Ex Parte Good et al

Patent Trial and Appeal BoardMar 31, 2016

11893613 (P.T.A.B. Mar. 31, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. 111893,613 101012 7590 Rhodes IP PLC 3090 Electric Rd Suite F Roanoke, VA 24018 FILING DATE FIRST NAMED INVENTOR 08/15/2007 Brian Timothy Good 04/04/2016 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. HANAZD-702310 5162 EXAMINER PIERCE, JEREMY R ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 04/04/2016 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): crhodes@rhodesip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN TIMOTHY GOOD, 1 Jesse Guy Hipwell, Coray Harper, and Thomas Arnold Ebeling Appeal2014-005073 Application 11/893,613 Technology Center 1700 Before ADRIENE LEPIANE HANLON, MARK NAGUMO, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Brian Timothy Good, Jesse Guy Hipwell, Coray Harper, and Thomas Arnold Ebeling ("Good") timely appeal under 35 U.S.C. Â§ 134(a) from the Final Rejection2 of claims 1-7, 9, 11, and 13-30, which are all of the pending claims. We have jurisdiction. 35 U.S.C. Â§ 6. We affirm. 1 The real party in interest is listed as Hanwha Azdel, Inc. (Appeal Brief, filed 18 September 2013 ("Br."), 3.) 2 Office action mailed 18 December 2012 ("Final Rejection"; cited as "FR"). Appeal2014-005073 Application 11/893,613 A. Introduction3 OPINION The subject matter on appeal relates to moldable composite materials comprising basalt-fiber reinforced thermoplastic materials said to have improved thermal stability and strength, in particular improved sag resistance, compared to prior art glass-fiber based materials. (Spec. 2 [0005].) Sheet-forms of the composite material are said to exhibit improved rigidity or sag resistance, and improved flexural properties. (Id.) The materials are said to be useful for both structural products, such as automobile bumpers, and non-structural products such as interior headliners and trim parts. (Id. at 2 [0004].) Claim 1 is representative of the dispositive issues and reads: A fiber reinforced thermoplastic composite material compnsmg a fiber reinforced thermoplastic core comprising a thermoplastic resin and an effective amount of discontinuous basalt fibers dispersed within the thermoplastic resin to improve sag resistance; wherein, the thennoplastic core has a porosity greater than about 0% to about 95% by volume of the thermoplastic core and an areal density of from about 400 glm2 to about 4000 glm2 and 3 Application 11/893,613, Thermoplastic composites with improved thermal and mechanical properties, filed 15 August 2007, claiming the benefit of provisional application 60/838,047, which was filed 15 August 2006. We cite the Specification as "Spec." 2 Appeal2014-005073 Application 11/893,613 the composite material exhibits the improved sag resistance, as measured by thermal sag condition testing of said composite material in sheet form, at about the same basis weight or at a reduced basis weight compared to a comparative composite material comprising a glass fiber reinforced thermoplastic core having discontinuous glass fibers dispersed within the thermoplastic core of the comparative composite material, at about a same amount as the effective amount of the discontinuous basalt fibers, and wherein the composite material and comparative composite material differ due to the inclusion of the glass fibers within the thermoplastic core of the comparative composite material rather than the basalt fibers dispersed within the thermoplastic core of the composite material, and the comparison between the composite material and the comparative composite material is based on the same thermal sag condition testing procedure of sheets of both composite materials having the same thickness, structure, and areal measurements. (Claims App., Br. 17; indentation, paragraphing, and emphasis added.) The Examiner maintains the following grounds of rejection4 : A. Claims 1-7, 9, 11, and 13-30 stand rejected under 35 U.S.C. Â§ 112(2) as being indefinite in the term "effective amount of discontinuous basalt fibers." B. Claims 1-7, 9, 11, and 13-30 stand rejected under 35 U.S.C. Â§ 103(a) in view of the combined teachings of Byma5 and Bristow.6 4 Examiner's Answer mailed 21November2013 ("Ans."). 5 George B. Byma and Brian A. Cristea, Vehicle interior trim component of basalt fibers and polypropylene binder and method of manufacturing the same, U.S. Patent Application Publication 2004/0235377 Al (2004). 3 Appeal2014-005073 Application 11/893,613 B. Discussion Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Indefiniteness The Examiner holds that the claims are indefinite in the limitation "an effective amount of discontinuous basalt fibers dispersed within the thermoplastic resin to improve sag resistance," because the Examiner found that it is not clear what is an effective amount, or how much the sag resistance must improve, particularly in claim 24, which, the Examiner holds, "does not state any desired objective for achieving an effective amount." (FR 3, 11. 1---6.) Indefiniteness is a question of law. Our reviewing court has explained that a term of degree is definite if the specification "provides some standard for measuring that degree ... that is; whether one of ordinary skill in the art would understand what is claimed when the claim is read in light of the specification." Seattle Box Co. v. Indus. Crating & Packing, Inc., 731 F .2d 818, 826 (Fed. Cir. 19 84 ). Here, both claims 1 and 24 recite a test in which the sag resistance of the claimed composite material is compared to a sample that is the same except that glass fibers, rather than basalt fibers are used. The Examiner's criticisms, which are in the form of unelaborated rhetorical questions, appear to be answered by the conditions set forth in the claims for the testing. The Examiner has not explained why those comparisons are so vague that a person having ordinary skill in the art could not determine 6 Paul Anthony Bristow et al., Methods of forming a layered article, U.S. Patent Application Publication 2005/0161865 Al (2005). 4 Appeal2014-005073 Application 11/893,613 whether a given chopped basalt fiber sample meets the test or not. The claims may be broad (especially because the reference glass fiber sample is not more specifically defined), but "breadth [of a claim] is not to be equated with indefiniteness, as we have said many times." In re Miller, 441 F.2d 689, 693 (CCPA 1971). The rejection of all claims as indefinite is reversed. Obviousness Good does not present substantively distinct arguments for the separate patentability of the other independent claim 24, or of any of the dependent claims. All claims therefore stand or fall with claim 1. Good urges that the use of discontinuous fibers in the claimed invention permits lowering of "fiber content while providing the unexpected result of improved sag resistance and improvements in other physical properties." (Br. 10; 11. 14--16.) Good continues that this discovery is counter to the teachings of Byma, "which specifically states that increased fiber loading would provide improved physical properties." (Id. at 11. 22-23, citing Byma [0014].) Moreover, in Good's view, there is no motivation to combine the teachings of Byma and Bristow, because Byma is concerned with providing a basalt fiber filled thermoplastic resin that can be recycled7 7 Byma explains that the basalt fibers do not melt if the incinerator temperature is controlled to be sufficient to ash the polymer binder, unlike the lower-melting glasses, the molten residue of which coats the interior of the incinerator, reducing the life of the incinerator. (Byma 2 [0024].) 5 Appeal2014-005073 Application 11/893,613 to recover the basalt fibers, whereas Bristow is concerned with providing a core having a certain porosity. 8 (Br., para. bridging 12-13.) These arguments are not persuasive of harmful error. Byma [0014] reads in full: The amount of fiber and powder composition may vary. For example, it may be desirable to vary the composition of fiber and powder to take advantage of the higher tensile strength offered by fiber. The amount of powder applied may vary according to the desired stiffness of the core 12. According to a preferred embodiment of the invention, the composition of the core 12 may be in a range of about 30-70 percent basalt fiber and about 70-30 percent polypropylene powder. The core 12 may also vary in thickness and weight. For example, the core 12 may have a thickness in a range from about 1 mm to about 11 mm and a weight in a range from about 5 00 g/m2 to about 1800 g/m2. The composition, thickness, and weight of the core 12 may depend upon the structural, acoustic, and design characteristics specified for the laminate 10. (Byma 1 [0014]; emphasis added.) First, as the Examiner finds, Byma teaches compositions comprising basalt fibers and polypropylene binder useful as laminates in a headliner for an automobile. (FR 5, 11. 12-14.) The Examiner finds that Byma also teaches that the basalt fibers can be discontinuously chopped fibers. (Id. at 11. 14--15, citing Byma [0016].) The Examiner finds further that Byma teaches a range of chopped fibers, from about 500 g/m2 to about 1800 g/m2. This range is entirely within the range required by independent claims 1 and 24. Selecting values for parameters within ranges that are within ranges 8 Bristow teaches suitable densities for cores that are said to be suitable for certain thermoforming operations. (Bristow 2 [0023].) 6 Appeal2014-005073 Application 11/893,613 recited for those parameters in the claims tends to be obvious. Jn re Peterson, 315 F.3d 1325, 1329-30 (Fed. Cir. 2003) ("Selecting a narrow range from within a somewhat broader range disclosed in a prior art reference is no less obvious than identifying a range that simply overlaps a disclosed range.") Thus, it would have been obvious to follow the instructions of Byma as to the weight density of the composite material. The Examiner finds that Byma is silent as to porosity, but that Bristow, which discloses methods for forming a composite material useful in panels and headliner materials (FR 6, 11. 2-3, citing Bristow [0049]), teaches that composite materials can be thermoplastic resins filled with mineral fibers (id. at 11. 3-5, citing Bristow [0016], [0024], and [0025].) Bristow teaches further that void volumes or porosities in the range of 5% to 50% by volume are desirable for thermoforming the laminates (id. at 11. 5-12, citing Bristow [0023].) Thus, Bristow teaches ranges of porosity that are entirely within the range of porosity recited in the appealed claims. Good's arguments regarding lack of motivation to combine the teachings of the references are not persuasive of harmful error. There is no credible evidence of record that the differing foci of the inventive contributions of Byma and of Bristow would have distracted the routineer from recognizing that the same or similar fiber filled composites are useful for the same or similar purposes, here, e.g., automobile headliners. That disclosure would have suggested to the routineer that particular advantages of those materials disclosed in one reference would have been useful in the other. Thus, we find Good's argument that the Examiner failed to demonstrate a reasonable motivation to combine the teachings of these references unpersuasive of harmful error. 7 Appeal2014-005073 Application 11/893,613 C. Order It is ORDERED that the rejection of claims 1-7, 9, 11, and 13-30 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED 8