Ex Parte AZAD et al

Patent Trial and Appeal Board

Aug 17, 2016

13737876 (P.T.A.B. Aug. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131737,876 01109/2013
37833 7590 08/17/2016
LITMAN LAW OFFICES, LTD,
PATENT LAW BUILDING
8955 CENTER STREET
MANASSAS, VA 20110
FIRST NAMED INVENTOR
ABUL KALAM AZAD
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
34000.41 9682
EXAMINER
KWIECINSKI, RYAN D
ART UNIT PAPER NUMBER
3635
MAILDATE DELIVERY MODE
08/17/2016 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
Ex parte ABUL KALAM AZAD and
IBRAHIM Y AHY A AHMED HAKEEM
Appeal2014-007912
Application 13/737,876
Technology Center 3600
Before MICHELLE R. OSINSKI, JILL D. HILL, and
GORDON D. KINDER, Administrative Patent Judges.
OSINSKI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Abul Kalam Azad and Ibrahim Y ah ya Ahmed Hakeem (Appellants) 1
appeal under 35 U.S.C. § 134 from the Examiner's final decision rejecting
claims 1, 2, 7, 8, 14-18, and 20-22. Claims 3-6, 9-13, and 19 have been
cancelled. Final Act. 2. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as King Fahd University of
Petroleum and Minerals. Appeal Br. 1.
Appeal2014-007912
Application 13/737,876
THE CLAIMED SUBJECT MATTER
Claims 1, 18, and 22 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter on appeal.
1. An ultra-high performance concrete reinforcement bar,
comprising an elongate bar made from ultra-high performance
concrete having discontinuous steel reinforcing fibers, the
elongate bar being dimensioned and configured for providing
tension reinforcement for a conventional concrete construction
element, wherein the transverse cross sectional dimensions are in
the range of approximately 1 inch to 2 inches.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Muttoni US 2012/0066988 Al Mar. 22, 2012
Graybeal & Hartmann, Strength and Durability of Ultra-High
Performance Concrete, Federal Highway Administration,
McLean, VA (2003 Concrete Bridge Conference) ("Graybeal")
Concrete, Masonry and Brickwork: A Practical Handbookfor the
Homeowner and Small Builder (United States Department of the
Army), Courier Corporation (1999) ("CMB")
REJECTIONS2
I. Claims 1, 8, 14--18, and 21 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Muttoni and Graybeal. Final Act. 3-7.
2 The Examiner's rejection of claims 1, 2, 7, 8, 14--18, and 20-22 under 35
U.S.C. § 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as being
indefinite for failing to particularly point out and distinctly claim the subject
matter which is regarded as the invention (Final Act. 2-3) is withdrawn and
is not before us on appeal (Ans. 2, 3).
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Application 13/737,876
IL Claims 2, 7, 20, and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Muttoni, Graybeal, and CMB. Id. at 7-9.
OPINION
Rejection I
The Examiner finds that Muttoni teaches, inter alia, an ultra-high
performance concrete (UHPC) reinforcement made from ultra-high
performance concrete having reinforcing fibers. Final Act. 3 (citing Muttoni
i-f 63). The Examiner acknowledges that Muttoni does not specifically teach
the reinforcement in the shape of an elongate bar with a square cross section
in which the transverse cross-sectional dimension in the range of
approximately 1 inch to 2 inches, but concludes that it would have been an
"obvious variant" to one of ordinary skill in the art to form the
reinforcements this way "to effectively cover the ends [of] the bars of the
concrete structure[,] as well as provide effective resistance to tension in the
tension surface of the concrete structure." Id. at 4. The Examiner points out
that Muttoni already teaches reinforcements having a parallelepiped profile
shape that are at least double the 10-12 mm width of rod-shaped bar 11. Id.;
see also, e.g., Muttoni i-fi-1 59, 66, Figs. 2a-2d.
The Examiner also acknowledges that Muttoni does not specifically
teach the reinforcing fibers being made of steel, but finds that Graybeal
teaches "an ultra-high performance composite concrete having discontinuous
steel reinforcing fibers." Id. (citing Graybeal, 2, Table 1 ). The Examiner
concludes that it would have been obvious to have made Muttoni' s
reinforcing fibers out of steel "to increase the overall strength, ductility, and
durability of the reinforcement bar, enabling the bar to remain as a strong,
durable, reinforcement even after cracking has occurred." Id.
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Application 13/737,876
As to the elongate bar being dimensioned and configured to provide
tension reinforcement for a conventional concrete construction element, the
Examiner finds that Muttoni' s reinforcement is "provided in the tension
surface of the structure." Final Act. 3 (citing Muttoni, Fig. 5). The
Examiner also finds that Muttoni' s reinforcement "is capable of providing
tension reinforcement to a conventional concrete structure (reinforcement
fibers within the UHPC greatly increase the tensile strength of the block)."
Ans. 4. The Examiner further finds that Muttoni's reinforcement "would
inherently provide tension reinforcement in the localized areas of the blocks
with a conventional concrete, specifically in the surface of tension as shown
in Figures 3, 5, and 6." Id. (citation omitted) (citing U.S. DEP'T OF TRANSP.
FHWAPUB. No. FHWA-HRT-11-038, TECHNOTE: ULTRA-HIGH
PERFORMANCE CONCRETE, 4--5 (2011) ).
Appellants argue that it is "unreasonable that the protection block 15
[of Muttoni] becomes the elongate rebar of 1-2 inch diameter made of
UHPC." Appeal Br. 6. Appellants point to the fact that the embodiment
illustrated in Figure 7 of Muttoni shows a protection block 15 that "is not
even embedded in the concrete" and that the reinforcing element of Muttoni
is the rod-shaped bar preferably made of steel alloy. Id. at 6-7 (citing
Muttoni i-f 75); see also Reply Br. 2-3 ("[T]he Examiner redefines the term
'reinforcement bar' to fit the Muttoni disclosure of an anchor .... It should
be clear to one of ordinary skill that Muttoni' s reinforcement bar or rebar is
element 11 preferably made with steel alloys.").
We are not persuaded by Appellants' argument. The broadest
reasonable interpretation of "reinforcement bar," consistent with Appellants'
Specification, is simply "[a] rod or bar used for reinforcement in concrete."
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Application 13/737,876
See, e.g., Re-bar, THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH
LANGUAGE, available at
https://www.ahdictionary.com/word/search.html?q=rebar (last visited Aug.
9, 2016). As to Muttoni' s protection block being a bar, the Examiner has
explained that a "bar" is simply "a block of material ... usually longer than
it is wide." Ans. 3--4. As to being used for reinforcement in concrete, the
Examiner has explained how Muttoni' s protection block inherently provides
tension reinforcement in localized areas of the block. Id. at 4 (citing
Muttoni, Figs. 3, 5, 6). Accordingly, the Examiner has adequately explained
how Muttoni' s protection block constitutes a "reinforcement bar" under the
broadest reasonable interpretation, and we are not persuaded that the
Examiner has erred by considering the claimed "reinforcement bar" to be
met merely by any "bar." See Reply Br. 6. As to Appellants' reference to
the embodiment of Figure 7 in which Muttoni' s protection block is not
embedded in the concrete, we note there is at least one embodiment in
Muttoni in which the protection block is "at least partially embedded in said
concrete volume" so as to be capable of providing tension reinforcement as
asserted by the Examiner. Muttoni i-f 3 7.
Appellants further argue that it is "impermissible hindsight" to "put[]
the steel fibers of Graybeal into the concrete of Muttoni ... , which already
has a reinforcing element." Appeal Br. 7. We are not persuaded by
Appellants' argument. The Examiner introduced Graybeal "into the
combination for the teaching of forming UHPC with fibers formed from
steel with the desired dimensions," not "to add steel fibers ... in addition to
the fibers taught by Muttoni." Ans. 5. The Examiner has reasoned that one
of ordinary skill in the art would be led to form the fibers of Muttoni from
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steel because "[s]teel fibers have great strength and forming UHPC with
steel fibers greatly increases tensile strength of the UHPC." Id. Appellants
have not persuasively explained why the Examiner's reasoning to modify
Muttoni so as to have steel reinforcing fibers lacks rational underpinnings.
Consequently, we determine that the modification is not based on
impermissible hindsight, but rather on reasoning advanced by the Examiner.
Appellants also raise additional arguments in the Reply Brief that
were not presented in the Appeal Brief nor responsive to arguments raised
by the Examiner in the Answer. These arguments are not timely, and
Appellants do not present evidence or explanation to show good cause why
these arguments should be considered by the Board at this time. See 3 7
C.F .R. § 41.41 (b )(2) ("Any argument raised in the reply brief which was not
raised in the appeal brief, or is not responsive to an argument raised in the
examiner's answer ... will not be considered by the Board ... unless good
cause is shown."). Even if these arguments were timely, we do not find
them persuasive.
First, with respect to independent claim 1, Appellants argue that the
Examiner erred by finding that Muttoni' s block appears close to having a
transverse cross-sectional dimension of 1 to 2 inches. Reply Br. 4. More
particularly, Appellants argue that the rod-shaped bar of Muttoni has a
diameter between 10 to 12 mm, or 0.39 and 0.47 inches, such that the
thickness that minimally covers the elbow is within that approximate range.
Id. As best illustrated in Figures 2a through 2d, Muttoni's protection block
has a transverse cross section that extends the width of Muttoni' s rod-shaped
bar, as well as an approximately equal amount on each side of the rod-
shaped bar, which would support Muttoni' s block having a cross-sectional
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dimension of approximately three times the dimension of 0.39 and 0.47
inches. In any event, the Examiner's rejection is based on the obviousness
of making Muttoni's block so as to have a width between 1to2 inches, and
Appellants have not persuasively explained why it would not be an obvious
variant to provide a protection block within that particular transverse cross-
sectional range.
Second, with respect to independent claim 18, Appellants argue that
"Muttoni' s Fig[ ure] 5 illustrates that the rebars 11 can be used as a high
performance shear and punching shear reinforcing system within the
compression face of the slab," whereas claim 18 recites the reinforcement
bar extending along the tension face and providing tension reinforcement.
Reply Br. 5 (citing Muttoni i-f 74, Fig. 5). The Examiner finds that the
construction element made from conventional concrete illustrated in Figure
5 of Muttoni has "a compression area (top surface of the concrete element of
Fig. 5) and a tension area (bottom surface of concrete element of Fig. 5)
when subjected to a bending stress." Final Act. 5. The Examiner further
finds that Muttoni teaches "an elongated compression face (top face) and
tension face (bottom face) ... [and] at least one reinforcement being
incorporated into and extending along the tension face (Fig. 5), thereby
providing the tension reinforcement for the construction element." Id. at 5-
6. Moreover, the Examiner has also pointed to Figure 6 in support of the
block inherently providing tension reinforcement (Ans. 4), and Figure 6
illustrates blocks at both the top and bottom surfaces of the concrete
element, thereby supporting the blocks being provided along both the
compression and tension surfaces. Appellants have not persuasively
explained why these findings are in error.
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For the foregoing reasons, we are not persuaded that the Examiner
erred in concluding that the combination of Muttoni and Graybeal renders
obvious the subject matter of independent claims 1 and 18, and we sustain
the rejection of independent claims 1and18. We also sustain the rejection
of claims 8, 14--1 7, and 21, for which Appellants rely on the same arguments
and reasoning we found unpersuasive in connection with claims 1 and 18.
See Appeal Br. 6-7; Reply Br. 2-7.
Rejection II
The Examiner finds that Muttoni and Graybeal fail to teach that the
elongate bar is deformed along its length or roughened. Final Act. 7. The
Examiner finds that CMB teaches providing deformations along the length
of reinforcements and concludes that it would have been obvious to have
formed "deformations along the reinforcement as taught by CMB so [as] to
greatly increase the bond strength between the reinforcements and the
concrete structure so [as] to ensure the reinforcements do not shear from or
become disconnected from the concrete structure and therefore cause the
structure to weaken." Id. at 8 (citing CMB, Fig. 6-2).
Appellants argue that the Examiner relies on impermissible hindsight
in rejecting the claims. Appeal Br. 8-9. The Examiner has reasoned that
one of ordinary skill in the art would be led to provide deformations along
the length of reinforcement to increase bond strength. Final Act. 8.
Appellants have not persuasively explained why the Examiner's reasoning to
modify Muttoni so has to have deformations along the length of
reinforcement lacks rational underpinnings. Consequently, we determine
that the modification is not based on impermissible hindsight, but rather on
reasoning advanced by the Examiner.
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In addition to the arguments we found unpersuasive in connection
with independent claims 1 and 18, Appellants also argue for the first time in
the Reply Brief that the Examiner is ignoring the ordinary and customary
meaning of a "deformed reinforcement bar" which is purported to mean
having "lugs or projections on its surface to develop a greater bond between
the concrete and the rebar." Reply Br. 5, 6. To the extent Appellants are
suggesting that deformed bars specifically require "projections" or "lugs,"
we are not persuaded that the term "deformed" is so limited. Moreover,
even if we were to assume arguendo that the term "deformed" is so limited,
Appellants have not persuaded us that the deformations illustrated in Figure
6-2 of CMB fail to constitute projections or lugs. Therefore, we are not
persuaded of error in the Examiner's finding that at least Figure 6-2 of CMB
teaches deformed reinforcement bars.
For the foregoing reasons, we are not persuaded that the Examiner
erred in concluding that the combination of Muttoni, Graybeal, and CMB
renders obvious the subject matter of claims 2, 7, 20, and 22, and we sustain
the rejection of claims 2, 7, 20, and 22.
DECISION
The Examiner's decision to reject claims 1, 2, 7, 8, 14-18, and 20-22
under 35 U.S.C. § 103(a) is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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