Appeal No. 2006-1403
Application No. 10/011,665
OPINION
For the reasons provided below, the 35 U.S.C. § 103(a)
rejection is sustained.2
As a threshold matter, we must address Appellants’ argument
that the Teed patent is non-analogous art. The Appellants argue
that Teed is non-analogous because it is directed to slitting
resin-impregnated cloth used as backing for weather-stripping,
whereas Appellants’ invention is directed to separating optical
fibers into subsets. To be considered analogous art, the
reference must be either in the same field of endeavor,
regardless of the problem addressed, or if not the same field of
endeavor, then reasonably pertinent to the problem with which
the inventor is involved. In re Bigio, 381 F.3d 1320, 1325,
72 USPQ2d 1209, 1212 (Fed. Cir. 2004). The relevant field of
endeavor is determined by reference to explanations of the
invention’s subject matter in the patent application, including
its embodiments, function and structure. Id. As explained
2 The Examiner refers to U.S. patent 5,717,805 in his answer as
teaching that polypropylene, the same material used by Teed in
his backing material, is known to be used as the matrix material
in optical fiber ribbons. We have not considered this reference
in rendering our decision because it was not part of the
statement of the rejection. In re Hoch, 428 F.2d 1341, 1342,
n.3, 166 USPQ 406, 407, n.3 (C.C.P.A. 1970). However, we advise
the Examiner to consider applying this reference in any further
prosecution of this application that may occur.
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