Ex Parte Manuel

Patent Trial and Appeal Board

Jul 29, 2016

13630687 (P.T.A.B. Jul. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/630,687 09/28/2012
3000 7590 08/02/2016
CAESAR RIVISE, PC
7 Penn Center, 12th Floor
1635 Market Street
Philadelphia, PA 19103-2212
FIRST NAMED INVENTOR
Darryl F. Manuel
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.
Pl209/20005 5349
EXAMINER
HERNANDEZ-DIAZ, JOSE
ART UNIT PAPER NUMBER
1717
NOTIFICATION DATE DELIVERY MODE
08/02/2016 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):
patents@crbcp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte DARRYL F. MANUEL
Appeal2014-007125
Application 13/630,687 1
Technology Center 1700
Before JEFFREY T. SMITH, MARK NAGUMO, and
N. WHITNEY WILSON Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from the Final Office Action
dated October 11, 2013 rejecting claims 17-30. We have jurisdiction under
35 U.S.C. § 6(b).
The claims on appeal relate to a method of filling and sealing concrete
surface imperfections. (Spec. 1 ). The independent claims 17 and 26 are
reproduced below:
1 The real Party in interest is identified Polysat, Inc. (App. Br. 2.)
Appeal2014-007125
Application 13/630,687
1 7. A method of filling and concealing a concrete
surface imperfection comprising the steps of:
a) dispensing a treatment product for a concrete surface
on the concrete surface, said treatment product comprising: a
binder, at least one wetting agent, a chelating agent, a catalyst, a
pigment dispersant and water; and
b) using a grinding device to grind the concrete surface
with the treatment product thereon for mixing and reacting the
treatment product with the concrete particles from the ground
concrete surface to form a fill product, and wherein the fill
product fills the imperfection while grinding the concrete
surface.
26. A method of filling and concealing a concrete surface
imperfection comprising the steps of:
a) grinding a concrete surface with a grinding device to
provide concrete particles from the ground concrete surface;
b) collecting the concrete particles from the ground
concrete surface;
c) mixing a treatment product for a concrete surface with
collected concrete particles to obtain a paste-like product, said
treatment product comprising a binder, at least one wetting
agent, a chelating agent, a catalyst, a pigment dispersant, a
defoamer, a water reducer and a stabilizer, and
d) applying the paste-like product to the imperfection.
App. Br. 23-24.
The Examiner maintains the following rejections from the Final
Office Action (Ans. 2-24):
I. Claims 17 and 21-24 under 35 U.S.C. § 103 as obvious over Hall
et al. US 2007 /0098496 Al published May 3, 2007 in view of Silverstrim et
al. US 5,601,643 issued Feb. 11, 1997, Batdorf US 4,347,285 issued Aug.
31, 1982, and Drs US 5,413,819 issued May 9, 1995.
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Appeal2014-007125
Application 13/630,687
II. Claim 18 under 35 U.S.C. § 103 as obvious over Hall in view of
Silverstrim, Batdorf, Drs, and Sterner et al. US 2002/0141822 Al published
Oct. 3, 2002.
III. Claims 19 and 25 under 35 U.S.C. § 103 as obvious over Hall in
view of Silverstrim, Batdorf, Drs, and Bazant et al. Crack Growth and
Lifetime of Concrete under Long Time Loading. Journal of Engineering
Mechanics April 1997, pages 350-358.
IV. Claim 20 under 35 U.S.C. § 103 as obvious over Hall in view of
Silverstrim, Batdorf, Drs, and Kobori et al. US 5,624,980 Al issued Apr 29,
1997.
V. Claim 26-28 under 35 U.S.C. § 103 as obvious over Hall in view
of Silverstrim, Batdorf, Drs, and Shendy et al US 2002/0107310 Al
published Dec 7, 2000.
VI. Claim 29 under 35 U.S.C. § 103 as obvious over Hall in view of
Silverstrim, Batdorf, Drs, Shendy, and Bazant.
VII. Claim 30 under 35 U.S.C. § 103 as obvious over Hall in view of
Silverstrim, Batdorf, Drs, Shendy, and Sterner.
DISCUSSION
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellant, we hold that
Appellant has not identified reversible error in the Examiner's determination
that the applied prior art would have rendered the subject matter recited in
claims 17-30 obvious to one of ordinary skill in the art within the meaning
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Appeal2014-007125
Application 13/630,687
of 35 U.S.C. § 103(a). Accordingly, we sustain the Examiner's§ 103(a)
rejections of the above claims for the reasons set forth in the Final Action
and the Answer. We add the following.
Appellant has presented substantive arguments addressing Rejection I
and particularly independent claim 17. App. Br. 9-14. Appellant's
arguments for Rejection I are repeated when addressing Rejection V and
particularly independent claim 26. App. Br. 15-21. Appellant has not
provided substantive arguments addressing Rejections II-IV and VI-VII.
Therefore, we will limit our discussion to discuss independent claim 17.
Appellant argues Hall repairs a surface by breaking apart and
rebuilding a surface, while subject matter of claim 17 involves filling
imperfections in a surface and not destroying the structure including those
imperfections. (App. Br. 10-12). Appellant further argues the term
"grinding" as described in the present invention refers to a surface treatment
that removes particles without destroying or obliterating imperfections to be
repaired and Hall does not utilize the term "grinding." (App. Br. 12).
The Examiner rejected independent claims 17 and 26 over the
combination of Hall, Silverstrim, Batdorf, and Drs (and Shendy for claim
26). Hall was cited for describing or suggesting the method for repairing in
imperfection in the concrete surface that utilizes a rejuvenation composition.
(Final Act. 2-3; Hall i-fi-136-41). Silverstrim, Batdorf, Drs and Shendy were
cited as evidence rendering obvious the rejuvenation composition. (Final
Act. 3--4, 11 ). Because Appellant has limited his arguments for patentability
to a discussion of Hall we will do likewise. Appellant has not disputed that
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Application 13/630,687
the rejuvenation composition would have been obvious over the secondary
references cited by the Examiner. (App. Br. 12).
Hall teaches a method of filling and concealing a concrete surface
imperfection employing the steps of using a milling (grinding) device to mill
the concrete surface to form particles on the surface and then mixing the
particles with a treatment material to form a fill product. (Hall i-fi-136-41 ).
Hall is not limited to repairs a surface by breaking apart and rebuilding a
surface as argued by Appellant. Hall teaches the rejuvenation materials are
applied prior to, during, or after breaking up the deteriorated paved surface
which may be mixed with the new and/or reclaimed aggregate on the road
surface. (Hall i-fi-136, 42). This disclosure refers to the treatment of the
deteriorated portions of the road surface and does not exclusively require the
destruction of the road surface. Hall further teaches the mill heads function
to (1) mix the old aggregate rejuvenation materials and the new aggregate
and (2) break apart the deteriorated pavement, without damaging the
aggregate contained therein. (Hall i-f42).
Appellant's discussion of the term "grinding" does not establish a
patentable distinction over the milling process described by Hall. Appellant
has not acknowledged that Hall describes a milling process that is utilized to
remove deteriorated aggregate without destruction. (Hall i-f42). Appellant
has not directed us to evidence which establishes that a milling process is
different from a grinding process, or more specifically that Hall's milling
process is different from the grinding process required by the claimed
invention.
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Appeal2014-007125
Application 13/630,687
Appellant argues that the patentability of claim 1 7 is further supported
by the rationale set forth by the Court of Appeals for the Federal Circuit in
In re Giannelli, 739 F.3d 1375 (Fed. Cir. 2014). (App. Br. 13-14).
Appellant's arguments are not persuasive for the reasons discussed above.
Specifically Appellant has not established a patentable distinction for
process that specifies "grinding" versus a process that specifies "milling"
such as described by Hall. Consequently, Appellant has not established that
the facts of the present case are analogous to those presented in in In re
Giannelli.
To prevail in an appeal to this Board, Appellant must adequately
explain or identify reversible error in the Examiner's§ 103(a) rejections. See
37 C.F.R. § 41.37(c)(l) (iv) (2012); see also In re Jung, 637 F.3d 1356,
13 65---66 (Fed. Cir. 2011 ). In the present case, Appellant has failed to
identify reversible error in the Examiner's rejections.
Accordingly, we affirm the Examiner's prior art rejections of claims
17-30 under 35 U.S.C. § 103(a) for the reasons presented by the Examiner
and given above.
ORDER
The Examiner's prior art rejections under 35 U.S.C. § 103(a) are
affirmed.
TIME PERIOD
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 ).
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AFFIRMED
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