11041323 (B.P.A.I. Jan. 30, 2012)

Ex Parte Bogard et al

Board of Patent Appeals and InterferencesJan 30, 2012

11041323 (B.P.A.I. Jan. 30, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ________________ Ex parte MICHELE M. BOGARD and CRAIG A. BOGARD ________________ Appeal 2010-006883 Application 11/041,323 Technology Center 1700 ________________ Before CHUNG K. PAK, LINDA M. GAUDETTE, and MARK NAGUMO, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-006883 Application 11/041,323 2 A. Introduction1 Michele M. Bogard and Craig A. Bogard (“Bogard”) timely appeal under 35 U.S.C. § 134(a) from the final rejection2 of claims 1-6 and 8-12, which are all of the pending claims. We have jurisdiction. 35 U.S.C. § 6. We AFFIRM. The subject matter on appeal relates to a method of sealing cracks in masonry foundations to prevent water seepage. The method is generally similar to methods of taping drywall boards or repairing cracks in wall plaster, in that, after suitable preparation of the crack and wall, a strip of a sheet material is adhered to the wall over the crack with a bonding adhesive, and then covered with more bonding adhesive. The improvement lies in providing a carbon fiber sheet material such that carbon fibers are generally perpendicular to the long axis of the crack. Representative Claim 1 reads: 1. A method of sealing a crack in a masonry foundation wall against water seepage, the crack having an axis along the length of the crack, comprising the steps: preparing the area of the crack by removing loose material; 1 Application 11/041,323, Method of Sealing a Crack Against Water Seepage, filed 24 January 2005. The specification is referred to as the “323 Specification,” and is cited as “Spec.” The real party in interest is listed as Michele M. Bogard and Craig A. Bogard, the named inventors. (Appeal Brief, filed 23 February 2009 (“Br.”), 2.) (A Supplemental Appeal Brief, filed 1 March 2010, which provides more specific information regarding support for the claimed invention, is acknowledged with appreciation.) 2 Office action mailed 5 June 2007. Appeal 2010-006883 Application 11/041,323 3 applying a paste filler to the crack; applying a bonding adhesive over the area of the crack axis; placing a carbon fiber sheet material over the bonding adhesive such that the carbon fibers are generally perpendicular to the crack so that the entire axis of the crack is covered with said material; applying pressure to the carbon fiber sheet, to ensure the bonding adhesive impregnates the carbon fiber sheet; and applying a second coat of bonding adhesive. (Claims App., Br. 16; indentation and emphasis added.) Independent claims 9 and 12 are drawn to similar methods, the most salient difference being that the latter claims specify that the carbon fiber sheet material has a warp and weft direction, and that one of the warp or weft be placed “generally perpendicular to the axis of the crack” (Claims App., Br. 17 (claim 9)). The Examiner maintains the following grounds of rejection:3 A. Claims 9-12 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art,4 Park,5 and either Toray6 or Wheatley.7 3 Examiner’s Answer mailed 23 September 2009 (“Ans.”). 4 323 Specification, page 2. 5 Ho Wan Park, Method for Repairing Bridge and Structure Thereof, KR 20010092963 (27 October 2001) (Abstract; Derwent Abstract; machine translation; USPTO translation provided with the Examiner’s Answer). 6 Toray Indus. Inc., Woven Fabric for Reinforcement, JP 2003119641A (Derwent Abstract; JPO Abstract; USPTO translation provided with the Examiner’s Answer). Appeal 2010-006883 Application 11/041,323 4 B. Claim 1 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley, and Pokorny.8 C. Claim 1 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, either Toray or Wheatley, Pokorny, and Basile.9 D. Claims 2-6 and 8 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of the prior art applied against claim 1, supra, and Busch. 10 E. Claim 1 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley, and Pokorny and Basile. Initially, we find that Bogard does not dispute the rejections individually. Rather, Bogard emphasizes that the Examiner has relied on prior art that, in Bogard’s view, is designed to allow water to seep through the repaired structure. (E.g., Br. 11, last para.) Such art, Bogard argues, teaches away from the claimed invention, which is a method of preventing water seepage. (Id. at 11, 14; see also Reply11,12 6-10.) In the Reply, Bogard 7 Donald G. Wheatley and Donald E. Wheatley, Carbon Fiber Reinforcement System, U.S. Patent Application Publication 2003/0003270 A1 (2003). 8 Richard J. Pokorny, Method of Patching Damaged Sheet Material, U.S. Patent 4,732,633 (1988). 9 Mario J. Basile, Sealant Filler for Small Volumes Containing an Acrylic Latex, Sand, Bentonite, Portland Cement and a Polyhydric Alcohol, U.S. Patent 3,917,771 (1975). 10 Dieter Busch, Hand Pressure Roller, U.S. Patent 3,098,783 (1963). 11 Reply Brief filed 23 November 2009 (“Reply”). 12 We note that the Reply Brief states that “A Request for an Oral Hearing is being filed herewith.” (Reply 1.) No separate paper or fee as required by Appeal 2010-006883 Application 11/041,323 5 discusses the perceived defects of Park, Toray, and Wheatley in considerably more detail than in the principal Brief, due to the provision of full translations of Park and Toray provided by the Examiner with the Examiner’s Answer. Accordingly, we shall limit our consideration to claim 1, with which all the claims stand or fall, and to the argued defects of the admitted prior art, Park, Toray, and Wheatley. 37 C.F.R. § 41.37(c)(vii) (2007). Argument regarding the remaining prior art has been waived. B. Discussion Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Referring to Figure 1 of Park, which is reproduced to the right, the Examiner finds that Park describes removing loose material from the surface 3 of structure 1 or 2 with a grinder, priming the site with an epoxy resin and curing agent 4, followed by an adhesive resin 5, carbon sheet material 6, and an impregnation resin 7. (Ans. 4.) {Figure 1 shows repair of a crack} 37 C.F.R. §41.47(b) and § 41.20(b)(3) is of record in the USPTO records of this application. Accordingly, this appeal is decided without oral argument. Cf. 37 C.F.R. §41.47(f) (Board may decide an appeal without oral hearing). Appeal 2010-006883 Application 11/041,323 6 In particular, the Examiner finds that Park teaches that the width of the carbon fiber sheet is controlled selectively according to the state of the crack. (E.g., Ans. 7; see Park, Derwent Abstract, last para.) The Examiner finds that Park is silent as to the carbon fiber sheet having a warp direction and a perpendicular weft carbon fiber direction. However, the Examiner finds that both Toray and Wheatley teach using a carbon fiber sheet having carbon fibers in the warp and weft directions to reinforce concrete or masonry structures. The Examiner also finds that the prior art described in the 323 Specification at page 2 describes sealing cracks in masonry or concrete foundation walls by filling the crack with an adhesive, such as epoxy. (Ans. 3.) The Examiner argues that it would have been obvious to seal cracks by augmenting the known prior art process of filling the cracks with an epoxy by applying a carbon fiber sheet, as taught by Park, along the length of the crack, basing the width of the sheet on the width of the crack. (Ans. 6, last para.) Using a strip such as those taught by Toray or Wheatley would result, according to the Examiner, in one of the warp or weft directions lying generally perpendicular to the longitudinal axis of the crack. (Id.) Bogard’s principal argument, as noted supra, is that Park is concerned with providing a reinforcing structure that is intended to allow water seepage, and that Park therefore teaches away from the claimed invention, which is intended to prevent water seepage. (Br. 11, last para.) Appeal 2010-006883 Application 11/041,323 7 This argument is not persuasive. To teach away, a reference must state that it “should not” or “cannot” be used in combinations with another reference. Para-Ordnance Manufacturing, Inc. v. SGS Importers International, Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995). Review of Park indicates that the carbon-fiber augmented seal prevents water seepage through the seal, and that the problem in the prior art that Park seeks to avoid is the accumulation of water between the structure and the seal arising from the complete coverage of the structure by the prior art method (shown in Park, Figure 3). Park solves the problem by providing strips of carbon- fiber sheets in alternation with bare strips, whether on the underside of a bridge 1 or on a vertical column 2 supporting the bridge. The weight of the evidence of record is that water does not seep through the carbon-fiber sheet reinforced areas. Although Bogard argues that the Examiner failed to make findings regarding the ordinary level of skill in the art (Br. 12), we find the references cited by the Examiner adequate to indicate that artisans in the craft of making, strengthening, and repairing concrete or masonry structures are skilled problem solvers who are capable of using materials to solve similar problems in a wide variety of circumstances. In the present case, we have no doubt that an artisan familiar with preventing seepage in masonry foundation walls by filling the cracks with epoxy would have learned from Park the advantages of enhanced strength that accrue from the use of carbon fiber sheets. Similarly, that artisan would have learned from both Toray and from Wheatley that varieties of carbon fiber sheets are available that have warp and weft carbon fibers, and that those sheets are useful for reinforcing Appeal 2010-006883 Application 11/041,323 8 structures such as masonry walls. Indeed, the artisan would have learned from Wheatley (if such a teaching were not superfluous), that it is well known that axially oriented carbon fibers provide good tensile strength. (Wheatley 3, para. [0053], last sentence, and para. [0056], 2d sentence.) The ordinary observation that cracks tend to be long and narrow, and the ordinary desire to use materials to maximum efficiency, we do not doubt, would have prompted the artisan to apply strips of carbon fiber sheet material along the length of the crack. Furthermore, that artisan would have been secure in the knowledge that the weft carbon fibers perpendicular to the length of the strip, taught by Toray or by Wheatley, would provide tensile strength across the width of the patch over the crack. The artisan would have expected, on the basis of Park, that the crack would be well sealed against seepage by water. Objections against the remaining prior art having been waived, we conclude that Bogard has not shown harmful error in the Examiner’s rejections. C. Order We AFFIRM the rejection of claims 9-12 under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley. We AFFIRM the rejection of claim 1 under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley, and Pokorny. Appeal 2010-006883 Application 11/041,323 9 We AFFIRM the rejection of claim 1 under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley, Pokorny, and Basile. We AFFIRM the rejection of claims 2, 6 and 8 under 35 U.S.C. § 103(a) in view of the combined teachings of the prior art applied against claim 1, supra, and Busch. We AFFIRM the rejection of claim 1 under 35 U.S.C. § 103(a) in view of the combined teachings of admitted prior art, Park, and either Toray or Wheatley, and Pokorny and Basile. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED tc 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. 11/041,323 01/24/2005 Michele M. Bogard BOGM 9039US 4596 1688 7590 01/31/2012 Polster, Lieder, Woodruff & Lucchesi, L.C. 12412 Powerscourt Dr. Suite 200 St. Louis, MO 63131-3615 EXAMINER GOFF II, JOHN L ART UNIT PAPER NUMBER 1746 MAIL DATE DELIVERY MODE 01/31/2012 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)