Ex Parte Smelser

Board of Patent Appeals and Interferences

Jun 1, 2009

10843263 (B.P.A.I. Jun. 1, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES M. SMELSER
____________

Appeal 2008-002969
Application 10/843,263
Technology Center 3600
____________

Decided:1 June 1, 2009
____________

Before WILLIAM F. PATE, III, LINDA E. HORNER, and
KEN B. BARRETT, Administrative Patent Judges.

HORNER, Administrative Patent Judge

DECISION ON APPEAL

1 The two month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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STATEMENT OF THE CASE
James M. Smelser (Appellant) seeks our review under 35 U.S.C.
§ 134 of the Examiner’s decision twice-rejecting claims 1-8, 10-15, 20,
23-25, and 63-79, which are all of the pending claims. We have jurisdiction
under 35 U.S.C. § 6(b) (2002).

SUMMARY OF DECISION
We AFFIRM-IN-PART.

THE INVENTION
The Appellant’s claimed invention is to a structural brace having a
core member and a buckling restraining assembly. Spec. 2, para. 1. Claims
1 and 63, reproduced below, are representative of the subject matter on
appeal.
1. A brace apparatus comprising:
a core member having a first end, a second
end, a middle portion and an exterior surface;
a buckling restraining assembly surrounding
at least the middle portion of the core member, the
buckling restraining assembly comprising:
a metal support positioned external to
the core member, and
a rigid layer coupled to the metal
support and surrounding the core member
wherein the rigid layer has an internal profile that
approximates but is spaced apart from the exterior
surface of the core member thereby providing an
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air gap to allow controlled deformation of the core
member.

63. A brace apparatus comprising:
a core member having a first end, a second
end, and a middle portion;
a buckling restraining assembly
circumscribing the middle portion of the core
member, the buckling restraining assembly
comprising;
a metal support positioned external to
the middle portion of the core member; and
a rigid layer coupled to the metal
support and circumscribing the core
member; and
one or more air gaps positioned between the
core member and the buckling restraining
assembly to prevent bonding of the buckling
restraining assembly to one or more portions of the
core member.

THE EVIDENCE
The Examiner relies upon the following evidence:
Cross US 1,804,320 May 5, 1931
Fanucci US 6,530,182 B2 Mar. 11, 2003
Takeuchi US 6,826,874 B2 Dec. 7, 2004

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THE REJECTIONS
The Appellant seeks review of the following Examiner’s rejections:
1. Claims 1-6, 20, 23, 63, 65, 67, 68, 70, 74, 75, and 78 are rejected
under 35 U.S.C. § 102(e) as being anticipated by Fanucci.
2. Claims 7, 8, 10-15, 24, 25, 66, 76, and 77 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Fanucci and Takeuchi.
3. Claims 71 and 72 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Fanucci.
4. Claims 63, 64, 66, 69, and 79 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Cross.2
5. Claims 1-6, 11, 12, 20, 23, 63-70, 73, and 79 are rejected under the
judicially-created doctrine of non-statutory double patenting as being
unpatentable over claims 21 and 25 of U.S. Patent No. 7,185,462.3
The Examiner also rejected claims 25 and 79 under 35 U.S.C. § 112,
second paragraph, as being indefinite. Non-Final Office Action 2, dated
November 1, 2006; Ans. 3. The Appellant indicated that claims 25 and 79
are included in the claims being appealed and stand rejected under 35 U.S.C.
§ 112, second paragraph (App. Br. 2); however, the Appellant did not list

2 Although the Examiner stated this rejection as being under 35 U.S.C.
§ 102(e), the Cross patent was published in 1931 and thus properly qualifies
as prior art under 35 U.S.C. § 102(b).
3 The Examiner stated this as a provisional rejection in the Answer,
however, claims on which the double patenting rejection are based have now
issued, such that the rejection is no longer a provisional rejection. Ans. 10;
App. Br. 5 (noting that claims have issued in U.S. Patent No. 7,185,462).
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this indefiniteness rejection under the Grounds of Rejection to Be Reviewed
on Appeal or present any arguments rebutting this rejection (App. Br. 5). As
such, the Appellant has waived any argument of error, and we summarily
sustain the rejection of claims 25 and 79 under 35 U.S.C. § 112, second
paragraph. See In re Berger, 279 F.3d 975, 984, 985 (Fed. Cir. 2002)
(holding that the Board did not err in sustaining a rejection under 35 U.S.C.
§ 112, second paragraph, when the applicant failed to contest the rejection
on appeal).

ISSUES
The Examiner found that Fanucci anticipates the subject matter of
claims 1-6, 20, 23, 63, 65, 67, 68, 70, 74, 75, and 78 and that Fanucci, taken
alone or in combination with Takeuchi, renders obvious the subject matter of
claims 7, 8, 10-15, 24, 25, 66, 71, 72, 76, and 77. Ans. 3-4 and 6-9. The
Examiner’s conclusions are based on the underlying finding that Fanucci
discloses one or more air gaps between the core member and the buckling
restraining assembly. Ans. 4. The Appellants contend that Fanucci does not
disclose the use of an air gap as claimed. App. Br. 6-7; Reply Br. 4-8.
The first issue presented by this appeal is:
Has the Appellant shown the Examiner erred in finding that Fanucci
discloses an air gap between the core member and the buckling restraining
assembly?
The Examiner found Cross discloses all of the elements of claims 63,
64, 66, 69, and 79. Ans. 5. The Appellant contends the Examiner erred in
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finding that Cross discloses a brace have a buckling restraining apparatus, as
recited in claims 63 and 79, and erred in finding that Cross discloses bearing
members to limit friction between the buckling restraining assembly and the
core member, as called for in claim 79. App. Br. 7-8. The Appellant
presented no separate arguments for the patentability of claims 64, 66, and
69, which depend from claim 63.
The second issue presented by this appeal is:
Has the Appellant shown the Examiner erred in finding that Cross
discloses a brace having a buckling restraining apparatus and bearing
members?
The Examiner rejected claims 1-6, 11, 12, 20, 23, 63-70, 73, and 79
on the ground of non-statutory, obviousness-type double patenting as being
unpatentable over claims 21 and 25 of U.S. Patent No. 7,185,462. Ans. 10,
12. The Appellant contends the Examiner erred in making this rejection
because the pending claims and the claims of the ‘462 patent are patentably
distinct. App. Br. 11.
The third issue presented by this appeal is:
Has the Appellant shown the Examiner erred in concluding that
pending claims 1-6, 11, 12, 20, 23, 63-70, 73, and 79 are not patentably
distinct from claims 21 and 25 of the ‘462 patent?

FINDINGS OF FACT
We find that the following enumerated findings are supported by at
least a preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d
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1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for
proceedings before the Office).
1. Fanucci discloses a seismic brace having a central strut surrounded
by filler or spacer material contained by an outer sleeve, where the
filler and sleeve suppress buckling of the brace when the strut is
stressed in compression. Fanucci, col. 4, ll. 18-21.
2. Fanucci depicts in Figure 3A a brace having a circularly symmetric
multi-armed strut 50 with a spacer 52 filling the space between the
legs of the strut 50 and an outer sleeve 54. Fanucci, col. 4, ll. 36-
39; Fig. 3A.
3. Fanucci discloses that an optional slip agent, such as a mold
release agent, silicone, or TeflonTM film is employed between strut
50 and spacer 52, or the natural lubricity of the members may be
sufficient to fulfill the stiffness-isolation function. Fanucci, col. 4,
ll. 39-47.
4. Fanucci depicts in Figure 3B a brace 40 having a solid center strut
42 surrounded by an optional relatively uniform lightweight spacer
44 and an outer sleeve 46. Fanucci, col. 7, ll. 52-57; Fig. 3B.
5. Fanucci discloses that an optional slip agent may be employed
between strut 42 and spacer 44. Fanucci, col. 5, ll. 60-61.
6. Cross discloses a column construction that includes a structural
steel H-column A surrounded by an ornamental column C. Cross 1,
ll. 1-2; id. at ll. 55-59.
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7. Cross describes that this apparatus can be used as a structural
column in various buildings (e.g., hotels, banks, theaters, or the
like). Cross 1, ll. 7-23.
8. Cross discloses a metal lathing 24 positioned external to a middle
portion of the structural steel H-column A. Cross 1, l. 100; Fig. 4.
9. Cross further discloses a cementitious material 27 applied to the
metal lathing 24. Cross 2, ll. 7-9.
10. Cross’s cementitious material 27 circumscribes the structural steel
H-column A. Cross, Fig. 4.
11. Cross discloses vertically-spaced bands 8 disposed between the
metal lathing 24 and cementitious material 27 assembly and the
core H-column A. Cross 1, ll. 64-66; Fig. 4.
12. Cross discloses that the ornamental column is fabricated from a
framework consisting of vertical elements 5 and that base flanges 6
of vertical elements 5 are secured to the outer periphery of bands 8.
Cross 1, ll. 58-69; Fig. 4.

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir.1987).
To establish anticipation, every element and limitation of the claimed
invention must be found in a single prior art reference, arranged as in the
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claim. Karsten Mfg. Corp. v. Cleveland Golf Co., 242 F.3d 1376, 1383
(Fed. Cir. 2001). In other words, there must be no difference between the
claimed invention and the reference disclosure, as viewed by a person of
ordinary skill in the field of the invention. Scripps Clinic & Research
Found. v. Genentech Inc., 927 F.2d 1565, 1576 (Fed. Cir. 1991).
“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) where in evidence, so-called secondary
considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966); see
also KSR, 550 U.S. at 407 (“While the sequence of these questions might be
reordered in any particular case, the [Graham] factors continue to define the
inquiry that controls.”)
A nonstatutory obviousness-type double patenting rejection is
appropriate where the conflicting claims are not identical, but at least one
examined application claim is not patentably distinct from the reference
claim(s) because the examined application claim is either anticipated by, or
would have been obvious over, the reference claim(s). See e.g., In re Berg,
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140 F.3d 1428 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046 (Fed. Cir.
1993); and In re Longi, 759 F.2d 887 (Fed. Cir. 1985).

ANALYSIS
Rejections based on Fanucci
Independent claims 1, 11, 20, and 63 call for an air gap between the
exterior surface of the core member and the buckling retraining assembly.
As noted supra, the Examiner’s conclusion of anticipation of claims 1-6, 20,
23, 63, 65, 67, 68, 70, 74, 75, and 78, and the Examiner’s conclusions of
obviousness of claims 7, 8, 10-15, 24, 25, 66, 71, 72, 76, and 77 are based on
the underlying finding that Fanucci discloses one or more air gaps between
the core member and the buckling restraining assembly. The Appellant has
challenged this finding.
Fanucci discloses a seismic brace having a central strut surrounded by
filler or spacer material contained by an outer sleeve, where the filler and
sleeve suppress buckling of the brace when the strut is stressed in
compression (Fact 1). Fanucci discloses two embodiments of the brace,
each having an optional slip agent between the strut and spacer material
(Facts 2-5). We cannot discern from this disclosure, whether the slip agent
fills the entire gap between the strut and spacer material, or whether any
unfilled space exists between the members that would represent an air gap.
Because Fanucci describes the slip agent as being optional, it
contemplates an embodiment in which the strut and spacer have no slip
agent between them. There is simply not enough information provided in
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the disclosure of Fanucci, however, to discern the exact structure of
Fanucci’s brace without the optional slip agent present. For example,
Fanucci discloses that in one of the embodiments, the natural lubricity of the
members may be sufficient to fulfill the stiffness-isolation function (Fact 3).
Rather than indicating an air gap, this description indicates that the strut and
spacer material may be in contact with one another. As such, we cannot
discern by a preponderance of the evidence that Fanucci discloses an air gap
between the strut and the spacer material.
The Examiner relied on Fanucci’s Figure 3B, which depicts a space
between the exterior surface of the strut 42 and the interior surface of the
surrounding spacer material 44, as disclosure of the claimed air gap.
Ans. 3-4. This space is not specifically called out or described in Fanucci’s
disclosure of the embodiment of Figure 3B. We note, however, that Fanucci
refers to similar spaces in the description of the embodiment of Figure 7 as
simply “bonded regions” or “unbonded regions” of the brace. Fanucci, col.
7, ll. 26-28; Fig. 7. Thus, the space relied on by the Examiner in Figure 3B
could be shown simply to designate a region between the strut and spacer
material that is “unbonded.” This region could be filled entirely with a slip
agent, or the surfaces of the strut and spacer material might engage one
another. We cannot find by a preponderance of the evidence that the strut
and spacer material of Figure 3B of Fanucci have an air gap between them.
Thus, we will not sustain the anticipation rejection of claims 1-6, 20,
23, 63, 65, 67, 68, 70, 74, 75, and 78 because Fanucci does not disclose all
the elements of these claims. We likewise, will not sustain the obviousness
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rejection of claims 7, 8, 10-15, 24, 25, 66, 76, and 77 over Fanucci and
Takeuchi and the obviousness rejection of claims 71 and 72 over Fanucci,
because these rejections are based on the erroneous finding that Fanucci
discloses an air gap between the strut and buckling restraining assembly.

Rejection based on Cross
Claims 63, 64, 66, and 69
As we noted supra, the Appellant did not present separate arguments
for the patentability of claims 64, 66, and 69, which depend from claim 63.
We select claim 63 as a representative claim, and claims 64, 66, and 69 stand
or fall with claim 63. 37 C.F.R. § 41.37(c)(1)(vii) (2008).
The Appellant contends the Examiner erred in finding that Cross
discloses a “brace” because Cross discloses a decorative or ornamental
column. App. Br. 7-8. The claim recites simply “a brace apparatus.” The
Appellant proffered a definition of “brace” as “something that transmits,
directs, resists, or supports weight or pressure: a diagonal piece of structural
material that serves to strengthen something (as a framework).” App. Br. 7.
While, we agree that the term “brace” refers to “something that transmits,
directs, resists, or supports weight or pressure,” we decline to construe
“brace” narrowly to be limited only to a diagonal piece of structural
material. During examination of a patent application, pending claims are
given their broadest reasonable construction consistent with the
specification. In re Prater, 415 F.2d 1393, 1404-05 (CCPA 1969); In re Am.
Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). We do not
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find any definition or usage of the term “brace” in the Appellant’s
Specification that would require us to limit “brace” to a specific
configuration of the claimed brace as being a diagonal piece of material.
Cross discloses a column construction that includes a structural steel
H-column A surrounded by an ornamental column C (Fact 6). Cross’s
column construction supports the weight or pressure of the building as a
structural column (Fact 7). As such, Cross discloses a brace as called for in
claim 63.
The Appellant further contends that the Examiner erred in finding that
Cross discloses a brace having a “buckling restraining apparatus” because
there is no teaching that the decorative material bolted to the column would,
in any manner, restrain buckling of the structural steel column. App. Br. 8.
The Appellant purports to define “buckling restraining apparatus” by
reference to the description provided in the Appellant’s Specification, which
describes that “[t]he buckling restraining assembly maintains the structural
integrity of the brace apparatus once the core member has undergone plastic
deformation.” App. Br. 8 (citing to Spec. 5, para. 7).
We first note that the buckling restraining apparatus is defined in the
claim itself as comprising “a metal support positioned external to the middle
portion of the core member; and a rigid layer coupled to the metal support
and circumscribing the core member.” Cross discloses this same claimed
structure, including a metal support (metal lathing 24) positioned external to
a middle portion of the structural steel H-column A and a cementitious
material 27 applied to the metal lathing 24 that circumscribes the structural
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steel H-column A (Facts 8-10). Thus, we see no difference between the
claimed structure of the buckling restraining apparatus and the structure
disclosed in Cross.
Even if we were to read the functional description of a buckling
restraining assembly provided in Appellant’s Specification into the claimed
“buckling restraining apparatus,” we find that Cross’s metal lathing and
cementitious material assembly would provide at least some degree of
rigidity and support to the core structural steel H-column. Depending on the
amount of plastic deformation the core H-column undergoes, Cross’s metal
lathing and cementitious material assembly would be capable of providing
sufficient support to the column to maintain the structural integrity of the
column. The Appellant’s Specification does not specify the conditions (e.g.,
the amount of plastic deformation of the core) under which the buckling
restraining assembly must maintain the structural integrity of the brace
apparatus. As such, even using the Appellant’s definition of buckling
restraining assembly, Cross’s disclosed structure meets the elements of
claim 63.
The Appellant also argues that the Examiner erred in rejecting claim
63 because Cross’s metal lathing 24 is positioned internal to the
cementitious material 27. Reply Br. 9. Claim 63, however, does not call for
the metal support to be positioned external to the rigid layer. Rather, claim
63 requires only that the metal support is positioned external to the core
member and that the rigid layer is coupled to the metal support and
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circumscribes the core member. As such, Cross anticipates the subject
matter of claim 63. Claims 64, 66, and 69 fall with claim 63.

Claim 79
The Appellant further contends the Examiner erred in finding that
Cross discloses bearing members to limit friction between the buckling
restraining assembly and the core member, as called for in claim 79. App.
Br. 8. The Appellant argues that Cross’s bands 8 “are not bearing members
but are rather structural components of the column that rigidly fasten the
outer, ‘ornamental column’ to the inner ‘structural steel column.’” Reply
Br. 9-10 (citing Cross, page 1, lines 3-23). The Appellant argues that
“[u]nlike Cross, the bearing members of the current invention limits [sic]
‘friction between the buckling restraining assembly and the core member’
thereby permitting the core member to slide relative to the buckling
restraining assembly.” Reply Br. 10.
Claim 79 recites “one or more bearing members comprising a first
surface[,] a second surface and a body to limit friction between the buckling
restraining assembly and the core member.” Claim 79 does not call for the
bearing members to permit the core member to slide relative to the buckling
restraining assembly.
Cross discloses vertically-spaced bands 8 disposed between the metal
lathing 24 and cementitious material 27 assembly and the core H-column A
(Fact 11). By being disposed between the assembly and core, the bands 8
“limit friction” between Cross’s buckling restraining assembly and its core
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member. Further, the bands 8 support, at least in part, the weight of the
metal lathing and cementitious material assembly (Fact 12) and thus operate
as “bearing members.”4 As such, Cross anticipates the subject matter of
claim 79.

Double-patenting rejection
The Examiner determined that “[a]lthough [claims 21 and 25 of the
‘462 patent and pending claims 1-6, 11, 12, 20, 23, 63-70, 73, and 79] are
not identical, they are not patentably distinct from each other because the
claimed limitations of the application are fully encompassed by the claims
21, 25 of [the ‘462 patent].” Ans. 10. The Examiner further explained that
“the limitations in claims 1-6, 11-12, 20, 23, 63-70, 73, 79 are fully set forth
in claims 21 and 25 of patent 7185462. The claims 21, and 25 read on the
claims 1-6, 11-12, 20, 23, 63-70, 73, 79.” Ans. 12.
The Appellant argues that the obviousness-type double patenting
rejection is improper because the pending claims and the claims of the ‘462
patent are patentably distinct. App. Br. 11. In particular, the Appellant
notes that the ‘462 patent discloses a core brace apparatus which has
multiple cores and the pending claimed invention is operable with a single
core. Id.

4 An ordinary meaning of a bearing is “[a] machine or structural part that
supports another part.” The American Heritage Dictionary of the English
Language (4th ed. 2000), found at www.bartelby.com (last visited May 26,
2009).
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The Examiner has provided us with a conclusory statement that the
claim limitations of the rejected claims are “encompassed by” claims 21 and
25 of the ‘462 patent, but the Examiner has not provided any analysis to
show how the rejected claims define subject matter that is anticipated by or
an obvious variation of the subject matter of patented claims 21 and 25.
Although the Examiner admits that the rejected claims and the patented
claims are not identical, the Examiner fails to analyze the differences
between the subject matter of the rejected claims and the patented claims.
The Appellant has suggested that one such difference is that the patented
claims call for two core members while the rejected claims encompass a
brace that is operable with only a single core member. The Examiner failed
in the response to present arguments to show how the subject matter of the
rejected claims, despite this difference in scope, is anticipated by or an
obvious variation of the subject matter of the patented claims.
Throughout the Examiner’s statement of the rejection, the focus is
improperly, or imprecisely, on the claim “limitations,” when the appropriate
inquiry should focus on the subject matter of the claims as a whole. We
note, for example, that in addition to the difference noted by the Appellant,
rejected claim 1 requires that “the rigid layer has an internal profile that
approximates but is spaced apart from the exterior surface of the core
member,” while patented claims 21 and 25 do not contain a similar “profile”
limitation. The Examiner’s conclusory statements about double patenting
fail to make clear how the subject matter of pending claims 1-6, 11, 12, 20,
23, 63-70, 73, and 79 is patentably indistinct from the subject matter of
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patented claims 21 and 25. We therefore cannot sustain the double patenting
rejection.

CONCLUSIONS
The Appellant has failed to show the Examiner erred in rejecting
claims 25 and 79 under 35 U.S.C. § 112, second paragraph, as being
indefinite.
The Appellant has shown the Examiner erred in the anticipation
rejection of claims 1-6, 20, 23, 63, 65, 67, 68, 70, 74, 75, and 78 and in the
obviousness rejection of claims 7, 8, 10-15, 24, 25, 66, 71, 72, 76, and 77, in
finding that Fanucci discloses an air gap between the core member and the
buckling restraining assembly.
The Appellant has failed to show the Examiner erred in the
anticipation rejection of claims 63, 64, 66, 69, and 79 in finding that Cross
discloses a brace having a buckling restraining apparatus and bearing
members.
The Appellant has shown the Examiner erred in concluding that
pending claims 1-6, 11, 12, 20, 23, 63-70, 73, and 79 are not patentably
distinct from claims 21 and 25 of the ‘462 patent.

DECISION
The decision of the Examiner to reject claims 25 and 79 under
35 U.S.C. § 112, second paragraph, is AFFIRMED.
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The decision of the Examiner to reject claims 1-6, 20, 23, 63, 65, 67,
68, 70, 74, 75, and 78 under 35 U.S.C. § 102(e) as anticipated by Fanucci,
claims 7, 8, 10-15, 24, 25, 66, 76, and 77 under 35 U.S.C. § 103(a) as
unpatentable over Fanucci and Takeuchi, and claims 71 and 72 under
35 U.S.C. § 103(a) as unpatentable over Fanucci is REVERSED.
The decision of the Examiner to reject 63, 64, 66, 69, and 79 under
35 U.S.C. § 102(b) as anticipated by Cross is AFFIRMED.
The decision of the Examiner to reject claims 1-6, 11, 12, 20, 23, 63-
70, 73, and 79 under the judicially-created doctrine of double patenting over
claims 21 and 25 of U.S. Patent No. 7,185,462 is REVERSED.
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)(1)(iv) (2007).

AFFIRMED-IN-PART

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