Ex Parte Liu et al

Patent Trial and Appeal Board

Jun 8, 2018

14366023 (P.T.A.B. Jun. 8, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/366,023 06/17/2014 Junqiang Liu
76104 7590 06/12/2018
The Dow Chemical Company/Brooks Cameron & Huebsch
1201 MARQUETTE A VENUE SOUTH, SUITE 400
Minneapolis, MN 55403
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.
71828-US-PCT 8525
EXAMINER
GOLDEN, CHINESSA T
ART UNIT PAPER NUMBER
1788
NOTIFICATION DATE DELIVERY MODE
06/12/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
DOW.DOCKETING@BIPL.NET
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUNQIANG LIU, SCOTT T. MATTEUCCI,
ROBERT C. CLIESLINSKI, GIUSEPPE V AIRO, LUIGI BERTUCELLI,
and DAVID M. WILLIAMS
Appeal2017-008984
Application 14/366,023
Technology Center 1700
Before RAEL YNN P. GUEST, CHRISTOPHER C. KENNEDY, and
LILIAN REN, Administrative Patent Judges.
GUEST, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-14. See Examiner's Final Office Action, dated
May 16, 2016 ("Final Act."); Examiner's Answer, dated April 5, 2017
("Ans."). We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as Dow Global Technologies
LLC. Appellants' Appeal Brief 3, filed November 11, 2016 ("Br.");
Appellants' ReplyBrief3, filed June 5, 2017 ("Reply").
Appeal2017-008984
Application 14/366,023
Appellants' invention is related to a fire resistant composite structure
having a foam material and a barrier layer located between a first facing and
a second facing. Specification ("Spec.") 1: 1-25. According to the
Specification, the invention is directed towards building structures for
walling, roofing, and/or flooring in, for example, buildings or freight
containers to provide insulating for improved energy efficiency. Id. at 1: 11-
16.
Independent claim 1 is exemplary of the subject matter on appeal and
is reproduced below:
1. A fire resistant composite structure comprising:
a foam material located between a first facing and a second
facing; and
a barrier layer on the foam material, wherein the barrier
layer includes an adhesive material and a heat absorption
material, wherein the heat absorption material has a melting point
of 40 QC to 140 QC and is 15 weight percent to 99 weight percent
of the barrier layer.
Br. 11, Claims App 'x.
The Examiner applies the following prior art references:
Wooler et al. ("Wooler") US 4,024,310 May 17, 1977
Toro bin us 4,303,736 Dec. 1, 1981
Ehrat et al. ("Ehrat") us 5,508,082 Apr. 16, 1996
Pause us 2005/0178524 Aug. 18, 2005
Reyes us 2006/0151758 July 13, 2006
Ware et al. ("Ware") us 2009/0235599 Sept. 24, 2009
The Examiner maintains the following rejections, all of which are
being appealed:
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Appeal2017-008984
Application 14/366,023
1. Claims 1-3 and 8-12 are rejected under pre-AIA 35 U.S.C.
§103(a) as being unpatentable over Wooler in view of Pause;
2. Claim 4 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over W ooler in view of Pause and further in view of
Ehrat;
3. Claims 5 and 6 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Wooler in view of Pause and further in
view of Reyes;
4. Claim 7 is rejected under pre-AIA U.S.C. § 103(a) as being
unpatentable over W ooler in view of Pause and further in view of
Ware;
5. Claims 13 and 14 are rejected under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Wooler in view of Pause and further in
view of Toro bin;
Unless otherwise indicated, we adopt the Examiner's findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis.
II. DISCUSSION
Appellants do not separately argue any of the dependent claims on
appeal including the separately rejected dependent claims. Accordingly, all
of the claims under rejection will stand or fall with sole independent claim 1.
The Examiner finds that W ooler teaches a fire resistance composite
structure as claimed, including a foam layer and barrier layer comprising an
adhesive layer (column 1, lines 27-34) and a heat absorption material
(column 2 lines 7-14) but does not teach the heat absorption material to have
a melting point of 40QC to 140QC at a concentration of 15 weight percent to
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Appeal2017-008984
Application 14/366,023
99 weight percent of the barrier layer. Final Act. 3; Ans. 2-3. The
Examiner finds that Pause teaches a fire resistant composite structure (ii
0018) comprising a barrier layer (iii! 0018, 0041) including a phase change
material that has a melting points in the range of 30QC and 70QC (ii 0018) and
is up to 60% of the barrier layer (iii! 0038---0041). Final Act. 3, Ans. 3. The
Examiner determines that it would have been obvious to a person of the
ordinary skill in the art at the time of the invention to use the heat absorption
material of Pause in the fire resistant composite structure of Wooler in order
to improve thermal performance and provide a thermo-regulating effect
which controls the heat flux. Id. (citing Pause ii [0024]).
Appellants argue that the substitution of W ooler' s intumescent
material with Pause's heat absorption material would render Wooler
unsatisfactory for its intended purpose. Br. 8. Wooler's intumescent
material swells when heated so as to plug the cracks that develop in the foam
core when the laminate is subjected to high temperatures. Id. (citing
Wooler, col. 2, 11. 7-14). However, the heat absorbing material of Pause is
meant to melt with heat (rather than swell) and would not be able to be held
in place relative to the foam so as to expand into any cracks that may
develop, as would the intumescent material of Wooler. Id. Appellants
further argue that, were the intumescent material of W ooler used in addition
to the heat absorbing material of Pause, as the Examiner asserts (Ans. 11 ),
the melted heat absorption material of Pause would not be contained, and as
an aqueous solution in its liquid state, would dissolve the intumescent
material ofWooler. Reply 10. Therefore, according to Appellants, the
intended purpose of Wooler would not be met.
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Appeal2017-008984
Application 14/366,023
We are not persuaded by Appellants' assertion, without supporting
evidence, that the phase change material of Pause would not be containable.
As noted by Appellants, Pause further includes an elastomeric material that
acts as a containment structure for the phase change material. See Reply 9
(citing Pause i-fi-f 18, 28, 30, and 36). Thus, the skilled artisan would have
considered containment of the melted heat absorbent material by further
incorporating the elastomeric material taught by Pause, which is not
excluded by the open "comprising" language of claim 1. "A person of
ordinary skill is also a person of ordinary creativity, not an automaton."
KSR Int 'l v. Teleflex Inc., 550 U.S. 398, 421 (2007). Thus, the skilled
artisan would have been capable of predictably combining the intumescent
material of Wooler and the heat absorbing material of Pause in a manner,
such as taught in the prior art, to take advantage of the benefits taught by
each of the references, namely to fill cracks in the foam board and to control
the heat flux into and out of a building, respectively.
Moreover, attorney argument cannot take place of evidence in the
record. In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974). We agree with
the Examiner that the phase change material of Pause could be used in
addition to the intumescent material in the foam structure of W ooler using
the predictable techniques described in the prior art. Appellants have
provided no evidence to support the assertions that the phase change
material of Pause could not be contained or would dissolve the intumescent
material.
We sustain the Examiner's rejection of claim 1, as representative of
all of the claims on appeal, as unpatentable under 35 U.S.C. § 103 over
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Appeal2017-008984
Application 14/366,023
Wooler in view of Pause, either alone, or further in view of additional prior
art.
III. CONCLUSION
On the record before us and for the reasons discussed above, we
affirm the decision of the Examiner to reject claims 1-14.
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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