Ex Parte Thiers

Patent Trial and Appeal BoardNov 18, 2014

12285485 (P.T.A.B. Nov. 18, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte BERNARD PAUL JOSEPH THIERS ____________ Appeal 2012-009960 Application 12/285,485 Technology Center 3600 ____________ Before STEFAN STAICOVICI, ANNETTE R. REIMERS, and MICHAEL L. WOODS, Administrative Patent Judges. STAICOVICI, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE1 Bernard Paul Joseph Thiers (Appellant) appeals under 35 U.S.C. § 134 from the Examiner’s decision rejecting under 35 U.S.C. § 103(a) claims 1–13 and 16 as being unpatentable over Moriau (US 6,006,486, issued Dec. 28, 1999), Appellant’s Admitted Prior Art on pages 6–7 of the Specification (hereafter “AAPA”), and Searer (US 5,570,554, issued Nov. 5, 1996) and claims 14, 15, and 17–19 as being unpatentable over Moriau, 1 According to Appellant, the real party in interest is Flooring Industries, Ltd. App. Br. 2. Appeal 2012-009960 Application 12/285,485 2 AAPA, Searer, and Brown (US 6,021,615, issued Feb. 8, 2000) 2. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). SUMMARY OF DECISION We AFFIRM. INVENTION Appellant’s invention relates to “hard laminate panels.” Spec. 1, ¶ 5. Claims 1 and 16 are independent. Claim 1 is illustrative of the claimed invention and reads as follows: 1. A method for assembling a floor covering; said method comprising at least the step of interlocking a plurality of rectangular panels; said plurality of rectangular panels having an elongated design and being provided with a pair of opposite long sides and a pair of opposite short sides; both said pair of opposite long sides and said pair of opposite short sides being provided with edges having coupling means; said coupling means allowing said interlocking in a direction perpendicular to the plane of the floor covering as well as in a direction perpendicular to said edges and parallel to the plane of the floor covering; said pair of opposite long sides being provided with a bevel at both edges of said pair, each of the long side bevels being located at an upper side edge of the long sides and extending downwardly from a top surface of the panel; wherein said step of interlocking a plurality of rectangular panels comprises forming a first row of panels by at least interlocking a number of said panels at said edges of said pair of short sides; 2 By filing an application containing statements explaining what is conventional in the art, an applicant concedes what is to be considered as prior art in determining the patentability of the claimed invention. See Application of Nomiya, 509 F.2d 566, 571 (CCPA 1975). Appeal 2012-009960 Application 12/285,485 3 forming a second row of panels including rotating a first panel of said second row into a the panels of said first row at the long sides; rotating a second panel of the second row into the panels of said first row at the long sides; and coupling said first panel and said second panel at the edges of their short sides; wherein co-operating panels of the first and second rows define upper contact surfaces located below the bevels and lower contact surfaces located below the upper contact surfaces, the lower contact surfaces of the first and second rows having inclined surfaces corresponding to one another; wherein the upper contact surfaces of the panels of the second and first rows rotate against each other as the panels of the second row are coupled to the panels of the first row, wherein the bevels of the panels avoid contact with one another, wherein the lower contact surfaces are brought against each other as the first and second panels are coupled; and wherein a V-shaped width is defined by the coupled panels, a recess is formed on each panel such that when the panels are coupled at their long edges, a clearance is formed by the recesses of the opposed panels below the upper contact surfaces and above the coupling means, a width of the clearance being less than the V-shaped width. ANALYSIS Claims 1–13 Appellant has not presented arguments for the patentability of claims 2–13 apart from claim 1. App. Br. 6. Therefore, in accordance with 37 C.F.R. § 41.37(c)(1)(vii) (2011), we select claim 1 as the representative claim to decide the appeal of the rejection of these claims, with claims 2–13 standing or falling with claim 1. Appellant argues that the combined teachings of Moriau, AAPA, and Searer fail to disclose “(1) the step of coupling floor panels having a bevel Appeal 2012-009960 Application 12/285,485 4 by rotation, and (2) the specific relationship of the recess, clearance and bevel of claim 1.” App. Br. 11–12. With respect to Appellant’s first argument, Appellant further contends that Moriau “does not describe any type of bevel” (see App. Br. 12, citing Moriau, Figs. 3, 11, and 24) and Searer “only describes linear sliding coupling of adjacent floor panels” (see id. at 13, citing Searer, col. 4, ll. 61– 64 and Figs. 2 and 3). Thus, according to Appellant, although Moriau discloses “how to rotational[ly] couple floor panels, and Searer describes a bevel, the combination lacks an understanding of how to avoid abutting uppermost edges of panels comprising a bevel when rotationally coupling panels.” Id. (emphasis omitted). We are not persuaded by Appellant’s argument because Appellant cannot show nonobviousness by attacking Moriau and Searer individually when the rejection as articulated by the Examiner is based on a combination of Moriau and Searer. See In re Merck & Co. Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). In this case, the Examiner correctly finds that Moriau discloses rotationally coupled panels and Searer discloses panels having a bevel at a top corner. See Ans. 5–8 and 12–13; see also Moriau, Figs. 22–25 and Searer, Fig. 2. An artisan must be presumed to know something about the art apart from what the references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962). In this case, we agree with the Examiner that a person of ordinary skill in the art would have readily understood that providing a bevel as taught by Searer to the uppermost corners of Moriau’s panels would result in a shift of the abutment surface from the uppermost corners to a location below the bevel. See Ans. 13. Appellant has not provided any persuasive evidence or technical reasoning why the panels of Appeal 2012-009960 Application 12/285,485 5 Moriau as modified by Searer are not rotationally coupled. We further agree with the Examiner that Searer’s disclosure of “coupling by sliding has no bearing [on the proposed rejection] as Searer is relied upon only for the teaching of the bevel, not the teaching of the panel coupling structure and method.” Id. As to Appellant’s second argument, Appellant argues that Moriau’s dust chambers 81 and recesses 88 are not described in relation to a bevel. See App. Br. 14, citing Moriau, Fig. 22. Appellant further argues that Searer’s clearance formed by blind surface 20 and cove surface 46 is located below tongue and groove coupling means 38, 26 and has a width greater than the width of beveled surfaces 34. See id. at 15, citing Searer, Fig. 5; see also Reply Br. 1–2. We are not persuaded by Appellant’s arguments because Appellant is once again attacking the teachings of Moriau and Searer individually, rather than the combination of Moriau and Searer. Furthermore, Appellant’s arguments are not commensurate with the Examiner’s proposed rejection. The Examiner is not proposing to modify the panels of Moriau to include the recesses and clearance of Searer, as Appellant contends, but rather to “modify the recess/clearance of Moriau to have a dimension smaller than the V-shaped width created by [] bevels as disclosed by Searer.” Ans. 14. The Examiner appropriately finds that Moriau’s panels include recesses 88 and clearance 81, which is located above tongue and groove coupling means 9, 10. See id. at 6; see also Moriau, Figs. 22 and 23. The Examiner is also correct that Searer discloses clearances having a width smaller than V- shaped, beveled surfaces 32, 40. See Ans. 7; see also at 8, Examiner’s Annotated Figure 5 of Searer. As such, the combined teachings of Moriau Appeal 2012-009960 Application 12/285,485 6 and Searer disclose the relationship between the recesses, clearance, and V- shaped bevel, as called for by independent claim 1. Lastly, we are not persuaded by Appellant’s argument that the recess/clearance of Searer has a different purpose than that of Appellant’s. See App. Br. 15. The reason to modify the reference may often prompt a person of ordinary skill in the art to do what the inventor has done, but rather for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by Appellant. See, e.g., In re Kahn, 441 F.3d 977, 987 (Fed. Cir. 2006). In conclusion, for the foregoing reasons, we sustain the rejection under 35 U.S.C. § 103(a) of independent claim 1, and claims 2–13 falling with claim 1, as unpatentable over Moriau, AAPA, and Searer. Claim 16 Appellant relies on the arguments presented supra with respect to the rejection of independent claim 1. App. Br. 16–17. Accordingly, for the same reasons, we likewise sustain the rejection of independent claim 16 over the combined teachings of Moriau, AAPA, and Searer. Claims 14, 15, and 17–19 Appellant does not present arguments regarding the rejections of these claims separate from the arguments presented supra. App. Br. 6, 18. Therefore, we summarily sustain the rejection under 35 U.S.C. § 103(a) of claims 14, 15, and 17–19 as unpatentable over Moriau, AAPA, Searer, and Brown. Appeal 2012-009960 Application 12/285,485 7 SUMMARY We affirm the Examiner’s decision to reject claims 1–19. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Klh