Ex Parte Cambron et al

Patent Trials and Appeals Board

Jun 20, 2019

12557914 - (D) (P.T.A.B. Jun. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/557,914 09/11/2009 Anne-France Gabrielle Jeanne-Marie Cambron
27280 7590 06/24/2019
THE GOODYEAR TIRE & RUBBER COMPANY
200 Innovation Way
AKRON, OH 44316-0001
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
DN2008-216 5363
EXAMINER
MAKI, STEVEN D
ART UNIT PAPER NUMBER
1747
NOTIFICATION DATE DELIVERY MODE
06/24/2019 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
patents@ good year.com
pair_goodyear@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANNE-FRANCE GABRIELLE JEANNE-MARIE CAMBRON,
MICHEL JEAN YVES WINDESHAUSEN, JEAN LUC DHEUR,
GIA VAN NGUYEN, ALAIN EMILE FANCOIS ROESGEN,
JEAN-MARC LACAZE, PETER PHELPS ROCH,
ANDREW FREDERICH WEIMER, and
GHISLAIN ADOLPHE LEON THISE
Appeal2017-008609
Application 12/557,914
Technology Center 1700
Before MICHELLE N. ANKENBRAND, Acting Vice Chief Administrative
Patent Judge, CHRISTOPHER L. OGDEN, and
MONTE T. SQUIRE, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL 1
1 The appeal record includes the following: Specification, Sept. 11, 2009
("Spec."); Final Office Action, June 24, 2016 ("Final Action"); Appeal Brief,
Nov. 28, 2016 ("Br."); and Examiner's Answer, Mar. 10, 2017 ("Answer").
Appellants did not file a reply brief.
Appeal2017-008609
Application 12/557,914
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1, 3-7, 10-13, 15, 18, and 20-23 in the above-
identified application. We affirm.
I. BACKGROUND
Appellants' invention relates to a pneumatic tire with "an evolving
tread pattern and rubber composition that change as the tire wears in order to
maintain performance." Spec. ,r 1. According to Appellants, the invention "is
directed to solving the problem that as a tire wears, the volume of the tread
grooves decrease, reducing the tire's ability to channel water and thus,
resulting in a degradation of tire wet performance." Br. 6. Appellants claim
to have "solved this problem by providing grooves that appear as the tire
wears." Id. Figure 4B of the Specification, reproduced below, is an example
of this tread pattern:
Figure 4B is a partial cross-sectional view of a cured tire tread. Spec. ,r 15.
Tread 12 includes cap layers 13 (cap 1) and 15 (cap 2) over tread base
rubber layer 17. Id. Intersection 19 between the two cap layers "allows for
progressive exposure of the inner layer as the outer layer[] wears out." Id.
2 According to the Appellants, the real party in interest is The Goodyear Tire
& Rubber Company of Akron, Ohio. Br. 3.
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Application 12/557,914
Claim 1 is the sole independent claim, which we reproduce below:
1. A pneumatic tire having a tire tread, the tread comprising
one or more grooves and one or more ground engaging tread
elements,
the tread having a radially outer surface and a non-skid
tread depth as measured from the radially outer surface of the
tread and a radially innermost surface of the one or more
grooves, and one or more sunken grooves located radially
inward and below the surface of the unworn tread, wherein said
one or more sunken grooves form one or more exposed grooves
upon tread wear;
the tread comprised of a base layer formed of a base
compound, an outer layer formed of a first tread cap compound
and positioned radially outward of the base layer, and an inner
layer formed of a second tread cap compound different than the
first tread cap compound, wherein the inner layer is positioned
between the base layer and the outer layer, wherein a portion of
the inner layer extends radially outward of the radially
innermost surface of the one or more grooves so that the second
tread cap compound is exposed upon tread wear.
Br. 9 (emphasis of key phrases added). Claims 3-7, 10-13, 15, 18, and 20-
23 each depend directly from claim 1. Id. at 9-11.
The Examiner relies on the following prior art in rejecting the claims
on appeal:
"Japan 227"
"Japan 453"
JP 2001-130227 A
(human translated 3)
JP 2004-284453 A
( machine translated)
May 15, 2001
Oct. 14, 2004
3 Appellants submit a human translation with the Appeal Brief (Appendix
B). Our citations to Japan 227 are to this human translation.
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Appeal2017-008609
Application 12/557,914
"Japan 323"
Pierson et al.
("Pierson")
Lagnier et al.
("Lagnier")
JP 2001-63323 A Mar. 13, 2001
( machine translated 4)
us 4,478,266 Oct. 23, 1984
US 6,408,910 Bl June 25, 2002
Losi et al. ("Losi") WO 2004/096583 Al Nov. 11, 2004
We summarize the Examiner's grounds of rejection in the following
table:
23 § 112 ,T 1 n/a
1, 4--6, 10-13, 20-23 § 103 a Ja an 227, Ja an 453
3 § 103(a) Japan 227, Japan 453, Japan 323
15 § 103(a) Japan 227, Japan 453, Pierson
3, 18, 21 § 103(a)
1,3,4, 7,20,21,23 § 103 a
DISCUSSION
For the reasons below, we sustain each of the Examiner's grounds of
rejection.
A. Lack of Written Description
The Examiner rejects claim 23 under 35 U.S.C. § 112, paragraph 1, as
failing to comply with the written description requirement. Final Action 2.
Appellants, however, do not challenge this rejection on appeal. See Br. 4.
Thus, we summarily affirm the Examiner's rejection of claim 23 on this
ground.
4 In the Appeal Brief, Appellants do not object to the Examiner's use of
machine translations for Japan 453 and 323. In this decision, citations to
these references are to the machine translation.
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Application 12/557,914
B. Obviousness Based on Japan 227
The Examiner rejects claims 1, 4---6, 10-13, 20-23 as unpatentable
under 35 U.S.C. § 103(a) over Japan 227 and Japan 453. Final Rejection 3-
6. Because Appellants argue the claims together, we limit our discussion to
the rejection as it relates to claim 1. See 37 C.F.R. § 4I.37(c)(l)(iv).
In the rejection, the Examiner cites Figure 10 of Japan 227, which we
reproduce below:
20(24)
~
\.
14
Figure 10 of Japan 227 depicts a pneumatic tire (10) with tread 12 that has a
"so-called two-layer cap base structure comprising a cap rubber layer 12A
and a base rubber layer 12B." Br. 32 ,r,r 88-89 (trans. of Japan 227). The
reference states that "although not exposed to the road surface in a new tire,
when the tread 12 wears away to the position shown by the 2-dotted line in
FIG. 10, the base rubber layer 12B is exposed to the road surface." Id. ,r 90.
The Examiner finds that Japan 227 discloses each element recited in
claim 1, except that it "does not recite the tread having a third layer." Final
Action 3. Nevertheless, the Examiner finds that Japan 453 "teaches
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Appeal2017-008609
Application 12/557,914
arranging a cushion rubber layer5 ... under a 'radially outer tread layer' ...
and a 'radially inner layer' ... to suppress ingress of water into belt layers of
a pneumatic tire and thereby enhance the durability of the belt layers." Id.
The Examiner determines that a person of ordinary skill in the art would
have been motivated to combine this teaching in Japan 453 with the
structure disclosed in Japan 227, "to improve the durability of the tire." Id. at
4. According to the Examiner, this would have been a "predictable and
expected benefit." Answer 18.
Citing a declaration by Paul Sandstrom, submitted with the Appeal
Brief, Appellants argue that layer 12B in Japan 227 already serves as a water
barrier layer, and thus there would have been no incentive to add an
additional base layer. See Br. 5; Sandstrom Deel. ,r 5. Appellants also argue
that including an additional layer would have required a redesign "in order
to counteract the effects of the cured properties of the additional cushion
layer." Id. To the extent that water ingression were still a concern, Appellants
argue that a person of ordinary skill in the art would have followed the
teachings of Japan 453 to add clay to the existing layer 12B in Japan 227,
rather than including an additional base layer. See Br. 6; Sandstrom Deel.
,r 6.
We do not find these arguments persuasive of reversible error. As the
Examiner notes in the Answer, Japan 453 teaches that the "cushion layer" is
an optional addition to a two-layer structure. See Answer 20 (citing Japan
453 ,r 24). Japan 453 also teaches that in order to add water impermeability,
one may add clay either to the inner rubber layer, or to the optional cushion
5 Japan 453 teaches that the cushion rubber layer is resistant to water vapor
permeation, because it contains clay. See Japan 453 ,r,r 7-8, 13-14.
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Application 12/557,914
rubber layer. See Japan 453 ,r 25. Thus, Japan 453 teaches that, to suppress
water ingress through a two-layer structure, adding a third,
water-impermeable layer is an alternative to increasing the water
impermeability of two existing layers.
Japan 453, therefore, suggests that a person of ordinary skill in the art
would have been able, and motivated, to add a third, impermeable layer to a
two-layer design. This includes making any needed adjustment to the
existing two layers in order to make a workable tire. Apart from arguing that
modifications to the two-layer structure of Japan 227 may have been
necessary (see Br. 5), Appellants do not explain what specific modifications
would have been necessary to the Japan 227 design, or point to any evidence
on this record that such modifications would have exceeded the ordinary
skill in the art at the time of invention.
Claims 4---6, 10-13, 20-23 depend from claim 1, and are unpatentable
for the reasons discussed above. Therefore, for the above reasons, and based
on the Examiner's findings and conclusions as a whole which we find
persuasive by a preponderance of the evidence, we affirm the rejections of
claims 1, 4---6, 10-13, 20-23 as unpatentable under 35 U.S.C. § 103(a) over
Japan 227 and Japan 453.
The Examiner also rejects claims 3, 15, 18, and 21 as unpatentable
under 35 U.S.C. § 103(a) over Japan 227 and Japan 453, in combination
with Japan 323, Pierson, or Lagnier. Final Rejection 6-8. Because
Appellants do not specifically challenge these rejections, we summarily
affirm them.
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Application 12/557,914
C. Obviousness Based on Losi
Claims 1, 3, 4, 7, 20, 21, and 23 are rejected under 35 U.S.C. § I03(a)
as being unpatentable over Losi in view of Japan 453 and Lagnier. Final
Action 8-12. Because Appellants argue the claims together, we limit our
discussion to the rejection as it relates to claim 1. See 37 C.F.R.
§ 4I.37(c)(l)(iv).
Reproduced below is Figure IA ofLosi:
f'
FIG.1A
..rn
j ~ E ,.,p-· "-:..-·
Losi's Figure IA depicts the cross-section of a tire 1 including tread band 6
in the radially outer position, carcass structure 2 in a radially inward
position, and belt structure 5 sandwiched in between. See Losi 13. Tread
band 6 comprises radially inner layer 9 and radially outer layer 10
containing grooves 11. Inner layer 9 includes "a plurality of circumferential
abutment elements 12 radially extending in the radially outer layer 10, in
which they are completely embedded." Id. at 14--15. Losi teaches that
elements 12 "develop a substantial resistance against the transversal stresses
acting on the tread band of the pneumatic tire tending to elastically deform
the tread band itself." Id. at 15.
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Application 12/557,914
The Examiner finds that the combination of Losi, Japan 453, and
Lagnier teaches all the limitations of claim 1. Final Action 8-11. In
particular, according to the Examiner, Lagnier teaches that cavities (i.e.,
"sunken grooves" as recited in claim 1) "form exposed grooves ... upon
wear of the tread." Final Action 11. Thus, the Examiner determines that a
person of ordinary skill in the art would have added such sunken grooves to
Losi' s design "so that the tread pattern retains with wear good drainage
ability." Final Action 11.
Appellants argue that Losi teaches a design wherein "the rigidity of
the tread increases with wear." Br. 7. Thus, according to Appellants, "a
person skilled in the art applying common sense would not further modify
Losi' s tread structure by adding sunken grooves because they would
decrease the tread structural rigidity." Id. Furthermore, Appellants argue that
Losi teaches away from such a modification, by rendering Losi' s design
unsatisfactory for its intended purpose. Id. at 8 ( citing In re Gordon, 733
F.2d 900, 902 (Fed. Cir. 1984)).
We find these arguments unpersuasive of reversible error. As the
Examiner correctly points out, Appellants' contention that adding sunken
grooves would reduce the structural rigidity of the tire is merely attorney
argument, unsupported by any declaration or technical reasoning on the
record. Answer 22. Moreover, even if Appellants are correct that adding
sunken grooves to Losi' s design would result in the loss of some structural
rigidity, Appellants point to no evidence of record that this would render the
tire inoperable for its intended use. Nor do Appellants point to evidence that
any loss of structural rigidity outweighs the benefit of the sunken grooves,
according to Lagnier's teachings. See Winner Int 'l Royalty Corp. v. Wang,
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Application 12/557,914
202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) ("The fact that the motivating
benefit comes at the expense of another benefit ... should not nullify its use
as a basis to modify the disclosure of one reference with the teachings of
another.")
Claims 3, 4, 7, 20, 21, and 23 depend from claim 1, and are
unpatentable for the reasons discussed above. Therefore, for the above
reasons, we affirm the rejections of claims 1, 3, 4, 7, 20, 21, and 23 as
unpatentable under 35 U.S.C. § 103(a) over Losi, Japan 453, and Lagnier.
DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended. See 37 C.F.R. §§ 1.136(a)(l )(iv), 41.50([)
(2018).
AFFIRMED
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