11994070 (P.T.A.B. Nov. 21, 2013)

Ex Parte Roelofs

Patent Trial and Appeal BoardNov 21, 2013

11994070 (P.T.A.B. Nov. 21, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 11/994,070 03/19/2008 Heinrich Jan Roelofs 4046/060 3317 22440 7590 11/22/2013 GOTTLIEB RACKMAN & REISMAN PC 270 MADISON AVENUE 8TH FLOOR NEW YORK, NY 10016-0601 EXAMINER FIORELLO, BENJAMIN F ART UNIT PAPER NUMBER 3672 MAIL DATE DELIVERY MODE 11/22/2013 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 HEINRICH JAN ROELOFS ____________ Appeal 2012-000976 Application 11/994,070 Technology Center 3600 ____________ Before ANTON W. FETTING, MICHAEL C. ASTORINO, and HYUN J. JUNG, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-000976 Application 11/994,070 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-20, 22-26, and 28. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE Claimed Subject Matter Claims 1 and 22 are the independent claims. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A tunnel barrier adapted to seal a mine tunnel, the tunnel barrier comprising an inflatable bladder having a front wall, a rear wall and a side wall and being adapted to be inflated by a suitable gas, wherein the side wall is adapted to contact the tunnel walls, including the roof and floor to thereby seal the tunnel, the front and rear walls being interconnected by a restraining element that extends through the bladder to connect the front and the rear walls at respective positions located intermediate of their connection to the side wall to limit the relative movement of the front and rear walls away from each other. Rejections Claims 1-17, 22, 23, and 28 are rejected under 35 U.S.C. § 103(a) as unpatentable over Morrell (US 4,072,015, iss. Feb. 7, 1978) and Lineback (US 2,328,083, iss. Aug. 31, 1943). Claims 16, 18, 19, 24, and 25 are rejected under 35 U.S.C. § 103(a) as unpatentable over Morrell, Lineback, and Leys (US 5,376,705, iss. Dec. 27, 1994). Claims 16, 20, and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Morrell, Lineback, and Alvarez-Calderon (US 3,937,025, iss. Feb. 10, 1976). Appeal 2012-000976 Application 11/994,070 3 OPINION The Examiner finds Morrell fails to disclose, but Lineback does disclose, the restraining element of claims 1 and 22. Ans. 5. Specifically, the Examiner finds partition 11 constitutes the claimed restraining element. Id. (citing Lineback, figs. 1 and 2); see Ans. 9. The Examiner concludes that modifying Morrell’s inflatable bladder with the restraining element of Lineback would have been obvious in order to reinforce Morrell’s inflatable apparatus. See Ans. 5. The Appellant contends the combined teachings of Morrell and Lineback fail to result in a restraining element as required by claims 1 and 22. App. Br. 10, Reply Br. 3. Specifically, the Appellant asserts that it is unknown if partitions 11 “limit the relative movement of the front and back walls away from each other.” See id. The Appellant’s contention is persuasive. Notably, Lineback’s disclosure of partition 11 is limited. Lineback merely states “sheath [10] is divided into tubular compartments by means of partitions 11 made of fabric which will allow the free passage of air between the compartments.” Lineback, p. 1, col. 1, ll. 39-42. Further, Lineback’s Figures do not reasonably suggest that partition 10 limits the relative movement of the front and back walls away from each other. Notably, the Examiner finds Figure 4 shows that the relative movement of the top and bottom of the mattress due to partition 11 is limited. See Ans. 9-10. However, it is speculative to assume that, because of the depiction of Figure 4, the relative movement of the front and back of the mattress due to partition 11 would be limited as well. Accordingly, the Examiner’s finding that Lineback discloses a “restraining element . . . to limit the relative movement of the front and rear Appeal 2012-000976 Application 11/994,070 4 walls away from each other” is not adequately supported and therefore, the Examiner’s rejection lacks rational underpinning. Thus, the rejection of claims 1 and 22 and their dependent claims as unpatentable over Morrell and Lineback is not sustained. The remaining rejections based on Morrell and Lineback in combination with Leys or Alvarez-Calderon relies on the same erroneous finding discussed above. See Ans. 8-9. As such, we cannot sustain the rejections under 35 U.S.C. § 103(a) of: claims 16, 18, 19, 24, and 25 as unpatentable over Morrell, Lineback, and Leys, and claims 16, 20, and 26 as unpatentable over Morrell, Lineback, and Alvarez-Calderon. DECISION We REVERSE the rejections of claims 1-20, 22-26, and 28. REVERSED tkl