Berend Jan Reinders et al.

Patent Trials and Appeals Board

Feb 24, 2020

14916084 - (D) (P.T.A.B. Feb. 24, 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.
14/916,084 03/02/2016 Berend Jan REINDERS P6046369PCT/US 6445
132452 7590 02/24/2020
N.V. Nederlandsch Octrooibureau
New Babylon City Offices
Anna van Buerenplein 21a
The Hague, 2595 DA
NETHERLANDS
EXAMINER
MCKENZIE, THOMAS B
ART UNIT PAPER NUMBER
1776
NOTIFICATION DATE DELIVERY MODE
02/24/2020 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@nlo.eu
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PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BEREND JAN REINDERS,
JOHANNES ANTONIUS MARIA REINDERS,
MARK HAKBIJL, and ALEXANDER JOHN BANZ

Appeal 2019-002794
Application 14/916,084
Technology Center 1700
____________

Before JEFFREY T. SMITH, JEFFREY B. ROBERTSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 22–31 and 42. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Oxycom
Beheer B.V. Appeal Br. 1.
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Application 14/916,084

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CLAIMED SUBJECT MATTER

The present application generally relates to a device for the removal
of water vapor from the air using smart polymer materials. Specification
dated March 2, 2016 (“Spec.”) ¶ 1. The Specification describes the subject
device as follows:
The device comprises a carrier structure, a substrate of fibrous
material provided on the carrier structure, the fibrous material
comprising a plurality of individual fibres, a quantity of an
LCST polymer coating the individual fibres; and a heating
provision arranged to selectively heat the LCST polymer to
above its lower critical temperature whereby water absorbed by
the fibres can be subsequently released on heating.

Id. ¶ 6. An LCST material is one that is able to change from a more
hydrophilic state to a more hydrophobic state at a lower critical solution
temperature (“LCST”). Id. ¶ 3. This facilitates the release of water
previously absorbed by the fibres. Id. ¶ 6.
The Specification further teaches that “[b]y providing the LCST
polymer as a coating onto the fibres, an increased surface area may be
achieved and the ability of the LCST polymer to absorb water is
augmented.” Id.
Claim 22 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:

22. A water extracting device comprising: a carrier structure;
a substrate of fibrous material provided on the carrier structure,
the fibrous material comprising a plurality of individual fibres,
each comprising a core and a quantity of an LCST polymer
forming a layer surrounding the core; and a heating provision
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arranged to selectively heat the LCST polymer to above its lower
critical temperature whereby water absorbed by the fibres can be
subsequently released on heating.

Appeal Brief dated Sept. 21, 2018 (“Appeal Br.”) 15 (Claims App.)
(emphasis added).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Weisman et al.
(“Weisman”)
US 4,469,746 Sept. 4, 1984
Gsell et al. (“Gsell”) US 5,133,878 July 28, 1992
Keefer US 2002/0035924 Al Mar. 28, 2002
Moore et al. (“Moore”) US 2008/0102744 Al May 1, 2008
Tai et al. (“Tai”) US 2014/0174295 Al June 26, 2014
Meijer et al. (“Meijer”) WO 2007 /026023 Al March 8, 2007

REJECTIONS
The Examiner maintains the following rejections:
1. Claims 22, 25–28, 30 and 31 are rejected under 35 U.S.C. § 103
as being unpatentable over Moore in view of Weisman, and
further in view of Meijer. Final Act. 2–8.
2. Claims 23 and 24 are rejected under 35 U.S.C. § 103 as being
unpatentable over Moore in view of Weisman, and further in
view of Meijer and Keefer. Id. at 2, 5–6.
3. Claim 29 is rejected under 35 U.S.C. § 103 as being unpatentable
over Moore in view of Weisman, and further in view of Meijer
and Tai. Id. at 2–3, 6–7.
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4. Claim 42 is rejected under 35 U.S.C. § 103 as being unpatentable
over Moore in view of Weisman, and further in view of Meijer2
and Gsell. Id. at 3, 8; Answer 16–17.
DISCUSSION
Rejection 1. The Examiner rejects claims 22, 25–28, 30, and 31 as
obvious over Moore, Weisman, and Meijer. Final Act. 2–8. In support of
the rejection, the Examiner finds that Moore discloses a dehumidifying
system similar to that of independent claim 22. Id. at 3. The dehumidifier
of Moore teaches a desiccant block 40 comprising a substrate material such
as fiberglass or paper. Id. (citing Moore ¶¶ 37, 40). Moore further teaches
that the desiccant block may be made of a substrate such as fiberglass or
paper that is coated with a desiccant, such as a silica gel. Id.; Moore ¶ 37.
The Examiner finds, however, that Moore does not teach “each fiber in the
desiccant block 40 comprising a core and a quantity of LSCT polymer
forming a layer surrounding the core.” Id. at 4.
The Examiner finds that Weisman (titled “Silica Coated Absorbent
Fibers”) teaches “a fibrous water absorbent material (i.e., a desiccant block)
comprising individual fibers each having a core with a continuous film of
silica surrounding the core.” Id. at 4 (citing Weisman, col. 3, ll. 40–44).

2 In the Final Action, the Examiner did not expressly rely on Meijer in
rejecting claim 42. See Final Act. 8. The Examiner did, however, refer to
“the LCST polymer” which the Examiner elsewhere finds is taught by
Meijer. Id. at 5. Further, in the Answer, the Examiner expressly relies on
Meijer as teaching LCST polymers. Answer 16. Considered as a whole, we
construe the rejection of claim 42 to include Meijer.
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The Examiner further finds that Meijer teaches that LSCT polymer
materials are superior compared to silica because LCST polymers require
less energy to release absorbed water compared to silica. Id. at 5 (citing
Meijer ¶¶ 10–11).
The Examiner finds that a person of skill in the art would have had
reason to use Weisman’s absorbent material (comprised of individual coated
fibers) in place of the materials taught for Moore’s desiccant block 40 in
order to improve the water absorption properties of the device. Id. at 4. The
Examiner further finds that one of skill in the art would have had reason to
coat Weisman’s individual fibers with an LCST polymer material instead of
silica “in order to reduce the amount of energy required to regenerate the
absorbent [desiccant] material.” Id. at 5.
Appellant presents argument relating to independent claim 22.
Appeal Br. 4–8. Appellant further argues that the rejection of the dependent
claims at issue should be reversed for the same reasons articulated with
regard to claim 22. Id. at 8. Accordingly, we select claim 22 as
representative of the claims subject to Rejection 1.
Appellant argues that the rejection of claim 22 is in error on several
bases. Id. at 4–8. First, Appellant argues that Moore fails to disclose “a
substrate of fibrous material provided on the carrier structure, the fibrous
material comprising a plurality of individual fibres,” as required by
independent claim 22. Id. at 5. We find this argument unpersuasive because
the Examiner “relies on Weisman’s absorbent material which is used as the
water absorbent material in Moore’s block 40, to correspond to the claimed
‘fibrous material.’” Examiner’s Answer dated Nov. 26, 2018 (“Answer”)
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12. Appellant’s argument concerns only the teachings of Moore rather than
Weisman. Thus, the argument does not squarely address the rejection.
Appellant further argues that, to the extent fiberglass and paper
comprise individual fibers, “once they are formed into a structure, such as a
block of substrate, the fibers are no longer individually present.” Id. This is
a factual assertion without evidentiary support. An argument made by
counsel in a brief does not substitute for evidence lacking in the record. See
Estee Lauder, Inc. v. L’Oréal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997); see
also Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1332 (Fed.
Cir. 2010) (rejecting a nonobviousness position that was “merely attorney
argument lacking evidentiary support”).
Second, Appellant argues that the use of Weisman’s absorbent
material in the desiccant block of Moore would have required more than the
simple substitution of one known element for another. Appeal Br. 5–6.
Appellant argues that “the disclosure in Weisman cannot and would not be
simply substituted into the device of Moore because Weisman is not related
to dehumidifying a stream of air as it passes through an absorbent material
(i.e., a desiccant block).” Id. at 6.
In response, the Examiner finds that “[a] skilled artisan would expect
that Weisman’s absorbent material would be capable of operating as the
material forming Moore’s desiccant block 40 because this absorbent material
has similar structural and functional properties as the material forming
Moore’s block 40.” Answer 13. The Examiner refers to Moore’s teaching
that its desiccant block can be made of a paper substrate that is coated with
silica gel. Id. (citing Moore ¶ 37). The Examiner finds that the material of
Moore is “very similar” to Weisman’s teaching of wood pulp fibers coated
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with a continuous film of silica. Id.; Weisman, col. 3, ll. 28–47. In view of
such similarity, the Examiner concludes that one of skill in the art would
have regarded the use of Weisman’s wood pulp fibers as a simple
substitution. Id.
We discern no error in the foregoing. Moore teaches that a desiccant
such as silica gel may be coated on a variety of substrates. Moore ¶ 37. The
references further teach that it is the desiccant that absorbs water vapor
rather than the substrate. Id. ¶ 5; Weisman col. 5, ll. 12–14; see also Meijer
¶ 4. The Examiner’s determination that a person of ordinary skill in the art
would have regarded the change from one desiccant-coated substrate to
another descant-coated substrate as a simple substitution is reasonable and
supported by the record. Accordingly, Appellant has failed to show error in
this regard.
Third, Appellant argues that the Examiner’s stated reasoning to
combine the teachings of Moore and Weisman, “to improve water
absorption properties of the device,” is based on impermissible hindsight in
view of Appellant’s specification. Appeal Br. 7. Appellant argues that the
Examiner fails to show why one of skill in the art would have employed the
substrate of Weisman rather than that taught by Moore. Id. This is not
persuasive of error.
The Examiner puts forward two independent alternative bases why
one of skill in the art would have combined the teachings of Moore and
Weisman. First, the Examiner finds that such combination would “improve
the water absorption properties of the device.” Final Act. 4. Second, the
Examiner finds that such modification is a mere simple substitution. Id. We
have determined, above, that Appellant has not shown error with regard to
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substitution. Further, Weisman teaches that smaller diameter fibers “possess
an unusually high absorption capacity.” Weisman, col. 1, ll. 43–44. This
weighs in favor of the use of fibers, rather than materials with a lower
surface to volume ratio, in order to improve absorbency. Accordingly,
Appellant has not shown error in this regard.
Fourth, Appellant argues that “Meijer also fails to teach or suggest
forming a LCST polymer layer surrounding a core of individual fibres
because Meijer uses an aluminum or plastics carrier.” Appeal Br. 8
(emphasis in original). Appellant concedes that Meijer teaches an LCST
polymer. Id. Appellant contests, however, that the references teach “a
quantity of an LCST polymer forming a layer surrounding the core” as
required by claim 22. Appellant asserts that, because Meijer does not teach
individual fibres, “[i]t is not clear that the LCST polymer materials of Meijer
could be simply substituted for silica in Weisman.” Id.
This is not persuasive. Weisman teaches that it “relates to hydrophilic
absorbent fibrous webs comprising fibers which are coated with a
continuous film comprising silica.” Weisman col. 3, ll. 28–30 (emphasis
added).
Meijer teaches that an LCST polymer may be substituted for silica in
absorbent applications. Final Act. 5. Meijer teaches that, as a desiccant,
“[s]ilica gel in particular is extremely effective in that it can absorb many
times its own weight in water until it finally becomes saturated.” Meijer ¶ 4.
Meijer further teaches that “[m]ore recently, alternative (smart) materials
have been discovered that are capable of selectively absorbing particular
substances and releasing them in response to a stimulus.” Id. Meijer teaches
that “[o]ne class of such [alternative] materials are referred to as LCST
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polymers.” Id. Meijer teaches that the LCST polymer is coated on a carrier
structure. Id. ¶ 32. “The carrier structure may be a foil or gauze and may be
formed of e.g. a metal or a plastics material. Paper or carton may also be
used.” Id. ¶ 8.
Accordingly, it was known from Meijer to substitute LCST polymers
for silica as a desiccant in the context of dehumidifiers. It was further
known from Weisman that such desiccant should be applied as a continuous
film to a web comprising individual fibers. Accordingly, the Examiner’s
finding that it “would have been obvious to use an LSCT polymer material
to coat Weisman’s individual fibers because the selection of a known
material based on its suitability for its intended use may support a prima
facie case of obviousness” is supported by record evidence and has not been
shown to be in error.
Further, a finding of obviousness cannot be overcome “by attacking
references individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Here, Appellant seeks to “attack” Meijer rather than the
proposed combination.
In view of all of the foregoing, we determine that the Appellant has
not shown reversible error with regard to the rejection of claim 22.

Rejections 2 and 3. The Examiner additionally rejects claims 23, 24,
and 29 as set forth above. The Appellant does not present argument
regarding such claims. See Appeal Br. 3 (Grounds of Rejection to Be
Reviewed on Appeal). Accordingly the rejections of claims 23, 24, and 29
are summarily affirmed. See MPEP § 1205.02 (8th ed., Rev. 9) (“If a
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ground of rejection stated by the examiner is not addressed in the appellant’s
brief, that ground of rejection will be summarily sustained by the Board.”).
To the extent that Appellant seeks to rely on its arguments advanced with
regard to claim 22, we have determined such arguments not to be persuasive.

Rejection 4. The Examiner rejects claim 42 as obvious over Moore
in view of Weisman, and further in view of Meijer (see footnote 2) and
Gsell. Final Act. 8; Answer 16–17. Claim 42 depends from claim 22 and
further requires that “the LCST polymer is grafted onto a surface of the
core.” Appeal Br. 17 (Claims App.).
In the Final Action, the Examiner cites to Gsell’s teaching of “a
polymeric fiber matrix, the surfaces of whose fibers are covered with a
grafted superstrate polymer (that is, a layer of polymer formed at and
covering the surface of the substrate fiber) containing quaternary ammonium
groups.” Final Act. 8 (citing Gsell col. 2, ll. 22–27). The Examiner
determines that “it would have been obvious to use graft polymerization to
attach the LCST polymer to the individual fibers because this technique is
known [in] the art as a suitable method for attaching a polymer material to a
fiber.” Id.
Appellant asserts error on several bases. Appeal Br. 8–13. First,
Appellant argues that none of the prior art discloses or renders obvious an
LCST polymer. The Examiner does not expressly rely on Meijer in the
statement of rejection of claim 42 in the Final Action. The Examiner does,
however, expressly rely on Meijer’s teaching of LCST polymers earlier in
the Final Action. In the Answer, the Examiner relies on Meijer as teaching
an LCST polymer. Answer 16–17. As stated in Footnote 2, considering the
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Final Action and Answer as a whole, we construe the rejection of claim 42
to include Meijer. Given our interpretation of the rejection to include
Meijer, Appellant’s argument regarding the failure of any reference to teach
an LCST polymer lacks force for the reasons discussed in connection with
the rejection of claim 22.
Second, Appellant argues that the mere fact of graft polymerization
being known in the art as a suitable method for attaching a polymer material
to a fiber is an insufficient basis for the proposed modification. Appeal Br.
11. In the Answer, the Examiner finds that Gsell “teaches that graft
polymerization is a known technique which can be used to apply a polymer
to a fiber in order to improve the attachment of the polymer to the fiber.”
Answer 17 (emphasis added). In support, the Examiner cites the following
portion of Gsell:
The filter medium of the invention can be made from a
pre-existing fiber matrix by a process comprising the graft
polymerization of polymerizable ethylenically unsaturated
monomeric materials containing pendant amino or quaternary
ammonium groups onto the fibers of said fiber matrix.
Alternatively, the fibers themselves can be grafted before being
formed into a matrix.
Any ethylenically unsaturated monomer containing an
amino or quaternary ammonium group is suitable for use as the
grafting monomer as long as it does not also contain any
functional group which inhibits the graft polymerization
reaction. However, monomers yielding a superstrate in which
the ammonium group is incorporated into the grafted polymer
via a non-hydrolyzable linkage are more useful. This enables
the product to withstand prolonged exposure to hot water and
alkaline or acid conditions without loss of its special surface
properties.

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Gsell col. 2, ll. 48–65. This is not directly supportive of the Examiner’s
finding. Further, the Examiner has not made explicit findings showing that
the specific teachings of Gsell are applicable to the specific LCST polymers
of Meijer (or any LCST polymer). See Final Act. 8; Answer 17.
Accordingly, we determine that the Examiner has not made an adequate
showing that a person of ordinary skill in the art would have had reason to
combine the teachings of Gsell with those of Meijer.
In view of the foregoing determination, we need not reach Appellant’s
arguments regarding nonanalogous art. Appeal Br. 12–13.

CONCLUSION

In view of the reasoning set forth in the Final Action, the Examiner’s
Answer, and above, the Examiner’s rejections of claims 22–31 are affirmed.
The Examiner’s rejection of claim 42 is reversed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
22, 25–28,
30, 31
103 Moore, Weisman,
Meijer
22, 25–28,
30, 31

23, 24 103 Moore, Weisman,
Meijer, Keefer
23, 24
29 103 Moore, Weisman,
Meijer, Tai
29
42 103 Moore, Weisman,
Meijer, Gsell
42
Overall
Outcome
22–31 42

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED IN PART