Ex Parte Locke et al

Patent Trial and Appeal Board

May 9, 2016

12797447 (P.T.A.B. May. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121797,447 06/09/2010
91017 7590 05/11/2016
Cantor Colburn LLP - Sikorsky Aircraft Corp.
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Ralph J. Locke
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.
PA-0015966-US 4809
EXAMINER
VAN SELL, NATHAN L
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
05/11/2016 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):
usptopatentmail @cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RALPH J. LOCKE, DUDLEY J. PRIMEAUX II,
JASON DARLEY, PAUL NORRIS, CRAIG HALQUIST,
DWAYNE STARNES, and SHAWN ALEXANDER1
Appeal2014-008134
Application 12/797,447
Technology Center 1700
Before BRADLEY R. GARRIS, N. WHITNEY WILSON, and
WESLEY B. DERRICK, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL 2
1 Sikorsky Aircraft Corporation is identified as the real party in interest.
Br. 1.
2 The subject appeal presents certain issues that were previously addressed in
our Decision dated December 23, 2014, on appeal 2013-003493 of parent
application 12/634,616, wherein we affirmed the Examiner's rejection based
on the Shockey and Locke references discussed below.
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Application 12/797,447
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision finally rejecting claims 1-24. 3 We have jurisdiction under
35 U.S.C. § 6.
We AFFIRM.
Appellants claim a construction member comprising a substrate 12 of
polymeric material and a cured polymeric coating 15 attached to at least a
portion of a face of the substrate (independent claim 1, Fig. 4; see also
independent claims 18 and 22). The substrate may be a panel encased by the
polymeric coating (dependent claim 2) comprising an intermediate tie layer
(dependent claim 3), a substrate panel cap 22 (dependent claim 4, Fig. 5), a
structure connection member including means 22' for attaching one
substrate panel to another (dependent claims 5---6, Fig. 5), and a polymeric
foam layer attached to a second side of the panel (dependent claim 12).
A copy of representative claims 1-6 and 12, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A blast and/or ballistic resistant construction member compnsmg:
a substrate having a first face and an opposed second face, the
substrate composed of a polymeric material having a low surface energy;
and
a cured polymeric coating attached to at least a portion of the first
substrate face, the cured polymeric coating derived from a polymeric coating
composition comprising a reactive blend of at least one first component and
at least one second component, wherein the first component consists
essentially of a polymer and/or a blend of polymers and the second
component is an isocyanate or isocyanate prepolymer.
2. The blast and/or ballistic-resistant member of claim 1 wherein the
substrate is a panel further having side edges interposed between the first
3 The Examiner has withdrawn the final rejection of claims 1, 2, and 17
under 35 U.S.C. § 102(b) (Ans. 16).
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Application 12/797,447
and second faces and wherein the polymeric coating composition encases
the substrate panel and wherein the polymeric material of the substrate has a
surface energy of less than 30 dyne.
3. The blast and/or ballistic resistant member of claim 2 further
comprising an intermediate tie layer interposed between the coating layer
and the substrate.
4. The blast and/or ballistic resistant member of claim 2 further
comprising a substrate panel cap overlying at least one side edge of the
substrate panel, the substrate panel cap having an elongated central body and
a pair of wall members extending contiguously from opposed edges of
the central body, the wall members connected to regions of the respective
first and second faces proximate to the side edge.
5. The substrate panel cap of claim 4 further comprising at least one
structure connection member connected to a second side edge of the
substrate panel opposed to the connection between the panel cap and the
substrate panel.
6. The substrate panel cap of claim 5 wherein the structure
connection member includes means for mating attachment with at least one
additional substrate panel.
12. The blast and/or ballistic resistant member of claim 2 further
comprising a deformable layer composed of polymeric foam attached to the
second side of the panel.
Under 35 U.S.C. § 103(a), the Examiner rejects as unpatentable:
claims 1-3, 8-11, 17, 22, and 23 over Shockey et al. (US 6,951,162
B 1, issued Oct. 4, 2005) ("Shockey") in view of Locke et al. (US
2002/0001678 Al, published Jan. 3, 2002) ("Locke");
claims 4---6, 12-16, and 18-21 over Shockey, Locke, and Curnow (US
4,585,683, issued Apr. 29, 1986);
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Application 12/797,447
claim 7 over Shockey, Locke, and Martin (US 2008/0190278 Al,
published Aug. 14, 2008); and
claim 24 over Shockey, Locke, Curnow, and Martin.
According to Appellants, claims 7 and 24 stand or fall with claims 2
and 4 respectively (Br. 12).
We will sustain the above rejections for the reasons expressed in the
Final Action, the Answer, and below.
In rejecting claims 1-3, 8-11, 17, 22, and 23, the Examiner concludes
that it would have been obvious to coat Shockey's ballistic barrier (i.e.,
polymeric substrate) with a cured polymeric coating in order to dampen
noise, vibration, and/or harshness as taught by Locke (see, e.g., Final Action
4).
Appellants argue that there is no motivation to combine the references
as proposed by the Examiner because Locke's coating is for dampening
vibration of load-bearing structures in vehicles rather than a barrier of the
type taught by Shockey (Br. 7-9).
Appellants' argument lacks persuasive merit. As correctly found by
the Examiner, Locke's coating is for dampening vibrations in vehicles
generally and is not limited to vehicle structures that are load-bearing (Ans.
16-17 (citing Locke i-fi-f l-5 and 15)). The Examiner also correctly finds that
Shockey's barrier also is for use in vehicles (id. at 17 (citing Shockey abst.))
and therefore would be subject to the noise, vibration, and/or harshness
Locke's coating is designed to dampen (id.). These circumstances support a
conclusion that it would have been obvious to provide Shockey's barrier
with Locke's coating to obtain the predictable use of these prior art elements
according to their established functions of barrier-protection and vibration-
dampening respectively. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,
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417 (2007) (In assessing the obviousness of claims to a combination of prior
art elements, the question to be asked is "whether the improvement is more
than the predictable use of prior art elements according to their established
functions."). 4
Regarding the requirement of dependent claim 2 that the polymeric
coating encases the substrate panel, Appellants contend that Locke's
disclosure of applying a polymeric coating via a dipping technique "does not
inherently provide encasement of the object being dipped, as the object may
only be partially dipped" (Br. 12).
Appellants do not reveal error in the claim 2 rejection because they do
not address the Examiner's position that Locke would have suggested
dipping in such a way as to fully encase Shockey' s substrate panel (Final
Action 19; see also Ans. 23).
As for the tie layer limitation of claims 3 and 9, Appellants
acknowledge the Examiner's finding that Shockey discloses multiple
examples of intermediate layers satisfying this limitation (Br. l 0).
Nevertheless, Appellants argue that "the Shockey composite fabric layers
are part of the substrate, and thus cannot be located between substrate and
the coating as required by Appellants' claims 3 and 9" (id.).
As correctly indicated by the Examiner, the deficiency of this
argument is that Appellants do not explain with any reasonable specificity
why the Examiner errs in considering an inner layer of Shockey as reading
on the claimed substrate and an intermediate layer (i.e., between the inner
4 See also our corresponding response to this same argument in the
previously mentioned Decision dated December 23, 2014 (Dec. 3).
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layer and the coating layer) as reading on the claimed tie layer (Final Action
5; Ans. 19).
For these reasons, Appellants' arguments do not convince us that the
Examiner has failed to establish a prima facie case of obviousness in
rejecting claims 1-3, 8-11, 17, 22, and 23 over Shockey and Locke.
Concerning the rejection of claims 4---6, 12-16, and 18-21 based on
Shockey, Locke, and Curnow, Appellants argue that:
"With respect to the unnumbered apparent end cap of Curnow
Fig[ ure] 1, ... the support legs of the end cap disposed internally to the
panel are not connected to the faces (first and second opposing faces, claim
1) of the panel as required by Appellants' [claim 4]" (Br. 10-11);
"Curnow only shows features of a single panel, with no disclosed
features for attachment to adjacent panels or structure members [as required
by claims 5 and 6]" (id. at 11 ); and
"[Curnow's polymeric] foams are clearly disposed interior as a core
inside Curnow's panels, not on a second side of the panel as required by
Appellants' claimed invention [i.e., claim 12]" (id.).
Regarding Appellants' claim 4 argument, the Examiner finds that the
end cap shown in Figure 1 of Curnow satisfies the claimed wall members
extending from a central cap body and connected to regions of the first and
second panel faces (Final Action 6; Ans. 20-21 ). The Examiner's finding is
supported by Figure 1 depicting that the uppermost and lowermost members
of the end cap extend from the cap body and connect to the upper and lower
panel faces. Significantly, Appellants' argument does not specifically
address these uppermost and lowermost members with the consequence that
the above finding has not been challenged in the record of this appeal (i.e.,
no reply brief has been filed).
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The argument regarding claims 5 and 6 is similarly deficient because
it is focused on Curnow only and does not address the Examiner's finding
that the attachment means/structure connection member of claims 6/5 is
satisfied by Shockey (Final Action 7-8; Ans. 21 ). Again, the finding is not
disputed in the record of this appeal.
The claim 12 argument is not persuasive for a number of reasons.
First, the argument implicitly assumes without explanatory support that the
claim recitation of foam attached to a second side of the panel must be
attached outside rather than inside the panel. Second, Appellants do not
provide the record with any counterpoint to the Examiner's position that it
would have been obvious to attach the polymeric foam of Curnow at a
variety of Shockey's panel locations including the claimed location to
optimize the insulative function of the foam (Ans. 22).
Under the circumstances recounted above, we are unpersuaded by
Appellants that the Examiner has failed to establish a prima facie case of
obviousness in rejecting claims 4--6, 12-16, and 18-21 over Shockey,
Locke, and Curnow.
Finally, Appellants contend that the Examiner's § 103 rejections of
claims 1-24 are overcome by their demonstration of unexpected results in
Specification Examples VI through XXIV which are said to exhibit
surprising resistance to chipping, denting, gouging, and/or abrasion (Br. 13).
Appellants do not show or even assert that the data of these Examples
are reasonably commensurate in scope with the claims under consideration.
In this regard, we emphasize that none of the independent claims are limited
to the specific substrate and coating materials of the Examples. In addition,
Appellants fail to assert much less show that the Examples compare the
claimed invention with the closest prior art, namely, Shockey. These
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circumstances lead us to determine that the evidence of nonobviousness
proffered by Appellants does not outweigh the Examiner's reference
evidence of obviousness. 5
As a consequence of the foregoing, we sustain the § 103 rejections of
claims 1-24.
The decision of the Examiner is affirmed.
TIME PERIOD FOR RESPONSE
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
5 See also the corresponding determination in our prior Decision (Dec. 5).
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