INTEGRATED CONCRETE FORMING LTD.

Patent Trials and Appeals Board

Nov 17, 2020

15568276 - (D) (P.T.A.B. Nov. 17, 2020)

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.
15/568,276 10/20/2017 Marjan DAJNKO 3351-9 1947
144061 7590 11/17/2020
Wilson Lue LLP
250 University Avenue, 5th Floor
Toronto, ONTARIO M5H 3E5
CANADA
EXAMINER
IHEZIE, JOSHUA K
ART UNIT PAPER NUMBER
3633
NOTIFICATION DATE DELIVERY MODE
11/17/2020 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):
docketing@wilsonlue.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARJAN DAJNKO

Appeal 2020-002542
Application 15/568,276
Technology Center 3600
____________

Before JENNIFER D. BAHR, JOHN C. KERINS, and CARL M.
DEFRANCO, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 7, and 10–13. Claims 6, 8, 9, 16,
17, 20, 24, and 29–42 are canceled, and claims 14, 15, 18, 19, 21–23, and
25–28 are withdrawn. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” is used herein to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Integrated Concrete Forming Ltd., as the
real party in interest. Appeal Br. 3.
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THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a construction method for erecting an
integrated concrete form (ICF) structure. Claim 1 is illustrative, and is
reproduced below:
1. A construction method, comprising:

erecting an integrated concrete form (ICF) structure comprising
a plurality of pairs of corresponding ICF panels, the plurality of
pairs being arranged adjacent to one another and defining a
region for receiving poured concrete between individual ICF
panels of the plurality of pairs of corresponding ICF panels, the
plurality of pairs of ICF panels being retained in position at least
in part by vertical panel supports;

disposing, between at least one pair of corresponding ICF panels,
at least one internal brace support extending along a length of the
at least one pair of corresponding ICF panels and between the at
least one pair of corresponding ICF panels, the at least one
internal brace support being distinct from the vertical panel
supports, and completely within the region for receiving poured
concrete; and

pouring concrete into the region defined by the plurality of pairs
of corresponding ICF panels such that an entirety of the at least
one internal brace support is completely encased in concrete.

THE REJECTIONS
The Examiner rejects:
(i) claim 2 under 35 U.S.C. § 112(b) as being indefinite; and
(ii) claims 1–5, 7, and 10–13 under 35 U.S.C. § 103 as being
unpatentable over Zelinsky (US 6,250,033 B1, issued June 26, 2001) in view
of Crosby (US 2013/0180192 A1, published July 18, 2013).
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ANALYSIS
Claim 2--Indefiniteness
The Examiner rejects claim 2 as being indefinite, on the basis that it is
not clear whether the vertical panel supports recited in claim 2 are the same
as, or different from, the vertical panel supports recited in claim 1, from
which claim 2 depends. Final Act. 2. Appellant presents no arguments
traversing this rejection. The rejection is therefore summarily sustained.

Claims 1–5, 7, and 10–13--Obviousness--Zelinsky/Crosby
Claims 1–5, 10–13
The Examiner finds that Zelinsky discloses the construction method
recited in claim 1, including providing a plurality of pairs of corresponding
ICF panels, with the exception of providing at least one internal brace
support extending along a length of, and between, a pair of the
corresponding ICF panels, with the internal brace support being distinct
from vertical panel supports, and being completely within the region for
receiving poured concrete, such that an entirety thereof is completely
encased in concrete upon pouring the concrete between the ICF panels.
Final Act. 3. The Examiner cites to Crosby as disclosing a construction
method employing corresponding pairs of ICF panels, in which an internal
brace support 5 (termed an interior fastening plate in Crosby) meeting the
requirements set forth in claim 1 is used. Id. (citing Crosby Fig. 2A, ¶ 22).
The Examiner concludes that it would have been obvious to add an internal
brace support as disclosed in Crosby to the integrated concrete form method
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of Zelinsky in order to increase the strength of, and provide reinforcement
to, the resulting structure. Id.
Appellant first argues that Crosby does not disclose the claimed
internal brace support disposed completely within the region for receiving
poured concrete, such that it will be completely encased in concrete upon the
pouring of the same. Appeal Br. 6–8. Appellant directs attention to Figure
4A of Crosby, pointing out that, in the construction method illustrated there,
the resulting structure does not completely encase internal brace support
(interior fastening plate) 5 in concrete. Id. at 7–8. Appellant argues that,
after pouring the concrete into the cavities between the ICF panels, a
plywood board secured to the interior fastening plate is removed, thereby
partially exposing the internal brace support. Id. at 8.
The Examiner reiterates in the Answer that the rejection relies on the
embodiment illustrated in Figure 2A of Crosby, in which internal brace
support 5 will be completely encased in concrete when concrete is poured
between the panels. Ans. 3. Appellant replies that even taking account of
Figure 2A, element 5 “is intended to be simply a vertical strut that forms part
of, or is attached to, a form tie, . . . to provide a member to which other
components can be attached.” Reply Br. 3. Appellant does not, however,
point to any language in claim 1 that structurally distinguishes the recited
internal brace support from element 5 identified in Crosby as an interior
fastening plate.
Appellant further asserts, for the first time in the Reply Brief, that
element 5 would not be regarded by a person of ordinary skill in the art as
providing structural support to the entire ICF structure, nor that it extends
along a length of a pair of ICF panels. Reply Br. 3. Although these
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arguments do not appear to have been precipitated by a position the
Examiner takes for the first time in the Answer, and thus are untimely made,
we note that claim 1 does not require that the recited internal brace support
either perform the function of structurally supporting an entire ICF structure,
or extend along a specified length in between the pair of ICF panels. As to
the latter, the Examiner pointed out in the Final Action that paragraph 22 of
Crosby discusses that element 5 can be oriented horizontally, such that it
would extend along a length of the panels. Final Act. 3. We also note that
that same paragraph indicates that element 5 may span a length to be joined
to adjacent form ties.
Appellant additionally argues that the combination of the teachings of
Zelinsky and Crosby teaches away from the subject matter of claim 1.
Appeal Br. 9–10. Pointing out that Zelinsky discloses the use of horizontal
and vertical channel members that are positioned at least partially outside the
ICF structure, such that those portions are exposed and visible after concrete
is poured in between the ICF panels, Appellant maintains that Zelinsky
teaches the person of ordinary skill in the art to employ exterior bracing. Id.
at 10. Appellant then repeats the argument that Crosby fails to teach a
longitudinally extending interior support brace that is completely encased in
the poured concrete. Id. According to Appellant, the combination of these
teachings would result in “the Crosby structure (such as that illustrated in
FIG. 4A . . .) on top of the Zelinsky structure, but with no addition of the
‘internal brace support’ disposed and used as recited in the pending claims.”
Id. We admittedly do not fully understand how Appellant arrives at this
purported resulting structure, but since it is based in part on the Figure 4A
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embodiment in Crosby, the analysis improperly relies on findings not made
by the Examiner.
In the Reply Brief, Appellant asserts that:
The person skilled in the art, given Zelinsky, would not
use the teachings of Crosby to move the members of Zelinsky to
inside the ICF structure. The channeled structure of the members
in Zelinsky requires that they be positioned around the edges of
the panels, such that they are visible on the exterior; moving them
to the interior would negate their functionality. Nothing in
Crosby suggests to the person skilled in the art that the use of the
internal fastening plates 5 would provide the support offered by
Zelinsky’s channel members. A person skilled in the art, given
Crosby and Zelinsky, might be minded to implement both the
channel members and the interior fastening plates—but they
would implement them as described for their distinct, intended
purposes, with the exterior channel members for support, and the
interior fastening plates just for attaching other features where
needed.
Reply Br. 4 (emphasis added).
As to the portion of the argument preceding the italicized part in the
above quote, the Examiner does not propose to move the Zelinsky members
to the interior of the ICF structure and the argument is thus not responsive to
the rejection as articulated in the Final Action. As to the italicized portion,
that modification is precisely what the Examiner proposes in the rejection,
i.e., “to add an internal brace support to the integrated concrete form of
Zelinsky,” albeit not “just for” attaching other elements where needed. Final
Act. 3. Appellant points to no evidence nor provides a sound technical basis
for disputing the reason articulated by the Examiner (increased strength,
providing reinforcement) in reaching the conclusion that the proposed
modification would have been obvious. Appellant additionally baldly
asserts that the proposed modification would render Zelinsky inoperable for
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its intended purpose, and would require redesign and a change in the
principles of operation, but fails to provide any explanation or analysis in
support of the assertions.
As such, Appellant’s arguments directed to claim 1 fail to apprise us
of error in the rejection over Zelinsky and Crosby. Appellant does not
separately argue the patentability of any of claims 2–5 and 10–13 in the
Appeal Brief. In the Reply Brief, Appellant includes a sentence identifying
claims 10 and 11 and asserting that the limitations presented in those claims
are not met by element 5 of Crosby in the combination of the teachings of
Zelinsky and Crosby. Reply Br. 3. Those arguments are raised for the first
time in the Reply Brief, are not responsive to any new or different argument
made by the Examiner in the Answer, and instead appear to be made as a
result of Appellant’s realization that the arguments for claim 1 appearing in
the Appeal Brief improperly address an embodiment in Crosby not relied on
by the Examiner in rejecting the claims. Appellant further does not assert
that good cause exists for the failure to include the arguments in the Appeal
Brief. Accordingly, the arguments will not be considered for the purposes of
the present appeal. See 37 C.F.R. § 41.41(b)(2).
The rejection of claim 1 is sustained, and claims 2–5 and 10–13 fall
with claim 1.

Claim 7
Appellant argues that, whereas claim 7 requires the use of a set of
superior ICF panels, comprising first, second, and third ICF panels, mounted
on the plurality of pairs of ICF panels called for in claim 1, the Examiner
relies on the same pair of ICF panels 8, 9, in Crosby as responsive to both
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the set of superior ICF panels and the underlying plurality of pairs of ICF
panels to which the superior panels are attached. Appeal Br. 8–9. Appellant
contends that interpreting claim 7 such that the same pair of ICF panels in
Crosby is taken as both the underlying panels and the superior panels is
unreasonably broad. Id.
The Examiner responds that, whereas the panels in Crosby
corresponding to the plurality of pairs of ICF panels recited in claim 1 are
found in the Figure 2A construction, the panels illustrated in Figure 4A are
relied on as disclosing the set of superior ICF walls recited in claim 7,
including the positioning of the superior ICF walls to create a sill. Ans. 3.
We understand the Examiner’s position to be that Crosby teaches
providing ICF structures filled with concrete in both unsilled (Figure 2A)
and silled (Figure 4A) configurations, and that a silled ICF structure may be
supported atop an unsilled ICF structure, such that the limitations of claim 7,
and of claim 1 from which claim 7 depends, are met. Although not
specifically called out by the Examiner, Figures 6 and 6A of Crosby
illustrate just such an embodiment. There, a silled ICF structure is
illustrated as being superior to an unsilled ICF structure, as well as being
inferior to a different unsilled ICF structure disposed above the unsilled ICF
structure.
Given the Examiner’s additional explanatory analysis in the Answer,
we are not persuaded that the Examiner has employed an unreasonably
broad interpretation in rejecting claim 7. The rejection is sustained.

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CONCLUSION
The rejection of claim 2 under 35 U.S.C. § 112(b) is affirmed.
The rejection of claims 1–5 and 10–13 under 35 U.S.C. § 103(a) as
being unpatentable over Zelinsky and Crosby is affirmed.
The rejection of claim 7 under 35 U.S.C. § 103(a) as being
unpatentable over Zelinsky and Crosby is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
2 112(b) Indefiniteness 2
1–5, 7,
10–13
103 Zelinsky, Crosby 1–5, 7, 10–13
Overall
Outcome
1–5, 7, 10–13

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED