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 .
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.
Response to Amendment
Claims 3 and 4 have been canceled and the limitations have been added to claim 1. Claims 21 and 22 have been added. The scope originally presented claim 4 (now incorporated into claim 1) has not changed. The scope of all other claims has changed because those dependent on claim 1 now include the subject matter of claims 3 and 4, and newly claimed subject matter has been added to independent claim 11.
Response to Arguments
One skilled in the art of optical cable manufacturing, and specifically the addition of materials and coatings which make the cables flame resistant, would understand that the amount of flame resistant/retardant material, the type of the material, the thickness of a coating and the positioning of the materials/coatings impact the overall flame resistant/retardant properties of the cable. For coatings, the thicker the coating, the more flame resistant/retardant material is present, and the greater the flame resistance of the cable. The present claims are specifically limiting the thickness of the flame retardant coating and the thickness of each sublayer in that coating. The prior art cited (Gallo US 2015/0131952) teaches the same coating (both single layer and multilayer), using the same materials, manufactured by the same techniques. Claims 3 and 4, now incorporated into claim 1, recited limits on the coating and the induvial layer thickness. This subject matter was rejected with a single reference 103 using Gallo and relied on the knowledge and skill of one skilled in the art, specifically in understanding the relationship between flame retardant coating thickness and structure and the level of flame resistance of the cable.
Applicant argues that this rejection is flawed because 1) Gallo’s disclosure is not suggestive of the claimed dimensions of a flame retardant coating and the thickness of each individual layer in the flame retardant coating have no bearing on the overall flame retardant performance, 2) that at least one sub-layer dimension disclosed in Gallo suggests a layer thickness greater than the claimed maximum, and 3) the claimed dimensions provides enhanced flame retardant performance without materially increasing the cable size or degrading mechanical properties of the cable components.
With regard to the first argument, that Gallo’s disclosure is not suggestive of the claimed dimensions of a flame retardant coating and the thickness of each individual layer in the flame retardant coating have no bearing on the overall flame retardant performance, the Examiner does not find this argument convincing. Element 52 of Gallo, which meets the flame retardant coating limitation, is described as “one or more alternating layers” [0033]. This layer or layers are disposed on the same manner as described in the instant specification, by alternatively dipping or spraying cationic and anionic solutions by dipping or spraying (Gallo fig. 5 and paragraph [0037] and instant disclosure fig. 4 and [0027-0030]) to electrostatically bond the coating. Using this technique, the thickness of each of the individual layers is a function of the viscosity of the coating materials and the drying method and drying time. Both Gallo and the instant specification describe the same and similar materials of cationic and anionic materials can be used (siloxane and montmorillonite, preferred by Gallo, are expressly recited in the instant specification). Based on this similarity, one skilled in the art would reasonably conclude that the individual layers of the Gallo flame retardant coating would have very similar properties to the disclosed flame retardant coating. It would seem that based on the similarity of formation method and materials, Gallo’s disclosure is very suggestive of the claimed dimensions. When Applicant argues that Gallo’s disclosure is not suggestive of these dimensions, where is that found? Is Applicant suggesting that Gallo teaches radically different dimensions, or is Applicant merely pointing out that Gallo is silent as to specific dimensions? Also, with the argument that the thickness of each individual layer in the flame retardant coating have no bearing on the overall flame retardant performance, is Applicant suggesting that one skilled in the art would not understand the basic relationship between layer thickness (i.e. the amount of flame retardant material present) and the flame retardant performance would be beyond the understanding of one skilled in the art? Because one skilled in the art would understand the relationship between the flame retardant performance and the individual layer thickness and overall coating thickness, it is obvious for one skilled the art to arrive at the claimed dimensions. If the claimed dimensions are relatively smaller than the dimensions suggested by Gallo, then one skilled in the art would understand that such a layer would be sacrificing flame retardant performance for cost, ease of manufacture or mechanical properties. Such and optimization is well within the skill of one skilled in the art.
With regard to the second argument, that at least one sub-layer dimension disclosed in Gallo suggests a layer thickness greater than the claimed maximum, this argument does not consider how one skilled in the art would understand how using a thinner thickness would impact the flame retardant performance. Applicant points out that Gallo discloses that the clay compound of the flame retardant coating has an average particle size of between 0.1 μm and 50 μm and concludes that the thickness of Gallo’s individual layers “extends orders of magnitude above the thickness range for each layer set forth by the claims”. In fact, the lower end of the Gallo average particle size (0.1 μm/100 nm) overlap with the upper end of the claimed individual layer thickness (0.1 μm/100 nm). The rejection does not state that this value is anticipated by Gallo, under 35 USC § 102, but instead asserts that would have been obvious in light of the teachings of Gallo and knowledge and skill of one skilled in the art to form the clay layer at the minimum value disclosed or lower to achieve some other performance goal. One skilled in the art would understand that thinning this layer may sacrifice some of the flame retardant performance, but the goal for doing so may cost or ease of manufacture. Again, Applicant’s arguments do not address or present a counter argument for why one may prefer a thinner sublayer to achieve a performance goal, as explained in the rejection. In other words, why, based on the teachings of Gallo, would the skilled artisan not contemplate the benefits of having layers thinner than 100 nm? Applicant has not presented any arguments addressing these points, but simply states that the Gallo layer thickness range and the instant claims only slightly overlap.
With regard to Applicant’s third argument, that the claimed dimensions provides enhanced flame retardant performance without materially increasing the cable size or degrading mechanical properties of the cable components, this argument gets to the heart of the 103 rejection made. To understand what “enhanced” performance means, one would look to the instant specification, specifically paragraph [0013] which states:
“Conventionally, enhanced flame retardant performance for cable components was achieved by using polymers that were highly filled with flame retardant additives, such as magnesium hydroxide or alumina trihydrate. However, to achieve desired levels of flame retardance, the thickness of the polymer component had to be increased, which increased the size of the cable. Alternatively, the polymer had to be filled to such high levels that the mechanical properties degraded. In contrast, the LBL flame retardant coating is a thin coating that provides greatly enhanced flame retardant performance without degrading the mechanical properties of the cable.
The LBL flame retardant coating described throughout the spec is the layer-by-layer coating comprising two sublayers of alternatively charged materials (cations and anions), comprising a polymer (siloxane for example) and a clay applied as thin alternating layers in a liquid dipping/spraying process (instant specification [0024-0029]). It is precisely this type of layer, using the same formation techniques and the same materials that is described by Gallo, therefore, one skilled in the art that the Gallo multilayer flame retardant coating would achieve the same enhanced performance without increasing the cable size of degrading the mechanical properties, or it could be optimized to do so, if the desired outcome is reduced size, cost or better mechanical properties.
In response to Applicant’s argument against the rejection of claim 2, that Gallo does not appear to disclose a flame retardant coating comprising at least 5 and up to 20 layers, Examiner cites paragraph [0034] of Gallo which says “In specific embodiments, outer coating 52 includes five or more layers of polymer material and five or more alternating layers of clay compound.”
In response to Applicant’s argument against claim 8, a new rejection has been applied rendering the argument moot.
In response to Applicant’s argument regarding claim 11, Examiner agrees that Gallo does not teach the claimed method of the newly amended claim.
Claim Rejections - 35 USC § 103
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.
Claims 1, 2, 5-7 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Gallo et al. U.S. Patent Application Publication No. 2015/0131952 A1.
With regard to claim 1, Gallo, in figs. 1-4, discloses an optical fiber cable, comprising: a cable jacket (12) having a jacket inner surface and a jacket outer surface, the jacket inner surface defining a central bore extending along a longitudinal axis of the optical fiber cable; a buffer tube (20) having an inner buffer tube surface and an outer buffer tube surface, the buffer tube being disposed within the central bore of the cable jacket (12); at least one optical fiber (18) disposed within the buffer tube (20); and a flame retardant coating (disclosed in several locations including coating 52 on fiber strand 50 and layer 36 on inner surface of the jacket 28) comprising at least one layer; wherein the flame retardant coating is applied to one or both of the jacket outer surface (as described in [0023]) of the cable jacket or the outer buffer tube surface of the buffer tube ([0036] describers coating “applied to any component of cable”).
Gallo does not expressly disclose the thicknesses of the flame retardant coating or of the individual layers.
The claimed fiber optic cable does not recite any dimension for any other component or provide any indication that the claimed cable must fall within specific dimensional parameters. One skilled in the art would be able to determine the optimal thickness for the flame retardant layer based on the size and dimensional parameters of a desired fiber optic cable and degree of flame retardant performance. Therefore It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention such that each layer of the at least one layer comprises a thickness of up to 100 nm or the flame retardant coating comprises a thickness of 0.05 µm to 2 µm, to optimize performance.
With regard to claim 2, Gallo, in figs. 1-4, discloses that the flame retardant coating comprises at least 5 and up to 20 layers [0034].
With regard to claim 5, Gallo, in figs. 1-4, discloses that each layer of the at least one layer comprises a polymer including at least one of silicon, phosphorus, or nitrogen [0035].
With regard to claim 6, Gallo, in figs. 1-4, discloses that each layer of the at least one layer comprises at least one of a siloxane, a polyhedral oligomeric silsesquioxanes, a chitosan, a poly(ethyleneimine), branched poly(ethyleneimine), polyphosphoric acid, poly(allylamine hydrochloride), sodium hexametaphosphate, phytic acid, poly(sodium phosphate), ammonium polyphosphate, DNA, phosphorylated cellulose, oligoallylamine, phosphorylated oligoallylamine, chitin, phosphorylated chitin, nitrogen-modified silane hybrids, polyhexamethylene guandidine phosphate, phosphorylated polyvinyl alcohol, sodium polyborate, polyacrylic acid, polyacrylamide modified with N-2-(5,5-dimethyl-1,3,2-dioxaphosphinyl-2-ylamino)-ethylacetamide-2-propenyl acid, polyacrylamide modified with N-(5,5-dimethyl-1,3,2-dioxaphosphinyl-2-yl)-acrylamide, poly(diallyldimethylammonium chloride), or poly(vinylphosphonic acid) [0035-0038].
With regard to claim 7, Gallo, in figs. 1-4, discloses that each layer comprises a clay, an oxide particle, a metal particle, or a carbon structure [0035-0038].
With regard to claim 9, Gallo, in figs. 1-4, discloses that the cable jacket comprises a flame retardant non-corrosive material or a low smoke, zero halogen material [0035-0038].
Claims 8 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Gallo, as applied to claim 1, further in view of Grunlan et al., U.S. Patent Application Publication No. 2018/0404572 A1.
With regard to claim 8, Gallo, in figs. 1-4, discloses that each layer of the at least one layer comprises a bilayer of at least two different materials [0035-0038] but does not expressly disclose a trilayer, or a quadlayer.
Grunlan, in figs. 1-5, teach a flame retardant layer 35 having a structure of a bilayer, trilayer or quadlayer of at least two different materials [0026, 0029-0031] for coating industrial applications for flame retardance.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to substitute the Gallo bilayer flame retardant coating with the Grunlan trilayer or quadlayer flame retardant coating as an effective alternative.
With regard to claim 21, Grunlan teaches that the trilayer and quadlayer may comprise chitosan and polyphosphoric acid; branched poly(ethyleneimine) and laponite; branched poly(ethyleneimine) and montmorillonite; POSS+ and POSS-; branched poly(ethyleneimine) and colloidal silica; poly(allylamine hydrochloride) and sodium hexametaphosphate; chitosan and phytic acid; PDDA and silver nanoparticles; poly(ethyleneimine) and ammonium polyphosphate; chitosan and DNA; branched poly(ethyleneimine), urea, and kaolin; nitrogen-modified silane hybrids and phytic acid; chitosan and poly(vinylphosphonic acid); chitosan and phosphorylated cellulose; PHMGP and sodium borate; and chitosan and sodium hexametaphosphate [0022].
Claim 10 is rejected under 35 U.S.C. 103 as being unpatentable over Gallo, as applied to claim 1, further in view of Hudson, II et al., U.S. Patent Application Publication No. 2022/0404572 A1.
With regard to claim 10, Gallo, in figs. 1-4, discloses that the optical fiber cable further comprising a central strength member (24) disposed within the central bore, and wherein the flame retardant coating is applied to the strength member ([0036] describers coating "applied to any component of cable").
Gallo does not expressly disclose an upjacket surrounding the central rod.
Hudson, in fig. 3, teaches an optical fiber cable having an upjacket (62) surrounding the central rod (60), to protect the central rod.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to include an upjacket surrounding the central rod in the Gallo optical fiber cable to protect the central rod as taught by Hudson.
Allowable Subject Matter
Claims 11-20 and 22 are allowed. The following is a statement of reasons for the indication of allowable subject matter: With regard to claim 11, the prior art of record, either individually or in combination do not teach the claimed method of applying a flame retardant coating to a polymeric component of an optical fiber comprising extruding the polymeric component by way of an extrude; as the polymeric component exits the extruder and before the polymeric component is fully cooled, it is sprayed with the various coatings in sequence as described in the claim to form at least one layer of the flame retardant coating. As indicated in Applicant’s arguments, Gallo teaches a materially different method. Claims 12-20 and 22 are allowed due to their dependency.
Conclusion
THIS ACTION IS MADE FINAL. 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 Thomas A Hollweg whose telephone number is (571)270-1739. The examiner can normally be reached M-F 8-4.
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/THOMAS A HOLLWEG/Supervisory Patent Examiner, Art Unit 2874
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