Ex Parte Pervan et alDownload PDFPatent Trial and Appeal BoardMar 31, 201712270257 (P.T.A.B. Mar. 31, 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. 12/270,257 11/13/2008 Darko Pervan 1033462-000186 1826 21839 7590 04/04/2017 BUCHANAN, INGERSOLL & ROONEY PC POST OFFICE BOX 1404 ALEXANDRIA, VA 22313-1404 EXAMINER GOLDEN, CHINESSA T ART UNIT PAPER NUMBER 1788 NOTIFICATION DATE DELIVERY MODE 04/04/2017 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): ADIPDOCl@BIPC.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DARKO PERVAN, KENT LINDGREN, JAN JACOBSSON, NICLAS HAKANSSON, EDDY BOUCKE, and GORAN ZIEGLER Appeal 2015-002512 Application 12/270,257 Technology Center 1700 Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and JAMES C. HOUSEL, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’ rejection of claims 1—40, 64, 65 and 67—69. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a building panel. Claim 1 is illustrative: 1. A building panel comprising a surface layer and a core, the core comprising wood fibres, and the surface layer comprising a substantially uniformly dispersed mix of wood fibres, a binder and wear resistant particles, Appeal 2015-002512 Application 12/270,257 the wood fibres in the mix comprising unrefined wood fibers, wherein the mix is in direct contact with the wood fibers of an upper part of the core. The References Kelly US 4,337,290 June 29, 1982 von Bonin US 5,258,216 Nov. 2, 1993 Drees US 6,803,110 B2 Oct. 12, 2004 Pervan US 2004/0206036 A1 Oct. 21,2004 Martensson US 2005/0252130 A1 Nov. 17, 2005 Briere US 2006/0024465 A1 Feb. 2, 2006 HW (DE ‘532) (as translated) DE 202 14 532U1 Mar. 25, 2004 Braun (as translated) EP 1 681 103 A2 July 19, 2006 Rehau (as translated) DE 20 2006 007 797 U1 Sep. 21,2006 Kronotec (as translated) DE 10 2005 046 264 A1 Apr. 12, 2007 The Rejections The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1— 8, 12, 13, 17, 21—28, 32, 33 and 67—69 over DE ‘532 in view of Kelly, claims 9 and 29 over DE ‘532 in view of Kelly and Martensson, claims 10, 11, 30 and 31 over DE ‘532 in view of Kelly and Braun, claims 14 and 34 over DE ‘532 in view of Kelly and Kronotec, claims 15, 16, 35 and 36 over DE ‘532 in view of Kelly and Rehau, claims 18, 20 and 40 over DE ‘532 in view of Kelly and Pervan, claims 19 and 37 over DE ‘532 in view of Kelly and von Bonin, claims 38 and 39 over DE ‘532 in view of Kelly, von Bonin and Pervan, claim 64 over DE ‘532 in view of Kelly and Drees and claim 65 over DE ‘532 in view of Kelly and Briere. OPINION We reverse the rejections. We need address only the independent claims (1, 21, 64, 65, 67 and 69). Each of those claims requires a surface 2 Appeal 2015-002512 Application 12/270,257 layer comprising wood fibers. To meet that claim requirement the Examiner relies upon DE ‘532 (Ans. 2). DE ‘532 discloses a laminate floor comprising a support plate (10), which can be chipboard, medium density fiberboard or high density fiberboard flflf 1, 2), having thereon a thermosetting resin-impregnated decorative paper layer (14) which is “formed by a woven mat made from renewable raw materials, especially hemp, flax, linseed oil, jute, sisal, or the like” (17; Fig. 3) and can contain abrasion-resistant particles integrated from an overlay layer (16) which otherwise would be a separate layer (|| 2, 19, 33). The Examiner finds that DE ‘532 discloses “a surface layer comprising an integrated mixture of natural (unrefined) wood fibers, a thermosetting binder comprising a melamine resin and wear resistant aluminum oxide particles (page 1, paragraphs [0001 ]-[0003], [0007], [0008], [0010], [0017]-[0019], page 2, paragraphs [0027] and [0033]” (Ans. 2). The Examiner does not point out where the relied-upon portions of DE ‘532 disclose that the decorative layer (14) can contain wood fibers. The exemplified fibers (17) contain lignin which functions as glue providing binding strength near to that of wood materials (1 6), but they are plant fibers, not wood fibers. Nor does the Examiner establish that DE ‘532 would have suggested a decorative layer (14) containing wood fibers to one of ordinary skill in the art.1 The Examiner finds that DE ‘532’s paragraph 33 discloses an intermingled overlay paper/decorative paper/non woven fabric surface layer 1 DE ‘532’s wood chips relied upon by the Examiner (Ans. 19) are in the nonwoven web, not the decorative layer (| 18). 3 Appeal 2015-002512 Application 12/270,257 (Ans. 19-21), but the Examiner does not explain how that disclosure, i.e., “[t]he abrasion-resistant overlay need not be provided as a separate layer, but can be integrated into the decorative paper or the nonwoven fabric, in which is embedded in the thermosetting resin for impregnating the decorative paper or the nonwoven abrasive solid particles, for example, corundum”, is a disclosure of such an intermingled layer. Kelly discloses a bowling lane surface comprising a thermosetting resin-impregnated glass cloth/crepe paper substrate overlaid with decorative paper whose abrasion resistance can be increased by uniformly distributing abrasion-resistant particles into it using the method in US 3,373,070 (issued Mar. 12, 1968 to Peter E. Fuerst) (col. 3,11. 18—26; col. 5,11. 37—50) which discloses, regarding the prior art: After, for example impregnating an overlay paper with a resin or varnish comprising finely ground silica flour, the impregnated overlay sheet usually contains a silica-rich resinous coating on the top and bottom surfaces and a silica-poor resinous composition in the middle. Actual abrasion tests on such a laminate have shown that the abrasion resistance is high on the top of the surface of the overlay, becomes extremely low in the middle of the overlay and again becomes high on the bottom surface of the overlay, [col. 1,11. 61—70] Fuerst’s method produces a decorative laminate having a resin impregnated core and print layer, there being superimposed upon the print layer an overlay containing silica, said silica being incorporated in the overlay structure during the manufacture of the overlay paper itself. The silica filler can be incorporated in the overlay fibers at any desired point prior to the formation of the paper itself. For example, the silica flour may be added in the pulper or, if indicated, in the head box or at other points during the paper making process where thorough mixing can be carried out.... 4 Appeal 2015-002512 Application 12/270,257 the silica is uniformly distributed throughout the overlay structure .... [col. 2,11. 37—54], Kelly discloses that “[w]here a paper overlay or protective layer is used, this is normally of a highly purified, transparent, alpha cellulose although it can also consist of other transparent or highly translucent cellulosic or synthetic resin fibers such as those of rayon or mixtures of such fibers such as those described in U.S. Pat. No. 2,816,851, among others” (col. 5,11. 27—33). Fuerst discloses that “overlay paper is generally a very high quality thin sheet of paper manufactured from purified viscose, rayon fibers, cellulose fibers, such as alpha cellulose fibers or other similar materials, or from mixtures of the foregoing materials, all of which are well known to those skilled in the art” (col. 1,11. 38-43).2 The Examiner finds that DE ‘532’s embedding of the nonwoven mat (12) or decorative paper (14) with a thermosetting resin (| 27, 33) is a wet process and concludes that “[i]t would have been obvious to a person of the ordinary skill in the art at the time of the invention to uniformly disperse the wood fibres, binder and wear resistant particles of ‘532 as that of Kelly in order to develop flooring materials which are more resistant to physical abuse and wear which have uniformity of surface and which can maintain these qualities over a long period of time (Kelly, col. 2, lines 29-33, col. 5, lines 45-50)” (Ans. 3, 17, 18, 20). DE ‘532 appears to disclose scattering thermosetting resin powder onto the nonwoven web (| 19). The Examiner provides no evidence that DE ‘532’s mere disclosure that the material with which the nonwoven 2 Thus, neither Kelly nor Fuerst appears to disclose a surface layer containing wood fibers. 5 Appeal 2015-002512 Application 12/270,257 web (12) or decorative paper (14) is impregnated is a thermosetting resin indicates that the impregnation is a wet process. Moreover, the Examiner does not establish that Fuerst’s disclosure of impregnating paper during its formation would have led one of ordinary skill in the art to apply Fuerst’s method to DE ‘532’s nonwoven web (12), or explain how such a person could have done so. Also, the Examiner does not establish that if DE ‘532’s decorative paper (14), in relied-upon embodiments wherein it is on the nonwoven web (12) (Figs. 1, 2) (Ans. 19), were to contain wood fibers and be formed using Fuerst’s method such that it comprises a substantially uniformly dispersed mix of wood fibers, binder and wear resistant particles, it would meet the Appellants’ claim requirements of direct contact of the mix with wood fibers of an upper part of a core (claims 1,21 and 67), a connection between a wood fiber-containing core and a surface layer comprising one of (i) wood fibers from the core and the surface layer that are mixed and fused together and (ii) a binder penetrating into an upper part of the core (claim 64), or direct contact of the mix with glue which is in direct contact with the wood fibers of an upper part of a wood fiber-containing core (claim 65). Thus, the Examiner has not set forth a factual basis which is sufficient to support a prima facie case of obviousness of the Appellants’ claimed invention. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). Accordingly, we reverse the rejections. 6 Appeal 2015-002512 Application 12/270,257 DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 1—8, 12, 13, 17, 21— 28, 32, 33 and 67—69 over DE ‘532 in view of Kelly, claims 9 and 29 over DE ‘532 in view of Kelly and Martensson, claims 10, 11, 30 and 31 over DE ‘532 in view of Kelly and Braun, claims 14 and 34 over DE ‘532 in view of Kelly and Kronotec, claims 15, 16, 35 and 36 over DE ‘532 in view of Kelly and Rehau, claims 18, 20 and 40 over DE ‘532 in view of Kelly and Pervan, claims 19 and 37 over DE ‘532 in view of Kelly and von Bonin, claims 38 and 39 over DE ‘532 in view of Kelly, von Bonin and Pervan, claim 64 over DE ‘532 in view of Kelly and Drees and claim 65 over DE ‘532 in view of Kelly and Briere are reversed. It is ordered that the Examiner’s decision is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation