John C. Weekley

Patent Trials and Appeals Board

Aug 13, 2020

13216144 - (D) (P.T.A.B. Aug. 13, 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.
13/216,144 08/23/2011 John C. WEEKLEY 10265.0100 3568
39602 7590 08/13/2020
THE NOBLITT GROUP, PLLC
Daniel J. Noblitt
8777 NORTH GAINEY CENTER DRIVE
SUITE 175
SCOTTSDALE, AZ 85258
EXAMINER
MEKHLIN, ELI S
ART UNIT PAPER NUMBER
1796
NOTIFICATION DATE DELIVERY MODE
08/13/2020 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@ngtechlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte JOHN C. WEEKLEY
__________

Appeal 2019-002701
Application 13/216,144
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellant1 filed an appeal under 35 U.S.C. § 134(a) from an Examiner’s
decision finally rejecting claims 24, 26–30, and 32–35. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. The Appellant does not identify a real party in interest in the Appeal Brief
dated August 20, 2018 (“Br.”).
Appeal 2019-002701
Application 13/216,144

2

The claims on appeal are directed to a multi-layer sandwich structure for
heating a liquid by solar power. Independent claim 24 is reproduced below from
the Claims Appendix to the Appeal Brief. The limitations at issue are italicized.
24. A multi-layer sandwich structure for heating a liquid by solar
power, comprising:
a first metallic plate having a planar surface area defined by
opposing first and second side edge portions extending between
opposing first and second end portions;
a second metallic plate joined to a downward facing first side of the
planar surface of the first metallic plate, wherein the second metallic
plate comprises:
a pair of side edges extending between a top edge and a bottom
edge;
a plurality of protrusions distributed alone a center portion of
the second metallic plate and oriented substantially parallel to
the pair of side edges, wherein:
a portion of the second metallic plate between each
protrusion is in contact with the planar surface of the first
metallic plate; and
a channel is formed between each protrusion and portion
of the second metallic plate contacting the planar surface
of the first metallic plate;
a first manifold area disposed between the pair of side edges,
the top edge, and a first end of the plurality of protrusions; and
a second manifold area disposed between the pair of side edges,
the bottom edge, and a second end of the plurality protrusions;
and
a first and a second receiving section, wherein:
the first receiving section is positioned along the first side edge
portion of the first metallic plate between the opposing first and
second end portions of the first metallic plate and extends
outwardly away from the first side edge portion;
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Application 13/216,144

3

the second receiving section is positioned opposite the first
receiving section along the second side edge portion between
the opposing first and second end portions of the first metallic
plate and extends outwardly away from the second side edge
portion;
each receiving section includes a downward facing receiving
surface relative to the planar surface of the first metallic plate;
and
wherein:
the receiving surface of the first receiving section is
configured to partially wrap around at least one exterior
surface of at least one of a first wall stud, a first roof
rafter, and a first purlin; and
the receiving surface of the second receiving section is
configured to partially wrap around at least one exterior
surface of at least one of a second wall stud, a second
roof rafter, and a second purlin.
Br. 21–22.
The Examiner maintains the following grounds of rejection on appeal:2
(1) claims 24, 26–30, and 34 under 35 U.S.C. § 103(a) as unpatentable
over Straza3 in view of Mier4 and Rinklake et al.;5 and
(2) claims 32, 33, and 35 under 35 U.S.C. § 103(a) as unpatentable over
Straza in view of Mier and Rinklake, and further in view of Garvison et al.6

2 In an Advisory Action dated June 25, 2018, the Examiner states that the final
rejection of claims 24, 26–30, and 32–35 under 35 U.S.C. § 112, first paragraph, as
failing to comply with the written description requirement, has been overcome by
the Appellant.
3 US 4,244,353, issued January 13, 1981 (“Straza”).
4 US 4,243,020, issued January 6, 1981 (“Mier”).
5 US 4,470,406, issued September 11, 1984 (“Rinklake”).
6 US 2005/0161074 A1, published July 28, 2005 (“Garvison”).
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Application 13/216,144

4

B. DISCUSSION
The Examiner finds Straza discloses a multi-layer sandwich structure, in the
form of a solar heating shingle roof structure, for heating a liquid by solar power.
Final Act. 6.7 Straza Figure 2, reproduced below, illustrates a shingle according to
Straza’s disclosed invention.

Straza Figure 2 is a perspective view of an inventive shingle.
The Examiner finds the shingle comprises a first plate 12 having a planar
surface area defined by first and second end portions with opposing first and
second side edge portions extending therebetween and connecting flanges 24, 26
extending integrally from the first and second side edge portions. Final Act. 6;
Ans. 4.8
The Appellant argues that Straza Figures 2, 3, and 5 show that the surface of
plate or sheet 12 is not completely planar. Br. 8. In particular, the Appellant
argues, inter alia, that ribs 36 and 38 are sunk below the surface of the rest of sheet
12 and nailing pillars 42 and 44 are taught as being positioned below the surface of
sheet 12. Br. 9.

7 Final Office Action dated March 30, 2018.
8 Examiner’s Answer dated December 12, 2018.
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Application 13/216,144

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The Appellant’s argument is persuasive of reversible error. The structure
recited in claim 24 comprises, inter alia, “a first metallic plate having a planar
surface area defined by opposing first and second side edge portions extending
between opposing first and second end portions.” Br. 21 (emphasis added). Claim
24, in Appeal 2015-005771,9 recited a similar limitation.10 That limitation was
interpreted “as requiring the first metallic plate to be completely planar in an area
defined by opposing first and second side edge portions that extend between
opposing first and second end portions of the plate.” Decision 10.
In this appeal, we also interpret claim 24 as requiring the first metallic plate
to have a completely planar surface in an area defined by opposing first and second
side edge portions that extend between opposing first and second end portions. See
Br. 21.
The Examiner does not identify the portions of plate or sheet 12 that
correspond to the side edge portions and the end portions recited in claim 24.
Rather, the Examiner finds that the “planar area is best represented by the shading
associated with section 48 of the first plate [12].” Ans. 13.
We understand the Examiner to find that sheet 12 is circumscribed by the
shading depicted in Straza Figure 2, whereby sheet 12 includes nailing pillars 42
and 44. See Straza Figs. 2, 5. Straza discloses that nailing pillars 42 and 44 are
“formed by an upwardly extending cup from the lower sheet 14 and downwardly
extending cups from the upper sheet 12 meeting at a position just slightly below the

9 Decision on Appeal dated September 6, 2017 and entered in the instant
Application (“Decision”).
10 Claim 24 in the prior appeal recited “a first metallic plate having a planar surface
area defined by opposing first and second side edge portions extending between
opposing first and a second end portions.” Decision 2.
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Application 13/216,144

6

plane of the upper sheet [12].” Straza, col. 3, ll. 7–11 (italics added). Thus, a
preponderance of the evidence supports a finding that the surface of sheet 12 is not
planar at least at the location of nailing pillars 42 and 44.
Claim 24 also recites that the structure comprises “a first and a second
receiving section.” Br. 21. “[T]he first receiving section is positioned along the
first side edge portion of the first metallic plate between the opposing first and
second end portions of the first metallic plate and extends outwardly away from the
first side edge portion.” Br. 21 (emphasis added). “[T]he second receiving section
is positioned opposite the first receiving section along the second side edge portion
between the opposing first and second end portions of the first metallic plate and
extends outwardly away from the second side edge portion.” Br. 22 (emphasis
added).
In the rejection on appeal, the Examiner finds that “connecting flanges (24,
26) extend[] integrally from the first and second side edge portions” of plate 12.
Final Act. 6. Straza Figure 2, however, shows that the first and second side edge
portions, from which connecting flanges 24 and 26 extend, are outside the area
circumscribed by the shading depicted in Straza Figure 2, and thus do not define
plate 12 as found by the Examiner. See Final Act. 6.
Moreover, even if we were to find that connecting flanges 24 and 26 extend
from the first and second side edge portions, respectively, of plate 12, as found by
the Examiner, the surface of plate 12 would not be planar for the additional reason
that it would include ribs 36 and 38. See Straza Figs. 2, 6; Br. 9 (correctly
contending that “ribs 36 and 28 are sunk below the surface of the rest of the upper
sheet 12”).
Appeal 2019-002701
Application 13/216,144

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The Examiner does not rely on Mier, Rinklake, and/or Garvison to cure the
deficiencies in Straza identified above. Therefore, the obviousness rejections of
claims 24, 26–30, and 32–35 are not sustained.
C. CONCLUSION
The Examiner’s decision is reversed.
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
24, 26–30, 34 103(a) Straza, Mier,
Rinklake
24, 26–30, 34
32, 33, 35 103(a) Straza, Mier,
Rinklake, Garvison
32, 33, 35
Overall
Outcome
24, 26–30,
32–35

REVERSED