Ex Parte Sade

Patent Trial and Appeal BoardMay 31, 2013

11364955 (P.T.A.B. May. 31, 2013)

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. 11/364,955 03/01/2006 Rovshan Sade 5518-001 1312 24112 7590 05/31/2013 COATS & BENNETT, PLLC 1400 Crescent Green, Suite 300 Cary, NC 27518 EXAMINER KWIECINSKI, RYAN D ART UNIT PAPER NUMBER 3635 MAIL DATE DELIVERY MODE 05/31/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte ROVSHAN SADE ________________ Appeal 2011-004006 Application 11/364,955 Technology Center 3600 ________________ Before STEVEN D.A. McCARTHY, LYNNE H. BROWNE and MITCHELL G. WEATHERLY, Administrative Patent Judges. McCARTHY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE 1 The Appellant1 appeals under 35 U.S.C. § 134. The Examiner rejects 2 claims 1-4, 6, 7, 9-12, 14, 15, 17-20, 22 and 23 under 35 U.S.C. 3 § 102(b) (2009) as being anticipated by Egan (US 6,804,922 B1, iss. Oct. 19, 4 2004); and claims 5, 8, 13, 16 and 21 under 35 U.S.C. § 103(a) (2009) as 5 being unpatentable over Egan and Irving (US 5,826,388, iss. Oct. 27,6 1The Appellant is the real party in interest. Appeal 2011-004006 Application 11/364,955 2 1998). We have jurisdiction under 35 U.S.C. § 6(b). 1 We REVERSE. 2 Claims 1, 9 and 17 are independent. Claim 1 recites: 3 1. A ventilated exterior wall or roof system 4 comprising: 5 a frame including a plurality of frame 6 members; 7 a water resistant membrane applied directly 8 to an exterior side of the frame; 9 an exterior sheathing spaced from an 10 exterior side of said water resistant 11 membrane; and 12 one or more air channels between said water 13 resistant membrane and said exterior 14 sheathing. 15 (emphasis added). 16 Claim 9 similarly recites a ventilated exterior wall or roof system 17 including “a water-resistant membrane secured directly to an exterior side of 18 [a] frame; an exterior sheathing disposed on an exterior side of said water 19 resistant membrane; [and] a plurality of spacers between said water-resistant 20 membrane and said exterior sheathing to space said exterior sheathing 21 material from said water-resistant membrane.” (Emphasis added.) Claim 22 17 recites a method of constructing an exterior wall or roof system including 23 the steps of “applying a water-resistant membrane directly to said frame; 24 [and] arranging an exterior sheathing in spaced relationship to said water-25 resistant membrane.” (Emphasis added.) 26 Egan describes a wall 8 including a frame 9, a sheathing 14, a 27 composite building material 2, and an external wall covering 15. (Egan, col. 28 7, ll. 38-40). The composite building material 2 includes a weather barrier 4 29 Appeal 2011-004006 Application 11/364,955 3 affixed to a mat 6 to form a single unitary composite sheet. (Egan, col. 5, ll. 1 45-46 and col. 6, ll. 54-60). The weather barrier 4 is a breathable, water-2 resistant polymeric sheet material. (Egan, col. 5, ll. 57-59 and 64-65). The 3 mat 6 is an open, three-dimensional matrix of filaments which allow gases 4 and liquids to flow freely therethrough. (Egan, col. 6, ll. 17-21 and 37-40). 5 The drawing figures of Egan depict the mat 6 directly attached to the 6 weather barrier 4 with no intervening space. 7 Egan teaches that the sheathing 14 may be omitted in some 8 circumstances. (See Egan, col. 7, ll. 63-66). Where the sheathing 14 is 9 omitted, the composite building material 2 may be fixedly attached directly 10 to the frame 9. (Egan, col. 8, ll. 5-9). Then, as the Examiner correctly finds, 11 the wall 8 will include the frame 9; the water resistant membrane (that is, the 12 weather barrier 4) applied directly to the exterior side 13 of the frame 9; and 13 the mat 6. (See Ans. 4 and 9). Given this construction, the Examiner finds 14 that the mat 6 constitutes an exterior sheathing spaced from the exterior side 15 of the water-resistant membrane 4. (See id.) 16 The Appellant correctly points out that the mat 6 is not spaced from 17 the weather barrier 4 in the wall system 8 as described and depicted in Egan. 18 While the mat 6 itself defines flow channels which permit air and water to 19 flow through the mat 6 (see Egan, col. 8, ll. 63-67), the existence of these 20 flow channels does not imply that the mat 6 is spaced from an exterior side 21 of the weather barrier 4. (See Ans. 10). Therefore, there exists at least one 22 limitation in each of independent claims 1, 9 and 17 which the Examiner has 23 not shown to be disclosed in Egan. Accordingly, we do not sustain the 24 rejection of claims 1-4, 6, 7, 9-12, 14, 15, 17-20, 22 and 23 under § 102(b) 25 as being anticipated by Egan. 26 Appeal 2011-004006 Application 11/364,955 4 With regard to the rejection of claims 5, 8, 13, 16 and 21, the 1 Examiner cites Irving as teaching “a system that includes a second water 2 resistant membrane (18, 20, Fig. 2; Column 3, lines 35-37) between said 3 exterior sheathing and said finish siding.” (Ans. 8). The Examiner provides 4 no technical reasoning suggesting how the teachings of Irving might remedy 5 the deficiency in the disclosure of Egan. Therefore, we do not sustain the 6 rejection of claims 5, 8, 13, 16 and 21 under § 103(a) as being unpatentable 7 over Egan and Irving. 8 9 DECISION 10 We REVERSE the Examiner’s rejections of claims 1-23. 11 12 REVERSED 13 14 15 16 hh 17