2020002424 (P.T.A.B. Nov. 3, 2020)

OLDCASTLE ARCHITECTURAL, INC.

Patent Trials and Appeals BoardNov 3, 2020

2020002424 (P.T.A.B. Nov. 3, 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. 15/579,382 12/04/2017 Leonard BROWNING 17943.0004USWO 2955 163179 7590 11/03/2020 MERCHANT & GOULD P.C. - ANCHOR P.O. BOX 2903 MINNEAPOLIS, MN 55402-0903 EXAMINER FORD, GISELE D ART UNIT PAPER NUMBER 3633 NOTIFICATION DATE DELIVERY MODE 11/03/2020 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): USPTO163179@merchantgould.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte LEONARD BROWNING and DAVID RICE ____________ Appeal 2020-002424 Application 15/579,382 Technology Center 3600 ____________ Before BIBHU R. MOHANTY, MICHAEL C. ASTORINO, BRADLEY B. BAYAT, Administrative Patent Judges. MOHANTY, 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 25, 26, 28, 30, 32, 34, 35, 37, 39, 41, and 42. We have jurisdiction under 35 U.S.C. § 6(b). SUMMARY OF THE DECISION We REVERSE. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Oldcastle Architectural, Inc. (Appeal Br. 3). Appeal 2020-002424 Application 15/579,382 2 CLAIMED SUBJECT MATTER The Appellant’s claimed invention relates to a dry cast veneer block (Spec. 2, 12). Claim 25, reproduced below, is representative of the subject matter on appeal. 25. A block comprising: a dry cast mixture comprising 35-45% by weight lightweight aggregate and 25-35% by weight fine sand and resulting in a dry cast veneer block having a weight less than or equal to 15 lb/ft2. THE REJECTIONS The following rejections are before us for review: 1. Claim 25 is rejected under 35 U.S.C. § 103 as unpatentable over Lin (US 2010/0005740 A1; publ. Jan. 14, 2010). 2. Claims 26, 28, and 41 are rejected under 35 U.S.C. § 103 as unpatentable over Lin and Scanlan (US 2013/0145968 A1; publ. June 13, 2013). 3. Claims 30 and 32 are rejected under 35 U.S.C. § 103 as unpatentable over Bolin (US 2014/0069050 A1; publ. Mar. 13, 2014) and Lin. 4. Claims 34, 35, 37, and 39 are rejected under 35 U.S.C. § 103 as unpatentable over Lin and Bolin. 5. Claim 42 is rejected under 35 U.S.C. § 103 as unpatentable over Lin, Bolin, and Schwalenberg (US 7,743,569 B1; iss. June 29, 2010). Appeal 2020-002424 Application 15/579,382 3 FINDINGS OF FACT We have determined that the findings of fact in the Analysis section below are supported at least by a preponderance of the evidence.2 ANALYSIS The Appellant argues that the rejection of claim 25 is improper because Lin does not teach using a “wet cast mixture” (Appeal Br. 13, Reply Br. 2, 3). The Appellant also argues that Lin does not disclose or suggest the claimed ranges of 35–45% weight lightweight aggregate and 25–35% weight fine sand (Appeal Br. 14, Reply Br. 3, 4). The Appellant further argues that the rejection fails to provide reasoning or explanation for the cited use of “routine optimization” to arrive at the claimed ranges for the lightweight aggregate and fine sand (Appeal Br. 14, 15). In contrast, the Examiner has determined that the rejection is proper (Final Act. 2, 3, Ans. 3). We agree with the Appellant. Claim 25 requires a mixture with ranges of “35-45% by weight lightweight aggregate” and “25-35% by weight fine sand.” In contrast, the prior art reference citation to Lin at paragraph 35 discloses ranges of “30 to 50%” of a lightweight aggregate and “30 to 70%” of fine sand. The rejection of record states that the workable ranges involves only routine skill in the art, with a citation to In re Aller, 220 F.2d 454 (CCPA 1955) in the rationale for the rejection (Final Act. 2, 3). However, the rejection of record fails to provide an articulated reasoning 2 See Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427 (Fed. Cir. 1988) (explaining the general evidentiary standard for proceedings before the Patent Office). Appeal 2020-002424 Application 15/579,382 4 with rational underpinnings for such a modification of the workable ranges. See In re Stepan, 868 F.3d 1342, 1346 (Fed. Cir. 2017). See also MPEP § 2144.05(II)(B) (9th Ed., Rev. 10.2019, June 2020). In this case, the rejection put forth lacks the presentation of an articulated reasoning with rational underpinnings for such a modification of the workable ranges to meet the claimed requirements. Accordingly, the rejection of independent claim 25 is not sustained. The rejections of the claims which depend from claim 25 are not sustained as these rejections fail to cure the deficiency in the base claim. Claim 30 is similar in scope to claim 25, but further requires also a “substrate” to which the “veneer blocks” are “adhere[d]” to by an “adhesive.” The Appellant provides similar arguments for independent claim 30 including that the rejection fails to provide of an articulated reasoning with rational underpinnings for such a modification of the claimed workable ranges and the rejection (Appeal Br. 15–17). The rejection of record states that the given weight of 15 lb/ft2 would have resulted from the aggregate weights being similar and since the workable ranges involve only routine skill in the art, with a citation to In re Aller, id in the rationale for the rejection. Here it is unclear that the modification of the references would necessarily result in a given weight of 15 lb/ft2 or less. Further, this rejection of record also fails to provide an articulated reasoning with rational underpinnings for such a modification of the workable ranges. Accordingly, the rejection of independent claim 30 is not sustained. The rejection of the claim 32 which depends from claim 30 is not sustained as this rejection fails to cure the deficiency in the base claim. Appeal 2020-002424 Application 15/579,382 5 CONCLUSION OF LAW We conclude that Appellant has shown that the Examiner erred in rejecting the claims as listed in the rejections section above. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 25 103 Lin 25 26, 28, 41 103 Lin, Scanlan 26, 28, 41 30, 32 103 Bolin, Lin 30, 32 34, 35, 37, 39 103 Lin, Bolin 34, 35, 37, 39 42 103 Lin, Bolin, Schwalenberg 42 Overall Outcome 25, 26, 28, 30, 32, 34, 35, 37, 39, 41, 42 REVERSED