Ex Parte Kreizinger

Patent Trial and Appeal Board

Oct 31, 2018

15854861 (P.T.A.B. Oct. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/854,861 12/27/2017
109839 7590
Kenneth R. Kreizinger
2724 NE 35th Street
Fort Lauderdale, FL 33306
10/31/2018
FIRST NAMED INVENTOR
Kenneth R. Kreizinger
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7920
EXAMINER
HERRING, BRENT W
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
10/31/2018 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KENNETH R. KREIZINGER
Appeal2018---007432
Application 15/854,861
Technology Center 3600
Before: MICHELLE R. OSINSKI, LEE L. STEPINA, and
ALYSSA A. FINAMORE, Administrative Patent Judges.
STEPINA, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1, 10, and 11. We have jurisdiction under 35
U.S.C. § 6(b ).
We REVERSE.
1 The Appeal Brief indicates that Kenneth R. Kreizinger is the real party in
interest. Appeal Br. 2.
Appeal2018-007432
Application 15/854,861
CLAIMED SUBJECT MATTER
The claims are directed to a stiffened, foam backed composite framed
structure for use in the construction of the walls in buildings. See Spec.
,r,r 2--4. Claims 1, 10, and 11 are independent, and dependent claims 2-9
and 12-19 are withdrawn. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A stiffened foam backed composite framed structure
comprised of
a. two or more adjacent and spaced apart frame members
with each having a top edge, bottom edge, two sides and a length
with two ends and each said length is supported at said ends to
create a span between said ends and
b. a foam backed panel comprised of a cladding continuous
over said top edges with polyurethane foam backing and
c. said foam positioned in a dropped section between and
bonded to at least one said side of each said frame member and
said foam has a thickness of one inch or more and said composite
framed structure has a load capacity as determined by a load test
over said span and
d. at least a .25 inch thick continuous section of said foam
inserted between and bonded to said cladding and said dropped
section, and said continuous section continuous over and bonded
to said top edges, and said dropped section thinned by the same
thickness of said continuous section to maintain the same said
foam thickness, and the induction of said continuous section
increases said load capacity of said composite framed structure
by at least 10%,
whereby said composite framed structure is stiffened.
Appeal Br. 18 (Claims App.).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
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Appeal2018-007432
Application 15/854,861
Sievers US 2014/0115988 Al May 1, 2014
REJECTIONS
(I) Claims 1, 10, and 11 are rejected under 35 U.S.C. § 112(b) as
indefinite.
(II) Claims 1, 10, and 11 are rejected under 35 U.S.C. § I02(a)(l)
as anticipated by or, in the alternative, under 35 U.S.C. § 103 as
unpatentable over Sievers.
OPINION
Rejection (I); Indefiniteness
The Examiner interprets claim 1, 10, and 11 as requiring a comparison
with an undefined hypothetical configuration and concludes these claims are
indefinite. Final Act. 2, 4--5. Specifically, the Examiner states, "[t]he
comparison is unclear as to what exactly is having the load capacity
increased by 10%." Id. at 4--5.
Appellant asserts, "all three claims clearly compare the load capacity
of a composite framed structure having foam in both a continuous section
and a dropped section to the load capacity of the same structure, having the
same foam thickness, although all of the foam in the dropped section."
Appeal Br. 6-7. Appellant quotes portions of paragraphs 78 and 79 of the
Specification in support of this argument. Id. at 7.
In response, the Examiner reiterates that claims 1, 10, and 11 are
unclear, stating, "[a] person of ordinary skill in the art cannot resolve what
precise hypothetical structure is having its load increased by 10% with the
introduction of a continuous section." Ans. 3.
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Appeal2018-007432
Application 15/854,861
We appreciate the Examiner's position that claims 1, 10, and 11 make
a comparison to a hypothetical structure. We agree that this comparison is,
perhaps, unartfully expressed in claims 1, 10, and 11. Nonetheless, claims 1,
10, and 11, read consistently with the Specification, stipulate that the load
capacity of the claimed composite framed structure is 10% greater than the
load capacity of a composite framed structure differing from the recited one
only in that it (i) omits the recited continuous section, and (ii) is thicker in its
dropped section by an amount equal to the thickness of the continuous
section in the claimed composite framed structure. See Spec. ,r 79. For
example, if an embodiment of the claimed structure has a continuous section
with a thickness of 1.5 inches, the load capacity of this structure is at least
10% greater than the capacity of a composite framed structure of the same
design, but with a dropped section 1.5 inches thicker than the dropped
section of the claimed structure and no continuous section. Accordingly, we
do not agree with the Examiner that a person of ordinary skill in the art
could not resolve what structures are being compared in claims 1, 10, and
11. Therefore, we do not sustain Rejection (I).
Rejection (II); Anticipation/Unpatentability
(A)
Initially, we note that a misunderstanding of what is required for a
prima facie case of anticipation or unpatentability is present in many of
Appellant's arguments against Rejection (II). For example, Appellant
argues "Sievers discloses in par. 4 7 that his foams are not necessarily the
claimed polyurethane foam," "Sievers' foam layer is not necessarily in
contact with the frame assembly, [so] it cannot necessarily be bonded to the
side of each frame member as claimed," and "Sievers', on the other hand,
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Appeal2018-007432
Application 15/854,861
discloses a variety of foams in par. 4 7, some of which do not necessarily
self-adhere to materials and therefore Sievers does not necessarily possess
the characteristics of the claimed polyurethane foam recited in claims 1, 10
and 11." Appeal Br. 10 (emphases added). These arguments do not assert
that Sievers fails to disclose any particular element required by claims 1, 10,
and 11. Rather, they assert that Sievers does not require that element. In
support of this reasoning, Appellant cites MPEP § 2112. Appeal Br. 9.
However, MPEP § 2112 focuses on the doctrine of inherency. Where the
Examiner relies on an explicit disclosure in the prior art, the Examiner need
not rely on the doctrine of inherency. As the Examiner correctly points out,
"[i]t is the claimed invention and whether or not it is taught by the prior art
that is relevant." Final Act. 7. "A claim is anticipated only if each and
every element as set forth in the claim is found, either expressly or
inherently described, in a single prior art reference." Verdegaal Bros. v.
Union Oil Co. of Cal., 814 F.2d 628, 631 (Fed. Cir. 1987) (emphasis added).
"The use of patents as references is not limited to what the patentees
describe as their own inventions or to the problems with which they are
concerned. They are part of the literature of the art, relevant for all they
contain." In re Heck, 699 F.2d 1331, 1332-33 (Fed. Cir. 1983) (quoting In
re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)). We do not discuss this
issue further because, for the reasons discussed below, we do not sustain
Rejection (II).
(B)
Claims 1, 10, and 11 all recite a foam backed panel. Appeal Br. 18-
19 (Claims App.). Appellant argues that the term "foam backed panel" is
defined in the Specification as requiring foam bonded to at least half of its
"backside." Appeal Br. 9 (citing Spec. ,r 82). Thus, according to Appellant,
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Appeal2018-007432
Application 15/854,861
Sievers fails to disclose a foam backed panel as recited because channels 52
prevent more than half of the foam's exterior surface 46 from bonding to the
surface area of cover 22. Appeal Br. 9--10 (citing Sievers ,r 40, Figs. 6-7).
We reproduce paragraph 82 of the Specification below with emphasis added.
A panel is herein defined as a generally rigid surface,
having some amount of flexural stiffness, such as a sheathing that
covers a frame or frame members. The panels of this invention
may be exterior panels, interior panels or both. The panel's
outside surface, i.e. its face, may be flat or shaped and the inside
surface, i.e. its backside, may have protrusions or indentations.
A panel may be of any material or combination of materials not
herein excluded and be of any size. Some examples of panels
are: plywood, plastic or other material sheets, sandwich panels,
wood or foam boards, siding and roof panels, rib and similar
protrusion backed panels, claddings, molded and corrugated or
any combination hereof, to name a few. A panel may be a
composite panel, which is defined as a panel comprised of two
or more different materials bonded together. A foam panel has
foam as its sole material and a foam backed panel is comprised
of a non-foam cladding with foam bonded to at least half of the
cladding's backside. A foam backed panel may also be described
as a non-foam cladding with a foam backing, which means the
foam backing is bonded to the cladding's backside. In addition,
a foam backed panel may have either a continuous section of
foam or a dropped section of foam directly bonded to the non-
foam cladding. Non-foam is herein defined as any material,
whether foam or not, that has a density of greater than 18 lbs.
Thus, Appellant's Specification defines certain elements, describes what
other elements may be or may include, and describes what a foam backed
panel is. Consistent with the Specification and Figures, the broadest
reasonable interpretation of a foam backed panel requires at least half of the
cladding to be covered with foam. This interpretation excludes the structure
depicted in Figure 6 of Sievers because, as Appellant points out (Appeal Br.
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Appeal2018-007432
Application 15/854,861
9-10), the amount of contact cover 22 has with channels 52 appears to be
greater than the amount of contact cover 22 has with ribs 44.
In the Answer, the Examiner identifies Figure 14 as disclosing foam
in contact with at least half ( all) of "cladding", thus meeting Appellant's
interpretation of claims 1, 10, and 11. Ans. 6-7. However, as Appellant
correctly notes (Reply Br. 3--4), the element identified as the "non-foam
cladding" (Ans. 7) in Sievers identifies a mold used for manufacturing foam
layer 42 and ribs 44 (Sievers ,r 51 ). Thus, the Examiner erred in finding that
Sievers discloses non-foam cladding with foam bonded to at least half of the
cladding's backside. The Examiner does not rely on any other teaching in
Sievers to address this requirement in the claims. See Ans. 5-7.
Accordingly, we do not sustain Rejection (II).
DECISION
The Examiner's decision to reject claims 1, 10, and 11 is reversed.
REVERSED
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