Ex Parte Fugier et alDownload PDFPatent Trials and Appeals BoardJun 19, 201913992433 - (D) (P.T.A.B. Jun. 19, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/992,433 07/18/2013 Sebastien Fugier 35161 7590 06/21/2019 DICKINSON WRIGHT PLLC 1825 Eye St., NW Suite 900 WASHINGTON, DC 20006 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. 338180-00612 7866 EXAMINER DYE, ROBERT C ART UNIT PAPER NUMBER 1747 NOTIFICATION DATE DELIVERY MODE 06/21/2019 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): dwpatents@dickinsonwright.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SEBASTIEN FUGIER and BEATRICE LOPEZ Appeal2018-006400 Application 13/992,433 Technology Center 1700 Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants 1 appeal from the Examiner's May 2, 2017 decision finally rejecting claims 1-11. We have jurisdiction over the appeal under 35 U.S.C. § 6(b ). We reverse. 1 Appellants state that the real parties in interest are Compagnie Generale des Etablissements Michelin and Michelin Recherche et Technique S.A. (Appeal Br. 2). Appeal2018-006400 Application 13/992,433 CLAIMED SUBJECT MATTER Appellants' invention is directed to a snow tire tread having an asymmetric tread pattern design with sipes opening onto the tread surface (Spec. ,r,r 1, 18). The Specification describes a sipe as a tire cut, which provides edges in the tire tread that are said to improve a tire's transverse grip on wet surfaces when combined with a specific rubber composition (id. at,r,r 13, 18, 19). Claim 1 is representative and is reproduced below from the Claims Appendix of the Appeal Brief ( emphasis added): 1. An asymmetric tread for a snow tire comprising a rubber composition which comprises: at least one diene elastomer, a reinforcing inorganic filler, and a plasticizing system comprising a liquid plasticizing agent in a content B of between 10 and 60 phr, said liquid plasticizing agent being a vegetable oil, wherein the tread comprises: a tread surface intended to be in contact with the ground when the tire is running, a sequence of basic patterns arranged in a circumferential direction (X), wherein each basic pattern has a width (Wm) that extends in a transverse direction over at least 80% of the width (W) of the tread, each basic pattern has a pitch (P) extending a distance in the circumferential direction, and each basic pattern comprises a plurality of raised elements, one or more of which are provided with sipes opening onto the tread surface, wherein each sipe has a width of less than 1 mm and a depth of at least 3 mm, wherein, for each basic pattern, a sipes orientation level Iilli*ail (NO) is defined that corresponds to where i is the P*Wm number of sipes in the pattern, li is the length of the ith sipe on the tread surface, Pis the pitch of the basic pattern, Wm is the 2 Appeal2018-006400 Application 13/992,433 width of the basic pattern and ai is the positive or negative angle formed on the tread surface by the ;th sipe with the transverse direction, where lail :S 45 degrees, said sipes orientation level being greater than or equal to 1.5 degrees/mm, and wherein the tread comprises a median dividing the tread into an inboard portion and an outboard portion, and the plurality of the raised elements on the inboard portion are provided with sipes at a steeper angle relative to the transverse direction than the plurality of the raised elements on the outboard portion, and the sipe orientation level for all the plurality of the raised elements in the inboard portion is greater than 2. Appeal Br. (Claims App. 1-2). REJECTIONS (1) Claims 1, 3-9, and 11 are rejected under 35 U.S.C. § I03(a) as unpatentable over Ohashi. 2 (2) Claim 2 is rejected under 35 U.S.C. § I03(a) as unpatentable over Ohashi in view of Vasseur, 3 Kishida, 4 and further in view of Herzog. 5 (3) Claim 10 is rejected under 35 U.S.C. § I03(a) as unpatentable over Ohashi in view of Vasseur, Kishida, and further in view ofNakagawa. 6 2 Ohashi, JP 2007/153056 A, published June 21, 2007. Because Ohashi is in Japanese, we will refer to the machine translation, as do both Appellants and the Examiner. 3 Vasseur et al., US 7,335,692 B2, issued Feb. 26, 2008. 4 Kishida, US 2005/0150581 Al, published July 14, 2005. 5 Herzog et al., US 2010/0292366 Al, published Nov. 18, 2010. 6 Nakagawa, JP 05-319026 A, published Dec. 3, 1993. 3 Appeal2018-006400 Application 13/992,433 Appellants do not argue any of the dependent claims separately (see Appeal Br. 4--7; Reply Br. 1--4). Accordingly, we select independent claim 1 as representative of dependent claims 2-10 and independent claim 11 and will decide this appeal based on the rejection of claim 1 over Ohashi. 37 C.F.R. § 4I.37(c)(l)(iv). DISCUSSION Rejections (1), (2), and (3) The Examiner finds that Ohashi's disclosure teaches each limitation of the asymmetric tread for a snow tire comprising the rubber composition recited in claim 1, except that Ohashi does not explicitly disclose, inter alia, the sipes orientation levels of the thread (Final Act. 4 ). The claimed equation for calculating the sipes orientation levels of the thread requires that ai, i.e., the± angle formed by the sipe with the transverse direction, must be less than or equal to 45 degrees (Spec. ,r 122). The Examiner finds that Ohashi's Figure 1 shows an "lail :S 45 degrees" as required by claim 1 (Ans. 5; see Final Act. 4). Ohashi' s Figure 1, which illustrates a view of a tread pattern of a pneumatic tire, is reproduced below. 4 Appeal2018-006400 Application 13/992,433 Ohashi's Figure 1 illustrates features of a tread pattern including: (i) a tread pattern asymmetric with respect to tire equator line C, which extends in the circumferential direction; (ii) circumferential grooves 1 and lateral grooves 2 forming blocks 3; (iii) sipes 6a extending from the upper left to the lower right arranged in the block row of the shoulder portion on the vehicle outer side; and (iv) sipes 6b extending from the lower left to the upper right arranged in the block row between rib 4 and the block row of the shoulder portion on the vehicle outer side (Ohashi ,r,r 14, 15, 22). According to the Examiner, Ohashi's Figure 1 fairly teaches one of ordinary skill in the art that the angle of the sipe has a large acute value lying halfway between the transverse and circumferential [i.e., CJ directions of the tread and in particular, illustrates an angle of 45 degrees to the transverse direction [i.e., El-E2]. This large acute angle is consistent with Ohashi' s teaching of the outer sipes being arranged obliquely to the widthwise direction ... and Ohashi' s teaching of the importance of providing the sipes with circumferential density component in order to provide an edge effect and improved turning performance . . . . Examiner emphasizes that in In re Mraz, the CCP A found that an angular 5 Appeal2018-006400 Application 13/992,433 relationship clearly depicted in the drawings could not be disregarded for determining patentability of claims. (Ans. 5, citing Ohashi Fig. 1; ,r,r 8, 15, 22). With respect to the issue of whether Ohashi teaches or suggests the requisite ai :S 45 degrees, Appellants make the following principal arguments: (1) as a general rule, "when the applied prior art does not disclose that drawings are drawn to scale and is silent as to dimensions, arguments on measurements of the drawings are of little value" (Reply Br. 2, citing Hockerson-Halberstadt, Inc. v. Avia Group Int'!, 222 F.3d 951, 956 (Fed. Cir. 2000)); and (2) the Examiner's reliance on In re Mraz, 455 F.2d 1069, 1072-73 (CCPA 1972) as an exception to Hockerson-Halberstadt's rule is misplaced "because the drawing measurement relied on by the Examiner[] ... sits at the very end of the range recited in claim 1, not well within the claimed range, as was the case in[] Mraz" (Reply Br. 3). Appellants' arguments are persuasive. With regard to argument (1 ), our reviewing court, the Federal Circuit, and its predecessor have repeatedly cautioned against overreliance on drawings that are neither expressly to scale nor linked to quantitative values in the specification. Krippelz v. Ford Motor Co., 667 F.3d 1261, 1268 (Fed. Cir. 2012); see also In re Wilson, 312 F.2d 449, 454 (CCPA 1963) (noting that specific dimensions could not be established based on measurements of patent drawings). Here, although Ohashi explicitly discloses "wave sipe 6 extending obliquely with respect to the tire width direction" (Ohashi ,r 15), the plain meaning of "oblique" is "( of an angle) either more or less than 90°" (see https:// dictionarv.carnbridge.org/us/ dictionary/ english/ oblique). Therefore, the record evidence does not support a finding that either: (i) Ohashi's Figure 1 is expressly drawn to scale showing that the± angle 6 Appeal2018-006400 Application 13/992,433 formed by a sipe with the transverse direction is 45 degrees; or (ii) Ohashi' s disclosure describes quantitatively that the depicted angle is 45 degrees. With respect to Appellant's argument (2), in Mraz, appellants' claims were directed to de-burring rolls and recited an edging roll comprised of a groove with an angle, formed by inwardly converging inclined surfaces and a plane perpendicular to the roll member's axis, not exceeding 15 degrees. Mraz, 455 F.2d at 1070. Edge rolls depicted in the cited prior art's figure possessed a similar groove with inwardly converging inclined surfaces. Id. at 1071. The angle at issue depicted therein measured about 6 degrees, but the disclosure was silent as to the exact measurement of the angle as shown. Id. On appeal, appellants argued that the Board erred in scaling the prior art's drawings to show the claimed angular limitation. Id. at 1072. The court affirmed the Board's decision stating the prior art figure "focuses on the edge rolls, showing them with great particularity and showing the grooves thereon to have an angularity well within the range recited in appellant's claims." Id. ( emphasis added). In this case, Ohashi' s Figure 1 does not show the angle at issue with Mraz's level of particularity. Specifically, each ofOhashi's sipes for forming ai are depicted as veering alternately to right and left, thereby introducing ai measurement error. Furthermore, even assuming that Ohashi's Figure 1 would have illustrated to one of ordinary skill in the art that the angle formed by each sipe with the transverse direction is ± 45 degrees, this angle is not "well within the range recited in" instant claim 1. Id. Rather, we agree with Appellants that 45 degrees is at the very end of the claimed range. On this record, the Examiner's reliance on Mraz as an exception to the rule that drawings that are neither expressly to scale nor 7 Appeal2018-006400 Application 13/992,433 linked to quantitative values in the specification are viewed with caution is misplaced. See Krippelz, 667 F.3d at 1268. Accordingly, we reverse the rejections of claims 1-11 under 35 U.S.C. § 103 for the reasons set forth above. We express no opinion with respect to Appellants' other arguments urging reversal of the Examiner's§ 103(a) rejections. CONCLUSION We REVERSE the rejection of claims 1, 3-9, and 11 under 35 U.S.C. § 103(a) as unpatentable over Ohashi. We REVERSE the rejection of claim 2 under 35 U.S.C. § 103(a) as unpatentable over Ohashi in view of Vasseur, Kishida, and further in view of Herzog. We REVERSE the rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable over Ohashi in view of Vasseur, Kishida, and further in view of Nakagawa. REVERSED 8 Copy with citationCopy as parenthetical citation