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Southwire Co. v. Cerro Wire LLC

United States Court of Appeals, Federal Circuit

September 8, 2017

SOUTHWIRE COMPANY, Appellant
v.
CERRO WIRE LLC, FKA CERRO WIRE, INC., Appellee

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 95/000, 696.

          Kirk T. Bradley, Alston & Bird LLP, Charlotte, NC, argued for appellant. Also represented by KEITH E. BROYLES, Atlanta, GA; CHRISTOPHER L. McArdle, New York, NY.

          Paul Richard Steadman, DLA Piper U.S. LLP, Chicago, IL, argued for appellee. Also represented by JENNIFER E. Lacroix.

          Before LOURIE, MOORE, and HUGHES, Circuit Judges.

          LOURIE, CIRCUIT JUDGE.

         South wire Co. ("South wire") appeals from the decision of the U.S. Patent and Trademark Office ("the PTO") Patent Trial and Appeal Board ("the Board") in an inter partes reexamination concluding that claims 1-42 of U.S. Patent 7, 557, 301 ("the '301 patent") are unpatentable under 35 U.S.C. § 103. See Cerro Wire, Inc. v. Southwire Co., No. 2015-004351, 2015 Pat. App. LEXIS 10285 (P.T.A.B. Sept. 29, 2015) ('Final Decision"); Cerro Wire, Inc. v. Southwire Co., No. 2015-004351, 2016 Pat. App. LEXIS 1942 (P.T.A.B. May 2, 2016) (decision on request for rehearing). For the reasons that follow, we affirm.

         Background

         Southwire owns the '301 patent, which is directed to a method of manufacturing an electric cable, wherein a lubricant is incorporated into the outer sheath such that the lubricant migrates to the surface of the sheath and results in a reduction in pulling force required to install the cable. See, e.g., '301 patent Abstract. According to the patent, one prior art solution for reducing the pulling force on a cable during installation was a post-manufacturing method of coating the exterior surface of the cable with a lubricant, such as petroleum jelly, immediately prior to installation. See id. col. 111. 25-28. Southwire explains that this solution was referred to as applying "soap" to the cable, and that it was expensive and inefficient. See, e.g., Appellant's Br. 5-6. The '301 patent purports to improve upon the prior art methods by incorporating a lubricant into the cable sheath material during manufacture, so that the finished cable sheath comprises a lubricant that will migrate to the exterior of the sheath and lubricate the surface during installation. See '301 patent col. 2 11. 40-65.

         Claim 1 of the '301 patent is illustrative and reads as follows:

1. In a method of manufacturing a finished electrical cable having a conductor core and a jacket formed primarily of a first material, the jacket surrounding at least said conductor core and defining the outermost exterior surface of the finished cable, the improvement comprising
combining a preselected lubricant with said first material prior to the formation of said jacket in order to provide a reduced coefficient of friction of said cable outermost exterior surface and also reduce the amount of force required to pull the cable, during its installation through building passageways,
in which said lubricant is of the type which migrates through said jacket to be available at said outermost exterior surface of said finished cable during the cable's installation through building passageways,
the finished electrical cable having the characteristic that an amount of force required to install said cable through corresponding holes in an arrangement of four 2" x 4" wood blocks having holes drilled at 15° through the broad face and the center-lines of the holes are offset 10" and pulled through at 45° to the horizontal from the last block is at least about a 30% reduction in comparison to an amount of force required to install a ...

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