AXION STRUCTURAL INNOVATIONS

Patent Trials and Appeals BoardAug 26, 2021

2020005651 (P.T.A.B. Aug. 26, 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. 16/179,123 11/02/2018 CLAUDE BROWN JR. 57075-00004 2350 59582 7590 08/26/2021 Dickinson Wright PLLC - Troy 2600 West Big Beaver Rd. Suite 300 Troy, MI 48084-3312 EXAMINER HERRING, BRENT W ART UNIT PAPER NUMBER 3633 NOTIFICATION DATE DELIVERY MODE 08/26/2021 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): DWPatents@dickinson-wright.com tgood@dickinsonwright.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CLAUDE BROWN, DAVID C. CRANE, and ROBERT E. COMBS Appeal 2020-005651 Application 16/179,123 Technology Center 3600 Before JILL D. HILL, CARL M. DEFRANCO, and LEE L. STEPINA, Administrative Patent Judges. HILL, 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 1–16 and 19–21.2 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(a). Appellant identifies the real party in interest as Axion Structural Innovations. Appeal Br. 3. 2 Claims 17, 18, 22, and 23 are withdrawn from consideration. Final Act. 1. Appeal 2020-005651 Application 16/179,123 2 BACKGROUND Appellant’s invention relates to a structural reinforced composite mat. Sole independent claim 1, reproduced below with certain limitations emphasized, is representative of the claimed subject matter: 1. A mat assembly for use in construction, comprising: a plurality of structural beams fabricated of composite plastics material and disposed in side-by-side arrangement; a plurality of flitch plates disposed between at least some of adjacent pairs of the structural plastic beams; a plurality of fasteners extending crosswise to the structural beams and flitch plates to secure them tightly together, and wherein the flitch plates increase the strength and stiffness of the mat assembly. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Mozingo US 4,932,178 June 12, 1990 Dagher US 2002/0122954 A1 Sept. 5, 2002 Fiutak US 2006/0265976 A1 Nov. 30, 2006 Penland US 2016/0177515 A1 June 23, 2016 Tubbs US 2016/0355993 A1 Dec. 8, 2016 REJECTIONS I. Claims 1, 2, 4, 6–10, 14–16, and 19–21 stand rejected under 35 U.S.C. § 103 as unpatentable over Mozingo and Penland. II. Claims 3 and 5 stand rejected under 35 U.S.C. § 103 as unpatentable over Mozingo, Penland, and Dagher. III. Claims 11 and 12 stands rejected under 35 U.S.C. § 103 as unpatentable over Mozingo, Penland, and Fiutak. IV. Claim 13 stands rejected under 35 U.S.C. § 103 as unpatentable over Mozingo, Penland, and Tubbs. Appeal 2020-005651 Application 16/179,123 3 ANALYSIS Rejection I – Obviousness; Claims 1, 2, 4, 6–10, 14–16, 19–21 The Examiner finds that Mozingo discloses each of the limitations of claim 1, except that the structural beams of Mozingo are not made of a composite plastics material. Final Act. 2. The Examiner finds that Penland discloses a mat assembly using structural beams made from high density polyethylene (HDPE). Id. at 3 (citing Penland ¶ 182). The Examiner concludes that it would have been obvious to substitute Penland’s HDPE for the wood material of Mozingo in order to resist the environment and increase service life. Id. Appellant argues, inter alia, that HDPE is a single material, and that substituting HDPE for the wood of Mozingo does not result in a “composite plastics” material as required by claim 1. Appeal Br. 14; see also Reply Br. 5. We agree. A plain and ordinary meaning of “composite material” is “a solid material which is composed of two or more substances having different physical characteristics and in which each substance retains its identity while contributing desirable properties to the whole especially: a structural material made of plastic within which a fibrous material (such as silicon carbide) is embedded.” https://www.merriam- webster.com/dictionary/composite. Here, Appellant provides an exemplary composite material that comprises an HDPE-based material including, “a blend of polypropylene and polyethylene, but predominately polyethylene with 5–50% glass fiber reinforcement, and more preferably 5–25% glass fiber reinforcement.” Spec. ¶ 34. Thus, consistent with the above-noted meaning, Appellant uses two plastics materials, namely, polyethylene Appeal 2020-005651 Application 16/179,123 4 (HDPE) and polypropylene as well as glass fibers. Although we appreciate that HDPE is a plastic material, a single plastic material is not a composite plastics material, as required by claim 1. Because the Examiner’s finding that Penland discloses a composite plastic material is in error, we do not sustain the rejection of claim 1. Claims 2, 4, 6–10, 14–16, and 19–21 depend directly or indirectly from claim 1, containing all of the limitations thereof. We do not sustain the rejection of these dependent claims for the same reasons. Rejections II–IV: Obviousness of Claims 3, 5, and 11–13 The Examiner’s findings regarding Mozingo and Penland are discussed above. The Examiner does not find that any of Dagher, Fiutak, or Tubbs discloses “a plurality of structural beams fabricated of composite plastics material.” See Ans. 4–6. Thus, for the reasons set forth above, we do not sustain the pending obviousness rejections. CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 6–10, 14–16, 19–21 103 Mozingo, Penland 1, 2, 4, 6–10, 14–16, 19–21 3, 5 103 Mozingo, Penland, Dagher 3, 5 11, 12 103 Mozingo, Penland, Fiutak 11, 12 Appeal 2020-005651 Application 16/179,123 5 13 103 Mozingo, Penland, Tubbs 13 Overall Outcome 1–16, 19–21 REVERSED