Ex Parte Hawley et alDownload PDFPatent Trial and Appeal BoardDec 29, 201714621188 (P.T.A.B. Dec. 29, 2017) Copy Citation 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 Appeal Br. 3. 2 Claim 20 had previously been withdrawn from consideration and, thus, was not subject to the appealed rejections.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.â€); 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.â€). 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 ribâ€] 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.â€). 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 Copy with citationCopy as parenthetical citation