FORTRESS STABILIZATION SYSTEMSDownload PDFPatent Trials and Appeals BoardApr 29, 202013739070 - (D) (P.T.A.B. Apr. 29, 2020) 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. 13/739,070 01/11/2013 Donald E. WHEATLEY 8454-000003/US/COA 9099 27572 7590 04/29/2020 Harness Dickey (Troy) P.O. BOX 828 BLOOMFIELD HILLS, MI 48303 EXAMINER LOPEZ, RICARDO E. ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 04/29/2020 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): sto-ptomail@hdp.com troymailroom@hdp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DONALD E. WHEATLEY Appeal 2019-005842 Application 13/739,070 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and WESLEY B. DERRICK, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1 and 4. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Fortress Stabilization Systems. Appeal Br. 2. Appeal 2019-005842 Application 13/739,070 2 Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A method of making a rigidified fiber reinforcement material, comprising the steps of: providing a plurality of longitudinal fiber bundles extending generally parallel to one another in a longitudinal direction and spaced laterally from one another by at least 1 /32 of an inch, said plurality of longitudinal fiber bundles being made from individual strands of fibers bundled together and selected from the group consisting of carbon fibers, poly- parapheneylene tetraphthalamide, para-aramid nylon, aromatic polyamide and combinations thereof; knitting a transverse fiber bundle extending in a continuous serpentine pattern across each of said plurality of longitudinal fiber bundles only on a first side of said plurality of longitudinal fiber bundles with a plurality of pairs of connecting threads, each of said pairs of connecting threads corresponding to each one of said plurality of longitudinal fiber bundles, each of said plurality of pairs of connecting threads including a first thread diagonally crossing the transverse fiber bundle at each crossover point where said transverse fiber bundle crosses over said longitudinal fiber bundle and being repeatedly interlaced with a second thread of the pair of threads on opposite sides of the longitudinal fiber bundles in an alternating manner on opposite sides of each crossover point for securing said transverse fiber bundle to a respective one of said plurality of longitudinal fiber bundles at each crossover point at a plurality of longitudinally spaced locations to form a knitted material; coating said knitted material in epoxy; and curing the epoxy to rigidify the knitted material to form the rigidified fiber reinforcement material. Appeal Br. 10–11, Claims Appendix. The rejection of claims 1 and 4 under 35 U.S.C. § 103(a) as unpatentable over Porter et al. (US 5,763,043, issued June 9, 1998 Appeal 2019-005842 Application 13/739,070 3 (“Porter”)) in view of Isley (US 5,607,527, issued Mar. 4, 1997) is the only rejection presented for our review. 2 OPINION After review of the respective positions provided by Appellant and the Examiner, we REVERSE the Examiner’s rejections under 35 U.S.C. § 103(a). The Examiner has reproduced the rejections on appeal in the Examiner’s Answer. (Ans. 3–6.) The Examiner in the Answer asserts that Porter teaches first and second sets of rovings may be affixed together by (1) weft insertion warp knitting loosely with tie yarn, (2) certain kinds of leno weaving with tie yarns (as shown in Fig. 1 below), (3) holding a nonwoven scrim together and then securing it as a grid by adhesive alone, or (4) by equivalent methods to form an open grid fabric. (Ans. 4; Porter col. 4, ll. 24–30.) The Examiner cites Isley for teaching a method for reinforcing fabric layers with an epoxy curable resin. (Ans. 5.) In rejecting claims under 35 U.S.C. § 103, it is incumbent upon the Examiner to establish a factual basis to support the legal conclusion of obviousness. See In re Fine, 837 F.2d 1071, 1073 (Fed. Cir. 1988). In so doing, the Examiner must make the factual determinations set forth in Graham v. John Deere Co., 383 U.S. 1, 17 (1966) (noting that 35 U.S.C. § 103 leads to three basic factual inquiries: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; 2 The complete statement of the rejection on appeal appears in the Final Office Action. (Final Act. 2–5). Appeal 2019-005842 Application 13/739,070 4 and (3) the level of ordinary skill in the art). Furthermore, the Examiner’s obviousness rejection must be based on “some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness” . . . . [H]owever, the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). If the Examiner’s burden is met, the burden then shifts to the Appellant to overcome the prima facie case with argument and/or evidence. Obviousness is then determined on the basis of the evidence as a whole and the relative persuasiveness of the arguments. See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Although Porter and Isley both disclose methods for making an open grid fabric for reinforcing wall systems, the Examiner does not rebut adequately Appellant’s assertions in the Briefs that the combination of Porter and Isley set forth by the Examiner fails to disclose (1) the use of pairs of connecting threads corresponding to each one of said plurality of longitudinal fiber bundles, as required by independent claim 1, (2) a first thread being repeatedly interlaced with a second thread of the pair of threads on opposite sides of the longitudinal fiber bundles in an alternating manner on opposite sides of each crossover point for securing said transverse fiber bundle to a respective one of said plurality of longitudinal fiber bundles at each crossover point at a plurality of longitudinally spaced locations to form a knitted material, as required by independent claim 1, and (3) Porter fails to disclose a transverse fiber bundle extending in a continuous serpentine Appeal 2019-005842 Application 13/739,070 5 pattern across each of the longitudinal fiber bundles only on a first side of said plurality of longitudinal fiber bundles, as required by independent claim 1. (Appeal Br. 3–9.) As Appellant points out and the record supports, Porter fails to disclose “a transverse fiber bundle extending in a continuous serpentine pattern across each of said plurality of longitudinal fiber bundles” as claimed. Figure 1 of Porter does not disclose that the weft yarns (horizontally extending in Figure 1) are in a continuous serpentine pattern, as claimed. To the extent that the weft yarns (horizontally extending in Figure 1) could be in a continuous serpentine pattern, the weft yarns are not disclosed “only on a first side” of said plurality of warp yarns (vertically extending) shown in Fig. 1. (Reply Br. 5–6.) Application Figure 1 is reproduced below: Appeal 2019-005842 Application 13/739,070 6 Application Figure 1 depicts a portion of a carbon fiber reinforcement material 10 comprising a plurality of longitudinal fiber bundles 100, transverse threads 105a, 105b and connecting threads 110a, 110b. The longitudinal fiber bundles 100 are provided in parallel to one another with the transverse threads 105a, 105b provided in a continuously serpentine pattern with one serpentine thread pattern 105a on a first side of the longitudinal fiber bundles 100 and a second serpentine thread pattern 105b overlaying a second side of the longitudinal fiber bundles 100 in identical fashion. (Spec. ¶¶ 17, 18.) Appeal 2019-005842 Application 13/739,070 7 Although the Examiner finds that Appellant’s arguments are an oversimplification of Porter’s disclosure, the Examiner has failed to identify a disclosure in Porter that would have described or suggested the use of leno weave to affix the warp and weft rovings utilizing two yards as required by the claimed invention. (Ans. 6–7.) The Examiner’s reliance on Porter’s Figure 1 as the basis establishing unpatentability is misplaced because Figure 1 is representative of the prior art not the invention of Porter. Porter Figure 1 is reproduced below: Porter’s Figure 1 depicts a prospective view of a regular Leno woven fabric according to the prior art. (Porter col. 4 ll. 67–68.) The Examiner has failed to explain adequately why the disclosure of Porter would have been suitable for modification of Porter’s prior art depicted by Figure 1. Moreover, the Examiner has failed to identify other teachings in Porter that would have suggested pairs of connecting threads (110a, 110b) including a first thread (110a) diagonally crossing the transverse fiber bundle (105a) at each crossover point where the transverse fiber bundle (105a) crosses over the longitudinal fiber bundle (100) and is repeatedly interlaced with a second thread (110b) on the opposite side of the longitudinal fiber bundles (100) in an alternating manner on opposite sides of each crossover point for securing Appeal 2019-005842 Application 13/739,070 8 said transverse fiber bundle (105a) to a respective one of the plurality of longitudinal fiber bundles (100) at each crossover point at a plurality of longitudinally spaced locations to form a knitted material as required by independent claim 1. Thus, the Examiner has not provided an adequate technical explanation with the requisite rational underpinning of why or how one skilled in the art, absent impermissible hindsight, would have arrived at the claimed method of making a rigidified fiber reinforcement material as required by independent claim 1. For these reasons, we reverse the Examiner’s rejection of claims 1 and 4 under 35 U.S.C. § 103 over Porter and Isley. CONCLUSION In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4 103(a) Porter, Isley 1, 4 REVERSED Copy with citationCopy as parenthetical citation