light bar. Appeal Br. 12 (citing, for example, Spec. ¶ 46).
Appellant does not compare (1) Orcutt’s core with an extruded coating to (2)
a core with a coating extruded or pultruded around the optical fiber.
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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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED