Ex Parte Aseere

Board of Patent Appeals and Interferences

Jun 25, 2012

11438732 (B.P.A.I. Jun. 25, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/438,732 05/22/2006 Lester M. Aseere 7387 4537
29602 7590 06/25/2012
JOHNS MANVILLE
10100 WEST UTE AVENUE
PO BOX 625005
LITTLETON, CO 80162-5005
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1798
MAIL DATE DELIVERY MODE
06/25/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LESTER M. ASEERE
____________

Appeal 2011-000778
Application 11/438,732
Technology Center 1700
____________

Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2011-000778
Application 11/438,732

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DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 6-17.2 We have jurisdiction under 35 U.S.C. § 6(b).
Claim 9, the sole independent claim, is representative of the invention and is
reproduced below from the Claims Appendix to the Appeal Brief:
9. A method for manufacturing a carpet comprising:

(a) forming a primary backing mat comprised of mat fibers
arranged so that primary backing mat has a plurality of openings, said
mat fibers having an exterior surface coated with thermoplastic
polymer particles of a thermoplastic material having a melting
temperature lower than that of said mat fibers;

(b) tufting carpet fiber yarn between said openings in said
primary backing mat, thereby forming a tufted primary backing mat,
and

(c) heating said tufted primary backing mat in a post tufting
heat treatment process to melt said thermoplastic polymer particles
thereby creating a bond between the tufted carpet yarn
and said mat fibers.

Appellant requests review of the following grounds of rejection (App. Br. 3):
1. claims 9-16 under 35 U.S.C. § 103(a) as unpatentable over Chambley
(US 4,035,533, issued July 12, 1977) and/or Guild (US 4,439,476, issued Mar. 27,
1984) in view of Van Geenen (US 2004/0171763 A1, published Sep. 2, 2004)
(Ans.3 3-6);

1 Final Office Action mailed Sep. 29, 2009 (“Final”).
2 Appeal Brief filed Apr. 29, 2010 (“App. Br.”).
3 Examiner’s Answer mailed Jun. 7, 2010.
Appeal 2011-000778
Application 11/438,732

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2. claim 17 under 35 U.S.C. §103(a) as unpatentable over Chambley in
view of Van Geenen (Ans. 6); and
3. claims 6-8 under 35 U.S.C. § 103(a) as unpatentable over Chambley
and/or Guild in view of Van Geenen and further in view of Chapman (US
4,144,538, issued Mar. 13, 1979) (Ans. 6-7).
Appellant presents a single issue for our consideration (see generally, App.
Br. 3-5; Rep. Br.4 1-3): did the Examiner reversibly err in determining it would
have been obvious to have used thermoplastic polymer particles in place of the
film and fiber adhesives used in the Chambley and Guild methods to achieve the
method recited in appealed claim 9?
We answer this question in the negative, and AFFIRM for the reasons
expressed in the Answer (Ans. 3-9).
Appellant argues Chambley and Guild do not disclose or suggest “mat fibers
having an exterior surface coated with thermoplastic polymer particles.” (App. Br.
4.) Appellant has not, however, identified error in the Examiner’s finding that Van
Geenen evidences “thermoplastic adhesives in powder or particulate form are well
known alternatives to film or fiber adhesives” (Ans. 4-5; see also, Final 3).
The substitution of one known element for a known equivalent is prima facie
obvious. In re Mayne, 104 F.3d 1339, 1340 (Fed. Cir. 1997); see also KSR Int'l.
Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“When there is a design need or
market pressure to solve a problem and there are a finite number of identified,
predictable solutions, a person of ordinary skill has good reason to pursue the
known options within his or her technical grasp. If this leads to the anticipated
success, it is likely the product not of innovation but of ordinary skill and common
sense.”).

4 Reply Brief filed Aug. 5, 2010.
Appeal 2011-000778
Application 11/438,732

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Appellant argues thermoplastic polymer particles would not work in the
processes of Chambley and Guild. (Rep. Br. 1 and 3.)5 However, Appellant has
not provided the type of persuasive argument or evidence needed to refute the
Examiner’s prima facie case of obviousness. See In re Geisler, 116 F.3d 1465,
1471 (Fed. Cir. 1997) (argument by counsel cannot take the place of evidence); In
re Lindner, 457 F.2d 506, 508 (CCPA 1972) (mere conclusory statements of
superiority in the Specification and/or the Brief, unsupported by factual evidence,
are of little probative value). Appellant also argues modification of Chambley and
Guild to apply adhesive according to Van Geenen’s process would not work.
(Rep. Br. 3.) However, the Examiner’s rejection is not based on such modification
of the primary references, i.e., Appellant’s arguments fail to show error in the facts
and reasons relied on by the Examiner in rejecting the claims.
In sum, for the reasons expressed in the Answer and above, we affirm the
Examiner’s decision to reject claims 6-17.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

5 We have considered the arguments raised in the Reply Brief, in light of the
Examiner’s in advertent omission of Van Geenen from the rejection heading in the
Final Rejection. (Ans. 3.) However, as pointed out by the Examiner, reliance on
Van Geenen should have been apparent from other portions of the Final. (Id. at 3-
4.) Appellant is reminded that arguments not raised in the Appeal Brief are
deemed to have been waived. See 37 C.F.R. § 41.37(c)(1)(vii) (second sentence);
In re Hyatt, 211 F.3d 1367, 1373 (Fed. Cir. 2000) (noting that an argument not first
raised in the brief to the Board is waived on appeal); Ex parte Borden, 93 USPQ2d
1473, 1477 (BPAI 2010) (informative) (“Properly interpreted, the Rules do not
require the Board to take up a belated argument that has not been addressed by the
Examiner, absent a showing of good cause.”).

Appeal 2011-000778
Application 11/438,732

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