UNITED STATES PATENT AND TRADEMARK OFFICE
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`COOPER CROUSE-HINDS, LLC
`Petitioner
`
`v.
`
`CMP PRODUCTS LIMITED,
`Patent Owner
`
`____________
`
`Case IPR2018-00994
`Patent 8,872,027
`
`____________
`
`Filed: August 15, 2018
`
`
`Declaration of Lee Frizzell
`
`
`
`1
`
`
`
`
`
`
`
`
`
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0748
`
`
`____________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`
`COOPER CROUSE-HINDS, LLC
`Petitioner
`
`v.
`
`CMP PRODUCTS LIMITED,
`Patent Owner
`
`____________
`
`Case IPR2018-00994
`Patent 8,872,027
`
`____________
`
`Filed: August 15, 2018
`
`
`Declaration of Lee Frizzell
`
`
`
`1
`
`
`
`
`
`
`
`
`
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0748
`
`
`
`1. My name is Lee Frizzell, and I am the Product Development Manager at
`
`My Background
`
`CMP Products Limited.
`
`2.
`
`CMP Products Limited (sometimes referred to as simply “CMP”) is the
`
`owner of U.S. Patent Numbers 8,872,027; and 9,484,133 (respectively, “the
`
`‘027 Patent;” and “the ‘133 Patent;” and collectively “the patents-at-issue.”).
`
`It is my understanding that the ‘133 Patent is a continuation of the ‘027
`
`Patent. They share the same specification.
`
`3.
`
`I have been employed by CMP Products Limited for eleven years and have
`
`been working in the encapsulation field – which includes the subject matter
`
`of the patents-at-issue – for seventeen years.
`
`4. My education includes a Higher National Diploma in Mechanical
`
`Engineering. Additionally, I am named as an inventor on at least 3 patent
`
`families; as well as a number of additional pending patent applications.
`
`5.
`
`I have reviewed the patents-at-issue. Indeed, I previously provided a
`
`declaration on June 1, 2016 (sometimes, the “previous Declaration”), which
`
`was submitted to the USPTO in the prosecution of the ‘133 Patent. Because
`
`the patents-at-issue have the same specification, facts contained in my
`
`previous Declaration are equally applicable to both the ‘027 Patent and ‘133
`
`Patent. I incorporate the previous Declaration by reference hereto.
`
`
`
`2
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0749
`
`
`
`6.
`
`Furthermore, I have reviewed the petitions seeking the institution of Inter
`
`Partes Review filed by Cooper Crouse-Hinds, and having case numbers
`
`IPR2018-00994; and -00996; (sometimes referred to as the “Petitions.”). As
`
`part of my review, I have reviewed the Babiarz reference; the Everitt
`
`reference; the Dunn reference; the Widman reference; and the 3M reference,
`
`as well as the Declaration of Dr. Glenn Vallee (e.g., Exhibit 1003 to both
`
`Petitions). A complete list of the materials I reviewed is provided at the end
`
`of this declaration.
`
`The Obviousness Inquiry and the Level of Ordinary Skill in the Art
`
`7. My understanding is that Crouse-Hinds (sometimes referred to as the
`
`“Petitioner”) is seeking to invalidate the patents-at-issue based on 35 U.S.C.
`
`§ 103, alleging that the claims of the patents-at-issue would have been
`
`“obvious” to a person or ordinary skill in the art, at the time of the invention.
`
`I understand that, with respect to the ‘027 Patent, claims 1, 2, 4, 5, and 10-19
`
`are at issue. With respect to the ‘133 Patent, claims 1, 2, 3, 5, 9, 11-17, 19,
`
`23, and 25-28 are at issue.
`
`8.
`
`It is my understanding that the use of hindsight is prohibited as part of the
`
`obviousness analysis.
`
`9.
`
`I have been informed that, to render a claim invalid as “obvious,” Petitioner
`
`must show that the prior art included each of the elements claimed, with the
`
`
`
`3
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0750
`
`
`
`only difference between the claimed invention and the prior art being the
`
`lack of actual combination of the elements in a single prior art reference.
`
`10.
`
`If the prior art contains each element, Petitioner must further show that one
`
`of ordinary skill in the art would have combined the elements as claimed by
`
`known methods, and that in the combination, each element merely performs
`
`the same function as it does separately.
`
`11. Moreover, it is important to identify a reason – or, a rationale – why a person
`
`of ordinary skill in the art would have combined the prior art in the way the
`
`claimed inventions do.
`
`12.
`
`I consider a person of ordinary skill in the art to be a person having at least 3
`
`years of experience in encapsulation or resin systems, and at least about 5
`
`years of experience in the design and manufacture of cable glands or cable
`
`connectors. Although I may have more experience than a person of ordinary
`
`skill in the art (sometimes referred to as a “POSTIA”), I provide this
`
`declaration through the viewpoint of a person of ordinary skill in the art.
`
`That is to say, while I may be more qualified than one of ordinary skill in the
`
`art, my observations and statements are based on the perspective of a person
`
`of ordinary skill in the art at the time the inventions were made.
`
`13. As I summarize below, the references cited by Petitioner do not contain each
`
`element of the claimed inventions, as required by the obviousness inquiry.
`
`
`
`4
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0751
`
`
`
`Moreover, I also explain that there is no teaching, suggestion, motivation, or
`
`any other rationale that would lead a POSITA to combine the prior art
`
`reference in the manner suggested by Petitioner.
`
`14. As a result, it is my opinion that a POSITA, at the time of the inventions,
`
`would not have found any claim of any of the patents-at-issue to be
`
`“obvious” in view of the Babiarz reference, the Everitt reference, the Dunn
`
`reference, the Widman reference, and/or the 3M reference, alone or in
`
`combination. It is my understanding that the patents-at-issue are therefore
`
`valid.
`
`Background of the Inventions and State of The Art at the Time of
`the Inventions
`
`15. Cable glands are a type of coupling used to connect electric cables to an
`
`enclosure, typically, used in hazardous environments, such as oil rigs and oil
`
`refineries. More specifically, a cable gland is typically used to connect the
`
`terminating end of a cable to equipment such as a junction box. I explain this
`
`further, below.
`
`16. As I indicated in my previous Declaration of June 1, 2016, encapsulated
`
`cable glands are used in explosive atmospheres where the gland must
`
`prevent explosive gases under pressure from an explosion, from migrating
`
`along interstitial spaces along or through wires passing through the gland.
`
`
`
`5
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0752
`
`
`
`17. Within the cable gland, the outer layer of the cable is stripped away to
`
`expose the various cores or individual wires contained within the cable. The
`
`stripped cable may be referred to as a terminating cable, because the cable
`
`ends in the cable gland, where it connects to other equipment.
`
`18.
`
`In distinction to cable glands, conduit sealing fittings are not typically used
`
`for terminating cables directly into enclosures. Conduit seals are used for
`
`sealing cables within conduit systems and can be used to extend cables, for
`
`example. Conduit seals that have an incorporated “drain” may also provide
`
`ventilation in enclosures, and prevent the accumulation of moisture in
`
`electrical systems.
`
`19.
`
`It is imperative to seal cables entering a junction box through a cable gland.
`
`This prevents the passages of gasses, and potentially flames, into or out of
`
`the equipment.
`
`20. There are regulations in force relating to products used in explosive
`
`atmospheres. Such products are classed as “Ex d.” A product in this class is
`
`explosion proof and can withstand an internal explosion without transmitting
`
`flaming gases, vapors, dusts, or fibers to the external atmosphere. Ex d cable
`
`glands can be of two types: the first type has an elastomeric sealing ring that
`
`compresses or seals against the cable inner sheath; the second type has a
`
`barrier material that forms a seal around the individual cores of the cable (if
`
`
`
`6
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0753
`
`
`
`there is an inner sheath it is removed). Both of these types of cable gland are
`
`allowed in most countries (but not the U.S.A.), if the cable is essentially
`
`solid in construction, although if the cable is not solid, then a gland with a
`
`barrier material is required. In the U.S.A., for Ex d applications, a gland with
`
`a barrier material is required regardless of whether the cable is solid.
`
`21. At the time of the inventions, the barrier material used in cable glands was
`
`an epoxy putty material which is mixed, molded into position, and then
`
`allowed to set. This process is not only slow, but it is difficult to pack the
`
`barrier material into a cable gland sufficiently well that air is displaced and
`
`expelled by the putty, to prevent the formation of air voids in the set barrier
`
`material. However, this barrier material has the advantage that it is stiff, will
`
`bridge gaps, and will not run down the conductors and out of the gland while
`
`it is curing.
`
`22. Prior to the inventions, packing a cable gland with an epoxy putty to act as a
`
`barrier to an explosion was time consuming if done well and ineffective if
`
`not done well. In addition, while the putty material was curing, the joint
`
`needed to be maintained undisturbed for a long period until the putty cured,
`
`or movement of the cable conductors while the putty was curing would
`
`create voids in the putty.
`
`
`
`7
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0754
`
`
`
`23. Voids in the putty are undesirable for multiple reasons, including the fact
`
`that the air in the voids may make the cable gland less effective, or entirely
`
`ineffective, against explosions. In the case of a cable gland for use in
`
`explosive atmospheres, it is essential that no air is trapped. Also, the cavity
`
`in a cable gland to be filled with resin is relatively small and packed with
`
`cables (up to 80% of the void being filled with cable cores), so any system in
`
`which resin is poured from the top surface will not work as air will be
`
`trapped and/or the resin will not penetrate far enough.
`
`24. The inventions represent an advance in this field. In one aspect of the
`
`inventions, a dispenser is provided with a thin nozzle that can be pushed
`
`between the cores of a cable to fill it from the bottom up, thereby driving out
`
`any air. This also means that the resin is being introduced at the location
`
`where there may be voids in the cable, making a suitable means of
`
`preventing excessing penetration of the resin very important. In further
`
`aspects, the inventions are easier to apply to create a cable gland that is
`
`effective as a barrier to explosions, to prevent flames and gases emanating
`
`from an explosion from propagating through the gland. This is achieved by
`
`means of a curable liquid resin used as the barrier material in the cable
`
`gland. In order to achieve this, it was necessary to recognize that air gaps
`
`were a problem and that a liquid resin could provide a potential solution to
`
`
`
`8
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0755
`
`
`
`the problem, as it could penetrate and drive out air gaps between cores of a
`
`cable. However, it was also necessary to recognize that this could be
`
`achieved effectively and efficiently without permitting liquid resin to
`
`penetrate into areas of the cable gland where it is not intended to reach, or to
`
`run down the cables. This is particularly important when preselected
`
`volumes of liquid resin material are provided in a dispenser, since excessive
`
`penetration of the liquid resin along the cable cores could leave insufficient
`
`resin material remaining to form sufficient length of cured resin material
`
`within the barrier chamber of the cable gland to provide an effective barrier
`
`to explosions.
`
`25. As will become apparent from this Declaration, an additional advantage of
`
`the present inventions is that they include a seal which is adapted to stretch
`
`to engage a plurality of cores. The seal effectively seals the area around the
`
`cores and prevents resin leakage, whereas the curable liquid resin seals
`
`between and around the cores. The seal provided by the inventions of the
`
`patents-at-issue can engage multiple cores, whereas the prior art seals
`
`requires a user to thread each individual core through an individual opening.
`
`This allows for faster installation, among other advantages.
`
`26. Prior art devices had many disadvantages. Air voids often developed during
`
`application of epoxy material, which proved to be highly detrimental in the
`
`
`
`9
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0756
`
`
`
`event of an explosion. In the prior art, the cure time of the putty-like material
`
`is chosen to be relatively long, in order to enable the material to be
`
`manipulated into the spaces between the individual conductors before curing
`
`becomes advanced. Therefore, in the prior art, the filled cable assembly
`
`cannot be disturbed, often for several hours, especially if mixed at low
`
`temperatures. Moreover, prior art devices contained filler materials having
`
`hazardous components, which would cause harm to a person mixing the
`
`components if that person came in contact with hazardous materials during
`
`the mixing and dispensing process. Additionally, the prior art filler
`
`dispensing systems allowed air to become trapped within the cable gland by
`
`the filler material which may cause the barrier formed by the filler material
`
`to fail in the event of an explosion. Finally, filling of the cable gland is
`
`relatively difficult, especially in the case of small cable glands.
`
`27. Prior to the inventions of the patents-at-issue, it was understood that utilizing
`
`a wool fiber material which could be used to fill gaps between the cores of a
`
`cable was an acceptable method of preventing the curable material from
`
`proceeding along the various cores of a cable.
`
`General Statements Relating to the Inventions of the Patents-at-Issue
`
`28. One aspect of the patents-in-suit provides for a curable liquid material to be
`
`filled in between the cores of a cable gland. For example, the following
`
`
`
`10
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0757
`
`
`
`illustration shows a “RapidEx” material filled in between cores, which in
`
`turn forces air out (as indicated).
`
`29.
`
`It is important to recognize that in cable gland applications, the cable
`
`
`
`entering the gland may be a cable consisting of an outer layer of plastic or
`
`metal which covers a plurality of individual cores, conductors or wires
`
`contained within the cable. Within the cable gland, the outer layer of cable is
`
`stripped away to expose the various cores or individual wires. Thus, at the
`
`time of the invention, there was a need to construct a flexible barrier
`
`member adapted to stretch to engage a plurality of cores of a cable, to
`
`provide a barrier of passage of a curable liquid material along the cores.
`
`30.
`
`In one aspect, the inventions offer improvements over the prior art by
`
`providing a membrane that sits generally perpendicular to the cable or cable
`11
`
`
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0758
`
`
`
`cores. It has a small central hole that can be stretched open easily while the
`
`seal remains generally perpendicular to the cable and/or cable cores. This is
`
`important because the resin dam sits at the base of a tubular section that is
`
`filled with the barrier material. The length of barrier material must be at least
`
`20 mm to satisfy explosive atmosphere certification requirements, and if the
`
`seal opens up in such as manner as to protrude into the tubular section, it
`
`will either compromise the barrier or the whole assembly would need to be
`
`longer to compensate for this. The resin dam is also weak in construction
`
`because it is important that it fills the gaps between cable cores, but also that
`
`it be weak enough so avoid squeezing them together too hard. This is
`
`because the ideal barrier is one in which the barrier material has penetrated
`
`between the cable cores, not one in which the cores have been squeezed
`
`together as this may have left gaps that are too small for the barrier resin to
`
`penetrate, but along which gas driven by an explosion could pass.
`
`31. The inventions of the patents-at-issue provide a flexible barrier member
`
`which offers a benefit over the prior art dams, in that a fiber dam could not
`
`effectively create a barrier for the liquid resin. This is because a fiber dam is
`
`difficult to form and pack by hand without leaving gaps or creating air
`
`pockets. Any disturbance of the cores before or during the resin pour would
`
`potentially create a leak path for air.
`
`
`
`12
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0759
`
`
`
`32. The following figure illustrates the flexible barrier member:
`
`
`33. The barrier member provides an advantage over a fiber dam because it is
`
`difficult, if not impossible, to see inside the cable gland to check the quality
`
`of fiber wool prior to pouring the resin. Moreover, the flexible barrier
`
`member of the present inventions has the advantage over a fiber dam in that
`
`the fiber is porous and therefore will absorb the resin which could create
`
`leak paths and air voids.
`
`34. The purpose of the first and second barriers is to allow mixing of the two
`
`components prior to use, while also protecting a user from hazardous
`
`material. The patents-at-issue further describe a nozzle which is inserted into
`
`
`
`13
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0760
`
`
`
`the space between individual cores of the cable for delivering the curable
`
`liquid material.
`
`35. The inventions relate to cable glands, which are distinguishable from conduit
`
`seals. Cable glands and conduit seals are different devices which serve
`
`different purposes.
`
`36. For example, the following annotated figure shows a conduit seal:
`
`37. Conduit seals typically join two pieces of conduit together. On the other
`
`hand, a cable gland is used to guide cores directly into a piece of equipment
`
`or a junction box:
`
`
`
`
`
`14
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0761
`
`
`
`
`
`(“Terminator II TMCX Cable Gland Installation,
`
`https://www.youtube.com/watch?v=gQP36rSCCu8, at 00:37)
`
`My Understanding of Certain Claim Terms
`
`38.
`
`I understand that there is a dispute concerning the construction of certain
`
`claim terms of the patents-at-issue. Based on my experience, and putting
`
`myself into the position of a person of ordinary skill in the art, I provide the
`
`following facts regarding how a POSITA would understand certain claim
`
`terms when read in context of the claims in which they appear, and further
`
`read in context of the patents-at-issue.
`
`39. My understanding is that, for this proceeding, claim terms are given their
`
`“broadest reasonable interpretation,” sometimes called “BRI,” when read in
`
`view of the specification and file history, from the perspective of a POSITA.
`
`
`
`15
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0762
`
`
`
`40. For purposes of this Declaration, I have used August 21, 2009 as the date of
`
`the inventions. My understanding is that the Petition applies this date as the
`
`date of the invention, so, for consistency, I apply the same date. However, I
`
`am not currently providing an opinion regarding the date of the invention,
`
`but rather applying the same date as appears to be used in the Petition.
`
`However, I note that, in my opinion, the meanings of the phrases addressed
`
`below have not changed. Thus, my opinion would be the same regardless of
`
`which date is applied as the date of the invention.
`
`41. A person having ordinary skill in the art, at the time of the invention, would
`
`have recognized that a “cable gland” is a device used to attach the
`
`terminating end of a cable to a piece of equipment. This was, and is, the way
`
`the term “cable gland” is used in the industry. The patents-at-issue use the
`
`term in the same way. Importantly, a cable gland is distinguishable from a
`
`conduit sealing fitting. Conduit sealing fittings are much larger than cable
`
`glands. Conduit sealing fittings correspondingly have a higher volume than
`
`cable glands. As such, conduit sealing fittings have more interior room.
`
`Additionally, conduit sealing fittings do not typically terminate at a junction
`
`box or piece of equipment, but rather are used to join two pieces of conduit.
`
`
`
`16
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0763
`
`
`
`42.
`
`I have considered the construction advanced in the Petitions and determined
`
`that is incorrectly omits the fact that cable glands are used for terminating
`
`cables.
`
`43. As such, a person of skill in the art, at the time of the invention, based on the
`
`disclosure of the patents-at-issue, would understand a cable gland to be “a
`
`mechanical device for attaching a terminating cable to electrical equipment,
`
`such as an electrical panel, junction box, or enclosure.” This definition is
`
`supported by the context in which it is used in the patents-in-suit, as well as
`
`the manner in which a POSITA would understand the term’s usage in the
`
`industry.
`
`44.
`
`In addition, I reviewed the phrase “plurality of cores of a cable” as it appears
`
`in the ‘027 Patent (e.g. claims 1 and 14); and the ‘133 Patent (e.g. claims 1,
`
`12, 15, 26, and 28).
`
`45. To a person of ordinary skill in the art who read the specification(s) of the
`
`patents-at-issue, the phrase “plurality of cores of [a] cable” would refer to
`
`“two or more conductors or cores in a common covering, jacket, or sheath.”
`
`46. My observation is based in part on the specification(s) of the patents-at-
`
`issue. For example, the specification refers to the core conductors of a cable:
`
`“A ring 30 abuts the cable connector 28 and a flexible seal 32 is located
`
`around the core conductors 20 of the cable 22…The flexible seal
`
`
`
`17
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0764
`
`
`
`32…having an aperture (not shown) therethrough for engaging the core
`
`conductors 20 of the cable 22.” (‘027 Patent, Col. 4:9-12). Further, GB
`
`Patent No. 2,258,350 (sometimes, the “Kennelly Reference”) cited in the
`
`background of the ‘027 Patent describes the “interstices of the cable between
`
`the cable cores when the sheathing has been removed to enable the
`
`connection of the conductive elements of the cable cores to some electrical
`
`equipment or installation.”
`
`47.
`
`In the present inventions, the “flexible seal 32 initially placed over the core
`
`conductors 20 of the cable 50 that the seal 32 tightly grips the core
`
`conductors 20.” (‘027 Patent, Col. 4:36-40). The claims distinguish
`
`between the “cable” and “the cores of the cable.” (Id.). The purpose of the
`
`seal is “to tightly engage the core conductors 20 to form a reasonably
`
`effective barrier to passage of the material 6 along the space defined
`
`between the core conductors 20 and the compound tube 26.” (Id., Col. 4:16-
`
`21).
`
`48. Furthermore, the ‘027 Patent discusses the importance of preventing the
`
`flow of the curable liquid along the “cores”: “The provision of at least one
`
`barrier member for restricting the extent of penetration of said curable liquid
`
`material along the cable cores provides the advantage of enabling highly
`
`
`
`18
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0765
`
`
`
`flowable curable liquid material to be used, while also enabling filling of the
`
`cable gland.” (‘027 Patent, Col. 2:40-45).
`
`49. My understanding of the phrase “plurality of cores of [a] cable” is based not
`
`only on the ‘027 Patent document, but also the manner in which the phrase is
`
`used in the industry. For example, the following is an excerpt from an
`
`Installation Guide published by CMP Products:
`
`50. As can be seen, the installation guide shows the circled “cable cores” which
`
`share a common covering, in this case referred to as the “outer jacket.”
`
`51. This is an additional basis for my understanding of the phrase “plurality of
`
`cores of a cable.” Although the Installation Guide may have been published
`
`after the date of the invention, I was also a person of ordinary skill in the art
`
`
`
`19
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0766
`
`
`
`at the time of the invention. As such, I know that the description and
`
`terminology shown in the CMP Products Installation Guide has not changed
`
`since the date of the invention.
`
`52.
`
`I have annotated the following images to provide a visual explanation of
`
`how individual cores are positioned inside a common outer sheath. Also
`
`shown is the space between cores:
`
`
`
`20
`
`
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0767
`
`
`
`
`I have also reviewed the term “resin well” as it appears in the ‘027 Patent
`
`53.
`
`and determined that its broadest reasonable interpretation is “a portion of the
`
`gland that receives the curable material.” I understand that Petitioner
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`contends that the claimed resin well must be “at the core of the gland.”
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`However, there is no basis in the ‘027 Patent, or anywhere else, that would
`
`limit the resin well to being “at the core.”
`
`
`
`
`
`
`
`21
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0768
`
`
`
`The Prior Art References
`
`Hand
`
`54.
`
`I have reviewed the Hand reference (WO2008/029165). The USPTO
`
`initially rejected the claims based on an obviousness rejection as being
`
`unpatentable over EP434105 (Kaptein) in view of WO2008/029165 (Hand).
`
`55. The Examiner indicated that “Hand teaches a barrier member having one
`
`aperture” and “Kaptein disclosed a filler assembly.” (Ex. 1002, June 17,
`
`2013 Office Action). The Examiner concluded that “[a]t the time of the
`
`invention, it would have been obvious to one of ordinary skill in the art to
`
`use a barrier member for providing a seal between the gland structure and
`
`the hardenable compound.” (Id.) The Examiner based the rejection on
`
`Kaptein disclosing a filler assembly having multiple chambers. (Id.).
`
`However, the Examiner recognized that Kaptein did not disclose a “flexible
`
`barrier member”, so he relied upon Hand to teach the claimed barrier
`
`member having one aperture. (Id.).
`
`56. However, Hand does not disclose a flexible barrier member that would
`
`function in the same way as the CMP’s inventions. The examiner agreed and
`
`allowed CMP’s claims to issue as a patent. (See e.g. ‘027 Patent File
`
`History, June 23, 2014 Notice of Allowance). At best, Hand shows a
`
`relatively rigid seal 18 in figure 1:
`
`
`
`22
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0769
`
`
`
`
`
`
`
`Babiarz
`
`57.
`
`I have reviewed the Babiarz reference (U.S. Pat. No. 7,341,255). Babiarz is
`
`directed to a seal fitting with expanding material. While Babiarz discloses
`
`that multiple conductors may be disposed in the fitting, Babiarz fails to
`
`disclose that conductors terminate and are spliced at the fitting. Because
`
`Babiarz relates to conduit seals, a POSITA would not expect the conductors
`
`to terminate or be spliced at the fitting.
`
`58. Babiarz is directed to a “sealing fitting with expanding material.” (Babiarz,
`
`Cover). “The present invention [Babiarz] relates to sealing conduits, and in
`
`particular to the use of expanding conduit sealer.” (See Col. 1:6-7).
`
`“Electrical conduit is used to mechanically protect electrical conductors.”
`
`(Col. 1:11-13). Babiarz teaches that the fittings are used for “joining two
`
`
`
`23
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0770
`
`
`
`horizontally disposed conduits via mating sets of threads 115…” (Col. 2:4-
`
`6). Thus, Babiarz is limited to conduit seals rather than cable glands.
`
`59. There is no disclosure in Babiarz of a cable gland or a terminating
`
`connection. The purpose of Babiarz’s securing compound is to join conduits
`
`and create a seal at that junction. The fitting seal in Babiarz is not a cable
`
`gland and cannot function as a cable gland.
`
`60. The disclosure in Babiarz cannot function as a cable gland of the invention
`
`of the ‘027 Patent. In Babiarz, an expanding compound is used as a barrier
`
`material. The expanding compound is a foam. (See e.g. Babiarz, col. 3, lines
`
`15-18). The foam expands to be up to four (4) times its original size, and in
`
`that way forces its way between cores within the large volume of a conduit
`
`seal.
`
`61. For example, Babiarz discloses the use of an expanding compound: “In one
`
`embodiment, the sealing compound 133 is a two-part mixture that starts to
`
`expand once the two parts are mixed.” (Col. 2:20-23). “The compound in
`
`one embodiment will expand approximately 4 times its size following
`
`injection.” (Col. 3:7-12). Because the compound is intended and actually
`
`does expand, the porosity of the compound is greater than 90%. (Col. 3:24-
`
`26). The compound “forms a dense, high strength foam.” (Id.).
`
`
`
`24
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0771
`
`
`
`62. Because foam expands, it contains air bubbles and is porous. The air bubbles
`
`weaken the resin, and reduce the resin bond with the metallic casing and/or
`
`the metallic barrier tube. This occurs because some bubbles may end up
`
`pressed against the metallic casing.
`
`63. Sometimes, a higher volume of expanding foam compound is introduced
`
`into a conduit seal to compensate for the voids and air gaps. Such an
`
`expanding foam compound would not be effective in a cable gland, because
`
`the cable gland’s limited interior space means that a limited amount of resin
`
`can be introduced. Thus, using an expanding foam may be suitable in
`
`conduit seals, but it would not be safe in a cable gland. In a cable gland,
`
`which is much smaller than a conduit sealing fitting, an expanding
`
`compound cannot be used. It would be undesirable to have a compound that
`
`expands to separate conductors within the fitting in a cable gland.
`
`64. A person of ordinary skill would recognize that the Babiarz disclosure
`
`cannot be used in the field of cable glands, because, in a cable gland, there is
`
`not space for an expanding foam. The percentage fill of conductors to barrier
`
`tube is much higher and as a result there is less space for the barrier material
`
`(e.g. a resin). Thus, the expanding compound (foam) cannot be used in
`
`connection with cable glands.
`
`
`
`25
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0772
`
`
`
`65. Babiarz teaches a method to “utilize a fiber material that is weaved around
`
`each electrical conductor in the conduit to separate them. The fiber material
`
`is also packed in to form a dam…” (Babiarz, Col. 1:20-23). The fiber
`
`material is packed in the wires. This is a difficult task because it is difficult –
`
`or impossible – to see inside and determine the status of the fiber dam, and
`
`whether it has been sufficiently packed. Babiarz teaches the use of a fibrous
`
`material to pack the conduits:
`
`The fiber is first packed while the conductors are forced away from
`the hub opening and forced apart. The fiber is then packed between
`and around conductors in the hub to form the dam. An area above
`the dam is referred to as a sealing chamber. The dam provides a
`means of blocking the un-gelled expanding compound from leaking
`out of the sealing chamber. Care should be taken to ensure no shreds
`of fiber are left clinging to the side wall of the sealing chamber or to
`the conductors. Such shreds when imbedded in the sealing
`compound may form leakage channels.
`(Col. 3:45-4:1).
`
`66. Babiarz teaches that the fiber material seal is introduced after the wires are
`
`introduced into the conduit seal. This is different from the present invention,
`
`where the cores of a cable are introduced through the seal which is already
`
`fitted in position.
`
`67. Furthermore, Babiarz teaches that “[f]or horizontal fittings, no dams are
`
`required…” (Col. 4:2-4). Thus, in Figs. 1 and 2 of Babiarz, there is no
`
`
`
`26
`
`Cooper v CMP; IPR2018-00994
`CMP Ex. 2007; page CMP0773
`
`
`
`disclosure of a fiber dam, or any blocking dam whatsoever. Babiarz teaches
`
`the use of the invention without a dam, which teaches away from the
`
`inventions of the patents-at-issue. The teaching of Babiarz creates the
`
`precise problem addressed by the invention of the patents-at-issue: “The use
`
`of mineral wool packed into any gaps has been the accepted method of
`
`preventing a liquid barrier material from penetrating too far, and so this
`
`would be the obvious thing to use with a liquid resin system.”
`
`68. Moreover, Babiarz fails to disclose a “second barrier apparatus,” as claimed
`
`in the patents-at-issue. Instead, Babiarz discloses a plunger for mixing the
`
`expandable liquid. To a person of ordinary skill in the art, the plunger cannot
`
`be considered a second barrier because it does not prevent the expandable
`
`liquid from escaping the chamber during mixing. As such, the plunger is not
`
`a barrier at all.
`
`69. The purpose of the second barrier member is to pr
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