Ex Parte Wingfield

Patent Trial and Appeal Board

Aug 26, 2016

13062589 (P.T.A.B. Aug. 26, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/062,589 03/07/2011
25944 7590 08/30/2016
OLIFF PLC
P.O. BOX 320850
ALEXANDRIA, VA 22320-4850
FIRST NAMED INVENTOR
Allan Wingfield
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.
138259 5731
EXAMINER
IHEZIE, JOSHUA K
ART UNIT PAPER NUMBER
3633
NOTIFICATION DATE DELIVERY MODE
08/30/2016 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):
OfficeAction25944@oliff.com
jarmstrong@oliff.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALLAN WINGFIELD
Appeal2014-003712 1
Application 13/062,589
Technology Center 3600
Before CHARLES N. GREENHUT, JILL D. HILL, and
ERIC C. JESCHKE, Administrative Patent Judges.
JESCHKE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Allan Wingfield (Appellant)2 seeks review, under 35 U.S.C. § 134(a),
of the Examiner's decision to reject claims 1-18, 23, 24, 26-29, 31-37, 39,
and 40. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART, designating the affirmance of the rejection of
claims 1--4, 6-18, 23, 24, and 26-29 under 35 U.S.C. § 103(a) as a NEW
GROUND OF REJECTION under 37 C.F.R. § 41.50(b).
1 The record includes a transcript of the oral hearing held on July 19, 2016.
2 Appellant identifies BONAR B.V. as the real party in interest. Appeal Br.
1.
Appeal2014-003712
Application 13/062,589
BACKGROUND
The disclosed subject matter "relates to a thermal barrier in building
structures, such as roof structures or wall structures, and to methods of
producing roof structures having such thermal barriers." Spec. i-f 1. Claims
1, 23, 31, 35, 39, and 40 are independent. Claim 1 is reproduced below:
1. A building structure, comprising:
a base structure;
an external layer that comprises a metal
roofing layer; and
a thermal barrier positioned between the
base structure and the external layer, the thermal
barrier comprising a three-dimensional matrix of
filaments made from a tangled net of polymer.
REJECTIONS
1. Claims 1, 2, 6, 7, 9-18, 23, 24, and 26-29 are rejected under
35 U.S.C. § 103(a) as unpatentable over Egan (US 6,131,353, issued Oct.
17, 2000) and Thaler (US 2005/0055889 Al, published Mar. 17, 2005).
2. Claims 3, 4, and 8 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Egan, Thaler, and Rasen (US 4,212,692, issued July 15,
1980).
3. Claim 5 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Egan, Thaler, and Yamada (US 2007 /0257227 Al, published Nov. 8,
2007).
4. Claims 31-33 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Egan and Rone (US 4,201,193, issued May 6, 1980).
5. Claims 34--37 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Egan, Rone, and Thaler.
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6. Claims 39 and 40 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Egan.
DISCUSSION
Rejections 1 and 2 - The rejection of claims 1-4, 6--18,
23, 24, and 26--29 under 35 U.S.C. § 103(a)
Appellant asserts the patentability of the two independent claims in
this group-----claims 1 and 23-based on the same arguments and does not
provide separate arguments for any dependent claim. Appeal Br. 5-9. We
select claim 1 as representative, with the remaining claims standing or
falling with claim 1. See 37 C.F.R. § 41.37 (c)(l)(iv) (2013). In rejecting
claim 1, the Examiner found that Egan discloses various limitations but
"does not disclose that the external layer comprises a metal roofing layer."
Non-Final Act. 3 (dated June 10, 2013). The Examiner found, however, that
"Thaler discloses a building structure (fig. 1) having an external layer (30),
the external layer comprising a metal roofing layer." Id. (citing Thaler il 32).
According to the Examiner, it would have been obvious "to make the
external roofing layer of Egan a metal roofing layer as made obvious by
Thaler to increase the aesthetic appeal of the building structure." Id.
First, Appellant states that Egan discloses using "a drainage mat 6 to
allow water to flow between the external roofing layer (shingles 28) and roof
decking" and contends that, "if Thaler's corrugated metal layer 30 (see Fig.
1 and paragraph [0032]) were used in place of Egan's shingles 28, the
corrugations 28 of Thaler's metal layer 30 would provide such drainage."
Appeal Br. 6. Appellant argues that
[w]ithout some motivation to include both Egan's drainage mat
6 and Thaler's metal layer 30, one of ordinary skill in the art, if
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Id.
desiring Thaler's metal roofing layer, would simply have
installed the metal roofing layer without a drainage mat, thus
avoiding the added expense and labor involved with the
drainage mat.
We are not apprised of error based on this argument. As an initial
matter, Appellant provides no support for the contentions that it is "accepted
wisdom in the art that metal roofing does not need a separate drainage layer"
(Appeal Br. 6) and that "metal roofing has been installed without drainage
mats for decades" (Reply Br. 2). See In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974) ("Attorney's argument in a brief cannot take the place of
evidence.").
Further, for claim 1, the Examiner relies on elements 2 and 6 in Egan
to satisfy the recited "thermal barrier comprising a three-dimensional matrix
of filaments," respectively (see Non-Final Act. 3); Appellant has not
identified error in these findings. The Examiner did not rely on elements 2
and 6 for a drainage function (which, moreover, is not recited in claim 1).
That elements 2 and 6 from Egan may, in the modified device, provide not
only a "thermal barrier" but may also provide drainage---even drainage that
may arguably be unnecessary given the presence of metal roofing layer 30
from Thaler---does not lead to the conclusion that one would remove
elements 2 and 6 based on the potentially redundant additional function (i.e.,
drainage). Moreover, we are not apprised of error based on the contention
that one of skill in the art would have removed elements 2 and 6 of Egan
from the modified device to avoid the added expense and labor. See In re
Farrenkopf, 713 F.2d 714, 718 (Fed. Cir. 1983) ("That a given combination
would not be made by businessmen for economic reasons does not mean that
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persons skilled in the art would not make the combination because of some
technological incompatibility. Only the latter fact would be relevant.").
Second, Appellant argues that one of ordinary skill in the art would
have faced certain "difficulties in installing a metal roofing layer on a layer
such as Egan's drainage mat 6" and that these alleged "difficulties would
have dissuaded one of ordinary skill in the art from making the claimed
combinations of features." Appeal Br. 7. Appellant contends that "a metal
roofing piece is more susceptible to sliding off the roof during installation
(i.e., while the metal roofing piece is being positioned on the roof and before
it has been attached to the underlying base structure)" and that "one of
ordinary skill in the art would not have found it obvious to install a three-
dimensional matrix of filaments between the roof deck and the metal roofing
due to the increased propensity for metal roofing pieces to slide off the roof
during installation." Id. Appellant also contends that "[w]hen a three-
dimensional matrix of filaments is positioned between the roof deck and the
metal roofing, specialized clips (e.g., longer clips) must be used instead of
the standard clips, to account for the space between the roof deck and metal
roofing" and argues that "one of ordinary skill in the art would have been
dissuaded from positioning a three-dimensional matrix of filaments between
the roof deck and the metal roofing, because of the need for specialized
mounting clips." Id. at 8.
We are not apprised of error here. As an initial matter, Appellant has
not provided persuasive evidence or technical reasoning to support the
assertion that these issues---even if assumed to exist-would have
"dissuaded" (Appeal Br. 7) one of ordinary skill in the art from the proposed
modification because the issues would have been beyond the level of
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ordinary skill in the art. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,
417-18 (2007); see also Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157,
1165 (Fed. Cir. 2006) ("a given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate
motivation to combine").
Appellant has also not provided support for the contention that
"specialized mounting clips" (Appeal Br. 7) would be needed in the
modified device. See In re Pearson, 494 F.2d at 1405. In fact, Appellant
has not identified support for the more general assertion that any mounting
clips (even nonspecialized clips) are necessarily used to secure metal
roofing. See, e.g., Appeal Br. 8 (stating, without support, that "[a] large
majority of metal roofing is installed using mounting clips that are fastened
to the roof deck prior to installation of the metal roofing panels").
As to the alleged increased potential for metal roofing layers to slide
during installation, Appellant also does not address the rejection as
articulated. Here, the Examiner proposes to modify the structure in Figure 7
of Egan by replacing shingles 28 of Egan with metal roofing layer 30 of
Thaler. See Non-Final Act. 3. In contrast, Appellant addresses a different
modification-adding mat 6 of Egan to a structure of (1) an underlying
surface (such as tar paper) and (2) an external metal layer, to create a
structure with (1) an underlying structure, (2) mat 6 of Egan, and (3) an
external metal layer. See, e.g., Appeal Br. 7 ("Installing a structure such as
the mat 6 of [Egan] ... greatly reduces the area of contact between the metal
roofing and the underlying surface, and typically also reduces the coefficient
of friction between the metal roofing and the underlying surface.") (arguing
that "one of ordinary skill in the art would not have found it obvious to
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install a three-dimensional matrix ojjUaments between the roof deck and the
metal roofing due to the increased propensity for metal roofing pieces to
slide off the roof during installation" (emphasis added)).
By addressing a different modification, Appellant incorrectly frames
the relevant comparison as between ( 1) the potential for a metal roofing
layer to slide on mat 6 of Egan and (2) the potential for a metal roofing layer
to slide on, for example, tar paper. See, e.g., Reply Br. 3 (asserting that "a
steel roofing piece would much more easily slide off of a roof when placed
on the Egan drainage mat, compared to the typical case of placing the steel
roofing piece on a water barrier of tar paper or the like"); see also id.
(arguing that the Examiner "has not established that it is inherent, or even
probable, that the Egan mat would provide greater friction than a typical
surface on which metal roofing is installed").
Third, Appellant contends that the claimed invention provides certain
"advantages ... not recognized or contemplated by the applied references"
and argues that "Appellant's recognition and utilization of them in spite of
the accepted wisdom in the art ... confirms patentability of the claimed
invention." Appeal Br. 9. Specifically, Appellant contends that "the
claimed thermal barrier prevents large amounts of heat from being
transferred between the external layer and the underlying base structure,
which not only reduces air conditioning costs during warm weather and
heating costs during cold weather, but also reduces heat damage to the base
structure." Id. at 8. Appellant also contends that a "three-dimensional
matrix of filaments between the base structure and the metal layer, as per
claims 1 and 23, reduces the area of contact between the base structure and
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the metal layer, which helps reduce stress on the metal layer." Id.
According to Appellant, because
the three-dimensional matrix results in a greater distance
between ( 1) the point of fastener contact with the base structure
and (ii) the point of fastener contact with the metal layer, each
fastener can flex over a greater portion of its length, and thus
can more easily absorb expansion and contraction differences
between the base structure and the metal layer.
Id. at 8-9.
We are not apprised of error here because this argument is not
commensurate in scope with the claim language. In re Self, 671 F .2d 1344,
1348 (CCP A 1982) (rejecting arguments "not based on limitations appearing
in the claims"). Although claim 1 does recite a "thermal barrier positioned
between the base structure and the external layer, the thermal barrier
comprising a three-dimensional matrix of filaments," claim 1 does not recite
the additional properties or functional requirements discussed by Appellant.
Further, Appellant does not identify legal support for the proposition that
prior art must "recognize[]" (Appeal Br. 9) alleged unclaimed advantages of
a claimed invention to support a conclusion of obviousness. Cf KSR, 550
U.S. at 419 ("In determining whether the subject matter of a patent claim is
obvious, neither the particular motivation nor the avowed purpose of the
patentee controls."). To the extent Appellant contends that these alleged
advantages are unexpected results, Appellant has not identified evidence
supporting such an assertion. See In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997) (stating that unsupported attorney argument as to unexpected
results is entitled to little weight); see also In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984) ("It is well settled that unexpected results must be
established by factual evidence.").
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Fourth, Appellant contends, in a footnote, that the Examiner "has
provided no evidence showing that those skilled in the art would have
considered the corrugated metal roofing layer 30 of Thaler to be more
aesthetically appealing than the shingles 28 disclosed by Egan." Appeal Br.
6 n.1. Although the specific reasoning provided does not necessarily support
the conclusion of obviousness of claim 1, the record provides sufficient basis
for the conclusion. Here, the Examiner relied on shingles 28 in Egan as the
"external layer" but replaced the shingles with metal roofing layer 30 of
Thaler. See Non-Final Act. 3. Describing Figure 7, Egan provides that the
disclosed
composite drainage mat 2 may additionally be used in
conjunction with a roof 24. Roof 24 includes a layer of decking
26, a plurality of shingles 28, and composite drainage mat 2
interposed therebetween. Other constructions and roofing
materials are well known and understood in the relevant art
and may be used without departing from the spirit of the
present invention.
Egan, col. 10, 11. 3-10 (emphasis added). Egan also discusses shingles as
one possible external layer among other "appropriate roofing materials." Id.,
col. 10, 11. 17-18 (discussing "[s]hingles 28 or other appropriate roofing
materials"); col. 10, 11. 23-24, 25-26, 29-30 ("shingles 28 or other such
roofing materials"). Based on these teachings and those discussed by the
Examiner (Non-Final Act. 3), we determine that it would have been obvious
to one of ordinary skill in the art at the time of the invention to substitute
shingles 28 in Egan with the known metal roofing layer 30 in Thaler (i-f 32).
See KSR, 550 U.S. at 416 ("[W]hen a patent claims a structure already
known in the prior art that is altered by the mere substitution of one element
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for another known in the field, the combination must do more than yield a
predictable result.").
For the reasons set forth above, we sustain the rejection of claim 1.
Claims 2--4, 6-18, 23, 24, and 26-29 fall with claim 1. Because the
articulated reasoning and certain findings of fact differ from those of the
Examiner, we designate our affirmance as a new ground of rejection under
37 C.F.R. § 41.50(b) to provide Appellant with a full and fair opportunity to
respond to the Rejection, as modified.
Rejection 3 - The rejection of claim 5
under 35 U.S.C. § 103(a)
Claim 5 recites "[t]he building structure according to claim 1 wherein
the material of the filaments of the three-dimensional matrix of filaments has
heat conductivity of 0.4 W/(m K) or lower." Appeal Br. A-1 (Claims App.).
The Examiner found that "Egan discloses a three dimensional matrix of
filaments in the building structure, but does not disclose that they have a
heat conductivity of 0.4 W/(m K) or lower." Non-Final Act. 7. The
Examiner found, however, that Yamada "discloses a building structure (fig.
1) having roofing materials that possess heat insulating properties, the
materials having a heat conductivity below 0.4 W/(m K) [0003]." Id.
According to the Examiner, "[i]t would be obvious to one having ordinary
skill in the art at the time of the invention to make the three dimensional
matrix of filaments of Egan have a heat conductivity of 0.4 or lower to
increase the thermal insulation of the building structure." Id. at 8.
Appellant argues that "it is extremely doubtful that it is even possible
to form rigid polyurethane foam [see Yamada i-f 3], used in conventional
rigid foam insulation, into filaments." Reply Br. 4--5. According to
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Appellant, the Examiner "has offered no evidence or analysis in this regard."
Id. at 5.
We agree with Appellant that the record here does not support the
conclusion of obviousness. Here, the Examiner does not take the position
that the identified "three-dimensional matrix of filaments" from Egan
possess the recited heat conductivity; instead, the Examiner relies on
Yamada to teach a material-but not a "three-dimensional matrix of
filaments"-with the claimed heat conductivity. The Examiner has not,
however, demonstrated that the polyurethane foam of Yamada could be
formed as a "three-dimensional matrix of filaments" and retain its disclosed
heat conductivity (see Reply Br. 4--5) and has also not demonstrated that one
could select a filament material for the "three-dimensional matrix of
filaments" of Egan that possesses the claimed heat conductivity value (see
Ans. 12 (stating that Yamada was relied on "to disclose the obviousness of
choosing a material of the filaments with the claimed heat conductivity")).
Thus, we do not sustain the rejection of claim 5.
Rejection 4-The rejection of claims
31-33 under 35 U.S.C. § 103(a)
Claim 31 recites, among other limitations, "an external roofing layer
that has a heat conductivity of at least 10 W/(m K)." Appeal Br. A-4
(Claims App.). The Examiner found that Egan does not disclose this aspect
but found that "Rone discloses a building structure (fig. 1) comprising a base
structure ( 5), an external layer that has a heat conductivity of 0.15
W/mA2/°C (col. 4 line 14) and a thermal barrier (3)." Non-Final Act. 8. The
Examiner concluded it would have been obvious to "use a material with a
heat conductivity, specifically a heat conductivity of at least 10 W /(m K) in
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the external roofing layer of Egan as made obvious by Rone so that solar
heat may be captured and used for heating or other household needs." Id.
Appellant argues that "Rone does not disclose an external roofing
layer with the claimed heat conductivity" because the only disclosed value,
for waterproofing layer 1, is "'0,15 W/m2/°C' (column 4, line 14)." Appeal
Br. 10. The Examiner responds that "even though the specific range
[claimed] was not disclosed, Rone discloses an external layer having a heat
conductivity property" and states that it would have been obvious "to choose
any known material for the external layer with a heat conductivity range as
claimed to get predictable and expected results." Ans. 12.
The record here does not support the determination that claim 31
would have been obvious. A rejection cannot be based on "speculation,
unfounded assumptions or hindsight reconstruction to supply deficiencies in
its factual basis." In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Here,
the Examiner acknowledges that Rone does not disclose the limitation at
issue but does not provide, for example, ( 1) evidence to show that a material
with the claimed heat conductivity value even exists or (2) reasoning as to
why a person of ordinary skill would have selected such a material with the
claimed heat conductivity value. Thus, we do not sustain the rejection of
claim 31, or the rejection of claims 32 and 33, which depend from claim 31.
Rejection 5 -The rejection of claims
34-37 under 35 U.S.C. § 103(a)
A. Claim 34
Claim 34 depends from claim 31. Appeal Br. A-4 (Claims App.).
The Examiner's added reliance on Thaler does not remedy the deficiencies
in the combined teachings of Egan and Rone, discussed above (see supra
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Rejection 4). Thus, for the same reasons discussed above, we do not sustain
the rejection of claim 34.
B. Claims 35-37
Similar to claim 31, independent claim 35 recites an "external layer
having a heat conductivity of at least 10 W/(m K)." Compare Appeal Br.
A-5 (Claims App.), with id. at A-4. For claim 35 (and for claims 36 and 37,
which depend from claim 35), the Examiner relies on the same deficient
findings and conclusions with regard to the limitation at issue as discussed
above with regard to claim 31 (see supra Rejection 4). See Non-Final Act.
9. Moreover, the Examiner's reliance on Thaler does not remedy the
deficiencies in the combined teachings of Egan and Rone, discussed above
(see supra Rejection 4). See Non-Final Act. 9. Thus, for the same reasons
discussed above, we also do not sustain the rejection of claims 35-37.
Rejection 6-The rejection of claims 39
and 40 under 35 U.S.C. § 103(a)
Independent claims 39 and 40 each recite, among other limitations, an
"external layer" comprising "a layer of metal, the metal selected from the
group consisting of copper, steel, zinc, titanium and stainless steel." Appeal
Br. A-5 (Claims App.). The Examiner states that "Egan does not disclose
that the external layer is a layer of steel" but concludes that it would have
been obvious
to make the external layer of steel, since it has been held to be
within the general skill of a worker in the art to select a known
material on the basis of its suitability for the intended use as a
matter of obvious design choice. In re Leshin, 125 USPQ 416.
One would be motivated to make the external layer of steel to
increase the durability of the external layer.
Non-Final Act. 10.
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First, Appellant contends that "known steel external layers (both
roofing layers and siding layers) include corrugations, and these
corrugations would provide drainage as discussed above in connection with
claim 1." Appeal Br. 13. Appellant then states, "[a]s discussed above in
connection with claim 1, if a corrugated layer were used, one of ordinary
skill in the art would have considered Egan's drainage mat 6 to be
unnecessary." For the same reasons discussed above (see supra Rejection 1,
first argument), we are not apprised of error based on this argument.
Second, Appellant contends that "as described above in connection
with claim 1, there would have been difficulties involved with installing
metal layers on the Egan drainage mat 6" and that"[ w ]ithout being aware of
and considering advantages of the claimed invention, one of ordinary skill in
the art would have been dissuaded from attempting to make the structure
recited in claim 39 or perform the steps recited in claim 40." Appeal Br. 13.
For the same reasons discussed above (see supra Rejection 1, second
argument), we are not apprised of error based on this argument.
Third, Appellant argues that "as discussed above in connection with
claim 1, the claimed invention provides advantages that are not recognized
or contemplated by the applied references, and Appellant's recognition and
utilization of them in spite of the accepted wisdom in the art confirms
patentability of the claimed invention." Appeal Br. 13-14. For the same
reasons discussed above (see supra Rejection 1, third argument), we are not
apprised of error here.
For these reasons, we sustain the rejection of claims 39 and 40.
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DECISION
We AFFIRM the decision to reject claims 1--4, 6-18, 23, 24, and 26-
29, designating the affirmance as a NEW GROUND OF REJECTION under
37 C.F.R. § 41.50(b), we REVERSE the decision to reject claims 5 and 31-
37, and we AFFIRM the decision to reject claims 39 and 40.
FINALITY OF DECISION
This decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). Section 41.50(b) provides "[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review."
Section 41.50(b) also provides:
When the Board enters such a non-final decision, the appellant,
within two months from the date of the decision, must exercise
one of the following two options with respect to the new ground
of rejection to avoid termination of the appeal as to the rejected
claims:
( l) Reopen prosecution. Submit an appropriate
amendment of the claims so rejected or new Evidence relating
to the claims so rejected, or both, and have the matter
reconsidered by the examiner, in which event the prosecution
will be remanded to the examiner. The new ground of rejection
is binding upon the examiner unless an amendment or new
Evidence not previously of Record is made which, in the
opinion of the examiner, overcomes the new ground of rejection
designated in the decision. Should the examiner reject the
claims, appellant may again appeal to the Board pursuant to this
subpart.
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same Record. The
request for rehearing must address any new ground of rejection
and state with particularity the points believed to have been
misapprehended or overlooked in entering the new ground of
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rejection and also state all other grounds upon which rehearing
is sought.
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure§ 1214.01.
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-IN-PART; 37 C.F.R. § 41.50(b)
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