2020004457 (P.T.A.B. Aug. 9, 2021)

The Goodyear Tire & Rubber Company

Patent Trials and Appeals BoardAug 9, 2021

2020004457 (P.T.A.B. Aug. 9, 2021)

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. 15/683,801 08/23/2017 Julien Alexandre VAISSAUD GYP2016-293 7544 27280 7590 08/09/2021 THE GOODYEAR TIRE & RUBBER COMPANY 200 Innovation Way AKRON, OH 44316-0001 EXAMINER FRANKLIN, JODI COHEN ART UNIT PAPER NUMBER 1741 NOTIFICATION DATE DELIVERY MODE 08/09/2021 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): kathleen.swisher@goodyear.com pair_goodyear@firsttofile.com patents@goodyear.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte JULIEN ALEXANDRE VAISSAUD ____________ Appeal 2020-004457 Application 15/683,801 Technology Center 1700 ____________ Before GEORGE C. BEST, DEBRA L. DENNETT, and MERRELL C. CASHION, JR., Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 4–11, and 13–202 Application 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies The Goodyear Tire & Rubber Co. as the real party in interest. Appeal Br. 1. 2 The Examiner’s Office Action Summary in the Final Action states that claim 12 has been rejected. Final Act. 1. We, however, are unable to find any discussion of claim 12 in the Final Action. See generally Final Act. Appellant identifies claim 12 as cancelled in the Appeal Brief’s Claims Appendix. Appeal Br. 6. We, therefore, treat claim 12 as cancelled. Appeal 2020-004457 Application 15/683,801 2 15/683,801. Final Act. (October 18, 2019). We have jurisdiction under 35 U.S.C. § 6. For the reasons set forth below, we affirm. I. BACKGROUND The ’801 Application describes a pneumatic tire with a tread design having improved acoustic characteristics. Spec. ¶ 1. Claim 1 is representative of the ’801 Application’s claims and is reproduced below from the Appeal Brief’s Claims Appendix. We have italicized the limitation that is central to this appeal. 1. A tread for a tire comprising: a first circumferential groove extending in a circumferential direction of the pneumatic tire; a second circumferential groove extending in the circumferential direction of the pneumatic tire; a third circumferential groove extending in the circumferential direction of the pneumatic tire; and a fourth circumferential groove extending in the circumferential direction of the pneumatic tire, the first, second, third, and fourth circumferential grooves defining first, second, third, fourth, and fifth ribs, the first and fifth ribs including lateral grooves; and incisions extending continuously and circumferentially fully around the second and third ribs, the second and third ribs each having between 6 and 12 continuous incisions. Appeal Br. 5 (emphasis added). Appeal 2020-004457 Application 15/683,801 3 II. REJECTIONS On appeal, the Examiner maintains the following rejections: 1. Claims 4 and 6–10 are rejected under 35 U.S.C. § 112(b) as indefinite. Final Act. 2. 2. Claims 1, 4, 5, 11, 13, 16, and 17 are rejected under 35 U.S.C. § 102(a)(1) as anticipated by or, in the alternative, under 35 U.S.C. § 103 as unpatentable over Constantakis.3 Final Act. 4. 3. Claims 6, 7, and 14 are rejected under 35 U.S.C. § 103 as unpatentable over Constantakis. Final Act. 6. 4. Claims 8–10,4 15, and 18–20 are rejected under 35 U.S.C. § 103 as unpatentable over Constantakis as evidenced by Hayashi.5 Final Act. 7. III. DISCUSSION A. Rejection of claims 4 and 6– 10 as indefinite Appellant does not contest this rejection. Appeal Br. 3. Rather Appellant states that “claims 4-10 will be canceled upon the resolution of the other issues of this Appeal.” Id. We, therefore, summarily affirm the rejection of claims 4 and 6–10 as indefinite. 3 US 2,708,957, issued May 24, 1955. 4 The summary statement of the rejection does not include claim 10. Final Act. 7. The rejection’s substantive discussion, however, addresses claim 10. Id. We, therefore, consider the omission of claim 10 from the summary to be an inadvertent error. 5 US 5,851,322, issued December 22, 1998. Appeal 2020-004457 Application 15/683,801 4 B. Prior art rejections based in whole or in part on Constantakis Appellant argues for reversal of these rejections based upon the limitations of independent claims 1, 11, and 16. Appeal Br. 3–4. The dependent claims are said to be patentable based upon their dependence from an allowable independent claim. Id. at 4. Because Appellant makes a single argument with respect to the independent claims as a group, we limit our discussion to claim 1 with the understanding that it applies with equal force to claims 11 and 16. Appellant argues that the rejection of claim 1 as anticipated by or, in the alternative, as obvious over Constantakis should be reversed because “Constantakis discloses no incisions extending continuously and circumferentially around the ribs because each of [the] slits (5, 8, 9) is broken by the lateral slits (7) and only extends discontinuously and circumferentially.” Id. This argument is not persuasive of reversible error. Constantakis describes a series of comparative traction tests using tires having various combinations of transverse and circumferential slits. Constantakis 4:29–47. One of the tires so tested included the circumferential slits 5 but omitted transverse slits 7. Id. at 4:39–43. Claim 1 reads on this tire and, therefore, is anticipated by it. Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889) (“[‘]That which infringes, if later, would anticipate, if earlier.’” (quoting Peters v. Active Mfg. Co., 21 F. 319, 320 (C.C.S.D. Ohio 1884))). In the alternative, we agree with the Examiner’s claim construction of the term “continuously,” which is set forth on pages 9–10 of the Examiner’s Appeal 2020-004457 Application 15/683,801 5 Answer.6 We note that the Examiner’s interpretation is based on the understanding of the usage of the term “continuously” in the art is consistent with the Specification, which states that “[the] incisions 111 may continue circumferentially through each of the lateral grooves 112.” Spec. ¶ 52 (emphasis added). Because we have affirmed the rejection of independent claims 1, 11, and 16, we also affirm the rejections of dependent claims 4–10, 13–15, and 17–20. IV. CONCLUSION In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 4, 6–10 112 Indefiniteness 4, 6–10 1, 4, 5, 11, 13, 16, 17 102(a)(1) Constantakis 1, 4, 5, 11, 13, 16, 17 1, 4, 5, 11, 13, 16, 17 103 Constantakis 1, 4, 5, 11, 13, 16, 17 6, 7, 14 103 Constantakis 6, 7, 14 8–10, 15, 18–20 103 Constantakis, Hayashi 8–10, 15, 18–20 Overall Outcome 1, 4–11, 13–20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 6 We note that Appellant has not filed a Reply Brief to address the Examiner’s claim construction.