Ex Parte TerryDownload PDFPatent Trial and Appeal BoardJul 26, 201613687047 (P.T.A.B. Jul. 26, 2016) Copy Citation 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. 13/687,047 11/28/2012 Edward Tim Terry TT-12 1000 47728 7590 07/26/2016 THOMAS J. GERMINARIO, ESQ. 154 ROUTE 206 CHESTER, NJ 07930 EXAMINER RISIC, ABIGAIL ANNE ART UNIT PAPER NUMBER 3671 MAIL DATE DELIVERY MODE 07/26/2016 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 EDWARD TIM TERRY ____________ Appeal 2014-008620 Application 13/687,0471 Technology Center 3600 ____________ Before MICHAEL C. ASTORINO, JAMES A. WORTH, and KENNETH G. SCHOPFER, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting claim 1 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Semler (US 6,866,445 B2, iss. Mar. 15, 2005) and Reid (US 4,208,038, iss. June 17, 1980). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 According to the Appellant, “[t]he real party in interest in this matter is the sole inventor Edward Tim Terry.” Appeal Br. 1. Appeal 2014-008620 Application 13/687,047 2 Claimed Subject Matter 1. A method for establishing a pavement grade and a pavement perimeter of a poured paving material, comprising the following steps: (a) driving multiple support rods into a substrate at support intervals around the pavement perimeter; (b) attaching a dual-transverse-tubular connector to each support rod at a grade elevation corresponding to the pavement grade at the location of each support rod; wherein the dual- transverse-tubular connector comprises a horizontally-oriented tubular guide sleeve and a vertically-oriented tubular rod clamp, such that the tubular guide sleeve is slidably attachable at variable heights to one of the support rods by the tubular rod clamp, through which a set bolt is threaded and tightened; (c) inserting each of multiple sections of tubular screed rail guide through the tubular guide sleeves of multiple dual- transverse-tubular connectors, such that the sections of screed guide rail are supported at the grade elevation by the support rods and fully enclose the pavement perimeter; (d) pouring the paving material within the pavement perimeter until its level exceeds the grade elevation; and (e) leveling and compacting the paving material by mechanically or manually drawing a screed rod or rail along the upper surface of the screed rail guide. ANALYSIS The Examiner finds that Semler teaches the subject matter of claim 1, except that Semler fails to teach “a tubular connector or a rod clamp.” Final Act. 2–3. The Examiner also finds that: Reid teaches a stake with a dual transverse tubular connector (101) attached to the stake and a vertically oriented tubular rod clamp (102), such that the tubular guide sleeve is slidably attachable at variable heights to one of the support rods by the tubular rod clamp, through which a set bolt (see Figure 2) is threaded and tightened. Appeal 2014-008620 Application 13/687,047 3 Id. at 3. The Examiner concludes that “[i]t would have been obvious to one of ordinary skill in the art . . . to substitute the connector and height adjustment means of Reid for the connector and height adjustment means of Semler as it is obvious to substitute one known element for another known element to yield predictable results.” Id. The Examiner’s findings and conclusion are adequately supported. The Appellant argues that the Examiner’s “proposed modification of Semler, by substituting the transverse tubular rail connectors of Reid for Semler’s open-ended saddles, renders three of the [key] functions of the Selmer screed ski support system inoperable.” Reply Br. 3. For the following reasons we determine that the Appellant’s argument is not persuasive. The Appellant asserts that a first key function of the Semler system is to allow the assembled screed ski tubing 5 to be quickly snapped into and out of the open ended saddle clips 2 and be quickly aligned with string line levels 53 for establishing a correct grade elevation. See Appeal Br. 6, Reply Br. 1. The Appellant contends that the Examiner’s substitution would make this process significantly more difficult, time-consuming, and cumbersome because “the entire length of the ski tubing would then have to slide through the connector.” Reply Br. 1. The Appellant’s contention is not persuasive. We agree with the Examiner that as a result of the proposed substitution “the rails would still be able to be easily slid into place.” Ans. 3. And, we find that as a result of the proposed substitution the rails would still be able to be quickly aligned with string line levels 53 for establishing a correct grade elevation. Appeal 2014-008620 Application 13/687,047 4 The Appellant also asserts that “because the Seml[e]r system requires interconnecting the sections of ski tubing (5) with couplers (6) (7) (8) . . . it would not be feasible to slide the ski tubing (5) through tubular connectors of the Reid type without removing the tee couplers (7) and 90-degree couplers (8).” Reply Br. 1 (citing Semler, Fig. 1). The Appellant’s assertion is not persuasive. As depicted in Semler’s Figure 1, lengths of tubing 5 are able to be placed through connectors (i.e., circlip saddles) 2. And, Semler’s system as modified to include a tubular connector and a rod clamp maintains that functionality. Moreover, Semler’s system prior to modification does not include the capability of tee coupler 7 or 90-degree coupler 8 to be able to slide through circlip saddles 2. In other words, merely because tee coupler 7 or 90-degree coupler 8 is unable to slide through a tubular connector and rod clamp does not explain why the system resulting from the Examiner’s substitution is inoperable or would fail to result in the subject matter as claimed. The Appellant contends that a second “key function of the Seml[e]r system which would be defeated by the Examiner’s proposed modification is the ability to do multi-level paving.” Reply Br. 1; see Appeal Br. 6. The Appellant’s contention is not persuasive. We agree with the Examiner that, “[l]oosening of the rod clamp set bolt of Reid would allow the connectors to be lifted off of the ground rods to allow the connectors and rails to be removed as a unit.” Ans. 3. In response, the Appellant asserts that “once the set bolts of the Reid connectors are loosened, there is nothing to prevent the connectors from sliding down the supporting rebar, so that the screed ski tubing falls into the freshly-screeded first layer of paving and mars its surface.” Reply Br. 2. As such, the Appellant suggests that Semler’s system Appeal 2014-008620 Application 13/687,047 5 as modified includes the possibility of marring a freshly-screeded first layer of paving. However, a person of ordinary skill in the art would understand that, prior to modification, Semler’s system also includes the possibility of marring a freshly-screeded first layer of paving. For example, if Semler’s connectors are disconnected from the support rods (i.e., stakes) while assembled screed ski tubing is positioned over a freshly-screeded first layer of paving, and the connectors and tubing are dropped, then the surface of the freshly-screeded first layer of paving could be marred. Moreover, we do not understand the foregoing to frustrate Semler’s objective to provide a “rapid, convenient removal of screed skis and screed ski supports from the screeded materials without disruption of the screeded materials.” Reply Br. 2 (emphasis omitted). The Appellant asserts that a third key function of the Semler system is to facilitate adjustment of the inclination angle of the screed ski tubing to compensate for rebar/stake that is not “perfectly plumb” and to achieve a level paving grade. See Appeal Br. 8, Reply Br. 2–3. This function is associated with Semler’s semicircular channel 14, particularly central ridge 14C with adjoining tapered surfaces (14A and 14B). See Semler, Fig. 2C, col. 5, ll. 46–65. The Appellant contends that the foregoing functionality would be lost with the Examiner’s proposed substitution. The Appellant’s contention is not persuasive as it appears to be based on an understanding that Reid teaches that sleeve 101 and clamp 102 are joined at 103 only by welding. See Appeal Br. 7. This is not accurate. Reid also teaches that sleeve 101 and clamp 102 may alternately joined at 103 by employing a swivel device. See Reid, Fig. 2, col. 3, ll. 35–43; see also Final Act. 3 (citing Reid, Fig. 2). The use of a swivel device between a tubular connector Appeal 2014-008620 Application 13/687,047 6 and a rod clamp, such as Reid’s sleeve 101 and clamp 102, retains the ability to compensate for a stake that is not perfectly plumb and to achieve a level paving grade. For similar reasons as discussed above the Appellants argue that the Semler patent teaches away from the proposed combination (Appeal Br. 8), and for similar reasons as discussed above the Appellant’s argument is not persuasive. Additionally, we note that the Semler patent does not criticize, discredit, or otherwise discourage the solution claimed. Thus, the Examiner’s rejection of claim 1 as unpatentable over Semler and Reid is sustained. DECISION We AFFIRM the Examiner’s decision rejecting claim 1. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation