Ex Parte Aseere et al

Board of Patent Appeals and Interferences

Apr 19, 2010

10919098 (B.P.A.I. Apr. 19, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte LESTER MICKEL ASEERE,
AMY JEAN LEVERSON, and
KRISTIN FRANZ GOYA OBERMYER
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Appeal 2009-003758
Application 10/919,098
Technology Center 1700
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Decided: April 19, 2010
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Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
MARK NAGUMO, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
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A. Introduction1
Lester Mickel Aseere, Amy Jean Leverson, and Kristin Franz Goya
Obermyer (“Aseere”) timely appeal under 35 U.S.C. § 134(a) from the final
rejection2 of claims 1-10.3 We have jurisdiction under 35 U.S.C. § 6.
We REVERSE.
The subject matter on appeal relates to vinyl floor coverings that
comprise a non-woven or woven glass mat reinforcing member.
The 098 Specification teaches that glass fiber mats inherently have “very
little tolerance, if any,” to contraction and expansion due to the response of
wooden floors to changes in heat and humidity. (Spec. 7, ll. 24-27.) To
solve this problem, Aseere provides a segmented woven or unwoven glass
mat in which the segments of the glass mat are held to one another by a
polymeric binder, and are integrally bonded to a decorated top sheet.
Dimensional adaptability is said to be provided by the polymeric binder that
bonds the segments to one another.
Representative Claim 1 reads:
1. A vinyl floor covering, comprising:
a. a vinyl sheet floor covering having an underside;

1 Application 10/919,098, Vinyl Floor Covering System with Woven or
Non-Woven Glass Fiber Mat Segmented Reinforcement, filed 16 August
2004. The specification is referred to as the “098 Specification,” and is cited
as “Spec.” The real party in interest is listed as Johns Manville. (Appeal
Brief, filed 16 July 2007 (“Br.”), 2.)
2 Office action mailed 12 January 2007 (“Final Rejection”; cited as “FR”).
3 Claim 11 has been withdrawn from consideration and is not before us.
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b. a top show surface having colors, patterns, and textures
printed or embossed thereon;
c. said vinyl sheet floor covering having a thickness with a
centerline;
d. a neutral axis located at said centerline of said thickness
of said vinyl sheet floor covering;
e. a woven or non-woven glass fiber mat bonded by a
polymeric binder and having segmented portions to
form a segmented glass fiber mat,
wherein the segments are in the form of discontinuities
in the mat and are comprised of
random or patterned disruptions of the glass fibers
which separate from each other,
the segments having polymeric binder therebetween;
f. said segmented glass fiber mat being integrally bonded
to said vinyl sheet floor covering to form said vinyl
floor covering;
g. said segmented glass fiber mat providing rigidity to said
vinyl floor covering at said segmented portions of said
segmented glass fiber mat,
said vinyl floor covering operable to be placed on a
subfloor having a surface, said subfloor being subject to
floor dimensional changes;
h. said segmented glass fiber mat providing accommodation
to said floor dimensional changes by deformation of said
polymeric binder located between said segmented
portions of said segmented glass fiber mat;
said segmented glass fiber mat providing increased
strength, flexure resistance, and creasing resistance to
said vinyl floor covering.
(Br., Claims App. 1; indentation, paragraphing, and emphasis added.)
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The Examiner has maintained the following ground of rejection:4
A. Claims 1-10 stand rejected under 35 U.S.C. § 103(a) in view of
the teachings of Kauffman.5
Aseere contends the Examiner failed to establish a prima facie case of
obviousness because Kauffman does not disclose or suggest a segmented
glass fiber mat having polymeric binder that bonds adjacent segments.
(Br. 5.) Rather, according to Aseere, Kauffman discloses that the glass fiber
mat is perforated to form pivot points, and that Kauffman’s floor covering
responds to dimensional changes because perforations get bigger upon
application of an expansive force and smaller on application of a
compressive force. (Br., para. bridging 4-5; Reply 2.6) Aseere does not
raise separate arguments for the patentability of the dependent claims.
(Br. 6.)
The Examiner responds that Kauffman teaches in Example 1 that after
the glass fiber mat is segmented by a perforating or embossing roll, the mat
is coated with a polyvinylchloride plastisol, then heated and stretched.
(Ans. 7, first full para., citing Kauffman, col. 8, ll. 46-66, Figure 7, and
Example 1 [col. 9-10].) The Examiner argues that because Kauffman
teaches that the plurality of slits form pivot points that allow the glass fiber
reinforcing layer to increase and decrease in dimension, and because the
glass fiber mat is coated with the plastisol, “it appears that the layer in

4 Examiner’s Answer mailed 6 August 2008 (“Ans.”), 3.
5 William J. Kauffman et al., Hybrid Floor Covering, U.S. Patent 5,080,944
(1992).
6 Reply Brief filed 25 September 2008 (“Reply”).
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totality and specifically the area of the reinforcing layer comprising the slits
or line segments must necessarily deform in some manner in order to allow
for the increase and decrease in dimension.” (Ans. 8.) The Examiner finds
further that the 098 Specification, at page 12, lines 9-21, describes a process
substantially similar to the one taught by Kauffman. (Id. at 7, last para.)
The Examiner concludes that “the claimed limitation requiring the polymeric
binder to be located between the segmented portions of the glass fiber mat
appears to be taught by Kauffman.” (Id. at 7, last para.) The Examiner does
not discuss the dependent claims separately.
The issue dispositive of this case is whether Aseere has shown that the
Examiner erred in finding that Kauffman teaches that the segmented
portions of the glass fiber mat are held together by polymeric binder.
B. Findings of Fact
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The 098 Specification
1. According to the 098 Specification, “[t]he woven or nonwoven glass
fiber mat with polymeric binder is fed through a set of embossing or scoring
rollers having matting patterns representing the scoring or parting lines.”
(Spec. 9, ll. 6-8.)
2. The 098 Specification explains that the embossing subjects the glass
mat “to sharp radius bends thereby segmenting the woven or non-woven
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glass fiber mat into discrete segments held together by the polymeric
binder.” (Spec. 9, ll. 9-11.)
3. The 098 Specification describes an embodiment in which a glass fiber
mat is coated with a polyvinylchloride (or similar) polymeric composition,
cured, and then passed through a set of patterned rollers 34 and 35.
(Spec. 12, ll. 10-18; reference labels presented in bold for clarity.)
4. In the words of the 098 Specification, “[p]atterned rollers 34 and 35
emboss and crush the glass fibers in the glass fiber mat along patterned
lines 36 forming segments 37. The polymeric coating retains the segmented
glass fiber mat and the segmented glass fiber mat is wound on roll 38.”
(Spec. 12, ll. 18-21.)
Kauffman
5. Kauffman teaches a plastisol impregnated non-woven web having
perforations 2 in a diagonal pattern, shown in Figure 1, reproduced below
left, which expands under tension 3, as shown in Figure 2, below right:

{Fig. 1, left, shows a slit pattern. Fig. 2, right, shows the slits expanded
under tension 3}
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6. In Kaufmann’s words, “As the mat in FIG. 2 expands laterally from
the unstressed condition of FIG. 1, the perforations 2 are widened.”
(Kauffman, col. 7, ll. 17-19.)
7. The first and second line segments shown in Figs. 1 and 2 are
described as being nonintersecting, and to “interact so as to form pivot
points.” (Kauffman, col. 7, ll. 42-48.)
8. Kauffman emphasizes that “the sole requirement [is] that the
structures be provided with pivot points such that the width of the layer will
expand in a direction substantially transverse to an applied tensile force.”
(Kauffman, col. 7, ll. 54-56.)
9. According to Kauffman, the expandable diagonal pattern glass mat
shown in Figs. 1 and 2 is encapsulated with a plastisol. (Kauffman, col. 3,
ll. 40-43.)
10. In Kauffman’s words, “[b]ecause of the controlled pre-stressed
condition of the reinforcing layer, the adjacent sides of the slits are pulled
apart.” (Kauffman, col. 3, ll. 42-46.)
11. In Example 1, Kauffman describes the construction of a glass-fiber
mat reinforced floor covering in which the glass mat is coated with three
layers of plastisols, each cured before the next layer is added (Kauffman,
col. 9, l. 21, through col. 10, l. 31), including a decorated and clear-coated
top surface (id. at col. 10, ll. 18-26).
12. The structure is then fed between a pinch nip comprising an
embossing roll and a smooth steel backing roll, with the glass mat facing the
embossing roll. (Id. at ll. 32-39).
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13. According to Kauffman, “[s]ufficient pressure was supplied to the
pinch nip to emboss into and perforate the glass mat producing the pattern
shown in FIG. 1.” (Kauffman, col. 10, ll. 39-41.)
14. After coating the structure with 0.012 inches of plastisol D and fusing
the coating by passing the structure around a heated drum, “surface tension
was applied to the heated sheet by cooling cans following the drum
sufficient to open the perforations within the glass mat causing expansion
transverse to the applied tension.” (Kauffman, col. 10, ll. 47-51.)
C. Discussion
Aseere does not contest the Examiner’s finding that Kauffman
describes segmented glass fiber mats. Rather, Aseere argues that the
Examiner erred in finding that perforations 2 in the mat are not bound
together by the applied polymer binder. There appears to be no reason to
doubt the Examiner’s observation (Ans. 8) that the area of the reinforcing
layer must change in some way. But the Examiner has not shown or
explained why the slits, after they have been opened by the tensile stretching
operation, must be filled with the polymeric binder.
The Examiner argues that the edges of the perforations are bound
based on the similarity of Kauffman’s process of embossing the plastisol-
impregnated glass mat and the subsequent coating of the embossed mat with
plastisol D. (Ans. 7, last para.; id. at 9, last sentence.) However, Kauffman
describes perforating a plastisol-impregnated glass web with an embossing
roller. In contrast, Aseere describes segmented glass mats prepared by
breaking the glass fibers of a glass web embedded in a cured polymeric
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composition, but leaving the cured polymer intact. (Spec. 12, ll. 18-20.)
Thus, Aseere does not describe a step in which the mats are perforated.
Kauffman then describes coating the perforated mat with plastisol D, and
then subjecting the embossed mat to tension “sufficient to open the
perforations within the glass mat causing expansion transverse to the applied
tension.” (Kauffman, col. 10, ll. 47-51; emphasis added.) Indeed, Kauffman
states that “[b]ecause of the controlled pre-stressed condition of the
reinforcing layer, the adjacent sides of the slits are pulled apart.”
(Kauffman, col. 3, ll. 42-46.) The Examiner’s analysis does not account for
the pre-stressing stretching step. Nor has the Examiner directed our
attention to any disclosure in Kauffman that indicates that, after the
stretching operation, the adjacent sides of the perforations are held together,
or might desirably be held together, by the polymer binder, as required by
the appealed claims. The disclosures cited supra indicate that the adjacent
sides are separated upon stretching. Moreover, the 098 Specification does
not disclose a similar pre-stressing stretching step. Thus, the similarity of
the processes found by the Examiner is not supported by the weight of the
evidence.
We conclude that the Examiner has not established a reasonable basis
to conclude that the burden should be shifted to Aseere to show that the
Kauffman pre-stressed expanded mat does not meet the binder limitations
recited in the claims.
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D. Order
We REVERSE the rejection of claims 1-10 under 35 U.S.C. § 103(a)
in view of the teachings of Kauffman.
REVERSED

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ROBERT D. TOUSLEE
JOHNS MANVILLE
10100 WEST UTE AVENUE
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