Ex Parte Bradley et al

Patent Trial and Appeal Board

Sep 28, 2017

13507539 (P.T.A.B. Sep. 28, 2017)

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.
BIT-35 5186
EXAMINER
TOLEDO-DURAN, EDWIN J
ART UNIT PAPER NUMBER
3678
MAIL DATE DELIVERY MODE
13/507,539 07/06/2012
22827 7590 09/28/2017
DORITY & MANNING, P.A.
POST OFFICE BOX 1449
GREENVILLE, SC 29602-1449
Anthony Shepherd Bradley SR.
09/28/2017 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 ANTHONY SHEPHERD BRADLEY SR. and
ANTHONY SHEPHERD BRADLEY JR.1
Appeal 2016-003020
Application 13/507,539
Technology Center 3600
Before JOHN C. KERINS, RICHARD H. MARSCHALL, and
SEAN P. O’HANLON, Administrative Patent Judges.
MARSCHALL, Administrative Patent Judge.
DECISION ON APPEAL
Anthony Shepherd Bradley Sr. and Anthony Shepherd Bradley Jr.
(Appellants) seek our review under 35 U.S.C. § 134(a) of the Examiner’
decision rejecting claims 1—27.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
1 According to Appellants, the real party in interest is Bradley Industrial
Textiles, Inc. Appeal Br. 2.
2 Claim 28 remains pending and rejected under 35 U.S.C. § 103(a), but
Appellants are not appealing that rejection. Appeal Br. 5.
Appeal 2016-003020
Application 13/507,539
THE CLAIMED SUBJECT MATTER
Appellants’ claimed subject matter relates to large geotextile tubes,
which “are elongate flexible containers made of textile fabric.” Spec.
11 1—2. Geotextile tubes can be used as the core or base of a dam and for
dewatering sludge. Id. 12. Claim 1 is the only independent claim subject to
appeal, and is reproduced below.
1. A geotextile apparatus, comprising:
a. an axially elongated tube having a circumference of at
least six meters and defining an interior surface that defines a
hollow interior of the tube, which is water permeable but retains
solids;
b. a first generally planar, porous shelf disposed within
the interior of the tube and having a length extending axially
down the length of the tube, the first shelf defining a first
elongated side edge connected to the interior surface of the tube
and a second elongated side edge disposed opposite the first
side edge and connected to the interior surface of the tube, the
distance between the first and second side edges defining the
width of the first shelf extending across the interior of the tube,
the majority of the entire axial length of each of the first side
edge and the second side edge of the first shelf being
substantially continuously connected in contact with the interior
surface of the tube;
c. a second generally planar, porous shelf disposed above
and spaced apart from the first shelf within the interior of the
tube and having a length extending axially down the length of
the tube, the second shelf defining a first elongated side edge
connected to the interior surface of the tube and a second
elongated side edge disposed opposite the first side edge and
connected to the interior surface of the tube, the distance
between the first and second side edges defining the width of
the second shelf extending across the interior of the tube, the
majority of the entire axial length of each of the first side edge
and the second side edge of the second shelf being substantially
continuously connected in contact with the interior surface of
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Appeal 2016-003020
Application 13/507,539
the tube; and
d. at least a third generally planar, porous shelf disposed
above and spaced apart from the second shelf within the interior
of the tube and having a length extending axially down the
length of the tube, the third shelf defining a first elongated side
edge connected to the interior surface of the tube and a second
elongated side edge disposed opposite the first side edge and
connected to the interior surface of the tube, the distance
between the first and second side edges defining the width of
the third shelf extending across the interior of the tube, the
majority of the entire axial length of each of the first side edge
and the second side edge of the second shelf being substantially
continuously connected in contact with the interior surface of
the tube.
Appeal Br. 67—68 (Claims App.).
THE EVIDENCE
The Examiner relied upon the following prior art references in
rejecting the claims on appeal:
Labora US 3,886,751 June 3, 1975
Dison US 4,770,564 Sept. 13, 1988
Willibey US 5,091,247 Feb. 25, 1992
Dery US 6,312,192 B1 Nov. 6, 2001
Herzog US 7,165,912 B2 Jan. 23, 2007
Moss US 7,314,336 B2 Jan. 1, 2008
Smallwood US 2009/0129866 A1 May 21, 2009
Halahmi US 2009/0142542 A1 June 4, 2009
Hall WO 00/14384 A1 Mar. 16, 2000
Wouters WO 2006/094552 A1 Sept. 14, 2006
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Appeal 2016-003020
Application 13/507,539
THE REJECTIONS3
Appellants seek review of the following rejections:
1. Claim 1 under 35 U.S.C. § 103(a) as unpatentable over Dison.
2. Claim 1 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, and Dison.
3. Claim 2 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, Dison, and Wouters.
4. Claims 3—6, 9, 11—15, 18, and 20—22 under 35 U.S.C. § 103(a) as
unpatentable over Smallwood, Labora, Dison, Hall, and Halahmi.
5. Claims 7, 8, 10, 16, 17, and 19 under 35 U.S.C. § 103(a) as
unpatentable over Smallwood, Labora, Dison, Hall, Halahmi, and
Wouters.
6. Claims 23 and 26 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, Dison, and Moss.
7. Claim 24 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, Dison, and Herzog.
8. Claim 25 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, Dison, Wouters, Moss, and Willibey.
9. Claim 27 under 35 U.S.C. § 103(a) as unpatentable over
Smallwood, Labora, Dison, and Dery.
3 The Examiner rejected claim 4 under 35 U.S.C. § 112,12 as indefinite, but
Appellants do not appeal that rejection and it is not before us on appeal. See
final Act. 5; Appeal Br. 5. Appellants do appeal the rejection of claim 4
under 35 U.S.C. § 103(a). Appeal Br. 36—37. As stated above, supra note 2,
Appellants do not appeal the rejection of claim 28 under 35 U.S.C. § 103(a).
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Appeal 2016-003020
Application 13/507,539
ANALYSIS
Rejection of Claim 4 under 35 U.S.C. § 112, f 2 and Claim 28 under 35
U.S.C. § 103(a)
Appellants do not appeal the rejection of claim 4 under 35 U.S.C.
§ 112,12 or the rejection of claim 28 under 35 U.S.C. § 103(a). Appeal Br.
5. The Examiner maintains those rejections on appeal. See Ans. 2, 18.
Accordingly, we summarily affirm those rejections.
Rejections of Claim 1
Claim 1 requires three shelves, each of which having “a first
elongated side edge connected to the interior surface of the tube and a
second elongated side edge disposed opposite the first side edge and
connected to the interior surface of the tube.” Appeal Br. 67—68 (Claims
App.) (emphasis added). Claim 1 also requires each shelf to have a
“majority of the entire axial length of each of the first side edge and the
second side edge . . . being substantially continuously connected in contact
with the interior surface of the tube.” Id. The Examiner construed the
“connected to” limitations to require “contact” between the claimed edges
and the interior surface of the tube. Ans. 22. In support of the construction,
the Examiner relied on a “Google” definition that defines connected as
“bringing] together or into contact so that a real or notional link is
established.” Id. (emphasis omitted) (“Two elements in contact are therefore
connected following this definition.”). The Examiner rejected claim 1 under
35 U.S.C. § 103(a) as unpatentable over Smallwood, Labora, and Dison and,
separately, as unpatentable over Dison alone. See Final Act. 6—8, 22—24. In
support of the rejections of claim 1, the Examiner found that Labora and
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Application 13/507,539
Dison both disclose shelves having edges in contact with the inside of the
respective inner tube walls. See id. at 6—7, 20-23.
Appellants argue that “connected to” cannot merely require contact
between the shelves and the inside of the wall of the inner tube. Appeal Br.
8—9. According to Appellants, the ordinary meaning of “connected” is
“joined or linked together.” Id. at 9. Appellants contend that the
specification supports this construction by schematically disclosing
connections between the side edges of the shelves and the inside of the tube.
Id. at 9-11 (citing Figs. 1, 1A, IB, 2, 2A, 3—5, and 14—16). Appellants then
argue that neither Dison nor Labora disclose shelves “connected to” to the
inside of inner tubes. See id. at 12—15, 19-23.
We agree with Appellants that the Examiner’s construction of
“connected” to merely require “contact,” or touching, lacks support. Even
the definition relied on by the Examiner suggests something more than mere
contact by referring to establishing a “link.” See Ans. 22. Other dictionary
definitions support Appellants’ interpretation of the ordinary meaning of
“connected.” See www.merriam-webster.com/dictionary/connected (“joined
or linked together”) (last visited September 22, 2017). Further, the
specification supports the view that “connected to” requires more than mere
contact. The specification describes side edges connected to respective
sidewalls of geotube 30. Spec. | 51. The figures disclose dashed lines that
“schematically represent the connections.” Id.', see also Figs. 1A, IB, 3—5,
14—16. Those connections suggest something more than mere contact.
Further, in several embodiments some sort of connection would be required
in order to maintain vertical separation between adjacent shelves—if the
shelves merely contacted the inside of the geotube the shelves would fall
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Application 13/507,539
onto one another. See, e.g., Figs. 3, 14. The Examiner suggests that
requiring more than mere contact improperly requires an unclaimed
“fastener.” See Ans. 21. As Appellants correctly point out, connections can
be made without fasteners (e.g., using heat fusing, adhesives), and
Appellants are not required to positively claim a fastener rather than the
connected relationship between two structures. See Reply Br. 5. Based on
the foregoing, we determine that the Examiner erred in construing
“connected” to require mere contact.
The Examiner’s construction of “connected” formed the basis for the
rejections, and no alternative findings were using Appellants’ construction.
See Final Act. 6—7, 23; Ans. 20-30. Accordingly, we do not sustain either of
the rejections of claim 1. The remaining claims depend directly or indirectly
from claim 1, and we therefore do not sustain the rejection of those claims
under 35 U.S.C. § 103(a) for the same reasons.
DECISION
We reverse the decision of the Examiner to reject claims 1—27. We
summarily affirm the rejection of claim 4 as indefinite under 35 U.S.C.
§ 112,12 and the rejection of claim 28 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED-IN-PART
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