DIEHL AVIATION LAUPHEIM GMBH

Patent Trials and Appeals Board

Jun 17, 2020

2019004724 (P.T.A.B. Jun. 17, 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.
15/361,570 11/28/2016 Andreas HARMS DSC-CP-0161 9781
24131 7590 06/17/2020
LERNER GREENBERG STEMER LLP
P O BOX 2480
HOLLYWOOD, FL 33022-2480
EXAMINER
OMORI, MARY I
ART UNIT PAPER NUMBER
1784
NOTIFICATION DATE DELIVERY MODE
06/17/2020 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):
boxoa@patentusa.com
docket@patentusa.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS HARMS and MATTHIAS HOFFMANN
Appeal 2019-004724
Application 15/361,570
Technology Center 1700
Before N. WHITNEY WILSON, JULIA HEANEY, and LILAN REN,
Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–14. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).

1 This Decision refers to the Specification filed Nov. 28, 2016 (“Spec.”),
Final Office Action dated Sept. 7, 2018 (“Final Act.”), Advisory Action
dated Nov. 26, 2018 (“Advisory Act.”), Appeal Brief dated Jan. 14, 2019
(“Appeal Br.”), and Examiner’s Answer dated Mar. 27, 2019 (“Ans.”).
2 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 Diehl
Aviation Laupheim GmbH. Appeal Br. 1.
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We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a soft touch surface sandwich element with
a fire-retardant layer in the interior of the sandwich element. Claim 1,
reproduced below, is the sole independent claim:
1. A sandwich element, comprising:
an interior of the sandwich element;
a fire-retardant layer disposed in said interior;
a base element; and
a structural element;
said structural element forming a soft touch surface of the
sandwich element;
said structural element containing at least two functional
layers;
one of said functional layers being a soft touch layer and
another of said functional layers being a decorative layer forming
said soft touch surface; and
said soft touch layer being disposed between said
decorative layer and said base element.
Appeal Br. 11 (Claims Appendix)(emphasis added).

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Hutchings US 6,102,995 Aug. 15, 2000
Spengler US 8,012,290 B2 Sept. 6, 2011
Gonzalez–Garcia
(“Garcia”)
US 2015/0190987 A1 July 9, 2015

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REJECTIONS3
1. Claims 1–9, 13, and 14 are rejected under 35 U.S.C. § 103 as
being unpatentable over the combination of Spengler and
Garcia. Final Act. 5.
2. Claims 10–12 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Spengler, Garcia, and
Hutchings. Final Act. 8.

OPINION
Rejection 1
Claims 1, 3–9, 13, and 14
Appellant argues claim 1 and does not separately argue dependent
claims 3–9, 13, and 14. Appeal Br. 4–9. Accordingly, we discuss claim 1
below; claims 3–9, 13, and 14 stand or fall with claim 1. 37 C.F.R. §
41.37(c)(1)(vii).
The Examiner finds that Spengler teaches a sandwich element
comprising an interior, base element (substrate 1), and soft touch layer
(intermediate cushioning layer 2) between decorative layer (decor layer 3)
and the base element. Final Act. 5 (citing Spengler 6:30–37); see Spengler
Fig. 2. The Examiner acknowledges that Spengler does not teach a fire–
retardant layer disposed in the interior of the sandwich element, but finds
that Garcia teaches a halogen free fire-retardant layer applied to the fiber
containing layers of a multilayer substrate. Final Act. 5–6 (citing Garcia

3 The Examiner withdrew the rejection of claim 9 as unpatentable under
35 U.S.C. § 112(a) prior to this Appeal. Advisory Act. 2.
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¶¶ 27, 31–34). The Examiner determines that it would have been obvious to
one of ordinary skill in the art to apply Garcia’s halogen-free fire-retardant
coating to the surface of Spengler’s base element to provide a high level of
fire resistance. Id. at 6.
Appellant argues that claim 1 requires “a fire-retardant layer disposed
in said interior [of the sandwich element].” Appeal Br. 4. Appellant admits
that Garcia teaches a fire-retardant protective coating on an outer surface
with decorative coatings on top of the fire-retardant protective coating, but
argues that because the decorative coatings are necessarily fire retardant,
Garcia does not teach a fire-retardant layer in the interior of the sandwich
element. Id. at 4–5 (citing Garcia Fig. 3, ¶¶ 27, 34). The Examiner responds
that there is no disclosure in Garcia that requires the decorative coatings to
necessarily be fire retardant and even if Garcia’s decorative coatings were
fire retardant, there is no requirement in the claim that the decorative
coatings must lack fire resistance.
Appellant’s argument does not persuasively identify reversible error.
There is no requirement in open-ended claim 1 that the decorative layer lack
fire resistance. See Ans. 8. Appellant does not dispute that Garcia includes
a fire-retardant layer in the interior of the sandwich element, and claim 1
also encompasses a fire-retardant decorative layer. Accordingly, we affirm
the rejection of claim 1.
Claim 2
Claim 2 depends from claim 1 and additionally recites “said fire-
retardant layer is disposed between said base element and said structural
element.” Appeal Br. 11 (Claims Appendix). Appellant argues that because
Spengler teaches surface decoration 4’, which may be a desired design or
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pattern, on outer surface 4 of decor layer 3, the combination of Spengler and
Garcia would lead one of ordinary skill in the art to place the fire–retardant
layer between outer surface 4 and surface decorative layer 4’ above soft
touch cushioning layer 2. Id. at 7–8 (citing Spengler Fig. 2, 6:30–55).
Appellant argues that because claim 2 requires the fire-retardant layer be
disposed between the base element and the structural element, which
comprises a decorative layer and a soft touch layer, the combination of
Spengler and Garcia would not lead to a sandwich element according to
claim 2. Id.
Appellant’s argument does not persuasively identify reversible error.
Garcia teaches a multilayer structure with flame resistant protective coating
28 formed directly on upper skin 24, which is made of natural fibers in order
to provide a fire resistant coating that does not require the natural fibers to
be soaked with a flame-retardant solution. Garcia Fig. 1, ¶¶ 24, 32, and 34.
Spengler teaches that substrate base element 1 may be made of natural
fibers. Spengler 6:1–4. In view of these teachings, the Examiner’s
determination that a person of ordinary skill in the art would place Garcia’s
fire-retardant protective layer directly on the substrate base element of
Spengler in order to avoid the need to soak the natural fibers with a flame-
retardant solution is reasonable. See Ans. 10–11 (citing Spengler 6:1–4;
Garcia ¶ 32). The combination of Spengler and Garcia would put a flame-
retardant layer between the base element and the structural element, which is
encompassed by claim 2. Accordingly, we affirm the rejection of claim 2.

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Rejection 2
The Examiner finds that the combination of Spengler and Garcia
teaches the limitations of the sandwich element recited in claim 1 as
described above, but does not teach the fire-retardant layer is an intumescent
fire-retardant layer. Final Act. 8–9. The Examiner finds that Hutchings
teaches using an intumescent composition containing aluminum hydroxide
and expandable graphite as a fire-retardant coating composition suitable for
producing a hard coating on a substrate. Id. (citing Hutchings 15:20–23).
The Examiner determines that it would have been obvious to a person of
ordinary skill in the art to use an intumescent composition containing
aluminum hydroxide and expandable graphite in Garcia’s fire-retardant
coating composition in order to provide a known and suitable composition
for forming a fire-retardant coating on the substrate. Id.
Appellant argues that Hutchings only teaches an intumescent coating
on a top surface and therefore does not teach the claimed internal
intumescent fire-retardant layer. Appeal Br. 8–9.
Appellant’s argument does not persuasively identify reversible error,
because it is not responsive to the rejection, and argues the references
individually. The rejection does not rely on Hutchings to teach the location
of the fire-retardant layer, but rather its composition. See Ans. 12. The fact
that Hutchings teaches the intumescent layer on a top surface of a substrate
does not prevent the combination of Spengler, Garcia, and Hutchings from
teaching other coatings or layers on the fire–retardant layer. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (“The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference . . . . Rather, the test is what the
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combined teachings of the references would have suggested to those of
ordinary skill in the art.”). Accordingly, we affirm the rejection of claim 10.
Appellant does not separately argue dependent claims 11 and 12 (Appeal Br.
8–9), and therefore, we also affirm the rejection of those claims. 37 C.F.R.
§ 41.37(c)(1)(vii).

CONCLUSION
The Examiner’s rejections are AFFIRMED.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–9, 13, 14 103 Spengler, Garcia, 1–9, 13,
14

10–12 103 Spengler, Garcia,
Hutchings
10–12
Overall
Outcome:
  1–14

TIME PERIOD FOR RESPONSE
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