Ex Parte Fugier et al

Patent Trials and Appeals Board

Jun 19, 2019

13992433 - (D) (P.T.A.B. Jun. 19, 2019)

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
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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.
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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.
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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
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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
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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
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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
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