Ex Parte Locke et al

Patent Trial and Appeal BoardDec 19, 2014

12634616 (P.T.A.B. Dec. 19, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RALPH J. LOCKE and DUDLEY J. PRIMEAUX ____________ Appeal 2013-003493 Application 12/634,616 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, N. WHITNEY WILSON, and WESLEY B. DERRICK, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s rejection under 35 U.S.C. § 103(a) of claims 9–19 as unpatentable over Shockey et al. (US 6,951,162 B1, issued Oct. 4, 2005) in view of Locke et al. (US 2002/0001678 A1, published Jan. 3, 2002). We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. Appeal 2013-003493 Application 12/634,616 2 Appellants claim a composite article comprising a polymeric substrate composed of fibers in a polymeric matrix and a specified coating layer in overlying adhered relationship with at least one face of the polymeric substrate (independent claim 9). Appellants also claim a vehicle having an interior surface composed of a polymeric panel having such a polymeric substrate and coating layer (independent claim 16). A copy of representative claim 9, taken from the Claims Appendix of the Appeal Brief, appears below. 9. A composite article comprising: a polymeric substrate composed of fibers of at least one of ultrahigh molecular weight polyethylene and aramid in a polymeric matrix, the polymeric substrate having at least one face; a coating layer in overlying adhered relationship with the at least one face of the polymeric substrate, the coating layer composed of composition comprising a reactive blend of at least one first component and at least one second component, wherein the first component is [sic] consists essentially of a polymer and/or a blend of polymers present in an amount sufficient to impart a predetermined amount of tensile strength, hardness, flexibility and adhesive strength to the resulting polymeric coating and the second component is an isocyanate or isocyanate quasi-prepolymer. Appellants do not present separate arguments specifically directed to the dependent claims on appeal (Br. 3–8). Therefore, the dependent claims will stand or fall with their parent independent claims 9 and 16. We will sustain the above rejection. The record before us supports the Examiner’s conclusion that it would have been obvious to provide the ballistic barrier (i.e., a polymeric substrate as defined by the independent claims) of Shockey with the coating (i.e., a Appeal 2013-003493 Application 12/634,616 3 coating layer as defined by the independent claims) of Locke in order to obtain the vibration dampening function of the coating (Final Action 3). Appellants argue that an artisan would not have combined the applied references as proposed by the Examiner because Locke’s coating is for dampening vibration of a load-bearing structure rather than a structure like Shockey’s ballistic barrier (Br. 4–5). However, we fully agree with the Examiner’s finding that the coating of Locke is not limited to structures which are load-bearing (Ans. 7 citing Locke ¶ 15). Moreover, because Shockey’s barrier is for use with vehicles such as limousines (col. 2, ll. 57–59) and Locke’s coating is for use with vehicles such as luxury automobiles (¶¶ 2–3), it would have been obvious to provide such a vehicle with the combination of the barrier and coating to obtain the predictable use of these prior art elements according to their respective established functions of barrier-protection and vibration- dampening. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) (In assessing the obviousness of claims to a combination of prior art elements, the question to be asked is “whether the improvement is more than the predictable use of prior art elements according to their established functions.”). Appellants do not dispute that Shockey’s ballistic barrier comprises fibers of the type claimed in combination with composite materials (Shockey col. 4, ll. 24–41, col. 7, ll. 25–34) including polymer material (id. at col. 5, ll. 25–33) wherein the fibers may be thermally bonded (id. at col. 7, ll. 51– Appeal 2013-003493 Application 12/634,616 4 54). Nevertheless, Appellants argue that Shockey does not provide an enabling disclosure of such fibers in a polymer matrix as claimed (Br. 6–7). In this latter regard, Appellants refer to an extraneous definition of polymer matrix as meaning a matrix wherein polymer takes up the spaces between fibers (id. at 6 n. 1). Appellants have not provided this record with adequate evidence to establish that their claimed polymeric matrix distinguishes from the Shockey embodiment wherein the fibers under consideration are thermally bonded to one another. Regardless, Appellants proffer no credible evidence that Shockey’s disclosure would not enable one having ordinary skill in this art to construct the Shockey ballistic barrier with the fibers disposed in a polymeric matrix. On the other hand, Appellants’ Specification evinces that such fibers in a polymeric matrix were known in the prior art (Spec. ¶¶ 2, 13), thereby evincing that an artisan would be able to manufacture Shockey’s barrier composite of fibers and polymer material in the form of such a matrix construction. Appellants further argue that the applied references fail to disclose or suggest an interior surface panel having a polymeric substrate and coating layer as required by independent claim 16 (Br. 7–8). Appellants’ argument is not persuasive because Shockey expressly teaches positioning the ballistic barrier on the interior panel of a vehicle as correctly explained by the Examiner (Ans. 9–10 citing Shockey col. 3, ll. 5– 10 as well as claims 7 and 12). Appeal 2013-003493 Application 12/634,616 5 Finally, Appellants argue that their claims are patentable over Shockey in view of Locke because Examples VI through XXIV of their Specification demonstrate the claimed invention exhibits unexpected results in the form of resistance to chipping, denting, gouging, and/or abration (Br. 8). This argument is not convincing for a number of reasons. First, there is merit in the Examiner’s position that such resistance to chipping, denting, gouging, and/or abration would be expected rather than unexpected in light of Shockey’s disclosure that the barrier has high tensile strength and is cut resistant (Final Action 8 citing Shockey col. 9, ll. 50–60). Second, Appellants fail to show or even assert that the data of Examples VI through XXIV are reasonably commensurate in scope with the independent claims under review. In this regard, we observe that Appellants acknowledge these Examples are directed to specific materials (e.g., DYNEEMA) (Br. 8) and that the independent claims are not limited to the specific substrate and coating materials of the Examples. Third, Appellants neither show nor allege that the Examples compare their claimed invention with the closest prior art (i.e., Shockey). In light of the foregoing, we sustain the § 103 rejection of claims 9–19 as unpatentable over Shockey in view of Locke. The decision of the Examiner is affirmed. Appeal 2013-003493 Application 12/634,616 6 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED cdc