Ex Parte Walmsley et al

Patent Trial and Appeal Board

Mar 23, 2017

12879124 (P.T.A.B. Mar. 23, 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.
12/879,124 09/10/2010 William W. Walmsley 10026-055US1 6285
27530 7590
Nelson Mullins Riley & Scarborough LLP
IP Department
100 North Tryon Street
42nd Floor
Charlotte, NC 28202-4000
EXAMINER
JORDAN, NICHOLAS W
ART UNIT PAPER NUMBER
1784
NOTIFICATION DATE DELIVERY MODE
03/27/2017 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):
ip@nelsonmullins.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte WILLIAM W. WALMSLEY and BASIL JOHN THOMAS
Appeal 2016-002171
Application 12/879,124
Technology Center 1700
Before TERRY J. OWENS, DONNA M. PRAISS, and JEFFREY R. SNAY,
Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—3, 6—16, and 19—22.3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 We refer to the Specification (“Spec.”) filed September 10, 2010; Final
Office Action (“Final Act.”) dated December 19, 2014; Appellants’ Appeal
Brief (“Br.”) dated May 19, 2015; and Examiner’s Answer (“Ans.”) dated
October 6, 2015.
2 Appellant identifies Terram Limited as the real party in interest. Br. 3.
3 Claims 17 and 18 stand withdrawn. Final Act. 2; Br. 16—17.
Appeal 2016-002171
Application 12/879,124
BACKGROUND
The subject matter on appeal relates to “cellular structures, in
particular to cellular structures including a composite fill material.” Spec.
1:9—10. Each of the rejected claims depends from claim 1 or claim 19,
which are reproduced below from the Claims Appendix of the Appeal Brief
(emphasis added to highlight the recitation in dispute):
1. A structure, comprising:
a cellular unit having
an undulating outer surface defined by perimeter
cells having outwardly facing walls and
a plurality of constrained interior cells surrounded
by the perimeter cells, the constrained interior cells
interconnected by intersecting internal walls comprising a
continuous fabric material folded back and forth on itself and
bonded; and
a composite fill material at least partially filling the
perimeter cells and the plurality of interior cells,
wherein the outwardly facing walls are not constrained
and are free to bulge with the composite fill material and the
composite fill material comprises a particulate material and a
bonding agent.
19. A unit, comprising:
an undulating outer surface defined by partly cylindrical
cells and
a plurality of constrained interior cells surrounded by the
partly cylindrical cells, the constrained interior cells
interconnected by intersecting internal walls comprising
a continuous flexible nonwoven fabric folded back and
forth on itself and bonded; and
a resilient fill material contained in the partly cylindrical
cells and the plurality of constrained interior cells
wherein the undulating outer surface is not constrained
and is free to bulge with the resilient fill material.
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Appeal 2016-002171
Application 12/879,124
REJECTIONS4
I. Claims 1—3, 6—16, and 19—22 stand rejected under 35 U.S.C. § 112,
first paragraph, as lacking written description.
II. Claim 1—3, 10, 11, 14—16, 19, 21, and 22 stand rejected under
35 U.S.C. §§ 102(a) and (e) as anticipated by Milton.5
III. Claim 19 stands rejected under 35 U.S.C. § 102(b) as anticipated by
Gourves.6
IV. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Milton and Sharley.7
V. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Gourves and Sharley.
VI. Claims 1—3, 14—16, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Gourves and Vignon.8
VII. Claims 6—9 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gourves, Vignon, and Sharley.
VIII. Claims 10-13 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over Gourves, Vignon, and Bach.9
4 Final Act. 3—17; Ans. 2—16.
5 WO 2008/037972 Al, published April 3, 2008 (“Milton”). Appellants do
not contest the Examiner’s reliance on US 8,425,158 B2 (“Milton ’158”),
issued April 23, 2013, in the explanation of the rejection. Compare Final
Act. 4 with Br. 7, 9—10. For consistency, we adopt the Examiner’s approach
in citing to passages in Milton ’158.
6 FR 2 824 340 Al, published November 8, 2002 (“Gourves”), as translated.
7 GB 2 440 147 A, published January 23, 2008 (“Sharley”).
8 US 4,572,705, issued February 25, 1986 (“Vignon”).
9 US 4,717,283, issued January 5, 1988 (“Bach”).
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Appeal 2016-002171
Application 12/879,124
DISCUSSION
I
With regard to Rejection I, the Examiner finds that the phrase, “not
constrained,” in each of claims 1 and 19, is not adequately described in the
Specification in connection with the outwardly facing walls of the claimed
cellular unit. Final Act. 3. Appellants point to Figure 2 and the description
at page 15, lines 1—18, of the Specification as distinguishing interior cells
that are constrained by intersecting internal fabric walls and bonding points,
and perimeter cells in which the outwardly-facing walls are “more free to
bulge upon filling.” Br. 8 (quoting Spec. 15:17). Appellants’ Figure 2 of
the Specification is reproduced below.
Figure 2 is said to depict a cellular unit 4 made up of interconnected
tubular cells 5, 6 formed from a flexible geotextile material. Spec. 14:15—
17. Consistent with the above-mentioned passage in the Specification,
Figure 2 depicts interior cells 5 that are constrained by intersecting walls,
and perimeter cells 6 having outwardly-facing surfaces that are not
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Appeal 2016-002171
Application 12/879,124
constrained by intersecting walls, “resulting in a curved outer surface to each
perimeter cell 5” upon filling. Id. at 15:17—18.
On this record, we are persuaded that the Examiner erred in finding
that the recitation, “not constrained,” in each of claims 1 and 19 lacks
adequate written description. Accordingly, we will not sustain Rejection I.
With regard to Rejection II, Appellants argue the rejected claims as a
group, focusing on the same recitation in each of claims 1 and 19 that the
outwardly-facing surfaces are “not constrained.” Br. 9—10.
Appellants do not dispute the Examiner’s findings that Milton
describes a “cellular confinement system” formed from a “flexible fabric
material” and including “constrained interior cells that are interconnected by
intersecting internal walls and surrounded by perimeter cells.” Compare
Final Act. 4 with Br. 9—10. The Examiner additionally cites Milton’s Figure
lb, Final Act. 4, which we reproduce below.
Milton’s Figure lb is said to depict a “cellular confinement system 1
comprising a number of interconnected cells 2 formed from a fabric material
such as a nonwoven geotextile. . . .” Milton ’158 col. 12,1. 66-col. 13,1. 2.
Appellants argue that “[tjhere is no disclosure in Milton regarding
whether the perimeter cells and interior cells have different characteristics,”
II
Ftg. 1b
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Application 12/879,124
and that the Examiner, therefore, has not “provide[d] sufficient rationale or
evidence tending to show inherency.” Br. 9.
Appellants’ argument is not persuasive of reversible error. As
discussed above in connection with Rejection I, the Specification refers to
inner cells that are constrained because they are “formed by the intersecting
internal fabric walls and bonding points.” Spec. 15:15—16. Outwardly-
facing surfaces of perimeter cells are said not to be constrained because, in
contrast, they are free from such intersecting walls and bonding points. See
Br. 8. Appellants do not point us to any evidence that tends to refute the
Examiner’s finding that Milton’s perimeter cells likewise are formed of
flexible fabric and include outwardly-facing surfaces that are free from
intersecting walls and bonding points, i.e., are “not constrained.”
Accordingly, we sustain Rejection II as applied to each of claims 1
and 19. Because Appellants do not separately argue any of claims 2, 3, 10,
11, 14—16, 21, and 22, we also sustain Rejection II as applied to each of
these claims.
Ill
With regard to Rejection III, Appellants do not dispute the Examiner’s
findings that Gourves describes an “engineering structure comprising a
continuous strip of [flexible] geotextile material” arranged in the form of a
“cellular unit having a plurality of constrained interior cells surrounded by
partly cylindrical cells.” Compare Final Act. 8 with Br. 10—11. Neither do
Appellants dispute that the outermost cells in Gourves’ cellular unit include
outwardly-facing surfaces that are free from intersecting walls and bonding
points. See Br. 10—11. Rather, Appellants present the same argument
against Rejection III as is presented against Rejection II—namely, that
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Application 12/879,124
“[t]here is no disclosure in Gourves regarding whether the perimeter cells
and interior cells have different characteristics.” Id. at 10. Appellants’
arguments are not persuasive of reversible error for the same reasons given
in connection with Rejection II.
Accordingly, we also sustain Rejection III.
IV-VIII
Appellants do not present any particular argument against Rejections
IV—VIII except to rely on the arguments made with regard to Rejection II or
III. See Br. 11—13. Because Appellants’ arguments with regard to
Rejections I and II are not persuasive, we also sustain each of Rejections
IV-VIII.
CONCLUSION
Rejection I is not sustained.
Each of Rejections II—VIII is sustained.
DECISION
The Examiner’s decision rejecting claims 1—3, 6—16, and 19—22 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
AFFIRMED
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