Ex Parte Pherson et al

Patent Trial and Appeal BoardNov 30, 2018

14874957 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/874,957 10/05/2015 26158 7590 12/04/2018 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 FIRST NAMED INVENTOR Thomas R. Pherson 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. A66525 l l 70US. l 4747 EXAMINER SHABLACK, JOHNNIE A ART UNIT PAPER NUMBER 3634 NOTIFICATION DATE DELIVERY MODE 12/04/2018 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): IPDocketing@wbd-us.com BostonPatents@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS R. PHERSON and GARRY L. HARUSKA Appeal2018-002983 Application 14/874,957 Technology Center 3600 Before JOHN C. KERINS, EDWARD A. BROWN, and ANNETTE R. REIMERS, Administrative Patent Judges. BROWN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1, 2, 4, 6, 7, 9-15, 20, and 24--28. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We REVERSE. 1 Advanced Composite Structures, LLC ("Appellant") is the applicant, according to 37 C.F.R. Â§ 1.46, and is identified as the real party in interest. Appeal Br. 2. Appeal2018-002983 Application 14/874,957 CLAIMED SUBJECT MATTER Claim 1, reproduced below, is representative of the claimed subject matter: 1. A curtain closure for a cargo opening of an air cargo container, said curtain closure comprising: a coated exterior fabric layer rendering the curtain closure substantially waterproof; a reinforcing layer comprising an uncoated fabric layer consisting essentially of fibers having a tenacity greater than about 20 grams/ denier; and a thermal insulating layer to help maintain an internal temperature of the air cargo container. Appeal Br. 11 (Claims App.). REJECTIONS 2 The Final Office Action includes the following rejections under 35 U.S.C. Â§ I03(a): I. Claims 1, 2, 4, 6, 7, 10-14, and 20 are rejected as unpatentable over Holland (US 2012/0118882 Al, published May 17, 2012) and Goulet (US 2009/0209155 Al, published Aug. 20, 2009). 3 II. Claim 9 is rejected as unpatentable over Holland, Goulet, and Goulet '180 (US 2009/0258180 Al, published Oct. 15, 2009). 4 2 The rejection of claims 12, 19, and 26 under 35 U.S.C. Â§ 112, second paragraph, has been withdrawn. See Ans. 9-10. 3 We note claims 11 and 12 are not listed in the header of the rejection, but are discussed in the body of the rejection. See Final Act. 3, 6. 4 The Examiner and Appellant refer to US 2009/0209155 Al as "Goulet" and US 2009/0258180 Al as "Goulet '180." 2 Appeal2018-002983 Application 14/874,957 III. Claims 15 and 24--28 are rejected as unpatentable over Holland, Goulet, and Pherson (US 2013/0161331 Al, published June 27, 2013). 5 IV. Claim 19 is rejected as unpatentable over Holland, Goulet, and Marker (US 6,435,101 Bl, issued Aug. 20, 2002). ANALYSIS Rejection I-Claims 1, 2, 4, 6, 7, 10-14, and 20 The Examiner finds that Holland discloses a curtain closure made of at least one layer of high strength yam and that the fabric is resistant to heat and cold. Ans. 13 (citing Holland ,r 11). The Examiner states, "[i]t is understood that a fabric that is resistant to heat and cold is thermally insulating." Id. ( emphasis added). The Examiner submits that "[h ]eat resistance is a property of a material by which it resists heat flow and heat is thereby prevented from transferring through the material," "[t]hermally insulating materials are materials that prevent the transmission of heat," and, therefore, "the fabric of Holland which resists heat flow would also be thermally insulating." Id. ( emphasis added). The Examiner finds that Holland fails to disclose a "distinct thermal insulating layer," but, instead, "generally discloses that the at least one layer of fabric possesses the features." Id. at 14--15. Appellant contests the Examiner's finding that Holland discloses a curtain closure or a fabric that is thermally insulating. Reply Br. 4. Appellant points out Holland discloses that its fabric is "resistant to heat, 5 The Examiner indicates that the omission of Pherson in the heading of the rejection in the Final Office Action was a typographical error. See Ans. 7-9. 3 Appeal2018-002983 Application 14/874,957 cold, ultraviolet (UV) radiation, and chemicals." Id. ( citing Holland ,r 11 ). Appellant argues that this description discloses that the fabric is resistant to degradation due to heat, not that the fabric is thermally insulating. Id. We agree with Appellant that, in the context of "resistance to heat, cold, ultraviolet (UV) radiation, and chemicals," Holland discloses that its fabric is resistant to degradation due to heat, and does not disclose that the fabric is thermally insulating. A thermal insulating material would be understood by one skilled in the art as a material that is resistant to conductive heat flow, that is, heat transfer through the material. 6 This understanding is consistent with the description of insulting layer 110 in Appellant's Specification. For example, the Specification describes that insulating layer 110 is provided "so that an initial temperature within the container 100 may be maintained for longer periods [than] comparable fabric doors without insulating layers 110." See Spec. ,r 33. We also note that claim 1 distinguishes a thermal insulating layer from a coated exterior fabric layer and a reinforcing layer. Thus, in the context of claim 1 and in view of thermal insulating materials having the well-known property of resistance to heat conductivity, an ordinary artisan would not consider any additional layer added to a curtain closure to be "a thermally insulating layer." The Examiner does not identify any disclosure in Holland that its fabric or layer is resistant to conductive heat flow and fails to establish that Holland discloses "a thermal insulating layer to help maintain an internal temperature of the air cargo container," as claimed. 6 See https ://www.energy.gov/ energysaver/weatherize/insulation/insulation- materials (last accessed Nov. 18, 2018). 4 Appeal2018-002983 Application 14/874,957 The Examiner relies on Goulet for disclosing separating a reinforcing layer from an insulating layer. Final Act. 4--5. The Examiner proposes to modify Holland's fabric "to improve the cut-resistant and thermal insulating properties by utilizing multiple layers to form the fabric, as taught by [Goulet]." Ans. 16. However, the proposed combination is premised on the unsupported finding that "the fabric of Holland which resists heat flow would also be thermally insulating." See Ans. 13. Consequently, the Examiner has not provided an adequate reason to modify Holland to result in the curtain closure required by claim 1. Thus, we do not sustain the rejection of claim 1 and of dependent claims 2, 4, 6, 7, 10-14, and 20 as unpatentable over Holland and Goulet. Re} ections II to IV--Claims 9, 15, 19, and 2 4-2 8 The Examiner's reliance on Goulet' 180, Pherson, or Marker in rejecting dependent claims 9, 15, 19, and 24--28 does not cure the deficiencies in the rejection of parent claim 1. Thus, we do not sustain the rejection of claim 9 as unpatentable over Holland, Goulet, and Goulet' 180; the rejection of claims 15 and 24--28 as unpatentable over Holland, Goulet, and Pherson; or the rejection of claim 19 as unpatentable over Holland, Goulet, and Marker. DECISION We reverse the rejections of claims 1, 2, 4, 6, 7, 9-15, 20, and 24--28. REVERSED 5