Ex Parte 8028491 et al

Patent Trial and Appeal Board

Mar 25, 2015

95001775 (P.T.A.B. Mar. 25, 2015)

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.
95/001,775 10/04/2011 8028491 766P001C-RXE 9178
42754 7590 03/26/2015
Nields, Lemack & Frame, LLC
176 E. Main Street
Suite #5
Westborough, MA 01581
EXAMINER
DAWSON, GLENN K
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
03/26/2015 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

ENGINEERED PLASTICS, INC.
Requester

v.

ADA SOLUTIONS, INC.
1

Patent Owner, Appellant
____________________

Appeal 2015-001529
Reexamination Control 95/001,775
Patent US 8,028,491 B2
2

Technology Center 3900
____________________

Before STEVEN D.A. McCARTHY, DANIEL S. SONG and
BRETT C. MARTIN, Administrative Patent Judges.

SONG, Administrative Patent Judge

DECISION ON APPEAL

1
ADA Solutions, Inc. is the Patent Owner and the real party in interest
(Appeal Brief of Patent Owner (hereinafter "ABPO") 3).
2
Patent US 8,028,491 B2 (hereinafter "the ’491 patent") issued October 4,
2011 to Flaherty et al. The ’491 patent issued from an application, which is
a continuation of an application that issued as U.S. Patent No. 7,779,581.
This parent patent was the subject of merged Reexamination Control Nos.
95/001,635 and 90/009,907, and Appeal 2014-001732 for which a Decision
on Appeal was mailed June 20, 2014, and a Decision on Request for
Rehearing was mailed January 15, 2015.
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STATEMENT OF THE CASE
Claims 1, 2 and 19–22 are subject to reexamination and stand
rejected, while claims 3–18 have been canceled (Right of Appeal Notice
3

(hereinafter "RAN") PTOL-2006; ABPO 5). The Patent Owner appeals
under 35 U.S.C. §§ 134(b) and 315 from the Examiner's rejections of claims
1, 2 and 19–22 (ABPO 5). In addition to its Appeal Brief, the Patent Owner
has submitted Declaration of John Flaherty, Declaration of Cecil Huey, Jr.
and Declaration of Helmut Klohn. We have jurisdiction under 35 U.S.C.
§§ 134 and 315.
4

We are also informed that the ’491 patent is involved in the following
legal actions:
1. ADA Solutions, Inc. v. Engineered Plastics, Inc., et al.,
Civil Action No. 1:10-cv-11512-NMG (D. Mass.), which has
been stayed; and
2. ADA Solutions, Inc. v. Cape Fear Systems, LLC, et al.,
Civil Action No. 11-11759-NMG (D. Mass.), which has also
been stayed.
(ABPO 4).

We AFFIRM.

3
The Examiner's Answer incorporates by reference the RAN. Thus, we cite
to the same.

4
The Requester also filed a Notice of Cross-Appeal on March, 4, 2014 but
its subsequent briefing was found defective and the Cross-Appeal was
dismissed (see Order from the Board mailed September 8, 2014; see also
Transmittal of Communication to Third Party Requester mailed September
19, 2014). In any event, the Requester's Cross-Appeal would have been
moot in view of our affirmance of the Examiner's decision to reject all of the
claims at issue for the reasons discussed infra.
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THE INVENTION
The ’491 patent is directed to a replaceable, wet-set tactile warning
surface unit and a method of installing the same (Title). Independent claim
1 is representative and reads as follows (ABPO, Claims App.):
1. A method of installing a replaceable, wet-set tactile
warning surface unit, said unit having an upper surface, a lower
surface, and a perimeter flange that is thicker than the rest of
the body and extending from the lower surface and having a
plurality of spaced slots, the body defining a series of raised
projections on its upper surface and defining a plurality of
spaced through-holes from the upper to the lower surface,
comprising:
installing a plurality of fasteners through the plurality of
through-holes;
affixing an anchor member to each of the plurality of
fasteners, such that the anchor members are coupled to the
lower surface of the body; and
placing the unit into fresh concrete and applying force to
the top of the unit to embed the unit in the concrete such that
the unit edges are approximately flush with the top surface of
the concrete and essentially all of the air trapped under the unit
escapes through the spaced slots in the perimeter flange.

REJECTIONS
The Examiner rejected the following claims under 35 U.S.C. § 103(a)
as obvious over the noted combinations of references:
1. Claims 1 and 2 over Trafixigns
5
in view of one of ADA CIP,
6

Boghossian,
7
Szekely,
8
Wehmeyer
9
or Llewellyn.
10

5
AU 21,483/35 (October 3, 1935).
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2. Claims 1 and 2 over BART
11
or Wehmeyer.
3. Claims 1, 2, 19 and 20 over Szekely in view of Trafixigns and
Wehmeyer.
4. Claim 21 over Trafixigns in view of ADA CIP and Wehmeyer or
Armor Tile Installation Instructions.
12

5. Claim 21 over Trafixigns in view of Boghossian and Wehmeyer
or Armor Tile Installation Instructions.
6. Claim 21 over Trafixigns in view of Szekely and Wehmeyer or
Armor Tile Installation Instructions.
7. Claim 21 over Trafixigns in view of Wehmeyer.
8. Claim 21 over Trafixigns in view of Llewellyn and Wehmeyer or
Armor Tile Installation Instructions.
9. Claims 21 and 22 over Szekely in view of Trafixigns and
Wehmeyer.

ANALYSIS
Only those arguments made in the briefs of record in this appeal have
been considered. Other arguments not made or those not properly presented

6
ADA Solutions, Inc. Cast-in-Place Truncated Dome Detectable Warning
System Products (Nov. 18, 2005).
7
US 2007/0269264 A1 (Nov. 22, 2007).
8
US 5,303,669 (Apr. 19, 1994).
9
US 7,674,066 B2 (Mar. 9, 2010).
10
GB 486,128 (May 31, 1938).
11
Engineering Drawing of Armor-Tile ADA for BART Golden Bay (July
15, 1997).
12
Armor-Tile Transit Systems Installation Instructions for ADA Modular
Precast Tactile Paver Tiles (Undated).
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to the Board have not been considered and are deemed to be waived. See 37
C.F.R. § 41.67(c)(1)(vii). We also address the appealed rejections in an
order that differs from that presented by the involved parties.

Rejection 1
Claims 1 and 2 stand rejected over Trafixigns in view of one of ADA
CIP, Boghossian, Szekely, Wehmeyer or Llewellyn. We address infra,
Rejection 1 based on the combination of Trafixigns in view of Wehmeyer,
and the combination of Trafixigns in view of Boghossian. As to the
rejections alternatively based on other secondary references, we find it
unnecessary to reach them.

Trafixigns in View of Wehmeyer
The Examiner finds that Trafixigns discloses the methods of installing
a tactile warning surface unit with anchors as recited in these claims,
including "affixing an anchor member to the fasteners such that the anchors
are coupled to the lower surface of the body." (RAN 29). The Examiner
further finds that Wehmeyer discloses installation of such a device in wet
concrete as well as on hardened concrete (id. at 29–30; see also Wehmeyer
col. 2, ll. 36-44). The Examiner concludes that it would have been obvious
to a person of ordinary skill in the art to have installed the tiles of Trafixigns
into fresh cement as taught by Wehmeyer, and further observes that the slots
10 disclosed in Trafixigns would allow the air under the tile to be pushed out
therefrom when the tile is installed (RAN 30). We find no error in the
Examiner's findings and conclusion.
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First, the Patent Owner observes that the claims require the anchor
members to be coupled to the body so that these components are embedded
together into the fresh concrete (ABPO 10–11). The Patent Owner notes
that Trafixigns is silent as to the installation method, and asserts that based
on another reference, it is likely installed by first embedding the anchors into
concrete and then attaching the plate to the anchors using bolts (ABPO 12).
13

However, this line of reasoning is unpersuasive because the Trafixigns
reference relied upon by the Examiner as the basis of the present rejection is
silent as to the method and order of its installation.
In contrast to Trafixigns which is silent as to the method and order of
its installation, Wehmeyer specifically discloses that:
textured tile units [] can be detachably installed and set into
position on or in freshly poured or on hardened concrete or
other non-hardened or on . . . hardened material, such as
asphalt, to be incorporated into a surface to provide visual and
tactile warnings to the visually impaired or handicapped, or to
other pedestrians in need of warning.
(Wehmeyer, col. 2, ll. 36-44, emphasis added).

13
The Patent Owner's assertion is based on Trafixigns GB 433,732 (Aug. 20,
1935) which states, "[o]n screwing the bolt heads the bolts 10 hold the block
securely in position on the road or the like when the keys have been
embedded in the concrete." (Trafixigns GB 433,732, pg. 2, ll. 10-13; ABPO
12). However, Trafixigns AU 21,483/35, which is the actual reference
relied upon in the rejection, does not include the same statement.
Additionally, the statement in Trafixigns GB 433,732 also does not specify
that the keys are embedded in the concrete first and the concrete cured prior
to securing the plate. Moreover, as discussed infra, Wehmeyer specifically
teaches installation of its panel with secured lugs into fresh concrete.
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In addition, as to affixing the anchor members and placement of the
same with the body/panel in fresh concrete, Wehmeyer specifically discloses
that:
in a preferred mode of installation, the tactile panel (102) with
lugs (122) attached may be set into an uncured concrete bed
and leveled to be in a substantially flush-fitting arrangement
with a surface pedestrian-use area, such as by tapping and/or
vibrating with a mallet.
(Wehmeyer, col. 8, ll. 17-21).

Thus, the Examiner's rejection of claims 1 and 2 is based on the
specific disclosure of Trafixigns and the technical teaching of Wehmeyer.
The Patent Owner also notes that whereas these claims require slots
that allow air to escape from underneath the unit when it is installed in fresh
concrete, Wehmeyer teaches trapping of air under the tile to create a
different sound when the tile is stepped on or tapped (ABPO 15; see also
Wehmeyer, col. 6, ll. 3-8). The Patent Owner asserts that this trapping of air
is required by Wehmeyer so that a person of ordinary skill in the art, in
modifying Trafixigns in view of Wehmeyer, would ensure that air is trapped
underneath the tile which is contrary to the claims (ABPO 15). In this
regard, the Patent Owner points to washers in Trafixigns for allowing height
adjustment as being consistent with Wehmeyer's trapping of air (ABPO 15).
However, the Patent Owner's argument does not take into account the
collective teachings of the prior art. In determining obviousness, a reference
"must be considered for everything it teaches by way of technology and is
not limited to the particular invention it is describing and attempting to
protect." See EWP Corp. v. Reliance Universal Inc., 755 F.2d 898, 907
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(Fed. Cir. 1985) ("A reference must be considered for everything it teaches
by way of technology and is not limited to the particular invention it is
describing and attempting to protect. On the issue of obviousness, the
combined teachings of the prior art as a whole must be considered."); see
also In re Heck, 699 F.2d 1331, 1332-33 (Fed. Cir. 1983).
Wehmeyer clearly provides the technical teaching that replaceable
tactile tiles (or units) with the lugs (or anchor members) attached thereto can
be installed into fresh concrete. Whereas Wehmeyer also teaches the
desirability of entrapping air to generate a distinctive sound as a warning
signal for a person having impaired vision (Wehmeyer, col. 6, ll. 35-43), it is
also clear that this implementation is a preferable embodiment that provides
additional functionality to the tactile tiles (id. at col. 6, 30-35). In fact,
Wehmeyer specifically discloses that:
[i]n yet still another preferred aspect of the invention, the tactile
tile (102) may be installed with lugs (122) intact into an
embedment surface (134), but with a material covering the
bottom surface (112), except for the protruding lugs (122). In
this embodiment, a minimum of entrapped air, or substantially
only that needed for effective sound-emitting dome structures
will be present while installing an inventive tactile tile or panel,
and reducing or avoiding an excessive amount of entrapped air
which may facilitate cracking or fracturing of tiles.
(Wehmeyer, col. 8, ll. 42-51, emphasis added).
Thus, Wehmeyer also provides a technical teaching and motivation for
minimizing the amount of air under the tile. Moreover, Trafixigns discloses
an embodiment that does not have height adjustment washers under the plate
(Trafixigns, Fig. 7).
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The Patent Owner also argues that even if the teachings of Wehmeyer
are applied to Trafixigns, the recesses 10 in the plate 1 of Trafixigns serve to
key the plate to the surface of the road, or serve as positioning means for
rods or bars that occupy the recesses, thereby precluding air from escaping
as required by the claims (ABPO 15). However, if the rods or bars are
embedded within the wet concrete, air that is between the plate of Trafixigns
and the wet concrete surface would be displaced through the plate's recesses
during the installation of the plate into the wet concrete when the rods or
bars are not yet received within the recesses. The Patent Owner's argument
merely focuses on the completely installed position of the plate 1 wherein
the rods or bars would be received within the recesses. Claim 1 is clear that
the act of placing the unit into fresh concrete, and applying force to embed
the unit, causes the air underneath to escape. It is also clear from the
specification of the ’491 patent that such escape of air occurs as the unit is
being installed (see the ’491 Patent, col. 8, ll. 51-63).
The Patent Owner further argues that claims must be interpreted in
view of the specification of the ’491 patent to require that the step of
affixing the anchors to the body occurs prior to placing the unit into fresh
concrete (ABPO 16–17). However, even if the claims are interpreted in the
manner advocated, this argument is unpersuasive in view of the disclosure of
Wehmeyer as discussed supra.
Therefore, in view of the above, we affirm the Examiner's rejection of
claims 1 and 2 as obvious over Trafixigns and Wehmeyer.

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Trafixigns in View of Boghossian
As noted above, the position of the Examiner is that Trafixigns
discloses the method of installing a tactile warning surface unit with anchors
as recited in these claims (RAN 24–25). The Examiner further finds that
Boghossian discloses installation of such a device in wet concrete rather than
in hardened concrete (id. at 25; see also Boghossian, ¶ [0013]). The
Examiner concludes that it would have been obvious to a person of ordinary
skill in the art to install the tiles of Trafixigns into wet cement, and when
done so, slots 10 of Trafixigns would allow for escape of the air from
underneath the plate (RAN 25–26).
The Patent Owner's arguments regarding Trafixigns have already been
addressed supra. As to Boghossian, the Patent Owner argues that the
method of installation taught by Boghossian differs from that claimed
because the anchors therein are not coupled to the lower surface so that air
can be vented through the bolt holes on top of the tile during installation
(ABPO 13). The Patent Owner also argues that the rounded head on the
bolts of Boghossian cannot be unfastened from the anchor nuts, and because
the anchor nuts of Boghossian do not cover the entire threads of the bolt, the
threads thereof are immersed in concrete so that the safety tiles cannot be
easily replaced (id.).
The Patent Owner appears to misunderstand the Examiner's rejection
and argues the references individually. While relevant to the particular
tactile surface units or tiles disclosed in Boghossian, the fact that the anchors
of Boghossian are not coupled to the body to allow venting of air, as well as
the specific details of its bolts noted by the Patent Owner, are not dispositive
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of the rejection on appeal. The Examiner's rejection is that it would be
obvious to install the plate of Trafixigns in wet concrete as disclosed in
Boghossian (RAN 25–26). The Examiner further noted that Trafixigns
anticipates removal of the plates by virtue of providing removable washers,
and thus, it would have been obvious to a person of ordinary skill in the art
to replace a removed plate as recited in claim 2 with another duplicate plate
if the plate "became worn or damaged." (RAN 26). As the Examiner
correctly found, Trafixigns discloses a plate/body and collar/anchor
assembly wherein the anchor is coupled to the lower surface of the body
(Trafixigns, Figs. 1-3, 7). As also correctly found by the Examiner,
Boghossian provides a technical teaching that such devices can be installed
with their anchors, in wet, uncured concrete (Boghossian ¶ 13). The specific
details of Boghossian's fastener or manner of venting of the air do not nullify
this technical teaching.
Therefore, in view of the above, we affirm the Examiner's rejection of
claims 1 and 2 as obvious over Trafixigns and Boghossian.

Rejection 7
Claim 21 stands rejected over Trafixigns in view of Wehmeyer. The
Patent Owner merely relies on dependency on claim 1 for patentability of
claim 21 (ABPO 24). Thus, because claim 1 is not patentable over the
combination of Trafixigns in view of Wehmeyer for the reasons discussed
supra, Rejection 7 is also affirmed.

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Rejection 3
Claims 1, 2, 19 and 20 stand rejected as obvious over Szekely in view
of Trafixigns and Wehmeyer. The Examiner finds that Szekely discloses the
steps of the claimed method of installing a wet-set tactile warning surface
unit including fasteners 36 that extend through through-holes and "spaced
slots 30 passing through the flange that would allow air to escape from under
the unit when it is installed in fresh concrete." (RAN 36). The Examiner
relies on both Trafixigns and Wehmeyer for teaching "replaceable units" and
"affixing anchors to the fasteners" to conclude that "[i]t would have been
obvious to have replaced the concrete anchoring screws of Szekely with
fasteners and removable anchoring members" to allow for later removal and
replacement of a damaged tile unit (RAN 36).
The Patent Owner argues that in Szekely, the wet-set tactile warning
surface unit of Figures 17–19 does not include fasteners 36, but instead, is
anchored by the use of holes 30 in flange 41 "which fill with concrete and
lock the tile in place." (ABPO 21). According to the Patent Owner, "[i]t
simply would make no sense to include removable anchors in the Szekely
tile, since the concrete passing through the holes 30 in the Szekely flanges
permanently secures the tile in the cement" such that the tiles cannot be
removed (id.).
The Patent Owner's arguments are unpersuasive. The Examiner found
Szekely as disclosing "the unit having an upper surface, a lower surface and
a perimeter flange 14 that is thicker than the rest of the body (see fig. 17-19
for example)." (RAN 36). Thus, not only was the Examiner's reference to
Figures 17–19 directed to other limitations not related to the fasteners or the
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holes, but, it is also clear that Figures 17–19 were merely cited as an
example. In this regard, as the Examiner clarified, "[a]s seen in Szekely fig.
2[,] this tile has both holes 30 in the flange and anchoring screws 36."
(RAN 17; Szekely, Fig. 2). Furthermore, as the Examiner further explained
(RAN 17), Szekely discloses that the holes 30 "assist in anchoring the tile in
freshly poured concrete" (Szekely, col. 6, ll. 50–53), thereby indicating
presence of other mechanisms for attaching the tile to the concrete.
Therefore, even if holes 30 in the flanges of Szekely were replaced with
slots of Trafixigns, the tile of Szekely would remain affixed to the concrete
via a mechanical fastener.
As to the Patent Owner's assertion that the holes 30 of Szekely prevent
its tiles from being removed, we agree with the Examiner that this argument
"is not well taken." (RAN 18). As noted by the Examiner (RAN 17–18),
Figures 4–6, and specifically, Figure 6a of the ’491 patent itself discloses a
preferred embodiment wherein the tactile warning surface unit 10a has
removable anchors 20a as well as holes 29 in the flange that allow air to
escape when pressed into wet fresh cement. Importantly, as the Examiner
points out (id.), in referring to this embodiment, the specification of the ’491
patent states that the tactile warning surface unit 10a "can be removed and
replaced after the concrete has fully cured." (Col. 9, ll. 61–66; Figure 6a).
Thus, the limited evidence of record as to this issue, which is the ’491 patent
itself, specifically teaches that wet-set tactile warning surface units having a
flange with a hole therein are removable and replaceable, contrary to the
assertion now made by the Patent Owner in this appeal.
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Moreover, as to the Patent Owner's argument that the holes 30 of
Szekely "are not slots within the meaning of the instant claims" (ABPO 22),
the Examiner's alternate position in rejecting the claims is that "it would
have been obvious to have provided Szekely with the slots 10 as taught by
Trafixigns in order to provide for a means by which the tile could be keyed
or properly positioned in place on the substrate." (RAN 37). The Patent
Owner further asserts that a person of ordinary skill in the art would not
have replaced the holes with slots (such as provided in the plate of
Trafixigns) "because doing so would render the resulting slots unable to lock
the Szekely tile in place" because the "anchoring function is not possible
were the holes modified to slots" that do not have a bottom (ABPO 22).
However, as discussed supra, even if holes 30 in the flanges of Szekely were
replaced with slots of Trafixigns, the tile of Szekely would remain affixed to
the concrete via a mechanical fastener.
Therefore, in view of the above, the Examiner's rejection of claims 1,
2 and 19 as being unpatentable over Szekely in view of Trafixigns and
Wehmeyer is affirmed.

Claim 20
Claim 20 recites, inter alia, the step of "prying the unit off of the
concrete and leaving the anchor members embedded in the concrete without
disturbing the underlying concrete." (ABPO, Claims App.). The Patent
Owner argues that "[t]his cannot be accomplished with the Szekely wet-set
tile of FIGS. 17-19, since the holes 30 in the flanges 41 anchor the tile in
place. Any prying off of the Szekely wet-set tile would clearly destroy the
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underlying concrete." (ABPO 22). However, as discussed supra, the
Examiner's rejection is alternatively premised on providing the slots
disclosed in Trafixigns in the tiles of Szekely, and the Patent Owner's
arguments against such combination have been found unpersuasive. The
Patent Owner does not explain, nor is it apparent, how the underlying
concrete will be disturbed upon removal of the tile of Szekely that has been
modified to incorporate the slots of Trafixigns as suggested in the
Examiner's rejection. Therefore, the Examiner's rejection of claim 20 based
on the combination of Szekely in view of Trafixigns and Wehmeyer is
affirmed as well.

Rejection 9
Claims 21 and 22 stand rejected over Szekely in view of Trafixigns
and Wehmeyer. The Patent Owner merely relies on dependency on claims 1
and 19, respectively, for patentability of claims 21 and 22 (ABPO 25).
Thus, because claims 1 and 19 are not patentable over the combination of
Szekely in view of Trafixigns and Wehmeyer for the reasons discussed
supra, Rejection 9 is also affirmed.

Rejections 2, 4–6 and 8
Rejections 1, 3, 7 and 9 are affirmed supra. Hence, at least one
rejection of each of claims 1, 2 and 19–22 appealed by the Patent Owner
stands affirmed. Thus, we decline to reach Rejections 2, 4–6 and 8.

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Declarations
As noted supra, the Patent Owner submitted various declarations into
the record. However, the Patent Owner does not specifically rely on any
portion of these declarations, or explain the pertinence of their contents with
respect to the appeal. While we have reviewed and considered these
declarations as they may pertain to the rejections of record, the contents
thereof do not change the analysis set forth supra.

CONCLUSIONS
1. Rejections 1, 3, 7 and 9 are AFFIRMED.
2. We do not reach Rejections 2, 4–6 and 8.

Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. §§ 1.956 and 41.77(g). In the event
neither party files a request for rehearing within the time provided in 37
C.F.R. § 41.79, and this decision becomes final and appealable under 37
C.F.R. § 41.81, a party seeking judicial review must timely serve notice on
the Director of the United States Patent and Trademark Office. See 37
C.F.R. §§ 90.1 and 1.983.

AFFIRMED

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for Patent Owner:

NIELDS, LEMACK & FRAME, LLC
176 E. Main Street
Suite #5
Westborough, MA 01581

for Third Party Requester:

FOLEY HOAG, LLP
Patent Group
World Trade Center West
155 Seaport Blvd.
Boston, MA 02210