Trials@uspto.gov
`Tel: 571-272-7822
`
`
`Paper No. 7
`Entered: November 13, 2018
`
`
`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 B2
`_______________
`
`Before HUBERT C. LORIN, MICHAEL W. KIM, and HYUN J. JUNG,
`Administrative Patent Judges.
`
`LORIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`Tel: 571-272-7822
`
`
`Paper No. 7
`Entered: November 13, 2018
`
`
`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 B2
`_______________
`
`Before HUBERT C. LORIN, MICHAEL W. KIM, and HYUN J. JUNG,
`Administrative Patent Judges.
`
`LORIN, Administrative Patent Judge.
`
`
`
`
`DECISION
`Denying Institution of Inter Partes Review
`35 U.S.C. § 314(a)
`
`
`
`
`
`
`
`IPR2018-00994
`Patent 8,872,027 B2
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`I.
`
`INTRODUCTION
`Background
`A.
`Cooper Crouse-Hinds, LLC (“Petitioner”) filed a Petition requesting
`institution of an inter partes review of claims 1, 2, 4, 5, and 10–19 of
`U.S. Patent No. 8,872,027 B2 (Ex. 1001, “the ’027 patent”). Paper 2
`(“Pet.”). CMS Products Limited (“Patent Owner”) filed a Preliminary
`Response. Paper 6 (“Prelim. Resp.”).
`
`We have authority under 35 U.S.C. § 314.
`
`Upon consideration of the arguments and evidence presented by
`Petitioner and Patent Owner, we are not persuaded that Petitioner has
`demonstrated, under 35 U.S.C. § 314(a), a reasonable likelihood that it
`would prevail in showing the unpatentability of any of the challenged
`claims. Accordingly, we do not institute an inter partes review of any claim.
`
`
`
`Related Proceedings
`B.
`Petitioner notifies us that
`
`[t]he ‘027 patent is at issue in a co-pending litigation
`captioned as CMP Products Limited v. Cooper Crouse-Hinds,
`LLC and Cooper Industries, LLC, Case No. 4:17-cv-02194 (S.D.
`Tex.), the complaint in which was filed on July 18, 2017.
`Pet. 3; see also Paper 5, 2 (indicating similar).
`C.
`The ’027 Patent (Ex. 1001)
`1.
`Disclosure
`The ’027 patent, titled “Filler Assembly for Cable Gland,” relates to
`“a filler assembly for filling cable glands for use in hazardous areas.”
`Ex. 1001, [54], 1:15–17.
`Figures 1, 2, and 3 illustrate an exemplary embodiment of dispensing
`apparatus 2 and cable gland 4 of the ’027 patent, and are set forth below.
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`Figure 1 is a perspective view of dispensing apparatus 2.
`
`
`Figure 2 is a partial cut away perspective view of cable gland 4.
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`Figure 3 is a cross sectional view of the filled cable gland of Figure 2.
`As shown in Figure 1 above, dispenser apparatus 2 includes first
`compartment 10 and second compartment 12 for accommodating,
`respectively, first and second components of liquid material (depicted as
`curable material 6 in FIG. 2) for filling a cable gland. Ex. 1001, 3:26–36.
`Dispenser apparatus 2 also includes first clamp 14 for temporarily separating
`liquid material in first compartment 10 from liquid material in second
`compartment 12, and second clamp 18 for temporarily preventing material
`from flowing from second compartment 12 into elongate hollow nozzle 16.
`Ex. 1001, 3:33–56. Elongate hollow nozzle 16 extends from second
`compartment 12 and is insertable into a cable gland. Ex. 1001, 3:43–46.
`As shown in Figure 2 above, curable material 6 is insertable into cable
`gland 4. Ex. 1001, 4:1–13. Specifically, elongate hollow nozzle 16 is
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`insertable into cable gland 4 for inserting curable material 6 between
`individual core conductors 20 of the core of cable 22. Ex. 1001, 3:46–52.
`
`As shown in Figures 2 and 3 above, flexible seal 32 is located around
`core conductors 20 and compressed between tube 26 and ring 30 for limiting
`the extent of penetration of curable material 6 into cable gland 4. Ex. 1001,
`4:9–13. “[F]lexible seal 32 comprises a generally frusto-conical body of
`elastomeric material having an aperture therethrough for engaging the core
`conductors 20.” Ex. 1001, 4:13–16. “The aperture in [flexible] seal 32 is
`sized such that it stretches to pass around core conductors 20 to tightly
`engage the core conductors 20 to form a reasonably effective barrier to
`passage of curable material 6 along the space defined between core
`conductors 20 and [ ] tube 26.” Ex. 1001, 4:17–21.
`2.
`Claims
`The ’027 patent has 19 claims, of which only claims 1, 2, 4, 5, and
`10–19 are challenged.
`Claims 1, 14, and 16 are the independent claims. Claims 2, 4, 5, and
`10–13 depend from claim 1; claim 15 depends from claim 14; and, claims
`17–19 depend from claim 16.
`Independent claim 1, reproduced below, is illustrative.
`1. A filler assembly for filling with curable liquid material
`a cable gland, the cable gland having a plurality of cores of at
`least one cable extending
`therethrough,
`the assembly
`comprising:
`(a) a dispenser apparatus for a curable liquid material, the
`apparatus comprising:
`a body adapted to define at least one first chamber
`for accommodating a first component of a curable liquid
`material, and at
`least one second chamber
`for
`accommodating a second component of said curable liquid
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`material and adapted to communicate with at least one said
`first chamber to enable mixing of said and second
`components to initiate curing of said curable liquid
`material;
`at least one first barrier apparatus for temporarily
`preventing mixing of said first and second components;
`at least one elongate dispenser apparatus adapted to
`communicate with at least one said second chamber and to
`dispense said mixed curable liquid material therefrom
`between a plurality of cores of at least one cable; and
`at least one second barrier apparatus for temporarily
`preventing passage of said curable liquid material from the
`or each said second chamber to at least one said dispenser
`apparatus; and
`(b) at least one flexible barrier member having at least one
`respective aperture therethrough and adapted to stretch to engage
`a plurality of cores of a cable to provide a barrier to passage of
`said curable liquid material along said cores.
`
`Asserted References
`D.
`Petitioner relies on the following references:
`
`
`
`Name
`
`Babiarz
`
`Everitt
`
`3M
`
`Reference
`U.S. Patent No. 7,341,255 B2, granted March 11,
`2008
`U.S. Patent No. 5,596,176, granted January 21,
`1997
`U.S. Patent No. 3,773,706, granted November 20,
`Dunn
`1973
`Widman U.S. Patent No. 6,852,922 B2, granted February 8,
`2005
`3M Electrical Markets Division Product Catalogue,
`General Purpose Low & Medium Voltage Cable &
`Wire Accessories, 1st Edition, March 2006.
`Petitioner also relies on the Declaration of Dr. Glenn E. Vallee, Ph.D.,
`P.E. (Ex. 1003).
`
`Ex. No.
`
`1004
`
`1005
`
`1006
`
`1007
`
`1008
`
`6
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`Grounds Asserted
`E.
`Petitioner contends that claims 1, 2, 4, 5, and 10–19 of the ’027 patent
`
`are unpatentable under the following six grounds:
`Ground Basis
`Prior Art
`I
`§ 103 Babiarz and Everitt
`II
`§ 103 Babiarz, Everitt, and Dunn
`III
`§ 103 Babiarz, Everitt, and Widman
`IV
`§ 103 3M and Widman
`V
`§ 103 3M, Widman, and Dunn
`VI
`§ 103 3M, Widman, and Everitt
`
`Claims
`1, 2, 4, and 10–13
`5
`14–19
`1, 2, 4, 14, and 16–19
`5
`10–13 and 15
`
`II. ANALYSIS
`Level of Ordinary Skill in the Art
`A.
`With regard to the level of ordinary skill in the art, we determine that
`
`no express finding is necessary, on this record, and that the level of ordinary
`skill in the art is reflected by the prior art of record. See Okajima v.
`Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001); In re GPAC Inc., 57 F.3d
`1573, 1579 (Fed. Cir. 1995); In re Oelrich, 579 F.2d 86, 91 (CCPA 1978).
`Petitioner agrees that “[t]he level of skill in the art is generally evidenced by
`the prior art references.” Pet. 6.
`Patent Owner contends, inter alia, that “the Board should adopt the
`same level of skill applied during original prosecution” (Prelim. Resp. 25);
`that is, “a person having at least about 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, e.g., Ex. 2002, [¶4]1 and [ ]
`
`
`1 Exhibit 2002 is the file history of the ’027 patent. Exhibit 2002 contains a
`Declaration of Mr. Geoffrey I. Mood, the Technical Director at CMP
`Products at that time. The quotation from paragraph 4 is on page CMP0084
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`Ex. 2007, ¶12” (Prelim Resp. 25), apparently referring to statements made in
`a Declaration of Mr. Geoffrey I. Mood filed during prosecution of the patent
`application. Notwithstanding, that the filing of that Declaration does not
`necessarily indicate that the level of skill advocated was in fact applied
`during the original prosecution of the underlying application to the ’027
`patent, it is unnecessary to ascribe a particular level of skill in deciding the
`relevant issue in this case – that being whether Petitioner has shown
`sufficiently that the cited prior art combinations disclose, or would have led
`one of ordinary skill in the art to, a filler assembly having a flexible barrier
`member having an “aperture therethrough adapted to stretch to engage a
`plurality of cores of a cable to provide a barrier to passage of said curable
`liquid material along said cores,” as recited by independent claims 1 and 14,
`and a “flexible barrier member sealing the bottom of the resin well except
`for an aperture through the membrane through which [a bundle of ] cores [of
`a cable] extend, the aperture being smaller than the bundle of cores so that
`the cores stretch the aperture to fit tightly around the bundle,” as
`independent claim 16 recites.
`
`B.
`
`Claim Construction
`“cores of a cable”
`All three independent claims call for a “cores of a cable.”
`
`Independent claims 1 and 14 are directed to a filler assembly and a
`
`method of using a filler assembly, respectively, wherein the filler assembly
`comprises “(a) a dispenser apparatus for a curable liquid material . . . ” and
`“(b) at least one flexible barrier member having at least one respective
`
`
`of Exhibit 2002.
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`aperture therethrough adapted to stretch to engage a plurality of cores of a
`cable to provide a barrier to provide a barrier to passage of said curable
`liquid material along said cores.” Ex. 1001, 5:16–41 and 6:12–37 (emphasis
`added), respectively.
`
`Independent claim 16 recites “[i]n a cable gland through which a
`bundle of cores of a cable extend and that is filled with a curable material so
`as to block the passage through the gland of gases from an explosion, the
`improvement” being that “the gland defines a resin well at the bottom of
`which resides a flexible barrier member having an elastomeric membrane in
`a central portion thereof, the flexible barrier member sealing the bottom of
`the resin well except for an aperture through the membrane through which
`the cores extend, the aperture being smaller than the bundle of cores so that
`the cores stretch the aperture to fit tightly around the bundle.” Ex. 1001,
`6:47–57 (emphases added).
`
`Patent Owner asserts that the claim phrase a “plurality of cores of a
`cable” should be construed as “two or more conductors/cores in a common
`covering, jacket or sheath.” Prelim. Resp. 19–20 (Ex. 2001, Fig. 2, 2:40–45,
`4:9–12, 4:36–40; Ex. 2006, 1; Ex. 2007 ¶¶ 44–46). Patent Owner seeks this
`construction because “the arguments [the Petition] presents improperly uses
`the terms ‘cable’ and ‘cores’ interchangeably. They are not the same thing.”
`Prelim. Resp. 19.
`
`Specific to Patent Owner’s proposed construction, we do not agree
`that the claim phrase “plurality of cores of a cable” should be construed as
`“two or more conductors/cores in a common covering, jacket or sheath”
`(Prelim. Resp. 19). The phrase broadly covers both a cable having cores that
`have a common covering and one whose cores are not covered. The claims
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`do not otherwise contain language limiting the scope of the phrase to the
`former type. The cited portions of the Specification do not define “a
`plurality of cores” as limited to cores that have a common covering; indeed
`those portions of the Specification do not mention a common covering at all.
`On this record, the claims by themselves and when read in light of the
`portions of the Specification identified by Patent Owner, do not support a
`narrow construction of “plurality of cores of a cable” that would limit it to
`“two or more conductors/cores in a common covering, jacket or sheath.”
`Prelim. Resp. 19.
`
`Having said that, as we will explain below, we agree with Patent
`Owner that the Petition improperly uses “cable” and “a plurality of cores”
`interchangeably. Specifically, we agree with Patent Owner that “cable,” “a
`plurality of cores,” and “bundle of cores” are distinct elements of the
`claimed filler assembly (claims 1 and 14) and the claimed cable gland (claim
`16), respectively, and therefore must be treated as such in making a case that
`the claimed subject matter would have been obvious over the cited prior art
`combinations. As explained below, the cited portions of the Specification
`support treating cable 22 and core conductors 20 as distinct elements. Ex.
`1001, Fig. 2, 4:6–7.
`
`The Petition, however, does not separately treat “cable” and “cores”
`as distinct elements. Rather, the Petition uses the terms “cable” and “cores”
`interchangeably as though they are equivalent terms. This is evident from
`Petitioner’s discussion of Everitt, for example. See, e.g., Pet. 37. While
`Everitt makes no mention of “a plurality of cores,” Petitioner provides an
`annotated version of Figure 5B of Everitt (reproduced below) where
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`Everitt’s use of the terms “cable or a cable/conductor bundle” is indicated as
`being interpreted as “plurality of cores of cable.” Emphasis added.
`
`
`
`Petitioner’s annotated illustration showing Everitt’s
`juxtapositioning of a pierceable formation in the membrane
`with an aperture in the support member after insertion of a
`cable/conductor bundle therethrough,
`That view – that a cable is a plurality of cores and vice versa –
`
`overlooks expressly recited characteristics of the claimed subject matter; that
`is, with regard to independent claims 1 and 14, in requiring a filler assembly
`comprising a flexible barrier having an aperture “adapted to stretch to
`engage a plurality of cores of a cable” to provide a barrier to passage of the
`curable liquid material along the cores, the claims require not just engaging
`the cable per se, but specifically engaging the plurality of cores of the cable.
`Similarly, with regard to independent claim 16, that view overlooks the
`expressly recited limitation “an aperture through the membrane through
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`which the cores [of a cable] extend, the aperture being smaller than the
`bundle of cores so that the cores stretch the aperture to fit tightly around the
`bundle [of cores of the cable].”
`
`The Specification supports viewing “cable” and “cores” as distinct
`elements of the claimed filler assembly. It describes the flexible seal as
`being placed over cores of a cable so that the seal tightly grips the cores of
`the cable. As Patent Owner explains,
`the specification refers to the “cores” 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 32 . . . having an aperture (not shown) therethrough
`for engaging the core conductors 20 of the cable 22.
`Prelim. Resp. 19 (citing Ex. 2001, 4:9–12). Patent Owner provides an
`annotated version of Figure 2 of the ’027 patent, reproduced below, and cites
`to the associated disclosure: “the “flexible seal 32 initially placed over the
`core conductors 20 of the cable [22] that the seal 32 tightly grips the core
`conductors 20.” Prelim. Resp. 19 (citing Ex. 2001, 4:36–40).
`
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`Patent Owner’s annotated illustration of the partially cut away
`perspective view of a cable gland according to the ’027 patent.
`Finally, we note the use of the term “engage” in claims 1 and 14. The
`
`ordinary and customary meaning of “engage” is “to interlock with or cause
`to come into frictional driving contact.” Webster’s New World Dictionary,
`Third College Edition, 1988, 450, “engage,” definition 9 a) (Ex. 3001).
`Thus, when the aperture of the flexible barrier is “adapted to stretch to
`engage a plurality of said cores of” a cable, an application of the ordinary
`and customary meaning of “engage” requires the aperture to interlock with
`the plurality of cores of the cable.
`
`Similarly, when “the aperture [is] smaller than the bundle of cores so
`that the cores stretch the aperture to fit tightly around the bundle [of cores of
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`the cable]” (claim 16), requires the aperture to fit tightly around the bundle
`of cores of the cable.
`
`For the foregoing reasons, the claim terms “cable” and “cores” are
`construed as distinct elements of the filling assembly of claims 1 and 14 so
`that in requiring a filler assembly comprising a flexible barrier having an
`aperture “adapted to stretch to engage a plurality of [ ] cores of” a cable to
`provide a barrier to passage of the curable liquid material along the cores,
`the claims require the plurality of cores of the cable to be engaged, and not
`just the cable per se. Similarly, in requiring “the aperture [to be] smaller
`than the bundle of cores so that the cores stretch the aperture to fit tightly
`around the bundle [of cores of the cable]” (claim 16), the claim requires the
`bundle of cores of the cable to be tightly fit, and not just the cable per se.
`
`C. Overview of the Asserted Prior Art References
`1.
`Babiarz
`Babiarz is directed to an “expanding compound used to seal conduit
`fittings.” Ex. 1004, Abstract. According to Babiarz, use of the expanding
`compound results in the formation of an “explosion proof seal.” Ex. 1004,
`4:9–10.
`Babiarz also discloses creating a fiber dam at the bottom of a fitting to
`prevent leakage of expandable sealing compound. Ex. 1004, 3:39–52.
`Babiarz further discloses a cartridge with the two parts or materials
`separated by a barrier for providing the expanding compound. Ex. 1004,
`2:37–40. The cartridge is squeezed to deform the barrier, and a mixing rod
`coupled to a plunger in the cartridge is pushed and pulled to mix the
`materials. Ex. 1004, 2:40–48. After mixing is complete, the rod is removed
`
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`and a nozzle is attached to the top of the cartridge. Ex. 1004, 2:51–57. The
`mixture is injected into the fitting via the nozzle. Ex. 1004, 2:54–59.
`2
`Everitt
`Everitt is directed to a “cable sealing gland for sealing the passage of
`electrical conductors, cables, and the like through bulkheads.” Ex. 1005,
`1:5–9. The cable sealing gland is adapted to be fitted in an opening in a
`bulkhead and defines a receptacle which is closed by a rupturable wall of
`resilient elastomeric material (sealing membrane) which is or can be pierced
`to allow the passage therethrough of a cable/conductor bundle. Ex. 1005,
`1:64–2:3. “The sealing membrane effectively prevents, or at least limits, the
`weeping of the silicone sealing compound down the cables or through any
`unused apertures in the support insulator.” Ex. 1005, 2:66–3:2. After a
`cable/conductor bundle is passed through the cable gland, it may be sealed in
`place with a suitable sealing composition. Ex. 1005, 6:51–53.
`3.
`Dunn
`Dunn “discloses the use of phenosafranin with crosslinkable synthetic
`organic polymer resins as a visible qualitative degree-of-cure indicator. “
`Ex. 1006, Abstract.
`
`4. Widman
`Widman discloses “a conduit seal system incorporated into a conduit
`run, which isolates internal sections of the conduit, thus preventing the
`passage of vapor, gases or flames via the conduit from section to section.”
`Ex. 1007, 1:5–9.
`
`3M
`5.
`3M is a March 2006 product catalog that discloses 3M’s General
`Purpose Low & Medium Voltage Cable & Wire Accessories. Ex. 1008.
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`D. Ground I
`Petitioner challenges claims 1, 2, 4, and 10–13 as obvious under
`
`35 U.S.C. § 103(a) over Babiarz and Everitt. Pet. 26–45.
`1.
`Claim 1
`Petitioner’s position is that Babiarz discloses all that is claimed but for
`
`the flexible barrier member for which Everitt is relied upon. Id. at 26–27.
`
`Petitioner argues that “[t]he use of the membrane of Everitt with the
`device of Babiarz would thus have merely been the predictable result of
`using the apparatus of Babiarz with the elements of Everitt according to their
`known function. Ex. 1003, ¶ 75.” Pet. 27. Accordingly, “[a] POSITA
`would have recognized that the resilient elastomeric membrane 12 of Everitt
`can conform closely to the cables to form a ‘tight mechanical seal’ that is
`more capable of preventing leaks than a fiber dam. Ex. 1003, ¶ 75, citing
`Ex. 1005, col. 2, ll. 8–60; col. 7, ll. 43–53.” Pet. 37-38.
`
`Alternatively, Petitioner’s position is that Everitt discloses all that is
`claimed, but for the dispenser apparatus and two-part sealing compound for
`which Babiarz is relied upon. Pet. 27.
`
`For our purposes, the relevant issue is whether Petitioner has shown
`sufficiently that the combination of Babiarz and Everitt discloses or would
`lead one of ordinary skill in the art to a filler assembly comprising a flexible
`barrier having an aperture “adapted to stretch to engage a plurality of cores
`of a cable” (claim 1) to provide a barrier to passage of the curable liquid
`material along the cores, as claimed.
`
`For the limitation of “the cable gland having a plurality of cores of at
`least one cable extending therethrough,” Petitioner contends that “Babiarz [ ]
`discloses, [ ] ‘horizontal fitting 110 for joining two horizontally disposed
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`conduits’ and ‘[m]ultiple conductors 123 [] disposed within the fitting.’”
`Pet. 28 (citing Ex. 1001, 2:4–11, Fig. 1). Petitioner provides an annotated
`version of Figure 1 of Babiarz in support of the contention, which is
`reproduced below.
`
`
`
`Annotated illustration of a cross section of the horizontal mount
`sealing fitting of Babiarz illustrating use of a sealing
`compound.
`For the limitation of “at least one elongate dispenser [device] adapted
`
`to communicate with at least one said second chamber and to dispense said
`mixed curable liquid material therefrom between a plurality of cores of at
`least one cable,” Petitioner contends that “Babiarz discloses: ‘[m]ultiple
`conductors 123 are disposed within the fitting . . . .’” Pet. 32-33 (citing Ex.
`1004, 2:10, 15–17, and 22–23). Petitioner provides an annotated version of
`Figure 2 of Babiarz in support of the contention, which is reproduced below.
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`Annotated illustration of a cross section of the sealing fitting of
`Babiarz with expanded sealing compound.
`
`
`We note that neither the term “cores” nor the phrase “a plurality of
`
`cores” is recited anywhere in Babiarz. Rather, Babiarz uses the terms
`“conductors” and “multiple conductors,” which, as shown in Figures 1 and
`2, are separated from each other. See, e.g., Ex. 1004, 2:10 (“Multiple
`conductors 123 are disposed within the fitting.”). Petitioner’s annotated
`versions of Figures 2 and 3 of Babiarz (see supra) indicate that Babiarz’s
`multiple conductors are a “plurality of cores,” reflecting an assumption on
`the part of Petitioner that Babiarz in fact discloses a “plurality of cores.”
`Petitioner does not explain how that was arrived at. Be that as it may, Patent
`Owner does not dispute that the claimed “plurality of cores” reads on
`Babiarz’s multiple conductors.
`For the limitation of “at least one flexible barrier member having at
`least one respective aperture therethrough adapted to stretch to engage a
`plurality of cores of a cable to provide a barrier to passage of said curable
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`liquid material along said cores,” we reproduce Petitioner’s argument in its
`entirety.
`
`Everitt discloses a “cable sealing gland 10” with “a membrane
`
`12” that is “a synthetic rubber membrane, e.g., a silicone rubber
`membrane.” Ex. 1005 at col. 2, ll. 10–11; col. 3, ll. 63–66. Everitt
`discloses “pierceable formations 40, 41 formed in the membrane 12,”
`as well as a pre-pierced embodiment. Id. at col. 5, ll. 8–10; col. 7, ll.
`13–23. Everitt discloses:
`
`
`the elastomeric material of the membrane is stretched to
`accommodate the cable, and portions of the membrane are drawn
`down into the aperture in the support insulator and are in effect
`wedged therein between the aperture wall and the cable surface
`so as to form a pressure seal, which is secured and reinforced by
`the subsequent injection of sealing compound into the gland.
`
`
`Id. at col. 6, ll. 29–44; see also Figs. 3A and 5B (reproduced below,
`with annotations).
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`It would have been obvious to a POSITA to replace the fiber dam
`
`330 of Babiarz with the flexible membrane 12 of Everitt, as they both
`perform the same function of blocking a sealing compound from
`leaking in the chamber of a cable gland. Ex. 1003, ¶ 75, citing Ex. 1004
`at col. 3, ll. 40–45 and Ex. 1005 at col. 1, ll. 42–47. Moreover, Everitt
`addresses the problem of leaking seals and instances where “not all the
`gaps in the seal are reliably filled by the sealing compound,” and thus
`provides a membrane that engages cables in the cable gland to form a
`“pressure seal . . . to contain a silicone rubber sealing compound or the
`like.” Ex. 1005 at col. 1, ll. 42–47; col. 4, ll. 1–16. Based on these and
`other teachings of Everitt, a POSITA would have recognized that the
`resilient elastomeric membrane 12 of Everitt can conform closely to the
`cables to form a “tight mechanical seal” that is more capable of
`preventing leaks than a fiber dam. Ex. 1003, ¶ 75, citing Ex. 1005, col.
`2, ll. 8–60; col. 7, ll. 43–53. The use of the membrane of Everitt with
`the device of Babiarz would thus have merely been the predictable
`result of using the apparatus of Babiarz with the elements of Everitt
`according to their known function. Ex. 1003, ¶ 75.
`
`Alternatively, it would have been obvious to a POSITA to
`employ the dispenser apparatus and two-part sealing compound of
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`Babiarz with the cable gland of Everitt. Ex. 1003, ¶ 76. Babiarz
`explains that the two-part compound expands to four times its size and
`hardens within an hour. Ex. 1004 at col. 1, ll. 37–43. Babiarz details
`how the cartridge can be used to mix the compound and dispense the
`compound into a cable gland in a matter of seconds. Ex. 1004 at col. 2,
`ll. 37–65. It would thus have been obvious to a POSITA to employ the
`cartridge and then compound of Babiarz with the cable gland of Everitt,
`because the cartridge provides a quick and reliable way to inject a fast-
`acting sealing compound. Ex. 1003, ¶ 76.
`Pet. 35–38.
`Referring to Figures 3A and 5B of Everitt (reproduced above with
`Petitioner’s annotations), Petitioner argues Everitt’s sealing membrane 12
`discloses the claimed flexible barrier member. Pet. 35–38.
`As explained by Dr. Vallee, Everitt “addresses the problem of leaking
`seals and instances where ‘not all the gaps in the seal are reliably filled by
`the sealing compound’.” Ex. 1003 ¶ 35 (citing Ex. 1005, 1:42–47).
`Specifically, Dr. Vallee states “Everitt is generally directed to a cable sealing
`gland that is closed by a rupturable wall of resilient elastomeric material that
`is pierced to allow the passage therethrough of a cable/conductor bundle.”
`Ex. 1003 ¶ 53 (Ex. 1005, 1:64–2:7). Dr. Vallee further explains:
`Everitt provides a membrane that engages cables in the cable
`gland to form a “pressure seal . . . to contain a silicone rubber
`sealing compound or the like.” Id. at col. 4, ll. 1–16; see also
`Figures 3A, 5B, [ ]. Everitt notes that “[t]he resilience of the
`silicone rubber membrane . . . forms a tight mechanical seal.” Id.
`at col. 2 ll. 50–53. The membrane may be pierced by the cable
`to form apertures, or the membrane “could be pre-pierced at the
`locations thereof.” Id. at col. 7, ll. 13–23. In the process of
`forming a pressure seal with the rubber membrane and the
`sealing compound, “cable bundle interstices are well filled [so]
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`that any air pockets which may have been formed during the
`potting procedure are forced out.” Id. at col. 6, ll. 56–65.
`Ex. 1003 ¶ 35.
`Dr. Vallee also explains that “[i]n the process of forming a pressure
`seal with the rubber membrane and the sealing compound, ‘cable bundle
`interstices are well filled [so] that any air pockets which may have been
`formed during the potting procedure are forced out.’” Id. (citing Ex. 1005,
`6: 56–65).
`Accordingly, Petitioner argues that Everitt’s elastomeric material of
`the membrane is stretched to accommodate the cable, and portions of the
`membrane are drawn down into the aperture in the support insulator and are,
`in effect, wedged therein between the aperture wall and the cable surface, so
`as to form a pressure seal, which is secured and reinforced by the subsequent
`injection of sealing compound into the gland. Pet. 35–36 (citing Ex. 1005,
`6:29–44).
`Patent Owner argues that Everitt’s membrane accommodates only an
`individual cable. Prelim. Resp. 34–37, 40. Referring to Figure 3A of Everitt
`(reproduced below with Patent Owner’s annotations), Patent Owner argues
`that rather than addressing the leakage problem between individual cores of
`a cable, Everitt teaches a solution of utilizing a sealing membrane with
`several pierceable formations each of which accommodates an individual
`cable having different diameters. Prelim. Resp. 34–35.
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`Illustration of Everitt’s sealing membrane as
`annotated by Patent Owner.
`Patent Owner supports this argument with the Declaration of Mr.
`Frizzell, who states that, regarding Everitt’s reference to cables and
`conductor bundles, “[a] conductor bundle is the same thing as a cable –
`typically used in power transmission – having several cores surrounded by a
`protective coating.” Ex. 2007 ¶ 73. Patent Owner additionally asserts “[i]t
`cannot be disputed that the ‘cable sealing membrane’ in Everitt is adapted to
`receive a single ‘cable’ through an individual opening.” Prelim. Resp. 35.
`Patent Owner, referring to Figures 5B and 6 of Everitt, argues the drawings
`of Everitt only depict a singular cable penetrating a singular membrane.
`Prelim. Resp. 36.
`Upon review of the record as a whole, we determine that Petitioner
`insufficiently demonstrates that claim 1 is unpatentable over Babiarz and
`Everitt.
`
`Figure 5B of Everitt (see supra) shows membrane 12 engaging
`element 61. If element 61 is a “plurality of cores,” then Everitt would show
`a membrane engaging a “plurality of cores,” as claimed. But Everitt
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`specifically refers to element 61 as a cable. Ex. 1005, 6:46 (“cable 61”). As
`the Patent Owner points out,
`
`[r]ather than engaging the cores of the cable to form a seal,
`Everitt teaches a compression fit between the cable 61 and the wall 15
`to create the seal between the membrane and the cable. (Ex. 1005, Col.
`6:29–44) (emphasis added) “. . . the membrane is drawn down into the
`aperture in the support insulator and are in effect wedged therein
`between the aperture wall and the cable surface so as to form a pressure
`seal.” (Id.). The teaching of Everitt is to seal the cable with a
`compression fit of the membrane between the cable and the wall. (Ex.
`2007, ¶ 78). This is much different than a membrane that is adapted to
`stretch to engage a plurality of cores of the cable without the
`compressive force between the membrane and the wall. (Id.; compare
`with Ex. 2010, page 2). The seal in Everitt is not solely created by the
`material stretching around the cables. (Id.).
`
`Everitt teaches a different solution, namely passing an individual
`cable through a pierceable membrane that is compressed against a wall.
`Everitt does not disclose a membrane that is adap
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