Ex Parte Bryant et al

Board of Patent Appeals and Interferences

Apr 28, 2009

11150088 (B.P.A.I. Apr. 28, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LAURIE A. BRYANT,
JONGHAN CHOI, and
RYAN VEST
____________

Appeal 2009-0281
Application 11/150,088
Technology Center 1700
____________

Decided:1 April 28, 2009
____________

Before CHUNG K. PAK, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-0281
Application 11/150,088

I. STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 29-35. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
The invention relates to forming a relief image printing element with a
pre-formed floor layer (Spec. 1:4-5). Relief image printing elements are
used as flexographic printing plates (Spec. 1:4-13).
According to the Specification, in the past, the manufacturers formed
printing plates by obtaining a photocurable printing blank containing layers
of uncured photocurable material laminated to a base or support layer, and
conducting two steps of UV exposing the photopolymer layer (Spec. 2:5-8;
3:8-10; 5:1-9). In the first step, the manufacturer would create a floor layer
by back exposing the photocurable layer through the support layer (Spec.
2:5-8; 3:8-10; and 5:1-6). In the second step, the plate manufacturer would
imagewise expose the photocurable layer to create the relief structure
desired (Spec. 5:5-6).
In Appellants’ process, a printing blank supplier delivers a blank
including a pre-cured floor layer to the printing plate manufacturer (Spec.
7:20-27). The pre-cured floor layer is formed by the supplier to the
specifications of the printing plate manufacturer (Spec. 7:22-24). Because
the floor layer is already formed, the manufacturer need not perform the
back exposing step (Spec. 7:24-27). Claim 35 is illustrative of the subject
matter on appeal:
35. A method of doing business between a supplier of substantially
planar printing element blanks and a printing plate manufacturer, wherein
the supplier supplies a substantially planar printing element blank having at
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least one layer of uncured photopolymer that is capable of being imagewise
exposed and developed to a printing plate manufacturer, and wherein the
printing plate manufacturer performs the steps of imagewise exposing and
developing the at least one layer of uncured photopolymer to prepare a
substantially planar relief image printing plate,

wherein the printing element supplier performs steps comprising:

a) obtaining from the printing plate manufacturer desired
characteristics of the printing element blank selected from the group
consisting of thickness, resilience, hardness, durometers, and combinations
thereof;

b) preparing the substantially planar printing element blank according
the desired characteristics obtained from the printing plate manufacturer,
wherein the printing element blank comprises:

i) a support layer;

ii) a pre-cured floor layer comprised of a cured polymer
selected from the group consisting of photopolymers and polymers, each
with a resilience of at least 40% when cured disposed on the support layer;
and

iii) at least one layer of an uncured photopolymer disposed on
the pre-cured floor layer; and

c) supplying the substantially planar printing element blank having
the pre-cured floor layer to the printing plate manufacturer to prepare the
substantially planar relief image printing plate; and

wherein the printing plate manufacturer performs steps comprising:

d) selectively imagewise exposing the at least one layer of uncured
photopolymer to actinic radiation to selectively cure portions of the at least
one layer of uncured photopolymer, wherein the at least one layer of uncured
photopolymer thereafter comprises cured and uncured portions of
photopolymer;

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e) developing the printing element blank to remove uncured portions
of the photopolymer and reveal the relief image;

wherein the floor forming step is performed by the supplier of the
printing element blank.

The Examiner maintains, and Appellants appeal, the following
rejections:
A. The rejection of claims 31, 34, and 35 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Kuczynski (US 2003/0054153 A1, pub. Mar. 20, 2003);
B. The rejection of claims 29, 30, 32, 33, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Mengel (WO 01/88615 A1, pub. Nov.
22, 2001) in view of Kuczynski; and
C. The rejection of claims 29, 30, 32, and 33 under 35 U.S.C. § 103(a)
as unpatentable over Kuczynski in view of Mengel.
Appellants do not argue any claim apart from the others (Br. 4-13).
Therefore, for each rejection we select a single claim to decide the issues on
appeal. See 37 C.F.R. § 41.37(c)(1)(vii) (“When multiple claims subject to
the same ground of rejection are argued as a group by appellant, the Board
may select a single claim from the group of claims that are argued together
to decide the appeal with respect to the group of claims as to the ground of
rejection on the basis of the selected claim alone.”). Our main focus will be
on claim 35.
II. DISPOSTIVE ISSUES
The issue on appeal arising from the contentions of Appellants and the
Examiner is: Have Appellants established that the Examiner reversibly
erred in finding
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I. that the compressible layer of Kuczynski is a “floor layer” within the
meaning of claim 35;
II. that Kuczynski’s method of preparing printing plate blanks with pre-
cured floor layers of various thicknesses standardized by the printing
industry and supplying these blanks to a photoengraver teaches or
suggests steps a) and b) of claim 35; and
III. that the teachings of Mengel and Kuczynski suggest pre-curing a floor
layer during forming of a printing blank by a supplier?
III. FINDINGS OF FACT
The following enumerated findings of fact (“FF”) are of particular
relevance:
1. The Examiner determines, and Appellants do not dispute, that
Appellants’ Specification discloses that Appellants’ “floor layer” may
be a compressible layer. (Ans. 5 citing Spec. 9:17-25; Br. in its
entirety.)
2. The Specification states that “a floor layer 14 comprised of one or
more layers of photopolymer or other resilient polymeric material is
applied to the top surface of base layer 10” or atop a compressible
material 12, and “[i]t is entirely possible that the compressible layer
12 and the floor layer 14 are one and the same.” (Spec. 9:14-18).
3. The Vest Declaration, as argued by Appellants, describes that, in
the traditional process, a printing plate manufacturer back exposes
a photopolymer layer within a printing plate to provide a floor
layer (Vest Dec. ¶ 8; Br 8-9).
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4. Appellants’ “floor layer” is a not a back exposed portion of an
imageable photopolymer layer, but is a separately applied layer
different from the photopolymer layer (Spec. 9:26-29 and 10:22-24).
5. Appellants’ claim 31 is dependent on claim 35 and further requires
a layer of compressible material.
6. Kuczynski describes a printing plate comprising a photopolymer
layer and a compressible layer (Kuczynski, ¶ [0024]).
7. Kuczynski describes a process of making the printing plate by
extruding a compressible layer 11, cross-linking (curing)
components within the compressible layer, extruding a
photopolymer layer, and adhering, by applying pressure, the
extruded photopolymer layer to the previously formed
compressible layer. (Kuczynski, ¶¶ [0142-144, 149-151]; see also
[0089], [0095], and [0097].)
8. The printing plate of Kuczynski may also include a base layer 22
between the photopolymer layer and the compressible layer
(Kuczynski ¶ [0071]).
9. The base layer may be formed by back exposing the photopolymer
layer before or after extrusion of the compressible layer
(Kuczynski, ¶ [0171]).
10. In one embodiment, the compressible printing plate of Kuczynski
“is generally delivered to the photoengravers with an undeveloped
photosensitive layer.” (Kuczynski ¶ [0138].)
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11. The plate is a compressible, ready-to-use plate (ready for fixing
on a sleeve or support film before UV radiation) which can have
one of a number of different standardized thicknesses in the
industry and the thickness corresponds to that of a standardized
plate increased by the thickness of a standard compressible layer
(Kuczynski, ¶¶ [0225-0231]).
12. Mengel describes preparing a flexographic printing plate with a
photosensitive layer that may be back exposed to create a floor
layer. According to Mengel,
The backflash exposure can take place before, after, or during
the other imaging step. Generally, it is preferred that the
backflash exposure takes place just prior to the imagewise
exposure. However, for photosensitive elements exposed
through a phototool and thermally treated, it is preferred that
the backflash exposure takes place after imagewise exposure.”
(Mengel, p. 14, l. 36 to p. 15, l. 2.)
IV. PRINCIPLES OF LAW
“[A]s an initial matter, the PTO applies to the verbiage of the
proposed claims the broadest reasonable meaning of the words in their
ordinary usage as they would be understood by one of ordinary skill in the
art, taking into account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description contained in the
applicant's specification.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir.
1997). Other claims, both asserted and unasserted, can also be a source of
enlightenment as to the meaning of a claim term. Phillips v. AWH Corp.,
415 F.3d 1303, 1314 (Fed. Cir. 2005). “For example, the presence of a
dependent claim that adds a particular limitation gives rise to a presumption
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that the limitation in question is not present in the independent claim.” Id.,
at 1314-15.
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). See
also KSR, 550 U.S. at 406.
V. ANALYSIS
Issue I – Claim Interpretation
In order to answer the first issue on appeal, i.e., whether the Examiner
reversibly erred in finding that the compressible layer taught by Kuczynski
is a “floor layer” within the meaning of claim 35, it is necessary to consider
what is encompassed by the “floor layer” language of the claim. As
correctly found by the Examiner, the Specification specifically discloses that
the floor layer may be one and the same as a compressible layer (Ans. 5; FF
2). We conclude the Examiner correctly determined that the claimed “floor
layer” encompasses compressible layers (Ans. 5 citing Spec. 9:17-25).
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Appellants do not dispute the Examiner’s finding that the
Specification teaches that the floor layer can be a compressible layer (Br. in
its entirety). Rather, Appellants cite to the Specification at page 3, lines 8-
15 and argue that their floor layer sets the depth of relief in the photocurable
layer and has traditionally been formed by back exposing the photocurable
layer (Br. 7). Appellants also rely upon the Vest Declaration’s disclosure of
the traditional back exposure process (Br. 8-9). But the fact remains that
Appellants’ process involves a separate step of forming a “floor layer” that
does not involve back exposing and that “floor layer” can be a
“compressible layer” (FF 1, 2, and 4). The fact that, in other processes, a
floor layer is formed by back exposing the photopolymer layer, does not
negate the fact that the floor layer of claim 35 encompasses compressible
layers formed in a separate layer forming step.
As properly found by the Examiner, Kuczynski describes a printing
plate blank including a compressible layer adhered to a photopolymer layer
(FF 6-7). Appellants have not established that the Examiner reversibly erred
in finding that the compressible layer of Kuczynski is a “floor layer” within
the meaning of claim 35.
Appellants also point out that their claim 31 affirmatively recites the
inclusion of a compressible layer (Br. 9). We determine that claim 31, a
claim dependent on claim 35, creates a presumption that claim 35 does not
require a compressible layer. Claim 31, therefore, provides further evidence
that the “floor layer” of claim 35 is broad enough to encompass
compressible layers.
We further determine that the base layer 22 of Kuczynski, a layer that
Appellants acknowledge is made by back exposing the photopolymer layer
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(Br. 9), is also a “floor layer” within the meaning of claim 35 (FF 8-9).
While Kuczynski’s first embodiment, shown in Figure 1, includes a
compressible layer 10 meeting the requirements of claim 35 with respect to
the “floor layer,” the embodiment of Figure 2 of Kuczynski also meets the
claim requirements because this embodiment includes both a “floor layer”
22 as well as a compressible layer 20.
Issue II – The Rejection over Kuczynski
Turning to the second issue, i.e., whether Kuczynski discloses or
renders obvious steps a) and b) of claim 35, we determine that Appellants
have not shown that any of the Examiner’s findings are in error or that the
Examiner incorrectly applied the relevant law to the facts of the case.
In one embodiment of the process disclosed by Kuczynski, the
printing plate blank supplier manufactures the printing plate blank with an
uncured photopolymer layer for delivery to a photoengraver (printing plate
manufacturer) who then imagewise exposes the photopolymer layer (FF 10).
In addition to an uncured photopolymer layer, the blank provided by the
supplier has a compressible layer cured by crosslinking (FF 7). As we
determined above, this compressible layer is a “floor layer” within the
meaning of claim 35. Moreover, this compressible layer is crosslinked
during the blank forming process (FF 7) and is thus a “pre-cured floor layer”
within the blank as required by step b) of claim 35. This compressible layer
is also provided in standardized thicknesses within the blank (FF 11). The
only reason to provide blanks of different standardized thicknesses is to
allow delivery of a blank to the photoengraver (printing plate manufacturer)
of one of the standardized thicknesses the photoengraver requests. This
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requires that the supplier of the blank obtain the desired thickness
information from the manufacturer as required by step a) of claim 35.
We emphasize that Kuczynski provides a preformed and pre-cured
floor layer in a printing plate blank just as described by Appellants. The fact
that, in other prior art processes, a floor layer is formed by back exposing the
photopolymer layer does not negate the fact that Kuczynski teaches what
Appellants are claiming.
In any case, we further determine that the base layer 22 of
Kuczynski’s Figure 2 embodiment, a layer that Appellants acknowledge is
made by back exposing the photopolymer layer (Br. 9), is also a “floor
layer.” (FF 8-9.) This base layer 22 may be cured by back exposing before
extrusion of the compressible layer, a step that occurs during the forming of
the blank by the supplier (FF 7 and 9). Therefore, the base layer of
Kuczynski, when it is back exposed before extrusion, is also a “pre-cured
layer” within the meaning of claim 35.
The embodiment of Kuczynski that includes the base layer 22 cured
before extrusion, therefore, has a pre-cured layer in addition to a
compressible layer.
Issue III – The Rejection over Mengel in view of Kuczynski
The third issue on appeal is directed to the obviousness rejection over
Mengel in view of Kuczynski. Appellants contend that there is no teaching
or suggestion in Mengel or Kuczynski of pre-curing during the manufacture
of the blank by the supplier (Br. 10-11). We disagree.
Mengel discloses that the backflash step can occur before as well as
after or during the imaging step (FF 12). While the reference suggests a
preference for backflashing just before imagewise exposure, that is merely a
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preference, and the over all language of the the reference suggests that
backflash timing is not so limited. Kuczynski likewise discloses that back
exposing can occur before imagewise exposure and even suggests back
exposing base layer 22 before extruding the photopolymer layer, i.e., during
manufacturing of the blank (FF 9). The combination of the prior art as a
whole provides evidence supporting the Examiner’s conclusion of
obviousness.
Appellants have not established that the Examiner reversibly erred in
finding that the teachings of Mengel and Kuczynski suggest pre-curing a
floor layer during the forming of a printing blank by a supplier.
The Rejection over Kuczynski in view of Mengel
With respect to the rejection of claims 29, 30, 32, and 33 for
obviousness over Kuczynski in view of Mengel, Appellants rely upon their
reasons directed to the rejection of claims 31, 34, and 35 over Kuczynski
alone. Therefore, for the reasons stated above, we determine that Appellants
have not established that the Examiner reversibly erred in rejecting claims
29, 30, 32, and 33 over Kuczynski in view of Mengel.
VI. CONCLUSION
Appellants have limited the scope of their arguments to the above
issues and do not further contest the Examiner’s rejection of the claims.
Therefore, we sustain the following rejections of the Examiner:
A. The rejection of claims 31, 34, and 35 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Kuczynski;
B. The rejection of claims 29, 30, 32, 33, and 35 under 35 U.S.C. §
103(a) as unpatentable over Mengel in view of Kuczynski; and
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C. The rejection of claims 29, 30, 32, and 33 under 35 U.S.C. § 103(a)
as unpatentable over Kuczynski in view of Mengel.
VII. DECISION
The decision of the Examiner is affirmed.
VIII. TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(1)(v).

AFFIRMED

cam

JOHN L. CORDANI
CARMODY & TORRANCE LLP
P.O. BOX 1110
50 LEAVENWORTH STREET
WATERBURY CT 06721-1110
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