Romeo Ciuperca

Patent Trials and Appeals BoardOct 21, 2020

15218729 - (D) (P.T.A.B. Oct. 21, 2020)

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. 15/218,729 07/25/2016 Romeo Ilarian Ciuperca GREEN-0301 4355 108821 7590 10/21/2020 Greencraft LLC 1831 Warren Place Suite 200 Norcross, GA 30093 EXAMINER FIGG, TRAVIS M ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 10/21/2020 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): bob@greencraft.com gmrfr2@gmail.com richardsiplaw@comcast.net PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROMEO ILARIAN CIUPERCA ____________ Appeal 2019-006405 Application 15/218,729 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1–7 and 15–19.2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the inventor, Romeo Ilarian Ciuperca, as the real party in interest. Appeal Brief filed May 19, 2019 (“Appeal Br.”) at 3. 2 Final Office Action entered December 20, 2018 (“Final Act.”) at 1. Appeal 2019-006405 Application 15/218,729 2 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal and reads as follows: 1. A product consisting of: a foam insulating panel having a first primary surface and an opposite second primary surface; a laminated fabric attached to the first primary surface of the foam insulating panel, wherein the laminated fabric is fully impregnated with an air-resistant, water-resistant, vapor permeable, elastomeric polymeric material, wherein the air-resistant, water-resistant, vapor permeable elastomeric polymeric material has an elongation factor of greater than 100%, a water vapor transmission rating of at least 0.1 perm and an air permeance of less than 0.004 cfm/sq. ft. under a pressure differential of 0.3 inches of water, whereby the air-resistant, water-resistant, vapor permeable elastomeric polymeric material provides a water- resistant, vapor permeable air barrier; and wherein the laminated fabric consists of a woven or nonwoven first carrier portion and a woven or nonwoven reinforcing portion attached to and directly contacting the first carrier portion and a woven or nonwoven second carrier portion attached to and directly contacting the other side of the reinforcing portion. Appeal Br. 16 (Claims Appendix) (emphasis and spacing added). REJECTIONS The Examiner maintains the following rejections in the Examiner’s Answer entered June 25, 2019 (“Ans.”): Appeal 2019-006405 Application 15/218,729 3 I. Claims 1–7 under 35 U.S.C. § 103 as unpatentable over Cashin3 in view of Roth,4 Porter,5 Grace,6 and Paradis;7 II. Claims 15–18 under 35 U.S.C. § 103 as unpatentable over Cashin in view of Roth, Porter, Grace, Paradis, and Davis;8 and III. Claim 19 under 35 U.S.C. § 103 as unpatentable over Cashin in view of Roth, Porter, Grace, Paradis, Davis, and Kumar.9 FACTUAL FINDINGS AND ANALYSIS Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejections of claims 1–7 and 15–19 under 35 U.S.C. § 103, for the reasons set forth in the Final Action, the Answer, and below. We review appealed rejections for reversible error based on the arguments and evidence the Appellant provides for each issue the Appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). 3 US 7,984,591 B2, issued July 26, 2001. 4 US 8,181,580 B2, issued May 22, 2012. 5 US 7,148,160 B2, issued December 12, 2006. 6 “PERM-A-BARRIER® VP, Fluid applied vapor permeable air barrier Membrane” (2009). 7 US 2013/0337709 A1, published December 19, 2013. 8 US 4,351,873, issued September 28, 1982. 9 US 8,277,931 B1, issued October 2, 2012. Appeal 2019-006405 Application 15/218,729 4 Appellant argues all of the pending claims together on the basis of limitations common to independent claims 1 and 15. Appeal Br. 6–14. We, therefore, select claim 1 as representative, and decide the appeal as to claims 1–7 and 15–19 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). Cashion discloses composite panel 44 comprising foam substrate 46 (foam insulating panel) and impact resistant sheet material 10 (laminated fabric). Cashin col. 13, ll. 57–60; Fig. 7. Cashion discloses that impact resistant sheet material 10 (laminated fabric) includes impact resistant layer 20 to which barrier layer 22 is attached. Cashin col. 4, ll. 62–65; Fig. 3. Cashion discloses that impact resistant layer 20 includes a plurality of strands woven at multiple points to form a scrim-like material (woven or nonwoven reinforcing portion). Cashin col. 6, ll. 16–27; Fig. 3. Cashion discloses that barrier layer 22 comprises woven or nonwoven fibrous substrate 24 (woven or nonwoven first carrier portion). Cashin col. 5, l. 3; col. 9, ll. 5–6. Cashion discloses that “[i]n some embodiments, the fibrous substrate [24] may be coated with a breathable, liquid impermeable coating, such as a film layer.” Cashin col. 5, ll. 5–7. Cashin discloses that “[i]n housewrap and similar applications, it is generally desirable for the impact resistant sheet material to be both vapor permeable and water impermeable while also providing a barrier to air infiltration.” Cashin col. 4, ll. 59–62. The Examiner finds that Cashin does not explicitly disclose that impact resistant sheet material 10 (laminated fabric) includes a second woven or nonwoven fibrous substrate 24 (woven or nonwoven second carrier portion) “placed and directly contacting the other side of” scrim-like impact resistant layer 20 (woven or nonwoven reinforcing portion), and the Appeal 2019-006405 Application 15/218,729 5 Examiner turns to Roth for suggesting inclusion of a second fibrous substrate 24 (woven or nonwoven second carrier portion) in Cashin’s impact resistant sheet material 10 (laminated fabric). Final Act. 3–4. The Examiner relies on Roth’s disclosure of a composite structural building material comprising foam core 4 and laminar covering 6 (laminated fabric) adhered to foam core 4. Final Act. 3–4; Roth col. 1, ll. 37–40; col. 29, ll. 23–36. Roth discloses that laminar covering 6 (laminated fabric) is formed of reinforcing layer 12 (woven or nonwoven reinforcing portion) sandwiched between two layers of woven or nonwoven fabric web material 14 (woven or nonwoven first and second carrier portions), which Roth indicates strengthens the structural building material. Roth col. 9, ll. 27–30, 54–55; col. 9, l. 64–col. 10, l. 9; col. 10, ll. 55–56; Fig. 2. Roth discloses that reinforcing layer 12 can be “a band of substantially parallel reinforcing cords and/or a fibrous mat” (woven or nonwoven reinforcing portion). Roth col. 12, ll. 41–44. In view of these disclosures in Roth, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to adhere a second woven or nonwoven fibrous substrate 24 (woven or nonwoven second carrier portion) to the scrim-like material (woven or nonwoven reinforcing portion) of Cashin’s impact resistant layer 20 opposite the first woven or nonwoven fibrous substrate 24 (woven or nonwoven first carrier portion), to improve the strength of Cashin’s impact resistant sheet material 10 (laminated fabric). Final Act. 4. The Examiner finds that “Cashin and Roth are silent towards the laminated fabric being impregnated with an air-resistant, water resistant, vapor permeable, elastomeric polymeric material with the claimed Appeal 2019-006405 Application 15/218,729 6 properties,” but, the Examiner finds, “Cashin does teach a desire to improve moisture vapor permeability with improved water and air resistance,” and “Cashin proposes achieving these improved properties by the addition of an optional barrier film layer.” Final Act. 5 (citing Cashin col. 5, ll. 5–42; Fig. 4). The Examiner relies on Porter’s disclosure of composite sheet material 100 (laminated fabric) useful as a membrane for house wrap that includes woven or nonwoven mesh reinforcing layer 14 (woven or nonwoven reinforcing portion) and film 12 disposed between first and second nonwoven web materials 10, 40 (woven or nonwoven first and second carrier portions). Final Act. 5–6; Porter Abst.; col 5, ll. 58–61; col. 7, ll. 60–61; col. 8, ll. 9–11; Fig. 1. Porter discloses that film 12 is water vapor permeable and substantially liquid water impermeable. Porter col. 2, ll. 19–21. Porter discloses that the layers or materials of composite sheet material 100 (laminated fabric) “can be coated or treated with additional compositions” that include water resistant additives and vapor barriers. Porter col. 8, ll. 32–34. In view of these disclosures in Porter, the Examiner determines that “one of ordinary skill in the art would recognize that either barrier films or water-resistant additives may be utilized to improve water resistance in laminated fabric composite panels.” Final Act. 5–6. The Examiner finds, however, that Porter does not disclose composite sheet material 100 (laminated fabric) “being impregnated with an air resistant, water-resistant, vapor permeable, elastomeric polymeric material with the required property values required in claim 1,” and the Examiner relies on Grace and Paradis Appeal 2019-006405 Application 15/218,729 7 for suggesting impregnation of Cashin’s impact resistant sheet material 10 (laminated fabric) with such a material. Final Act. 6–7. The Examiner relies on Grace’s disclosure of Perm-A-Barrier, which Grace indicates is a fluid material designed for application to “construction surfaces” that cures to form and an air tight, liquid water impermeable, and vapor permeable, elastomeric sheet. Final Act. 6; Grace p. 1. The Examiner determines that Grace thus evidences that “it is known in the art of water vapor permeable insulation materials to utilize elastomeric materials with the claimed properties to improve protection against water vapor ingress into the building materials.” Final Act. 6. The Examiner relies on Paradis’ disclosure of composite board 10 “useful in a variety of building applications,” which comprises foam layer 30 and at least one glass fiber mat 20. Final Act. 7; Paradis ¶¶ 14, 35; Fig. 1. Paradis discloses that glass fiber mat 20 may be “substantially fully impregnated with a binding composition,” which can “be effective to improve the degree of liquid and vapor resistance, which can in turn improve the weather resistance of the composition board.” Paradis ¶¶ 21, 24. In view of these disclosures in Grace and Paradis, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to fully impregnate Cashin’s impact resistant sheet material 10 (laminated fabric) as modified by Roth with the Perm-A-Barrier material disclosed in Grace “to provide improved water vapor permeability properties resulting in a composite material with improved protection against damages caused by water vapor ingress,” and “to provide improved weather resistance as taught by Paradis.” Final Act. 6–7. Appellant argues that “Cashin, Roth and Porter all disclose the use of Appeal 2019-006405 Application 15/218,729 8 a polymeric film layer in combination with a multi-layered composite to achieve the air-resistant, water-resistant, vapor permeable properties,” which is excluded by the “consisting of” language of claim 1. Appeal Br. 11–13. Appellant’s arguments, however, do not address the basis for the Examiner’s reliance on Cashin, Roth, and Porter, and, therefore, do not address the rejection as presented by the Examiner. Consequently, Appellant’s arguments do not identify reversible error in the Examiner’s rejection. More specifically, as the Examiner explains (Ans. 22), and as discussed above, Cashin discloses that inclusion of film layer 26 in barrier layer 22 of Cashin’s impact resistant sheet material 10 (laminated fabric) is optional by indicating that “in some embodiments, the fibrous substrate [24] may be coated with a breathable, liquid impermeable coating, such as a film layer.” Cashin col. 5, ll. 5–7 (emphasis added). As the Examiner also explains (Ans. 22), and as discussed above, the Examiner relies on Roth for suggesting inclusion of a second fibrous substrate 24 (woven or nonwoven second carrier portion) in Cashin’s impact resistant sheet material 10 (laminated fabric) to strengthen the material, and the Examiner relies on Porter’s disclosure of treating the layers or materials of Porter’s composite sheet material 100 (laminated fabric) with water-resistant additives. In view of this disclosure in Porter, and Cashin’s disclosure of breathable, liquid impermeable film layer 26, one of ordinary skill in the art would have understood that either inclusion of a liquid impermeable film as disclosed in Cashin, or treatment with a water-resistant additive as disclosed in Porter, “may be utilized to improve water resistance in laminated fabric composite panels,” as the Examiner determines. Final Act. 5–6. Appeal 2019-006405 Application 15/218,729 9 Thus, although Cashin, Roth, and Porter may disclose “the use of a polymeric film layer in combination with a multi-layered composite to achieve [] air-resistant, water-resistant, vapor permeable properties” as Appellant argues, the Examiner’s rejection is based on strengthening Cashin’s impact resistant sheet material 10 (laminated fabric)—which does not include optional film layer 26—by incorporating a second fibrous substrate 24 (woven or nonwoven second carrier portion) as suggested by Roth, and to fully impregnate the modified impact resistant sheet material 10 (laminated fabric) with Perm-A-Barrier, as suggested by Porter, Grace, and Paradis, to impart air tightness, liquid water impermeability, and vapor permeability to impact resistant sheet material 10 (laminated fabric), as disclosed in Grace. Cashin’s impact resistant sheet material 10 (laminated fabric) modified in this manner is not excluded by the “consisting of” language of claim 1. Appellant argues that Paradis “teaches away from the present invention by teaching impregnating the fiber web to achieve vapor resistance,” but, Appellant argues, because “vapor resistance is an undesired property for the present invention, a person of ordinary skill in the art would not be expected to apply the teachings of Paradis et al. regarding impregnation to the combined disclosures of Cashin, Roth and Porter.” Appeal Br. 8–9. Appellant argues that “Grace teaches away from the present invention” by disclosing use of Perm-A-Barrier to form a surface membrane on a material to which it is applied, rather than disclosing fully impregnating a material with Perm-A-Barrier. Appeal Br. 9–11. Appellant argues that “Porter teaches away from the present invention” by teaching that the layers of Porter’s composite sheet material 100 (laminated fabric) Appeal 2019-006405 Application 15/218,729 10 can be coated or treated with water resistant additives or vapor barriers, and “a vapor barrier is the antithesis of the presently claimed invention.” Appeal Br. 13–14. Appellant’s arguments, however, are improperly based on Paradis, Grace, and Porter individually, and do not take into consideration what the combined disclosures of Cashin, Roth, Porter, Grace, and Paradis reasonably would have suggested to one of ordinary skill in the art at the effective filing date of Appellant’s application. In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.”); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (The test for obviousness “is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”). And Appellant’s arguments again do not address the basis for the Examiner’s reliance on Paradis, Grace, and Porter. As discussed above, Cashin, Roth, Porter, Grace, and Paradis all disclose building materials. Cashin discloses that water impermeability and vapor permeability are desired properties for Cashin’s impact resistant sheet material 10 (laminated fabric), which are imparted by inclusion of a film layer in the material, while Porter discloses that either inclusion of a film layer, or treatment of the layers of Porter’s composite sheet material 100 (laminated fabric) with a water-resistant additive, can be used to impart water resistance to the sheet material. Grace discloses a material—Perm-A- Barrier—used in construction that forms a liquid water impermeable and vapor permeable elastomeric sheet, and Paradis discloses completely Appeal 2019-006405 Application 15/218,729 11 impregnating fiber mat 20 with a binding composition to improve its liquid and vapor resistance. In view of these disclosures, one of ordinary skill in the art would have understood that full impregnation as disclosed in Paradis is a known technique for “treating” layers of a laminated fabric as disclosed in Porter with a composition or additive that imparts water-resistance to the laminated fabric. One of ordinary skill in the art seeking to enhance the water impermeability and vapor permeability of Cashin’s impact resistant sheet material 10 (laminated fabric) reasonably would have been led to fully impregnate impact resistant sheet material 10 (laminated fabric) with Perm- A-Barrier as suggested by Porter and Paradis, in view of Grace’s disclosure that Perm-A-Barrier imparts water impermeability and vapor permeability to building materials. The Examiner’s proposed combination of Cashin, Roth, Porter, Grace, and Paradis, therefore, is not based on impregnating Cashin’s impact resistant sheet material 10 (laminated fabric) with the vapor-resistant binding composition disclosed in Paradis, or with a vapor barrier additive as disclosed in Porter, as Appellant appears to argue. Rather, the Examiner’s proposed combination is based on fully impregnating Cashin’s impact resistant sheet material 10 (laminated fabric) with the Perm-A-Barrier disclosed in Grace, in view of Cashin’s disclosure of the desirability of imparting water impermeability and vapor permeability to Cashin’s impact resistant sheet material 10 (laminated fabric), and Grace’s disclosure that Perm-A-Barrier imparts such properties to building materials. And although Grace teaches surface application of Perm-A-Barrier, the Examiner’s proposed combination is based on fully impregnating Cashin’s impact Appeal 2019-006405 Application 15/218,729 12 resistant sheet material 10 (laminated fabric) with Perm-A-Barrier in view of Paradis’s disclosure that full impregnation is a known technique for “treating” layers of a laminated fabric as disclosed in Porter with a composition or additive that imparts water-resistance to the laminated fabric. Appellant does not identify any disclosure in Paradis, Grace, or Porter that criticizes or discredits fully impregnating a laminated fabric with an air- resistant, water-resistant, vapor permeable, elastomeric polymeric material as recited in claim 1, and we find no such disclosure in these references. Contrary to Appellant’s arguments, Paradis, Grace, and Porter, therefore, do not teach away from the product of claim 1. Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017) (“A reference that ‘merely expresses a general preference for an alternative invention but does not criticize, discredit, or otherwise discourage investigation into’ the claimed invention does not teach away.” (quoting Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013)). We, accordingly, sustain the Examiner’s rejections of claims 1–7 and 15–19 under 35 U.S.C. § 103. CONCLUSION Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–7 103 Cashin, Roth, Porter, Grace, Paradis 1–7 15–18 103 Cashin, Roth, Porter, Grace, Paradis, Davis 15–18 19 103 Cashin, Roth, Porter, Grace, 10 Appeal 2019-006405 Application 15/218,729 13 Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed Paradis, Davis, Kumar Overall Outcome 1–7, 15–19 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