AYERS, Michael et al.

Patent Trials and Appeals Board

Jan 29, 2020

13231067 - (D) (P.T.A.B. Jan. 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.
13/231,067 09/13/2011 Michael AYERS 8C30.1-011 5668
23506 7590 01/29/2020
GARDNER GROFF & GREENWALD, PC
1640 Powers Ferry Road
Building 4, Suite 200
Marietta, GA 30067
EXAMINER
TOLEDO-DURAN, EDWIN J
ART UNIT PAPER NUMBER
3678
NOTIFICATION DATE DELIVERY MODE
01/29/2020 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):
USPTO@dockettrak.com
patent@gardnergroff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte MICHAEL AYERS and JOSE URRUTIA
____________

Appeal 2019-004910
Application 13/231,067
Technology Center 3600
____________

Before MICHAEL L. HOELTER, WILLIAM A. CAPP, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 1, 3, 5, 6, 9, 11, and 12. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Watershed Geosynthetics LLC as the
real party in interest. Appeal Br. 2.
Appeal 2019-004910
Application 13/231,067
2

THE INVENTION
Appellant’s invention relates to “systems for erosion protection that
typically take the form of a combination of synthetic mat and natural grass.”
Spec. ¶ 2. Claims 1 and 11 are the independent claims on appeal. Claim 1,
reproduced below, is illustrative of the subject matter on appeal.
1. A ground cover system for protecting ground soil on steep
topographic ground against erosion, wherein the ground cover
system comprises:
a synthetic grass which comprises a composite of one or
more geo-textiles tufted with synthetic yarns;
at least one filter fabric to be placed directly atop the ground
soil, and
an open grid mesh sandwiched between the synthetic grass
and the filter fabric, with an upper portion of the open grid mesh
facing and placed directly against the synthetic grass and a lower
portion of the open grid mesh facing and placed against the filter
fabric,
wherein the synthetic grass has blades with an average
length of between about 1.25 and 3 inches, wherein the synthetic
grass has a density of between about 20 ounces per square yard
and 120 ounces per square yard, and wherein the open grid mesh
comprises a synthetic drainage system for transmitting high-
volume precipitation from atop the synthetic grass downward
into the open grid mesh for absorption into the underlying ground
soil to reduce precipitation runoff from the steep topographic
ground.

Appeal 2019-004910
Application 13/231,067
3
THE REJECTIONS
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Friedrich US 4,444,815 Apr. 24, 1984
Mogford WO 89/01076 Feb. 9, 1989
Prévost US 6,338,885 B1 Jan. 15, 2002
Edwards US 6,524,424 B2 Feb. 25, 2003
Dipple US 2006/0045995 A1 Mar. 2, 2006
Ayers US 2008/0069642 A1 Mar. 20, 2008
The following rejections are before us for review:
I. Claims 1, 11, and 12 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Friedrich, Ayers, and Dipple.
II. Claims 3 and 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Friedrich, Ayers, Dipple, and Mogford.
III. Claim 5 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Friedrich, Ayers, Dipple, and Edwards.
IV. Claim 9 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Friedrich, Ayers, Dipple, and Prévost.
OPINION
Rejection I
Regarding independent claim 1, the Examiner finds Friedrich
discloses, inter alia, a ground cover system including a synthetic grass (i.e.,
section of artificial grass 10), at least one filter fabric (i.e., filter mat 12
bonded to underside of artificial grass 10) to be placed directly atop the
ground soil, and an open grid mesh (i.e., grid-like webs or ribs of the
Appeal 2019-004910
Application 13/231,067
4
backing for the synthetic grass 14) sandwiched between the synthetic grass
and the filter fabric, as claimed. Final Act. 2–3 (citing Friedrich, Abstract).
The Examiner determines that Friedrich does not disclose a synthetic
grass comprising a composite of one or more geo-textiles tufted with
synthetic yarns or using the open grid mesh relative to steep topographic
ground. Final Act. 3. The Examiner relies on Ayers for disclosing that “it is
well-known in the art to provide synthetic grasses made of a composite of
geotextiles tufted with synthetic yarns,” and also for disclosing “a cover
system that can be installed in very steep slopes.” Final Act. 3 (citing Ayers,
Abstract, ¶¶ 11, 29); see also Ans. 9, 10 (explaining that “[t]he structural
element missing in [Friedrich’s artificial grass 10] is the ‘one or more geo-
textiles tufted with synthetic yarns”). The Examiner reasons that it would
have been obvious to use a synthetic grass composite, as taught in Ayers, “to
provide durability against ultraviolet light.” Id. (citing Ayers ¶ 29); see also
Ans. 10 (reasoning that “more components mean more layers which results
in better filtering and therefore cleaner drainage water after the drainage
water crosses the cover to reach the soil”).
Appellant argues that
one of ordinary skill in the art would have no motivation to
combine the cover systems of Ayers and Friedrich, which only
include a layer of artificial or synthetic grass and a filter fabric,
to create a three-component cover system comprising not only a
synthetic grass (with a backing) and a filter fabric, but also an
open grid mesh therebetween.
Appeal Br. 4–5. In support, Appellant submits that both Friedrich and Ayers
disclose a two, not three, component system: (i) Friedrich discloses “a
ground cover system with only a layer of artificial grass and a filter mat,”
and more specifically, that Friedrich discloses “an artificial grass 10 that
Appeal 2019-004910
Application 13/231,067
5
includes ‘pile threads 18 protruding upwards form the grid-like backing’”
and a second component, namely, “filter mat 12,” which is “bonded directly
to the artificial grass 10” (id. at 5 (citing Friedrich 2:9–18)); and (ii) Ayers
discloses “a two-component ground cover system comprising a synthetic
grass 103/104 and an impermeable geomembrane 102,” wherein “the
synthetic grass is ‘deployed directly on top of the geomembrane 102’” (id.
(citing Ayers ¶ 60)). Appellant emphasizes that “element 14 is described in
Friedrich as the ‘grid-like webs or ribs of the backing 14 for the grass,’” and
therefore, one of ordinary skill in the art would understand that “element 14
is just the backing of the artificial grass 10 of Friedrich.” Reply Br. 2 (citing
Friedrich 2:9–16).
Appellant concludes that “[a] person of ordinary skill in the art would
not have been motivated to deconstruct the two-component system of
Friedrich to create a three-component system.” Appeal Br. 5. In particular,
Appellant argues that
the teachings of Ayers would not have motivated a person skilled
in the art to deconstruct the artificial grass 10 of Friedrich and
position its backing 14 against the synthetic grass of Ayers,
which already includes its own backing. Indeed, it would [be]
illogical to do so, as Ayers already had a backing.
Id. at 6. Appellant submits that “if one removes the backing 14 from the
synthetic grass 10 of Friedrich, one is left with blades that are no longer
tufted to a backing and thus you would not have synthetic grass.” Reply
Br. 2. Appellant concludes that the Examiner’s combination relies
improperly on hindsight. Final Act. 5–6.
The Examiner responds, inter alia, that “there is no ‘backing’
claimed.” Ans. 11.
Appeal 2019-004910
Application 13/231,067
6
We are persuaded by Appellant’s argument. Friedrich expressly
discloses that “the grid-like webs or ribs 14 [are] the backing for the grass”
and further, that ribs 14 may be coated to allow filter mat 12 “to be bonded
to the artificial grass.” Friedrich 2:11–17 (emphasis added). Thus, as
argued by Appellant, one skilled in the art would interpret ribs 14 as a
component of Friedrich’s artificial (or synthetic) grass 10, and not as an
open grid mesh separate from the artificial grass. See claim 1, supra,
(reciting the synthetic grass as a structure separate from “an open grid mesh
sandwiched between the synthetic grass and the filter fabric”) (emphasis
added). In other words, the Examiner errs by interpreting the backing of
Friedrich’s synthetic grass as a component that is not a part of the synthetic
grass, but rather, as the separately claimed open grid mesh. We agree,
therefore, with Appellant that one skilled in the art would not have arrived at
Appellant’s claimed invention but for hindsight derived from Appellant’s
Specification.2
Nor does the Examiner’s reliance on Dipple for disclosing the claimed
density range of the synthetic grass blades cure the deficiency in the
Examiner’s finding with respect to Friedrich supra. Final Act. 3–4.
Accordingly, we do not sustain the Examiner’s rejection of
independent claim 1. The Examiner relies on the same finding with respect
to Friedrich in the rejection of independent claim 11, which also recites a
synthetic grass as a separate structure from an open grid mesh, and therefore,

2 Notably, Ayers discloses “a geomembrane 102 having studs that when
covered by the bottom geotextile 104 of the turf creates a highly
transmissive drainage” (Ayers ¶ 60), wherein Ayers’s studs perform the
same function of Appellant’s claimed open grid mesh. See, e.g., Spec. ¶ 16
(“the open grid mesh comprises a synthetic drainage system with drainage
capacity to handle high-intensity precipitation”).
Appeal 2019-004910
Application 13/231,067
7
we also do not sustain the Examiner’s rejection of claim 11 and claim 12
depending therefrom. Final Act. 2, 4.
Rejections II–IV
The Examiner’s reliance on (i) Mogford for disclosing two fabric
layers and a fabric comprising non-woven synthetic fabric (see Rejection II);
(ii) Edwards for disclosing a filter fabric comprising woven filter fabrics (see
Rejection III); and (iii) Prévost for disclosing synthetic grass comprising
certain blades; does not cure the deficiency in the Examiner’s finding with
respect to independent claims 1 and 11, as discussed supra, and from which
claims 3, 5, 6, and 9 depend.
Accordingly, for essentially the same reasons stated supra with
respect to the rejection of claim 1, we also do not sustain the Examiner’s
rejection of claims 3, 5, 6, and 9.
CONCLUSION
In summary:
Claims
Rejected
§ Reference(s) Affirmed Reversed
1, 11, 12 103(a) Friedrich, Ayers, Dipple 1, 11, 12
3, 6 103(a) Friedrich, Ayers, Dipple,
Mogford
3, 6
5 103(a) Friedrich, Ayers, Dipple,
Edwards
5
9 103(a) Friedrich, Ayers, Dipple,
Prévost
9
Overall
Outcome
1, 3, 5, 6,
9, 11, 12
REVERSED