FORTRESS STABILIZATION SYSTEMS

Patent Trials and Appeals Board

Apr 29, 2020

13739070 - (D) (P.T.A.B. Apr. 29, 2020)

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.
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Application 13/739,070

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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

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(“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).
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Application 13/739,070

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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
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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:
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Application 13/739,070

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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.)
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Application 13/739,070

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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
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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