Ex Parte Thiers

Patent Trial and Appeal Board

Oct 27, 2017

11400190 (P.T.A.B. Oct. 27, 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.
11/400,190 04/10/2006 Bernard Paul Joseph Thiers 19791.55.1.1.3 3056
22913 7590
Workman Nydegger
60 East South Temple
Suite 1000
Salt Lake City, UT 84111
EXAMINER
LAUX, JESSICA L
ART UNIT PAPER NUMBER
3635
NOTIFICATION DATE DELIVERY MODE
10/31/2017 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):
Docketing @ wnlaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BERNARD PAUL JOSEPH THIERS
Appeal 2015-005399
Application 11/400,190
Technology Center 3600
Before LINDA E. HORNER, JAMES P. CALVE, and
ANNETTE R. REIMERS, Administrative Patent Judges.
REIMERS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2015-005399
Application 11/400,190
STATEMENT OF THE CASE1
Bernard Paul Joseph Thiers (Appellant) appeals under 35 U.S.C.
§134 from the Examiner’s decision to reject claims 1—3 and 5—7 under
35 U.S.C. § 103(a) as unpatentable over Moriau (US 6,006,486, issued Dec,
28, 1999), Mehta (US 5,141,799, issued Aug. 25, 1992), Eby (US 5,961,903,
issued Oct. 5, 1999), and Piacente (US 5,858,160, issued Jan. 12, 1999).
Claims 4, 8, and 9 have been cancelled. We have jurisdiction over this
appeal under 35 U.S.C. § 6(b).
We REVERSE.
CLAIMED SUBJECT MATTER
The claimed subject matter “relates to a floor covering formed of
laminated panels.” Spec. l,Fig. 13.2
Claim 1, the sole independent claim on appeal, is representative of the
claimed subject matter and recites:
1. A laminate floor covering panel having a perimeter
defining first and second pairs of opposite edges;
said panel having a top side and a bottom side, and
comprising a base plate and a top layer;
said base plate being formed of a material selected
from the group consisting of MDF and HDF;
said base plate having an upper side and a lower
side, the first and second pairs of opposite edges located
1 The subject application was previously before the Patent Trial and Appeal
Board in Appeal No. 2010-008197. See Decision dated February 1, 2013. In
that Decision, the adverse decision of the Examiner was AFFIRMED.
Following that Decision, Appellant reopened prosecution and further
amended the claims.
2 Appellant’s Specification does not provide line or paragraph numbering,
and, accordingly, reference will only be made to the page number.
2
Appeal 2015-005399
Application 11/400,190
adjacent to and surrounding the upper side of the base
plate;
said panel at least at said first pair of opposite edges
being provided with coupling parts for mutually coupling
a plurality of such panels to each other in a common plane
to form a floor covering, wherein these coupling parts in
coupled condition of two of such panels provide for an
interlocking in a direction perpendicular to the plane of the
panels as well as in a direction perpendicular to the edges
concerned and parallel to the plane of the panels;
said top layer comprising a generally horizontally
planar decorative layer extending over the entirety of the
upper side of the base plate;
said decorative layer comprising a printed pattern;
said printed pattern representing a single wood
pattern extending over the entirety of the upper side of the
base plate;
said top layer defining a transparent or translucent
synthetic layer having first and second generally planar
surfaces, the second planar surface of the synthetic layer
continuously covering said decorative layer, said
transparent or translucent synthetic layer comprises more
than one transparent layer of paper, synthetic resin and
wear and tear resistant substances, wherein said synthetic
resin hardens in a heated press;
said synthetic layer defining said top side of the
panel;
wherein said synthetic layer comprises impressions
extending from the first planar surface into a thickness of
the synthetic layer short of the second planar surface to
such a depth that the impressions are situated above the
printed pattern, said impressions arranged to simulate
textural and visual unevennesses which substantially
follow said printed pattern to form an embossment which
is in register with said printed pattern;
wherein the wood pattern depicts at least two wood
nerves and a zone therebetween; wherein the impressions
are mainly situated in said synthetic layer above said wood
3
Appeal 2015-005399
Application 11/400,190
nerves, while the synthetic layer above said zone
therebetween is substantially flat.
ANALYSIS
Claim Interpretation
Independent claim 1 is directed to a laminate floor covering panel
having a top layer defining a transparent or translucent synthetic layer,
wherein “[the] transparent or translucent synthetic layer comprises more
than one transparent layer of paper, synthetic resin and wear and tear
resistant substances.” Appeal Br. 22—23, Claims App. We construe the
relevant claim language at the outset to serve as a basis for our review of the
rejection.
Appellant’s Specification describes that
The aforementioned layer of synthetic material, which,
according to the invention, is situated on top of the decorative
layer, can be composed in any manner. By “transparent layer of
synthetic material”, it is meant that this layer comprises synthetic
material, as well as, in applied condition, is sufficiently
transparent for perceiving the printed wood pattern. This layer
of synthetic material itself may comprise other materials than
synthetic material, as well as be composed of several sublayers.
Preferably, this transparent layer of synthetic material, as
usual with known laminated parquet panels, consists of a
synthetic resin or one or more transparent or translucent material
layers soaked in synthetic resin, for example, very thin
transparent layers of paper.
In the layer of synthetic material, substances may be
present by which the wear and tear resistance of the surface is
enhanced.
Spec. 3 (emphasis added).
4
Appeal 2015-005399
Application 11/400,190
Under the broadest reasonable interpretation consistent with the
Specification, we interpret the phrase “[the] transparent or translucent
synthetic layer comprises more than one transparent layer of paper, synthetic
resin and wear and tear resistant substances” to mean that the transparent or
translucent synthetic layer has more than one transparent layer of paper
including synthetic resin and wear and tear resistant substances.
Obviousness over Moriau, Mehta, Eby, and Piacente
Regarding claim 1, the Examiner finds that Moriau discloses “a top
layer (55 and 56,57),” the top layer including “a transparent or translucent
synthetic layer (56) having first and second planar surfaces (56)
continuously covering the decorative layer (55); [the] transparent or
translucent synthetic layer [56] comprises more than one transparent layer,
synthetic resin.” Final Act. 3^4.
With regard to Moriau’s top layer 56, Appellant contends that Moriau
“makes no mention of the protective top layer 56 ‘comprising more than one
transparent layer of paper, synthetic resin and wear and tear resistant
substances.’” Br. 13. In particular, Appellant contends that Moriau
specifies at column 8, line 65 through column 9, line 9, that “the protective
top layer 56 ‘consists of a layer saturated with resin, for example, melamine
resin, which in the final product is transparent.’” Id. at 14.
Moriau discloses that “it is preferred that the laminated flooring is
provided with . . . a protective top layer 56” and “[t]he protective top layer
56 preferably also consists of a layer saturated with resin, for example,
melamine resin, which in the final product is transparent.” Moriau 8:65—67,
9:4—6 (emphases added).
5
Appeal 2015-005399
Application 11/400,190
Given that Moriau discloses that protective top layer 56 “refers to the
layer in singularity of ‘a’,” we agree with Appellant that a skilled artisan
“would only understand [Moriau] to use a single layer saturated with resin
rather than a synthetic layer including more than one transparent layer of
paper, synthetic resin and wear and tear resistant substances[, as] required by
claim 1.” Br. 14. We further agree with Appellant that Moriau “makes no
mention of the protective top layer [56] ‘comprising more than one
transparent layer,’ as required by claim 1Id. Moreover, we note that the
Examiner fails to establish how Moriau’s disclosure of “at least layer 56
[being] a layer saturated in resin” would “broadly [be] considered to be more
than one layer.” Ans. 2.
In the Final Rejection, the Examiner appears to take an alternate
position by stating that “Moriau clearly discloses more than one layer
transparent layer of paper, synthetic resin (where there are at least layers
56,57, and where it is noted at Col. 8, line 63 that more than one layer is/can
be included.[)]” Final Act. 2.
In this case, Appellant correctly points out that Moriau’s “decorative
layer 55 is formed between the intermediate layer 57 and the protective top
layer 56.” Br. 13 (emphasis added); see also Moriau 8:59-67, 9:7—9, Fig. 8.
We agree with Appellant that Moriau’s “intermediate layer 57 is not part of
protective top layer 56” and Moriau “makes no mention at all of
intermediate layer 57 being a transparent layer.” Br. 14. As such, we
further agree with Appellant that Moriau’s “intermediate layer 57 and
protective top layer 56 together are [not] analogous to ‘more than one
transparent layer of paper, synthetic resin and wear and tear resistant
substances’ of the claimed top layer.” Id.
6
Appeal 2015-005399
Application 11/400,190
Regarding Moriau disclosing at column 8, line 63, “that more than
one layer is/can be included,” Appellant correctly notes that “[i]n the
sentences immediately following the Examiner’s cited portion of Moriau,
Moriau expressly describes what is meant by ‘one or more layers of
material’ provided on the upper side of core 8.” Br. 14 (italics omitted); see
also Final Act. 2. In particular, Appellant correctly points out that Moriau
“describes intermediate layer 57, decorative layer 55, and protective top
layer 56 provided on the upper side of core 8” as the “‘one or more layers of
material’ provided on the upper side of core 8.” Br. 14; see also Moriau
8:59-9:9, Fig. 8. Based on the foregoing, the Examiner fails to provide
sufficient evidence or technical reasoning to support the finding that “one of
ordinary skill in the art would certainly understand from Moriau to provide
more than one synthetic layer in the top layer.” Final Act. 2—3.
In the Answer, the Examiner states that Mehta discloses “more than
one transparent layer having a resin and wear and tear resistant layers (as
noted at pages 4-5 of the [final] action).” Ans. 2; see also Final Act. 4—5.3
As an initial matter, Appellant correctly notes that “the decorative
layer and the synthetic layer are different elements” in claim 1 of the subject
invention. Br. 15.
Mehta discloses that “it is an object of the present invention to
produce an overlay sheet and/or multiple layer decor paper with low scratch
and abrasion-resistant characteristics.” Mehta 3:6—9 (emphasis added); see
also id. at 2:43—68; Br. 15.
3 The Examiner relies on the combined teachings of Eby and Piacente for
disclosing “the embossed pattern [being in] register with the printed pattern.”
See Final Act. 5—6.
7
Appeal 2015-005399
Application 11/400,190
In view of Mehta’s disclosure, we agree with Appellant that Mehta
“does not impart the understanding to the skilled person of the multiple layer
synthetic layer of claim 1; rather Mehta discloses either an overlay sheet or
a multiple layer decor paper.” Br. 15 (italics omitted); see also Mehta 3:6—9.
Indeed, even where the Examiner finds that Mehta discloses more than one
layer, the Examiner finds that there is only one paper layer and another layer
of wear and tear resistant substances. See Ans. 2 (citing Mehta, col. 4).
Based on the foregoing reasons, the Examiner fails to provide
sufficient evidence or technical reasoning to establish that the combined
teachings of Moriau and Mehta disclose a laminate floor covering panel
having a top layer defining a transparent or translucent synthetic layer,
wherein the transparent or translucent synthetic layer comprises more than
one transparent layer of paper, including synthetic resin and wear and tear
resistant substances, as called for in claim 1. See Appeal Br. 22—23, Claims
App.
Accordingly, we do not sustain the Examiner’s rejection of claims 1—3
and 5—7 as unpatentable over Moriau, Mehta, Eby, and Piacente
DECISION
We REVERSE the Examiner’s decision to reject claims 1—3 and 5—7
as unpatentable over Moriau, Mehta, Eby, and Piacente.
REVERSED
8