Ex Parte Pervan et al

Patent Trial and Appeal Board

Mar 31, 2017

12270257 (P.T.A.B. Mar. 31, 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.
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
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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).
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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....
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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.
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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.
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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
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