Ex Parte Huff et al

Patent Trial and Appeal Board

May 19, 2017

13270009 (P.T.A.B. May. 19, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/270,009 10/10/2011 Carl L. Huff INFI-06C 1036
26875 7590 05/23/2017
WOOD, HERRON & EVANS, LLP
2700 CAREW TOWER
441 VINE STREET
CINCINNATI, OH 45202
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
05/23/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
usptodock@whe-law.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARL L. HUFF and RANDOLPH S. REDDICK
Appeal 2015-006375
Application 13/270,009
Technology Center 1700
Before PETER F. KRATZ, JEFFREY T. SMITH, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 16—18, 20-24, 26, and 28—30. We have jurisdiction under 35 U.S.C.
§6.
We AFFIRM.
Appeal 2015-006375
Application 13/270,009
STATEMENT OF THE CASE
Appellants’ invention, as represented by independent claims 16, 20,
and 26, is directed to an artificial turf comprising a filler dispersed over the
backing having pile fibers extending upwardly therefrom and about the tufts
of the artificial turf. The independent claims principally differ from each
other in that a limitation that the turf retains a relatively constant G-max1
over time is recited in claims 20 and 26, but not claim 16. Claims
independent 16, 20, and 26 are reproduced below:
16. An artificial turf for an athletic or landscaped area,
comprising:
a backing having pile fibers extending upwardly
therefrom; and
a filler of aggregate granules, generally evenly spread on
the backing, the filler consisting essentially of substantially
round silica sand particles (SiCE) of a restricted size profile, the
particles being coated and sealed with a coating so as to provide
an outer surface which is both water proof and slick, and
wherein the particles are non-porous, resist mounding, and
resist compacting, and wherein the filler of granules has
openings so as to promote drainage therethrough and wherein
the granules present no damaging sharp edges when
incorporated with the turf, the granules having an angle of
repose of less than about 30°, and wherein the pile fibers extend
substantially above the filler.
1 According to Appellants, G-max is a measure of hardness of synthetic turf
and measures the peak decleration of a 20 pound weight dropped from a 2-
foot height. See Supplemental Declaration of Charles H. Darrah, III | 1, Ex.
A.
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Application 13/270,009
20. An artificial turf for an athletic or landscaped area,
comprising:
a backing having pile fibers extending upwardly
therefrom; and
a filler of aggregate granules generally evenly spread on
the backing, the filler consisting essentially of substantially
round silica sand particles (SiCE) of a restricted size profile that
are coated and sealed with a coating so as to provide an outer
surface which is both water proof and slick, wherein the
granules resist mounding, resist compacting, and are non-
porous so as to repel water, the coated and sealed particles
being non-flammable and having an angle of repose of less than
about 30°, and wherein the pile fibers extend substantially
above the filler, and wherein the turf retains a relatively
constant G-max over time.
26. An artificial turf for an athletic or landscaped area,
comprising:
a backing having pile fibers extending upwardly
therefrom; and
a filler consisting essentially of aggregate granules
generally evenly spread on the backing, the granules being
rounded silica sand particles (Si02) of a restricted size profile,
but not spherical in shape, the granules being coated and sealed
with a coating so as to be non-resilient, resistant to mounding,
resistant to compacting, and also non-porous so as to repel
water, the filler of granules having openings therebetween so as
to promote drainage therethrough, the filler of aggregate
granules also being non-flammable, and also having an angle of
repose of less than about 30°, and wherein the pile fibers extend
substantially above the filler, and wherein the turf retains a
relatively constant G-max over time.
The Examiner maintains the rejection of claims 16—18, 20—24,
26, and 28—30 rejected under 35 U.S.C. § 103(a) as unpatentable over
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Application 13/270,009
Meredith (US 5,041,320, issued August 20, 1991) and Prevost (US
6,551,689 Bl, issued April 22, 2003)2:
Appellants essentially relied on the same arguments in
addressing the rejection of independent claims 16, 20, and 26. See
Appeal Brief, generally. We focus our discussion on the independent
claims 16, 20, and 26. See Appeal Brief, generally. Appellants have
not presented substantive arguments addressing the dependent claims
17, 18, 21—24, and 28—30. Accordingly, claims 17, 18, 21—24, and
28—30 stand or fall with their respective independent claim.
OPINION
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the prior art rejection for the reasons presented
by the Examiner and add the following.
Appellants argue Meredith’s fillers are different from the claimed
filler because Meredith teaches the fillers to be compacted (have physical
cohesion) to some degree while the claimed fillers are non-compacting (no
physical cohesion) and remain pourable even after laying and distribution.
(App. Br. 9—14). Appellants argue the particles of claim 16 resist
compacting, do not have physical cohesion and remain “pourable” even after
laying and distribution. (Id. at 12). Thus, Appellants argue it is not
reasonable to presume the fillers of Meredith possess the same features
2 The Examiner withdrew the rejection under 35 U.S.C. § 112, 1st paragraph
set forth in section 5 of the Final Action. (Ans. 10). For the purposes of this
opinion, we rely on the statement of the rejection on appeal as presented in
the Examiner’s Answer. (Ans. 2—10).
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Application 13/270,009
required by the claimed invention. (Id.). Appellants further argue it is not
reasonable to presume the fillers of Meredith’s coated particles that are non­
resident or provide a turf having a relatively constant G-max, as required by
claims 20 and 26. (Id. at 23, 26—27).
Appellants’ arguments are not persuasive of reversible error. The
Examiner found Meredith discloses artificial turf comprising substantially
rounded, polymer-coated silica sand infill particles of a restricted size profile
and pile fabric of green polypropylene tufts which extend from a fabric
backing. (Ans. 2—3; Meredith col. 3,11. 8—31). The Examiner found
Meredith discloses free-end portion of the pile tufts may be exposed above
the infill layer. (Ans. 2. Meredith col. 2,11. 28-44). The Examiner found
the polymer coated silica sand particles of Meredith inherently have the
properties required by the claimed invention. According to the Examiner,
Meredith teaches substantially rounded, polymer-coated silica sand infill
particles of a restricted size profile are relatively slick, non-porous and
waterproof due to the nature of the polyolefin or polyamide coating. (Ans.
3). The Examiner also determined that the infill material will resist
mounding and compacting and does not have sharp edges due to the nature
of the coating in size and shape of the infill material. (Ans. 4). The
Examiner determined that the infill material of Meredith would have the
angle of repose required by the claimed invention since the polymer-coated
silica sand infill material has the size and shape required by the claimed
invention. (Ans. 4). The Examiner determined that the infill material was
non—resilient due to the polyolefin or polyamide coating. (Ans. 9). The
Examiner further determined that Meredith discloses the pile fibers extend
20% above the top of the filler. (Ans. 5).
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Application 13/270,009
The Examiner found Prevost teaches the depth of a filler infill to be 40—90%
of the length of the pile tufts depending on the desired performance
characteristics of the turf. (Ans. 5, Prevost col. 11,11. 20—23, col. 12,11. 13—
17). The Examiner determined one skilled in the art would have expected
the fillers disclosed by Meredith and Prevost to have the same properties as
the claimed fillers in view of these similarities, including those properties
related to non-flammability as well the required angle of repose, relatively
constant G-max, and resilience. (Ans. 4—5, 7—9).
Appellants have failed to provide a reasoned explanation or identify
technical evidence that the particles of Meredith coated with a polyolefin or
polyamide would not have the properties required by the claimed invention.
Appellants’ Specification discloses the parameters for the silica sand
particles inclusive therein mesh size between 12 and 40 and the particles
coated with an acrylic sealer or other sealer. (Original Specification 2;
Amendment to Specification filed June 17, 2014). According to the
amended Specification:
Due to the roundness of the particles of silicon dioxide, this
filler does not pill or mound and maintains an angle of repose
of about 30°. This feature, while maintaining an even surface,
assists tremendously in maintaining even porosity and a
constant G-force factor.
(Amendment Spec. 3).
The Examiner found Meredith discloses fillers comprising loose
substantially rounded silica (silicon dioxide) beads. (Ans. 2; Meredith col.
1,11. 45^47, col. 2,11. 61—68). Silicon dioxide beads are disclosed by
Appellants as preferred fillers for the invention. (Spec. 2). By establishing
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Application 13/270,009
that the prior art and claimed beads are made of the same material, the
Examiner has provided a reasonable basis for one skilled in the art to expect
the beads of the prior art and of the claimed invention to have the same
properties. While Appellants argue Meredith’s fillers are subject to some
degree of compaction, we agree with the Examiner’s determination that
Meredith is not limited to compacted filler materials, but includes
embodiments of the filler material that relatively resist compacting,
particularly given Meredith describes the filler as loose beads (grains) that
may be, or may not be, compacted. (Ans. 12—13; Meredith col. 1,11. 45—55,
col. 2,11. 48-60, col. 3,11. 17-18).
It is well established that when there is a reason to conclude that the
structure of the prior art is capable of performing the claimed function, the
burden shifts to the applicant to show that the claimed function patentably
distinguishes the claimed structure from the prior art structure. See, e.g.,
In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). It is also well settled
that when a claimed product reasonably appears to be substantially the same
as a product disclosed by the prior art, the burden is on the applicant to
prove that the prior art product does not necessarily or inherently possess
characteristics attributed to the claimed product, and that it is of no moment
whether the rejection is based on § 102 or § 103 since the burden is on the
applicant is the same. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re
Best, 562 F.2d 1252, 1255 (CCPA 1977).
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Application 13/270,009
Appellants rely principally on the Declaration by Eric Miles3 (Miles
Declaration) and the Supplemental Declaration of Charles H. Darrah, III4
(Darrah Declaration), both under 37 C.F.R. § 1.132, to assert the fillers of
the prior art are different from the claimed filler. (App. Br. 14—17).
We agree with the Examiner that these declarations are insufficient to
establish the fillers of the prior art as different from the claimed fillers.
(Ans. 16—17). In the Miles Declaration, Declarant Miles only offers general
statements that the prior art fillers are different from the claimed fillers.
Miles Decl. Tflf 4, 6. Declarant Miles offers no evidence to factually explain
how or why the prior art fillers are different or would not possess the
claimed properties. Declarant Darrah, III, asserts Meredith’s fillers are
compacting fillers by directing our attention to portions of Miller reciting the
fillers describing them as such. Darrah, III Dec. 14; Meredith col. 1,11. 52—
55, col. 2,11. 52—56. However, the portions of Meredith relied upon by
Declarant Darrah, III, do not expressly require compaction of the fillers in
view of the use of the phrase “may be.” Declarant Darrah, III does not
adequately explain why one skilled in the art would understand those
portions of Meredith exclude a layer of non-compacted fillers. Declarant
Darrah, III does not adequately explain or provide any evidence to show
why Meredith’s filler would not possess the properties of the claimed filler.
Thus, we discern no reversible error in the Examiner’s assessment of
the weight to be given to the submitted evidence. In re Am. Acad, of Sci.
3 The declaration by Eric Miles was submitted by Appellants on September
17,2012.
4 Appellants rely principally on the supplemental declaration by Charles H.
Darrah, III. This declaration was submitted by Appellants on May 16, 2013
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Application 13/270,009
Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004) (“[T]he Board is entitled to
weigh the declarations and conclude that the lack of factual corroboration
warrants discounting the opinions expressed in the declarations.”). See also
Velanderv. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003) (“In giving more
weight to prior publications than to subsequent conclusory statements by
experts, the Board acted well within [its] discretion.”).
Moreover, Appellants’ Figure 4 depicts substantially rounded filler
material for the disclosed invention that are similarly in shape as the fillers
described in Meredith column 2, lines 61—68. According to Appellants’
Specification, rounded fillers are preferred because the roundness of the
particle prevents the filler from pilling or mounding and maintains an angle
of repose of about 30 degrees that assists in maintaining even porosity and a
constant G-force factor. (Amendment to the Specification 3). Thus, the
shape of the filler results in some of the claimed advantageous properties.
Appellants have not adequately explained why the substantially rounded
fillers of Meredith would not have been expected to possess the claimed
characteristics.
Appellants argue Meredith fail to disclose an artificial turf with pile
tufts that extend substantially above an infill as required by the claimed
invention. (App. Br. 18—20). Appellants further argue Prevost describes and
claims an infill of mixed sand and rubber particles and, thus, there is no
objective reason why a person of ordinary skill would combine these two
references in an effort to achieve a filler of the type described in claim 16.
(App. Br. 17-18).
We are unpersuaded by these arguments because they do not address
the Examiner’s reasons for relying on Prevost. The Examiner found Prevost
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Application 13/270,009
teaches the depth of a filler infill vis-a-vis the length of the pile tufts in an
artificial turf is a result-effective variable that depends on the desired
performance characteristics of the turf. (Ans. 5, Prevost col. 11,11. 20—23,
col. 12,11. 13—17). Thus, the prior art recognizes the relationship between
the depth of a filler infill layer and the length of the pile tufts is a result
effective variable. “A recognition in the prior art that a property is affected
by the variable is sufficient to find the variable result-effective.”
In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012). It is
well settled that it would have been obvious for an artisan with ordinary skill
to develop workable or even optimum ranges for result-effective parameters.
In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In reAller, 220 F.2d 454,
456 (CCPA 1955); In re Woodruff, 919 F.2d 1575, 1577-78 (Fed. Cir. 1990)
(where the difference between the claimed invention and the prior art is
some range, the applicant must show that the particular range is critical,
generally by showing that the claimed range achieves unexpected results
relative to the prior art range). Appellants’ arguments do not address this
finding by the Examiner.
Thus, on this record, Appellants’ arguments and proffered
declarations have not adequately shown patentable distinction between the
prior art and the claimed invention.
Accordingly, we affirm the Examiner’s prior art rejection of claims
16—18, 20-24, 26, and 28—30 under 35 U.S.C. § 103(a) for the reasons
presented by the Examiner and given above.
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ORDER
The Examiner’s prior art rejection of claims 16—18, 20—24, 26, and
28—30 under 35 U.S.C. § 103(a) are affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED
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