DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Arguments
Applicant's arguments filed 7/6/26 have been fully considered but they are not persuasive. Regarding the argument concerning the n range being a value of 0 to 28. There is not support in the disclosure for n being 0 to 28. The max number shown in the disclosure appears to be 8. Regardless, the claim does not state n is 0 to 28, the claims states n is 0 to 2, which is taught by the prior art as discussed in the rejection.
Regarding the argument concerning the bending stiffness: Product claims are examined with regard the structure of the cable and the prior art teaches all the components of the structure. If there is a structural or material difference that results in a particular bending stiffness those characteristics could be ones that differentiate over the art.
Regarding the argument concerning the preferential bending of claims 6: As discussed, product claims are examined with regard the structure of the cable and the prior art teaches all the components of the structure. If there is a structural or material difference that results in a particular preferential bending those characteristics could be ones that differentiate over the art.
Regarding the argument concerning claim 20: The rejection addresses the structure of this claim since at the time of the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify the cable of Johnson and Nothofer to use strength members that are each strength member has at least 2 brass plated steel wires stranded together as taught by Lang. The breaking load is a result of this structure. If there is a structural or material difference that results in a particular breaking load those characteristics could be ones that differentiate over the art.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-3, 5, 6, 10, 12-14, 17, 18 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson et al (US 4,723,831) in view of Nothofer et al (US 7,570,852 B2) and Lang et al (US 2020/0285011 A1).
Johnson teaches:
1. An optical fiber cable (10, Fig. 3) comprising:
one or more optical fibers (13);
one or more tubular structures (12) such that each tubular structure has at least one optical fiber (13);
a sheath (15) surrounding the one or more tubular structures (13); and
a plurality of strength member groups (16) at least partially embedded in the sheath (15), wherein the number of strength member groups (16) of the plurality of strength members are n+1, where n is an even integer, wherein n ranges from a value of 0 to 2 (three shown),
wherein the plurality of strength members (16) are embedded radially and at equal distance from each other (C6 L48-56);
wherein each strength member (16) has at least 2 wires stranded together (C7 L3-11).
2. The optical fiber cable as recited in claim 1, wherein no pair of strength members (16) and center of the optical fiber cable are coplanar (see Fig. 3).
3. The optical fiber cable as recited in claim 1, wherein a ratio of number of tubular structures (12) to number of strength members (16) is less than or equal to 3 (1/3 = less than 3).
12. The optical fiber cable as recited in claim 1, comprising a core region and a cladding region (each part of 13, see Fig. 3) (C3 L53-64).
14. The optical fiber cable as recited in claim 1, wherein the one or more tubular structures (12) is filled with a water blocking gel (11; C4 L6-16).
17. The optical fiber cable as recited in claim 1, wherein the one or more optical fibers (13) are enclosed inside the one or more tubular structures (12).
18. The optical fiber cable as recited in claim 1, wherein the plurality of strength members (16) is at least partially embedded in the sheath (15).
Johnson does not teach expressly:
wherein the one or more optical fibers has a diameter of less than or equal to 215 µm;
wherein the optical fiber cable (100) has a bending stiffness of less than or equal to 0.14Nm2; or
wherein the strength members are brass plated steel.
Nothofer teaches an optical cable wherein the fibers have a diameter of 200 to 250 microns (C3 L61-67) (covers the range from claim 13).
Johnson and Nothofer are analogous art because they are from the same field of endeavor, optical fiber cables.
At the time of the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify the cable of Johnson to use the fiber sizes taught by Nothofer.
The motivation for doing so would have been to reduce cost and complexity by using fiber sizes that are known and used in the art already.
Lang teaches an optical cable (3, Fig. 8) wherein each strength member has at least 2 brass plated steel wires stranded together (P0053).
At the time of the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify the cable of Johnson and Nothofer to use strength members that are each strength member has at least 2 brass plated steel wires stranded together as taught by Lang.
The motivation for doing so would have been to reduce cost and complexity by using already known and used strength members in the optical cable art.
Regarding claims 1, 6, 10 and 20: Johnson, Nothofer and Lang do not teach what the preferential bending, bending stiffness, sag or breaking load are. These are all functions of the claimed structure and not structural limitations in themselves and while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997); In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971);< In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). All of the structural features have been taught as laid out in the rejection above.
Regarding claim 5: Johnson, Nothofer and Lang do not each what the bend loss of the fibers are, but while features of an apparatus may be recited either structurally or functionally, claims directed to an apparatus must be distinguished from the prior art in terms of structure rather than function. In re Schreiber, 128 F.3d 1473, 1477-78, 44 USPQ2d 1429, 1431-32 (Fed. Cir. 1997); In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971);< In re Danly, 263 F.2d 844, 847, 120 USPQ 528, 531 (CCPA 1959). "[A]pparatus claims cover what a device is, not what a device does." Hewlett-Packard Co. v. Bausch & Lomb Inc., 909 F.2d 1464, 1469, 15 USPQ2d 1525, 1528 (Fed. Cir. 1990) (emphasis in original). The bend loss of a fiber is a function of the structure of that fiber, not a structural aspect that can distinguish the fibers from the prior art. All of the structural features have been taught as laid out in the rejection above.
Regarding claim 12: Johnson, Nothofer and Lang do not teach what the refractive index of the core is compared to a cladding region. It would have been obvious to one of ordinary skill in the art at the time the invention was effectively filed to try a core having a greater refractive index than the cladding, since it has been held that “it is obvious to try - choosing from a finite number of identified, predictable solutions, with a reasonable expectation of success” is a rationale for arriving at a conclusion of obviousness. In re KSR International Co. v. Teleflex Inc. An optical fiber is defined by a high index core surrounded by a lower index cladding to guide light so this is one of the most predictable and known solution in the fiber optic arts.
Claims 8 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson, Nothofer and Lang as applied to claim 1 above, and further in view of Bourget (US 7,200,306 B2).
Johnson, Nothofer and Lang teach the optical cable previously discussed.
Johnson, Nothofer and Lang do not teach expressly what the young’s modulus of the tube is or a HDPE sheath.
Bourget teaches an optical cable (Fig. 1) comprising:
8. The optical fiber cable as recited in claim 1, wherein the one or more tubular structures (3) have a young's modulus of less than 600MPa (C5 L2-16).
15. The optical fiber cable (100) as recited in claim 1, wherein an outer sheath (7) is a high density polyethylene (HDPE) jacket (C5 L2-16).
Johnson, Nothofer, Lang and Bourget are analogous art because they are from the same field of endeavor, optical fiber cables.
At the time of the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify the cable taught by Johnson, Nothofer and Lang to include the buffer tube material and sheath material that Bourget teaches are known.
The motivation for doing so would have been to reduce cost and complexity by using widely known and used materials in the fiber optic cable art.
Claims 9 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Johnson, Nothofer, Lang as applied to claim 1 above, and further in view of Hsu (US 2011/0262089 A1).
Johnson, Nothofer, Lang teach the optical fiber previously discussed.
Johnson, Nothofer, Lang do not teach expressly:
9. The optical fiber cable as recited in claim 1, wherein the ratio of optical fiber count in the optical fiber cable and the cable outer diameter is greater than 2.
16. The optical fiber cable as recited in claim 1, wherein the thickness of the outer sheath is in the range of 1.5mm to 2mm.
Hsu teaches an optical fiber cable (Fig. 4) wherein the ratio of optical fiber count (four shown) in the optical fiber cable and the cable outer diameter (0.006m, P0024) is greater than 2 (4/0.006 = 666.66) and Hsu teaches the diameter of the sheath being 6mm (P0024) therefore in the case where the claimed ranges ''overlap or lie inside ranges disclosed by the prior art'' a prima facie case of obviousness exists. ln re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Johnson, Nothofer, Lang and Hsu are analogous art because they are from the same field of endeavor, optical cables.
At the time of the effective filing date of the claimed invention, it would have been obvious to a person of ordinary skill in the art to modify the cable of Johnson, Nothofer, Lang to include the sheath and outer diameter taught by Hsu.
The motivation for doing so would have been to allow the cable to be used in small diameter applications like narrow pipelines.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to RYAN A LEPISTO whose telephone number is (571)272-1946. The examiner can normally be reached 9AM-6PM EST M-F.
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/RYAN A LEPISTO/Primary Examiner, Art Unit 2874
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