Ex Parte Pereira Da Cunha Ribeiro Valente

Patent Trial and Appeal Board

Jan 24, 2017

14351370 (P.T.A.B. Jan. 24, 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.
14/351,370 04/11/2014 Antonio Manuel Pereira Da Cunha Ribeiro Valente 3000-005 4750
113648 7590 01/26/2017
Patent Portfolio Builders, PLLC
P.O. Box 7999
Fredericksburg, VA 22404-7999
EXAMINER
PLESZCZYNS KA, JOANNA
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
01/26/2017 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):
Mailroom@ppblaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANTONIO MANUEL PEREIRA DA CUNHA RIBEIRO
VALENTE
Appeal 2016-003052
Application 14/351,370
Technology Center 1700
Before TERRY J. OWENS, ROMULO H. DELMENDO, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1—18, 90, and 91. We have jurisdiction under 35
U.S.C. § 6(b).
We reverse.
1 We cite to the Specification (“Spec.”) filed Apr. 11, 2014; Non-Final
Office Action (“Non-Final Act.”) dated Mar. 12, 2015; Examiner’s Answer
(“Ans.”); and Appellant’s Appeal Brief (“App. Br.”) and Reply Brief
(“Reply Br.”).
2 Appellant identifies STAKLITE IP, LLC as the real party in interest. App.
Br. 2.
Appeal 2016-003052
Application 14/351,370
BACKGROUND
Appellant’s claimed invention is directed to a panel structure
comprising base, core and top layers, wherein the top layer directly contacts
protuberances separately provided on each of the base and core layers.
Spec. 111. Because the base layer and core layer protuberances do not
overlap, the density of protuberances is increased per unit area of the panel.
Id. at 146. Claim 1 is illustrative and reproduced from the Claims Appendix
of the Appeal Brief as follows:
1. A panel comprising:
a base layer configured to have plural first protuberances;
a core layer located on the base layer and comprising
plural second protuberances; and
a top layer in direct contact with the plural first
protuberances and the plural second protuberances.
Independent claims 90 and 91 similarly require that a top layer
directly contacts both the first protuberances of a bottom layer and the
second protuberances of a core layer. The remaining claims on appeal
depend from claim 1.
REJECTION3
I. Claims 1, 90, and 91 stand rejected under 35 U.S.C. § 112, second
paragraph, as indefinite.
II. Claims 1—10, 12—18, 90, and 91 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Figge4 and Clark.5
3 Final Act. 2—5; Ans. 2—5.
4 US 4,348,442, issued Sep. 7, 1982 (“Figge”).
5 US 2002/0028318 Al, published Mar. 7, 2002 (“Clark”).
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Appeal 2016-003052
Application 14/351,370
III. Claim 11 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Figge, Clark, and Bird.6
DISCUSSION
I
With regard to Rejection I, the Examiner found the phrase, “a base
layer configured to have plural protuberances” indefinite on the ground that
it could not be determined whether the recited base layer actually comprises
the recited protuberances. Non-Final Act. 2—3. Appellant contends that the
identified language “clearly indicates that the base layer has or includes or
comprises plural first protuberances.” App. Br. 12. We agree. We discern
no ambiguity in Appellant’s chosen language; a base layer configured to
have protuberances adequately conveys that the recited base layer has
protuberances. That result is consistent with the Specification’s description
of the invention. E.g. Spec. 145 (“The base layer 104 includes plural first
protuberances 110.”). It follows that we will not sustain the Examiner’s
indefmiteness rejection set forth in Rejection I.
II, III
With regard to Rejection II, the Examiner found that Figge discloses a
panel having a top layer which directly contacts plural protuberances of a
bottom layer, but omits a core layer. Non-Final Act. 3. The Examiner
further found that Clark discloses a panel having a bottom layer provided
with plural protuberances, and an upper layer having corresponding holes
6 US 6,110,567, issued Aug. 29, 2000 (“Bird”).
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Appeal 2016-003052
Application 14/351,370
which accommodate the bottom layer’s protuberances. Id. at 4. Clark
identifies the above-mentioned upper layer as a “reinforcing layer” which is
attached to the underlying protuberances (so-called “dimples”) to form
“cavities between the reinforcing layer and the dimple layer.” Clark 132.
Characterizing Clark’s upper layer as a “core layer,” the Examiner reasoned
that it would have been obvious to “modify Figge to include the core layer
of Clark on the base layer of Figge ... to improve the structural
characteristics of the panel of Figge.” Non-Final Act. 3^4. The Examiner
further reasoned that it also would have been obvious to “include a layer of
plural second protuberances on the core layer of Clark in the panel of Figge,
that would contact the top layer of Figge.” Id. at 4. The Examiner based
that determination on Clark’s teaching that the bottom layer’s dimples “can
have various sizes, geometries, dimensions, spacings, densities and
arrangements.” Id. (citing Clark 132).
Appellant principally challenges the last-mentioned aspect of the
Examiner’s obviousness rationale—the addition of a second set of
protuberances on Clark’s reinforcing layer. Appellant points out that Clark’s
teaching of dimple variability relates solely to the bottom layer, and that
neither Clark nor Figge teaches a core layer provided with its own, second
plurality of protuberances. App. Br. 6; Reply Br. 2. Appellant further
argues that Clark’s reinforcing layer is attached at the upper surface of the
bottom layer’s protuberances, such that even if the reinforcing layer were
provided with its own second set of protuberances, it would not have
resulted in both the bottom layer and reinforcing layer protuberances directly
contacting atop layer. App. Br. 6—7. Appellant’s arguments are persuasive.
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Appeal 2016-003052
Application 14/351,370
The Examiner failed to articulate why one skilled in the art would
have viewed Clark’s teaching of variability in the bottom layer’s dimples as
a reason to add a second set of dimples to Clark’s upper, reinforcing layer.
Neither did the Examiner explain how such a modification would yield a
panel structure in which both the bottom layer protuberances and the added
second protuberances of an overlaying reinforcing layer would directly
contact a top layer if adopted in Figge. In short, we are persuaded that the
Examiner’s obviousness rationale lacks an articulated reason for the
modifications necessary to yield the panel recited in any of independent
claims 1, 90, and 91.
For that reason, we do not sustain Rejection II. Because Rejection III
is premised on the same deficient rationale as Rejection II, this ground of
rejection also is not sustained.
DECISION
The Examiner’s decision rejecting claims 1—18, 90, and 91 is
reversed.
REVERSED
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