Ex Parte Hawley et al

Patent Trial and Appeal Board

Dec 29, 2017

14621188 (P.T.A.B. Dec. 29, 2017)

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.
14/621,188 02/12/2015 Ronald Clare Hawley 489.00010101 3159
26813 7590 01/03/2018
MUETING, RAASCH & GEBHARDT, P.A.
P.O. BOX 581336
MINNEAPOLIS, MN 55458-1336
EXAMINER
GAITONDE, MEGHA MEHTA
ART UNIT PAPER NUMBER
1781
NOTIFICATION DATE DELIVERY MODE
01/03/2018 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):
ptodocketing @ mrgs .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD CLARE HAWLEY
and DEREK JOEL MAZULA
Appeal 2017-004704
Application 14/621,188
Technology Center 1700
Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1—7, 9—12, and 14—19 of
Application 14/621,188 under 35 U.S.C. § 103 as obvious. Final Act. (July
29, 2016). Appellants1 seek reversal of the rejections2 pursuant to 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we reverse.
1 Integrated Composite Products, Inc. is identified as the applicant and real
party in interest. Appeal Br. 3.
2 Claim 20 had previously been withdrawn from consideration and, thus, was
not subject to the appealed rejections. Appeal Br. 3.
Appeal 2017-004704
Application 14/621,188
BACKGROUND
The ’188 Application describes composite structural articles that
includes a continuous fiber tension element and/or open mesh woven
element. Spec 13. The continuous fiber tension element and/or open mesh
woven element is said to improve the structure properties while reducing the
weight and/or cost of the composite structural article. Id.
Claim 1 is representative of the ’188 Application’s claims and is
reproduced below from the Claims Appendix:
1. A composite structural article comprising:
a thermoplastic polymer body having a first major
surface and an opposing second major surface;
a plurality of fibers forming a fiber dispersion within the
thermoplastic polymer body, the fibers having an average
length of less than 15 mm and an average diameter of less than
50 micrometers;
an elongated rib element extending away from the second
major surface a height and having an elongated length and a
width and forming a portion of the thermoplastic polymer body,
the elongated rib element having an attached portion fixed to
the second major surface and an end portion opposing the
attached portion; and
a continuous fiber bundle comprising at least 1000
parallel and co-extending continuous fibers and resin dispersed
within the continuous fibers, the continuous fiber bundle having
a resin concentration from 50% wt to 30 % wt and a diameter in
a range from 250 micrometers to 5000 micrometers, the
2
Appeal 2017-004704
Application 14/621,188
continuous fiber bundle disposed within the end portion of the
rib element.
Appeal Br. 28 (Claims App.).3
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1—7 and 9 are rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Pabedinskas,4 Imaizumi,5
and Deteresa.6 Final Act. 2.
2. Claims 10 and 11 are rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Pabedinskas, Imaizumi,
Deteresa, andNeitzke.7 Final Act. 6.
3. Claims 12 and 14—18 are rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Pabedinskas, Imaizumi, and
Neitzke. Final Act. 7.
4. Claim 19 is rejected under 35 U.S.C. § 103 as unpatentable over
the combination of Pabedinskas, Imaizumi, Neitzke, and Deteresa.
Final Act. 11.
3 Appellants have not numbered the pages of the Claims Appendix in the
Appeal Brief. For ease of reference, we have continued the numbering
scheme used in the Appeal Brief.
4 US 6,844,040 B2, issued January 18, 2005.
5 WO 2013/021848 Al, published February 14, 2013. We join the Examiner
in citing US 2014/0178635 Al, published June 26, 2014, as the English-
language equivalent.
6 US 2003/0062647 Al, published April 3, 2003.
7 US 8,815,368 B2, issued August 26, 2014.
3
Appeal 2017-004704
Application 14/621,188
Appellants argue for the reversal of the rejections to claims 1—7, 9-12,
and 14—19 on the basis of limitations present in independent claim 1. See
Appeal Br. 11—27; Reply Br. 2—9. We, therefore, limit our analysis to claim
1. Independent claim 12 will stand or fall with claim 1; dependent claims 2—
7, 9-11, and 14—19 will stand or fall with each of their respective
independent claims. 37 C.F.R. § 41.37(c)(l)(iv).
DISCUSSION
Appellants challenge each of these rejections by arguing that the
Examiner has not established a prima facie case of obviousness. In
particular, with respect to each of the rejections, Appellants argue that
Pabedinskas does not describe or suggest a rib element as recited in each
claim. Appeal Br. 12—19; Reply Br. 2-4.
The Examiner bears the initial burden, of presenting a prima facie
case of unpatentability. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
If the Examiner meets that burden, the applicant bears the burden of coming
forward with evidence or argument. Id. Failure to consider rebuttal
evidence is reversible error. In re Sullivan, 498 F.3d 1345, 1352 (Fed. Cir.
2007) (“Whether the composition would have been obvious cannot be
determined without considering evidence attempting to rebut the prima facie
case.”); In re Rinehart, 531 F.2d 1048, 1052 (CCPA 1976) (“When prima
facie obviousness is established and evidence is submitted in rebuttal, the
decision-maker must start over.”).
Here, the Examiner found that Pabedinskas teaches a thermoplastic
structural member 2, having a reinforcing section 3 on the end. Answer 2;
see also Final Act. 3. The Examiner further found that, “[a]s defined by the
claim, a ‘rib’ must be elongated, have a height extending away from the
4
Appeal 2017-004704
Application 14/621,188
second major surface and be attached to the second major surface.” Answer
2. According to the Examiner, “[rjeinforcing section 3 [annotated as
“elongated rib”] meets these limitations as shown in figure[] 2 below” (id.):
The Examiner’s annotated version of Pabedinska’s FIG. 2 identifies what the
Examiner found as corresponding to the claimed “elongated rib element.”
Id. at 3.
We reverse the Examiner’s rejections because the Examiner has not
established a prima facie case of obviousness. The Examiner’s conclusion
of obviousness must be reversed for at least two reasons.
First, the Examiner has misinterpreted “rib” as that term is used in the
’188 Application’s Specification and claims. During examination, claim
terms are given their broadest reasonable construction consistent with the
Specification. In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379
(Fed. Cir. 2007). In general, words used in a claim are accorded their
ordinary and customary meaning. Honeywell Int 7 Inc. v. Universal Avionics
Sys. Corp., 488 F.3d 982, 992 (Fed. Cir. 2007). As noted by Appellants, the
5
Appeal 2017-004704
Application 14/621,188
ordinary and customary meaning of the term “rib” is “an elongated ridge.”
Webster’s Tenth New Collegiate Dictionary (1993). See also Rib, American
Heritage Dictionary of The English Language, 5th ed. (Houghton Mifflin
Harcourt Publishing Co. 2016) available at
http://www.thefreedictionary.com/rib (defining “rib” as “Architecture A
long, narrow, usually arched member projecting from the surface of a
structure, especially such a member separating the webs of a vault.”). Thus,
claim 1 requires that the elongated rib element, which extends away from the
second major surface, has an elongated length and a narrow width. As the
Examiner admitted, “a rib is conventionally thought of as being narrower
than the surface from which it extends.” Answer 2. However, the Examiner
determined that this conventional meaning “is not required” to construe
claim 1. Id. Thus, the Examiner misinterpreted the term “rib” by admittedly
failing to use its ordinary and customary meaning as the starting point for
claim construction. See Honeywell, 488 F.3d at 992; Sullivan, 498 F.3d at
1352. The Examiner’s construction is erroneous.
Second, the Examiner, based on the misinterpretation of the term “rib”
discussed above, made erroneous findings of fact concerning the structures
that fall within the scope of the ’ 188 Application’s claims. In particular, the
Examiner erred in determining that Pabedinskas’ reinforcing section 3
teaches or suggests the claimed “elongated rib” because Pabedinskas’
Figures 1 and 2 depict reinforcing section 3 as coextensive with the
underlying surface. Because of this incorrect finding, the Examiner also
incorrectly found that Pabedinskas teaches or suggests disposing a
continuous fiber bundle within the end portion of a rib element.
The Examiner’s rejections of the ’188 Application’s claims are based
upon an incorrect claim interpretation and incorrect findings of fact. We,
6
Appeal 2017-004704
Application 14/621,188
therefore, reverse these rejections. In view of the foregoing, we reverse the
Examiner’s Rejection 1 of independent claim 1. Thus, we also reverse
Rejection 2, Rejection 3, and Rejection 4 of: (i) claims 2—7 and 9—11,
which ultimately depend from claim 1, and (ii) claims 14—19, which
ultimately depend from claim 12.8 37 C.F.R. § 41.37(c)(l)(iv).
CONCLUSION
For the reasons set forth above, we reverse the rejections of claims 1—
7, 9-12, and 14—19 of the ’188 Application.
REVERSED
8 Because the Examiner’s conclusion that claims 1—7, 9—12, and 14—19 of
the ’188 Application are prima facie obvious over the combination of
Pabedinskas and Imaizumi, either with or without Neitzke and/or Deteresa,
is based upon an erroneous claim interpretation and incorrect findings of
fact, we do not express any opinion regarding: (i) whether the Examiner
clearly articulated why one of ordinary skill in the art would have been
motivated to combine applied prior art (Appeal Br. 19—24; Reply Br. 7—9);
(ii) whether Appellants’ allegedly unexpected results are sufficient to
overcome any prima facie case of obviousness (Appeal Br. 24—27);
(iii) whether the Examiner’s assertion that “any surface may be a major
surface” (Answer 3—4), is inconsistent with Appellants’ proffered ordinary
and customary meaning of the term “major surface” and the use of the claim
term in the Specification (Reply Br. 4—6); and (iv) any additional arguments
raised by Appellants for reversal of the Examiner’s rejections, which we did
not discuss above.
7