Ex Parte Muthigi et al

Patent Trials and Appeals BoardFeb 21, 2019

14674248 - (D) (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/674,248 03/31/2015 27280 7590 02/25/2019 THE GOODYEAR TIRE & RUBBER COMPANY 200 Innovation Way AKRON, OH 44316-0001 Phaniraj Muthigi 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. DN2015-001 9250 EXAMINER DYE, ROBERT C ART UNIT PAPER NUMBER 1747 NOTIFICATION DATE DELIVERY MODE 02/25/2019 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): kathleen.swisher@goodyear.com patents@ good year.com pair_goodyear@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHANIRAJ MUTHIG!, DAVID RAY HUBBELL, JAMES GREGORY GILLICK, JOSEPH HENRY LACO, REBECCA LEE DANDO, VAIDYANATHAN SANKAR, THIERRY ROYER, and GILLES BONNET Appeal2018-003024 Application 14/674,248 Technology Center 1700 Before KAREN M. HASTINGS, DEBRA L. DENNETT, and JANEE. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. Â§ 134(a) of the Examiner's decision to finally reject claim 1. 2 We have jurisdiction over this appeal under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant is the applicant, The Goodyear Tire & Rubber Company, which, according to the Appeal Brief, is the real party in interest. Appeal Brief filed August 30, 2017 ("Br."), 3. 2 Claims 5 and 9 stand withdrawn from consideration. Final Office Action entered August 10, 2017 ("Final Act."), 1. Appeal2018-003024 Application 14/674,248 STATEMENT OF THE CASE Claim 1 illustrates the subject matter on appeal and is reproduced below with emphases added to highlight contested subject matter: 1. A pneumatic tire comprising: a carcass reinforced by a carcass ply extending from a first bead to a second bead; and a single belt ply disposed radially outward of the carcass ply in a crown portion of the pneumatic tire, the single belt ply comprising a first group of cords oriented in a first direction relative to a centerline of the pneumatic tire and a second group of cords oriented in a second direction relative to the centerline of the pneumatic tire, the first group of cords being interlaced with the second group of cords, the first group of cords having a linear density value in the range between 1000 dtex to 4000 dtex, a structure of one single polyamide/nylon core yarn and only two aramid wrap yarns, and an end count in the range between 15-32 cord ends per inch, the second group of cords having a linear density value in the range between 3000 dtex to 4000 dtex, a structure of one single polyamide/nylon core yarn and only two aramid wrap yarns, and an end count in the range between 15-32 cord ends per inch. Br. 10 (Claims Appendix) ( emphasis added). The Examiner maintains the rejection of claim 1 under 35 U.S.C. Â§ 103 as unpatentable over Hoffman3 in view of Pohler4, Reuter5, and Vannan6 in the Examiner's Answer entered October 20, 2017 ("Ans."). 3 US 1,488,343, issued March 25, 1924. 4 DE 10 2012 112 014 Al, published June 12, 2014. 5 US 4,893,665, issued January 16, 1990. 6 US 6,354,349 Bl, issued March 12, 2002. 2 Appeal2018-003024 Application 14/674,248 DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellant's contentions, we affirm the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103 based on the findings of fact, conclusions of law, and response to Appellant's arguments expressed by the Examiner in the Final Action and the Answer. We add following for emphasis. We review appealed rejections for reversible error based on the arguments and evidence the Appellant provides for each ground of rejection Appellant contests. 37 C.F.R. Â§ 4I.37(c)(l)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the examiner had failed to make a prima facie case, "it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). Appellant argues that Hoffman, Pohler, Reuter, and Vannan separately, and in combination, do not disclose, and would not have suggested, the pneumatic tire of claim 1. Br. 7, 8. Appellant argues that the Examiner does not provide a factual basis or rational underpinning to support the conclusion that it would have been obvious to modify Hoffman's tire with structures from Pohler, Reuter, and Vannan, and Appellant asserts that the Examiner relied solely on hindsight due to "significant factual deficiencies contained in the cited references." Id. Contrary to Appellant's arguments, the Examiner provides reasoning grounded in sound factual finding-thus having rational underpinning-that supports the Examiner's conclusion of obviousness, as discussed below. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval in KSR 3 Appeal2018-003024 Application 14/674,248 Int'l. Co. v. Teleflex Inc., 550 U.S. 398, 417-18 (2007) (explaining that there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness). As the Examiner correctly finds, Hoffman discloses a pneumatic tire comprising carcass ply 1 7 having bead core rings 20 (beads) incorporated in its edge portions, and open-weave, bias-cut fabric breaker strip 13 disposed radially outward of carcass ply 1 7 in a crown portion of the tire. Final Act. 2 ( citing Hoffman pg. 1, 11. 30-31, Figs. 1 and 3); see also Hoffman pg. 1, 11. 8-11, 30-37, 48-55). Appellant does not dispute the Examiner's finding that open-weave, bias-cut fabric breaker strip 13 disclosed in Hoffman corresponds to a single belt ply comprising a first group of cords interlaced with a second group of cords, as recited in claim 1. Compare Final Act. 2 and Ans. 4, with Br. 4--9. The Examiner finds that Hoffman does not disclose the construction, linear density, and end count of the fabric cords in Hoffman's open-weave, bias-cut fabric breaker strip 13 (single belt ply), and the Examiner determines that one of ordinary skill in the art, therefore, would have looked to additional tire constructions, such as those disclosed in Pohler, Reuter, and Vannan, to determine suitable cords for use in breaker strip 13 (single belt ply). Final Act. 3--4; Ans. 4--5. Pohler discloses a tire cord fabric having a semi-twist binding ( open- weave structure) used as reinforcing fabric in a pneumatic tire belt band, and discloses that the fabric exhibits high sliding strength and high stability. ,r,r 1, 6, 9. As the Examiner correctly finds, Pohler discloses that the material used to form the threads of the fabric "can be selected according to the application and the requirements," and "materials such as polyamide, 4 Appeal2018-003024 Application 14/674,248 polyester, rayon, aramid, or hybrids of these materials are suitable ... material[s]." Final Act. 3; Pohler ,r,r 6, 7. The Examiner also correctly finds that Pohler discloses that the fineness of the threads in the fabric depends on the intended use, and filaments of from 250 dtex to 4000 detx are suitable for tire cord fabric. Final Act. 3; Pohler ,r 8. As the Examiner correctly finds, one of ordinary skill in the art would have been led to use cords having a linear density of from 250 dtex to 4000 detx ( encompassing the ranges recited in claim 1) for the fabric cords in Hoffman's open-weave, bias-cut fabric breaker strip 13 (single belt ply) in view of Pohler's disclosure of the suitability of cords of this linear density in tire cord fabric used as reinforcing fabric in a pneumatic tire belt band, and disclosure that such cords exhibit high sliding strength and high stability. Final Act. 3; Ans. 4--6. The Examiner correctly finds that Reuter discloses a cable for reinforcing the belt ply of a pneumatic tire that comprises at least two yams consisting only of aramid filaments, and a single core yam consisting of filaments of partially oriented polyamides or polyesters. Final Act. 3; Reuter col. 1, 11. 6-8, 21-24, 29-33. Reuter discloses that the aramid yams are adjacent to one another and are twisted about the core yam. Reuter col. 1, 11. 35-38. The Examiner correctly finds that Reuter discloses that the cable exhibits a tensile strength and fatigue resistance equal to or greater than prior art cables when the overall dimensions of the cables are about equal. Final Act. 3; Reuter col. 5, 11. 36-40. As the Examiner correctly finds, one of ordinary skill in the art would have been led to use two wrap yams consisting only of aramid filaments, and a single polyamide core yam, for the fabric cords in Hoffman's open- 5 Appeal2018-003024 Application 14/674,248 weave, bias-cut fabric breaker strip 13 (single belt ply) in view of Reuter's disclosure of this suitability of this fabric structure in cables for reinforcing the belt ply of a pneumatic tire, and disclosure that cables having this structure exhibit a tensile strength and fatigue resistance equal to or greater than prior art cables when the overall dimensions of the cables are about equal. Final Act. 3; Ans. 5---6. V annan discloses a belt for pneumatic tires formed of a seamless netting material comprising cords or filaments in a nominal warp direction having an end count of 5 to 40 ends per inch, and cords or filaments in a nominal weft direction having an end count of 5 to 40 ends per inch. Col. 1, 11. 38--47, 52-54. Appellant does not dispute the Examiner's finding that V annan discloses that the end count of the filaments in the netting material can be controlled to provide additional reinforcement strength as needed. Compare Final Act. 3-5 (citing Vannan col. 7, 11. 35--45), with Br. 4--9. The Examiner finds that one of ordinary skill in the art would have been led to use cords having an end count of 5 to 40 ends per inch ( encompassing the ranges recited in claim 1) for the fabric cords in Hoffman's open-weave, bias-cut fabric breaker strip 13 (single belt ply) in view of Vannan's disclosure of the suitability of such an end count for seamless netting material used to form a tire belt, and indication that the end count of the filaments can be controlled to provide additional reinforcement strength as needed. Final Act. 3; Ans. 5---6. Therefore, contrary to Appellant's arguments, the Examiner articulates a thorough, reasoned explanation grounded in sound factual findings for why one of ordinary skill in the art would have been led to combine the relied-upon disclosures of the applied prior art to arrive at the 6 Appeal2018-003024 Application 14/674,248 pneumatic tire recited in claim 1. Appellant's conclusory arguments fail to identify any specific error in the Examiner's fact finding or rationale for the proposed combination, and the arguments are therefore unpersuasive of reversible error in the Examiner's rejection. Appellant argues that the result of modifying Hoffman's pneumatic tire with the teachings of Pohler, Reuter, and Vannan would have been unpredictable and, therefore, nonobvious, as shown by paragraphs 43--49 of Appellant's Specification. Br. 4--9. Appellant argues that these paragraphs of the Specification show that pneumatic tires are much more complex than a combination of familiar elements according to known methods, which Appellant asserts to be "the current legal standard for obviousness." Br. 8, 9. The relied-upon disclosures in the Specification indicate that the characteristics of the belt in a pneumatic tire affect the other components of the tire, including the carcass ply, overlay, and bead/apex, leading to "a number of components interrelating and interacting in such a way as to affect a group of functional properties (noise, handling, durability, comfort, high speed, and mass/weight), resulting in a completely unpredictable and complex composite." Spec. ,r 47. The Specification goes on to state that "[ w ]hether each of these functional characteristics is improved, degraded, or unaffected, and by what amount, certainly would have been unpredictable without the experimentation and testing conducted by the inventors." Id. Although paragraphs 43--46 of the Specification cite several publications, and paragraph 46 includes a table showing "the interrelationships between tire performance and tire components," the cited references are not of record, and we therefore do not consider them. 3 7 7 Appeal2018-003024 Application 14/674,248 C.F.R. Â§ 4I.33(d)(2). And as the Examiner explains in the Answer (Ans. 6), neither Appellant nor the Specification identifies the source of the data used to create the table in paragraph 46. We therefore find no evidence of record substantiating the relied-upon statements in the Specification. Therefore, on this appeal record, Appellant does not provide any evidence to support Appellant's assertion that modifying Hoffman's pneumatic tire with the teachings of Pohler, Reuter, and Vannan would have been unpredictable at the time of the invention, which is a question of fact. Because it is well-established that unsupported attorney arguments cannot take the place of evidence necessary to resolve a disputed question of fact, Appellant's arguments lack persuasive merit. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) ("An assertion of what seems to follow from common experience is just attorney argument and not the kind of factual evidence that is required to rebut a prima facie case of obviousness."); Icon Health & Fitness, Inc. v. Strava, Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) ("[ a ]ttomey argument is not evidence" and cannot rebut other admitted evidence). Nonetheless, even if modifying Hoffman's pneumatic tire with the teachings of Pohler, Reuter, and Vannan would have been unpredictable at the time of the invention as Appellant asserts, it is well-settled that, even in unpredictable arts, "[ o ]bviousness does not require absolute predictability of success ... all that is required is a reasonable expectation of success." In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009) (emphasis omitted, citing In re O'Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988)). As the Examiner correctly explains, one of ordinary skill in the art reasonably would have expected that cords having a linear density, polyamide/aramid yam 8 Appeal2018-003024 Application 14/674,248 construction, and end count as suggested by Pohler, Reuter, and Vannan (discussed above) could be successfully used in Hoffman's open-weave fabric breaker strip 13 (single belt ply) to produce a pneumatic tire belt as recited in claim 1 having a desired level of reinforcing strength, in view of Pohler and Vannan's disclosure of suitable linear density, cord construction, and end counts for cords of pneumatic tire belt plies, and Reuter' s disclosure of an advantageous polyamide/aramid hybrid cord construction for pneumatic tire belt plies. Ans. 5---6. Finally, although Appellant asserts that a combination of familiar elements according to known methods is "the current legal standard for obviousness," the Supreme Court indicated in KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398 (2007) that Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966) sets "out an objective analysis for applyingÂ§ 103." The Court explained that: The scope and content of the prior art are . . . determined; differences between the prior art and the claims at issue are ... ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented." While the sequence of these questions might be reordered in any particular case, the factors define the controlling inquiry. KSR, 550 U.S. at 399 (citing Graham, 383 U.S at 17-18). In the context of discussing Supreme Court precedent on obviousness, the Court in KSR indicated that a combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results. KSR, 550 U.S. at 401 (citing United States v. Adams, 383 U.S. 39, 9 Appeal2018-003024 Application 14/674,248 50-52). This statement thus describes a particular circumstance in which a claimed invention is likely to be obvious, rather than providing "the current legal standard for obviousness" as Appellant asserts. Accordingly, considering the totality of the evidence relied upon in this appeal, a preponderance of the evidence weighs in favor of the Examiner's conclusion of obviousness. We accordingly sustain the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103. DECISION We affirm the Examiner's rejection of claim 1 under 35 U.S.C. Â§ 103. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. Â§ 1.13 6( a )(1 )(iv). AFFIRMED 10