UTILITY CONCRETE PRODUCTS, LLC

Patent Trials and Appeals Board

Aug 12, 2021

2021000900 (P.T.A.B. Aug. 12, 2021)

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.
13/835,100 03/15/2013 THOMAS HERATY 45325-127502US 4442
30567 7590 08/12/2021
Levenfeld Pearlstein, LLC
Intellectual Property Department
2 North LaSalle
Suite 1300
Chicago, IL 60602
EXAMINER
CHU, KATHERINE J
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
08/12/2021 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):
IPDOCKET@LPLEGAL.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
_______________

Ex parte THOMAS HERATY
_______________

Appeal 2021-000900
Application 13/835,100
Technology Center 3600
_______________

Before NATHAN A. ENGELS, JAMES W. DEJMEK, and
AMEE A. SHAH, Administrative Patent Judges.

DEJMEK, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134(a) from a Final Rejection of
claims 1, 4–13, 26–31, 37, 43, and 44. Appellant has canceled claims 2, 3,
and 14–25. See Appeal Br. 38–42. Claims 32–36, 38–42, and 45–50 are
withdrawn from consideration.2 See Final Act. 2. We have jurisdiction over
the remaining pending claims under 35 U.S.C. § 6(b).

1 Throughout this Decision, we use the word “Appellant” to refer to
“applicant” as defined in 37 C.F.R. § 1.42 (2019). Appellant identifies
Utility Concrete Products, Inc. as the real party in interest. Appeal Br. 1.
2 Appellant notes that the Examiner withdrew from consideration the
identified claims “over Appellant’s objection.” Appeal Br. 2. As set forth in
Manual of Patent Examining Procedure (“MPEP”) § 818.01(c) (9th ed., Rev.
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We affirm.

STATEMENT OF THE CASE
Introduction
Appellant’s disclosed and claimed invention generally relates to a
precast concrete retaining wall. Spec. ¶ 1. In a disclosed embodiment, the
retaining wall is formed by joining two precast modules—specifically, (i) a
first module comprising a face panel and at least one counterfort, extending
perpendicularly from the face panel, and (ii) a second module serving as a
base platform. Spec. ¶¶ 36–37, 39, 42, Fig. 3.
Claim 1 is representative of the subject matter on appeal and is
reproduced below:
1. A precast concrete retaining wall assembly comprising:
a first module comprising a precast concrete face panel
having a length in a first direction, opposed front and rear
surfaces and at least one integral counterfort extending from the
rear surface of the face panel in a second direction substantially
perpendicular to the first direction, wherein said first module
includes reinforcement bars, the at least one counterfort having
an anchor member precast therein, the anchor member having an
exposed end extending from a bottom surface of the counterfort;

10.2019, June 2020), “[a]fter a final requirement for restriction, the
applicant, in addition to making any reply due on the remainder of the
action, may petition the Director to review the requirement.” In addition,
any such petition must be filed no later than the filing date of the Notice of
Appeal. MPEP § 818.01(c). As such, the Examiner’s withdrawal of certain
claims from consideration is not properly before the Board. See MPEP
§ 706.01 (“[T]he Board will not hear or decide issues pertaining to
objections and formal matters which are not properly before the Board.”);
see also MPEP § 1201 (“The Board will not ordinarily hear a question that
should be decided by the Director on petition . . . .”).
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a second module comprising a unitary precast concrete
base platform having a top surface and peripheral edges, wherein
said second module includes reinforcement bars the top surface
of the base platform having a downwardly extending
substantially linear precast grout pour opening having a
substantially tapered cross-section along its length, the grout
pour opening being spaced inward from the peripheral edges of
the base platform and being sized to receive the exposed end of
the anchor member, the precast concrete base platform having a
width in the first direction corresponding to the length of the face
panel;
means for preventing the base platform from sliding after
surcharge loads are applied, and
wherein the first and second modules are separate,
individual modules that are not attached to one another upon
being precast, the first and second modules being configured so
that the face panel and the at least one integral counterfort of the
first module are positionable on the top surface of the precast
concrete base platform such that the second module serves as a
precast platform to support the entire length of the face panel and
the at least one counterfort, the first and second modules being
securable to one another by a grouted connection separate from
the precast concrete forming the first and second modules, the
grouted connection being formed by introducing grout into the
grout pour opening to form around the exposed end of the anchor
member to bind the anchor member within the grout pour
opening, the grouted connection permanently joining the precast
face panel upright on the precast base platform such that the
precast face panel and precast base platform are secured
perpendicularly to one another with the length of the face panel
supported along the top surface of the precast base platform, said
connection between precast modules being able to resist a
horizontal force applied to the rear surface of the face panel by
backfill material to hold the first module upright relative the
second module.

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The Examiner’s Rejections
1. Claims 1, 4–7, and 10–13 stand rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Vidal et al. (US 4,911,585;
Mar. 27, 1990) (“Vidal”); Benson et al. (US 4,572,711; Feb. 25, 1986)
(“Benson”); D.L. Araújo & M.K. El Debs, Beam-Slab Connection in Precast
Bridge Decks with Pockets Filled Out with High-Performance Concrete and
Shear Key, 1 IBRACON Structural Journal 1–28 (Sept. 2005) (“Araújo”);
and Examiner’s taking of Official Notice. Final Act. 3–7.
2. Claims 8, 9, 26–31, 37, 43, and 44 stand rejected under pre-
AIA 35 U.S.C. § 103(a) as being unpatentable over Vidal, Benson, Araújo,
the Examiner’s taking of Official Notice, and Budge (US 6,523,312 B2;
Feb. 25, 2003). Final Act. 7–17.

ANALYSIS3
Rejection of claims 1, 4–7, and 10–13
The Examiner’s rejection of independent claim 1, inter alia, relies on
the combined teachings of Vidal, Benson, and Araújo. See Final Act. 3–6.
We begin our analysis with a brief review of these references.

3 Throughout this Decision, we have considered the Appeal Brief, filed
March 13, 2020 (“Appeal Br.”); the Reply Brief, filed November 17, 2020
(“Reply Br.”); the Examiner’s Answer, mailed September 17, 2020 (“Ans.”);
and the Final Office Action, mailed August 13, 2019 (“Final Act.”), from
which this Appeal is taken. In addition we have considered the various
declarations provided in support of a conclusion of nonobviousness, i.e., the
First Declaration of Thomas Heraty, dated October 16, 2015 (“First Heraty
Decl.”); the Second Declaration of Thomas Heraty, dated May 4, 2016
(“Second Heraty Decl.”); the Third Declaration of Thomas Heraty, dated
July 5, 2016 (“Third Heraty Decl.”); and the Fourth Declaration of Thomas
Heraty, dated October 26, 2018 (“Fourth Heraty Decl.”).
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Vidal generally describes a retaining wall system. Vidal, col. 1, l. 4.
Figure 1 of Vidal is illustrative and is reproduced below:

Figure 1 of Vidal is a side view of a described retaining wall “having
a precast traffic barrier.” Vidal, col. 7, ll. 18–19. As shown, Vidal’s
retaining wall comprises a facing panel (2), and a plurality of counterforts
(3). Vidal, col. 7, ll. 41–43. In addition, Vidal describes the facing panel (2)
has a pair of laterally spaced legs (4) and the counterforts (3) have a plurality
of downwardly extending reinforcing bars (5). Vidal, col. 7, ll. 44–46. Still
further, Vidal describes the retaining wall structure (1) includes a shear key
(7) located beneath the panel legs (4). Vidal, col. 7, ll. 49–52. In a disclosed
embodiment, Vidal describes that the facing panel (2) and counterforts (3)
“are cast in a single pour.” Vidal, col. 9, ll. 21–23, col. 10, ll. 11–15; see
also Vidal, col. 4, ll. 14–15 (“[t]he counterforts according to the invention
may be cast integrally with the facing”), col. 4, ll. 18–20.
Benson generally describes a retaining wall system comprising “a
support structure formed from standard concrete Tee forms.” Benson, Abstr.
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Benson describes using “precast concrete forms.” Benson, col. 3, ll. 30–34.
In particular, Benson discloses a retaining wall system that may be
assembled at an installation location from a plurality of modular
components. Benson, col. 3, ll. 65–68. Benson teaches a modular design
“allows the individual pieces to be shipped prior to assembly in a simple and
easy manner from a precasting concrete plant where the support structure is
formed from commonly available precast concrete forms.” Benson, col. 3,
ll. 30–34. Benson teaches the modular components may include a precast
base member. Benson, col. 4, l. 63–col. 5, l. 12.
Araújo teaches the connection of precast concrete elements in which
one of the elements comprises an exposed anchor bar and the other element
comprises a tapered opening to accept grout such that, when the elements are
properly oriented, grout may be poured into the opening (i.e., pocket) and,
once cured, the elements become connected together. See Araújo, Fig. 1.
The Examiner finds, inter alia, Vidal teaches a concrete retaining wall
system comprising a precast first module, the module comprising a precast
face panel and at least one integral counterfort extending substantially
perpendicular to the face panel. Final Act. 3 (citing Vidal, col. 4, ll. 14–17,
46–48, Figs. 1, 3, 4). The Examiner also finds Benson teaches a retaining
wall system comprising a precast base platform. Final Act. 4 (citing Benson,
col. 3, ll. 30–32, col. 5, ll. 3–4). The Examiner explains “[i]t would have
been obvious to one of ordinary skill in the art to modify Vidal’s base to be
precast instead of cast-in-place as an alternate method of forming the base in
view of Benson’s disclosure.” Final Act. 4. The Examiner relies on Araújo
to teach the connection of two precast concrete modules “with one element
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having an exposed anchor bar and the other element having tapered openings
. . . to accept grout.” Final Act. 4 (citing Araújo, Fig. 1).
Appellant acknowledges that Vidal teaches a precast concrete module
comprising a face panel and counterforts. Appeal Br. 11–12. However,
Appellant argues that Benson’s teachings “are limited to disclosing
connection between members of a support frame/structure that is used to
hold prestressed wall segments” in place rather than a wall segment (i.e.,
face panel) such as that taught by Vidal. Appeal Br. 12–18; Reply Br. 1–4.
Appellant asserts the particular base platform taught by Benson “serves as a
support for the support frame only and does not correspond to a base
platform which would be capable of supporting and/or holding upright a
wall module comprised of a face panel and integral counterfort(s).” Appeal
Br. 16. Further, Appellant argues that it would not have been trivial to use
Benson’s precast base with Vidal’s precast wall module. Appeal Br. 18–20;
Reply Br. 2–4. Appellant additionally asserts the Examiner’s proposed
combination of Vidal and Benson relies on impermissible hindsight. Appeal
Br. 20–21.
In addition, Appellant argues Araújo “has nothing to do with a
retaining wall” and instead describes connection of a precast beam to a
precast slab in bridge decks. Appeal Br. 21–22. Moreover, Appellant
argues the openings (or pockets) in Araújo are located on the top of the
structure such that the connectors are exposed from the top and that one of
ordinary skill in the art would not be able to apply Araújo’s teaching of
joining two concrete modules together by inserting a connector extending
from one module into an opening of a second module and filling the opening
with grout to the joining of two precast concrete modules in a retaining wall
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application without significant reengineering effort. Appeal Br. 22–24.
Appellant also asserts the Examiner’s proposed combination of Araújo,
Vidal, and Benson relies on impermissible hindsight. Appeal Br. 25.
The test for obviousness is not whether the features of one reference
may be bodily incorporated into another reference. In re Bozek, 416 F.2d
1385, 1390 (CCPA 1969); In re Mapelsden, 329 F.2d 321, 322 (CCPA
1964). The relevant inquiry is whether the claimed subject matter would
have been obvious to those of ordinary skill in the art in light of the
combined teachings of those references. See In re Keller, 642 F.2d 413, 425
(CCPA 1981). “Combining the teachings of references does not involve an
ability to combine their specific structures.” In re Nievelt, 482 F.2d 965, 968
(CCPA 1973).
Here, Appellant’s arguments focus on combining the particular
structures of Benson and Araújo (i.e., Benson’s base platform and Araújo’s
implementation of top-sided pockets) with the retaining wall of Vidal rather
than on the combined teachings of Vidal, Benson, and Araújo, as relied on
by the Examiner.
As the Examiner explains, Vidal already teaches, inter alia, a base
platform (albeit a base platform that is cast-in-place) having the capability to
support the precast face panel with integrated counterfort module. See
Ans. 3–4. Benson was relied on for the teaching that components of a
retaining wall—particularly, a base platform—could be precast instead of
cast-in-place. See Ans. 3–4. Additionally, the Examiner explains that
Araújo was relied on for the limited teaching of “a known way to connect
two perpendicular concrete sections.” Ans. 5. The Examiner further notes
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that the rejection does not rely on Araújo’s location of the pockets (i.e., on
the top of the structure). Ans. 5.
Based on our review of the prior art references (discussed above), we
agree with the Examiner’s findings and further determine that the findings
are supported by substantial evidence. Moreover, we disagree that the
Examiner’s proposed combination relies on impermissible hindsight.
It is improper to base a conclusion of obviousness upon facts gleaned
only through hindsight. To draw on hindsight knowledge of the patented
invention, when the prior art does not contain or suggest that knowledge, is
to use the invention as a template for its own reconstruction—an illogical
and inappropriate process by which to determine patentability. Sensonics
Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570 (Fed. Cir. 1996) (citing W.L.
Gore & Assoc. v. Garlock, Inc., 721 F.2d 1540, 1553 (Fed. Cir. 1983)).
However,
[a]ny judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made and
does not include knowledge gleaned only from applicant’s
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971).
Here, the Examiner does not rely on information gleaned only from
Appellant’s Specification in reaching the legal conclusion of obviousness.
Specifically, the Examiner notes that Benson sets forth the benefits of using
precast components (see, e.g., Ans. 4) and that it would therefore have been
obvious to modify Vidal’s base to be precast instead of being cast-in-place
(see Final Act. 4). Additionally, Araújo is relied on to teach a known
method of connecting two precast concrete modules (i.e., the retaining wall
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structure of Vidal, as modified by Benson’s teaching of using a precast base
platform). See Ans. 5–6. Because the Examiner does not rely on knowledge
gleaned only from Appellant’s Specification, we disagree with Appellant
that the Examiner’s proposed combination is based on impermissible
hindsight.
In addition, we are not persuaded by Appellant’s arguments (see, e.g.,
Appeal Br. 19–20, 23–24) that the proposed modifications to Vidal (or
Vidal, as modified by Benson) would require undue engineering and
modification. Appellant directs our attention to the concerns raised by Mr.
Heraty in paragraphs 21 through 26 of the First Heraty Declaration. See
Appeal Br. 19. It is alleged that these paragraphs detail the “drawbacks and
difficulties when designing a retaining wall utilizing a precast base.” Appeal
Br. 19.
As an initial matter, it is well settled that mere attorney arguments and
conclusory statements, which are unsupported by factual evidence, are
entitled to little probative value. In re Geisler, 116 F.3d 1465, 1470 (Fed.
Cir. 1997); see also In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974)
(attorney argument is not evidence). Further, regarding statements in the
Declarations of Mr. Heraty, our reviewing court has found a declaration
provided by an inventor is by nature self-serving, and is therefore accorded
little, if any, evidentiary weight. See, e.g., Reese v. Hurst, 661 F.2d 1222,
1239 (CCPA 1981) (discussing the weight to be given to self-serving
declarations made by an inventor in an interference proceeding).
In his declaration Mr. Heraty identifies several areas of consideration
in using a precast concrete retaining wall. First Heraty Decl. ¶ 21. These
areas include: (i) the possibility of the base shifting after being backfilled;
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and (ii) the joint between the face panel and the base being a critical stress
point for moment and shear forces. First Heraty Decl. ¶ 21. To address
these concerns, Mr. Heraty states that increasing the friction of the underside
of the base platform may prevent sliding or shifting of the base. First Heraty
Decl. ¶ 22. In addition, Mr. Heraty states that providing a shear key in the
upper surface of the base platform may solidify the joint between the face
panel and the base platform. First Heraty Decl. ¶ 23. Still further, Mr.
Heraty states that “[i]mproved accommodation of lateral earth forces is also
addressed by providing integrally formed reinforcing counterforts behind the
wall and by further providing grouted connection points between the
underside of the counterforts and top surface of the base.” First Heraty Decl.
¶ 24.
In rejecting the claims, the Examiner took Official Notice “that it is
old and well known to provide a textured surface on the bottom surface of a
base to allow for increased friction for a better hold.” Final Act. 5.
Appellant did not traverse the Examiner’s assertion of Official Notice and
such facts are properly considered admitted prior art. See MPEP
§ 2144.03(C). Moreover, the prior art teaches that use of a shear key in the
top surface of a base platform sized to accommodate the bottom surface of
the face panel was known to the ordinarily skilled artisan.4 See Budge,
Fig. 12. Further, as discussed above, the combined teachings of the prior art
teach securing the connection points between the underside of the
counterforts and the top surface of the base platform. Thus, we disagree that

4 The recitation of a shear key in the top surface of the base platform was not
included in independent claim 1, but is recited in dependent claim 8 and
independent claims 26 and 43.
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the Examiner’s proposed combination would require undue experimentation,
but is instead within the scope of the ordinarily skilled artisan’s abilities.
See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.”).
Appellant also argues the Examiner failed to properly consider
objective evidence of nonobviousness. Appeal Br. 26–33; Reply Br. 5–8. In
particular, Appellant asserts via declarations of the inventor, Thomas Heraty,
that there is evidence of commercial success and industry recognition for the
claimed invention despite initial industry skepticism. Appeal Br. 26–33
(citing the various Declarations of Thomas Heraty). More specifically,
Appellant argues (i) an increased market share (from 5% to 25%) for
concrete retaining wall assemblies resulted from the industry’s desire for the
claimed invention (Appeal Br. 26–31 (citing Second Heraty Decl. ¶¶ 10–13,
26, 28; Third Heraty Decl. ¶¶ 4–9, App.; First Heraty Decl. ¶¶ 12–20,
29–34)); (ii) there was industry skepticism and disbelief, followed by
acceptance of the claimed invention (Appeal Br. 31–32 (citing First Heraty
Decl. ¶¶ 27–29, 31–35)); and (iii) a retaining wall structure embodying the
claimed invention won an industry award (i.e., the National Precast Concrete
Association “Creative Use of Precast” award) (Appeal Br. 32–33 (citing
Second Heraty Decl. ¶¶ 22–23)).
In response, the Examiner determines that Appellant has not
established a nexus between the objective evidence of nonobviousness and
the claimed invention. Ans. 6–7. Moreover, the Examiner notes that the
claims have been amended a number of times during the period in which the
alleged commercial success, industry acceptance, and industry accolades
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occurred such that it is unclear whether these events are attributable to the
product defined by the claims. Ans. 6.
Notwithstanding what the teachings of the prior art would have
suggested to an ordinarily skilled artisan at the time of the invention, the
totality of the evidence submitted, including objective evidence of
nonobviousness, may lead to a conclusion that the claimed invention would
not have been obvious to one with ordinary skill in the art. In re Piasecki,
745 F.2d 1468, 1471–72 (Fed. Cir. 1984). Objective evidence of
nonobviousness may include solving a long-felt but unsolved need, failure of
others, unexpected results, commercial success, copying, licensing, industry
praise, and industry skepticism. Graham v. Deere, 383 U.S. 1, 17 (1966);
Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc.,
699 F.3d 1340, 1347, 1349–55 (Fed. Cir. 2012). The submission of
objective evidence of nonobviousness “does not mandate a conclusion of
patentability in and of itself.” MPEP §716.01(d) (citing In re Chupp, 816
F.2d 643 (Fed. Cir. 1987)).
To accord substantial weight to objective evidence requires the
finding of a nexus between the evidence and the merits of the claimed
invention. In re GPAC Inc., 57 F.3d 1573, 1580 (Fed. Cir. 1995). The
burden of showing that there is a nexus lies with the applicant. Demaco
Corp. v. F. Von Langsdorff Licensing Ltd., 851 F.2d 1387, 1392 (Fed. Cir.
1988); see also In re Paulsen, 30 F.3d 1475, 1482 (Fed. Cir. 1994).
Here, we agree with the Examiner that Appellant has not
demonstrated a nexus between the claimed invention and the objective
evidence of nonobviousness. “In ex parte proceedings before the Patent and
Trademark Office, an applicant must show that the claimed features were
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responsible for the commercial success of an article if the evidence of
nonobviousness is to be accorded substantial weight.” MPEP § 716.03(b);
see also Ex parte Remark, 15 USPQ2d 1498, 1503 (BPAI 1990) (noting the
evidentiary routine of shifting burdens in civil proceedings inappropriate
in ex parte prosecution proceedings because the Examiner has no available
means for adducing evidence); MPEP § 716.03. Moreover, as set forth in
MPEP § 716.03(a):
An affidavit or declaration attributing commercial success to a
product or process “constructed according to the disclosure and
claims of [the] patent application” or other equivalent language
does not establish a nexus between the claimed invention and the
commercial success because there is no evidence that the product
or process which has been sold corresponds to the claimed
invention, or that whatever commercial success may have
occurred is attributable to the product or process defined by the
claims.
See Ex parte Standish, 10 USPQ2d 1454, 1458 (BPAI 1988).
We note, as does the Examiner (see Ans. 6–7) that Appellant has
amended the claims at least five times since the filing date of March 15,
2013. The scope of the claims was amended to include, inter alia,
(i) securing the first and second modules by a grouted connection (see
Amdt. 5, filed December 1, 2014); (ii) an anchor member having an exposed
end extending from a bottom surface of the counterfort and the top surface
of the base platform comprising a precast grout pour opening (see Amdt. 2,
filed April 23, 2015); (iii) defining the grout pour opening to have a
substantially tapered cross-section and means for preventing the base panel
from sliding (see Amdt. 2, filed October 16, 2015); and (iv) defining that the
base platform is sized to support the face panel and a counterfort and further
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defining the grouted connection of the first and second modules (see
Amdt. 3, filed October 29, 2018).
Appellant has not demonstrated that the commercial success of the
precast retaining wall structure was due to the claimed features.5 Rather the
declaration provides bare assertions of commercial success are “entirely
attributable to the innovative design of the structure itself.” First Heraty
Decl. ¶ 38.
With respect to industry skepticism, Mr. Heraty states that the Illinois
State Toll Highway Authority (“ISTHA”) expressed skepticism that the
structure would conform to the technical engineering requirements and
applicable industry standards. First Heraty Decl. ¶¶ 27–29. Although this
may be viewed as skepticism, it may also be a standard practice of ISHTA to
ensure conformance to applicable safety and industry standards by seeking
assurances or performance.
We note that in the Second Heraty Declaration, Mr. Heraty states that
the retaining wall assembly received an industry award for above-ground
structures. Second Heraty Decl. ¶¶ 22–23. However, Mr. Heraty does not
provide a description of the features present in the version of the structure
that was recognized.
“Where the offered secondary consideration actually results from
something other than what is both claimed and novel in the claim, there is no
nexus to the merits of the claimed invention.” In re Kao, 639 F.3d 1057,

5 We note that in a video showing installation of the precast retaining wall, it
is noted that “[o]ne of the biggest advantages of the Precast Counterfort
Retaining wall system is its [sic] lends itself the ability of being backfilled
using native soil.” See https://www.youtube.com/watch?v=NsKsXwEoFf4
(last visited August 4, 2021). This is not a claimed feature of the invention.
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1068 (Fed. Cir. 2011). For the reasons discussed, we do not find a nexus
between the proffered objective evidence and the claimed invention. Failure
to establish a nexus results in attribution of very little weight to the objective
evidence.
Moreover, assuming arguendo a nexus were present, and mindful that
objective evidence of nonobviousness is not to be evaluated “only on its
knockdown ability” but rather alongside of the facts on which a prima facie
case of obviousness has been established (see Piasecki, 745 F.2d at 1472–73
(quoting In re Rinehart, 531 F.2d 1048,1052 (CCPA 1976)), we find the
objective evidence would not outweigh the combined teachings of Vidal,
Benson, Araújo, and the Examiner’s conclusion of obviousness.
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of independent
claim 1. For similar reasons, we also sustain the Examiner’s rejection of
claims 4–7 and 10–13, which depend directly or indirectly therefrom and
were not argued separately. See 37 C.F.R. § 41.37(c)(1)(iv).

Rejection of claims 8, 9, 26–31, 37, 43, and 44
Appellant asserts the claims “include a shear key in the second
module to accept a bottom surface of the face panel of the first module.”
Appeal Br. 33. Appellant disputes the Examiner’s finding that Budge
teaches the claimed shear key. Appeal Br. 33–35. Further, Appellant argues
Budge does not address a retaining wall comprising precast concrete
modules. Appeal Br. 35.
As an initial matter, Budge was not relied on to teach the retaining
wall structure (i.e., the precast first and second modules secured by a
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separate connection). Further, the Examiner finds, and we agree, Budge
teaches the claimed shear key. See Final Act. 12; Ans. 7. The Examiner
further finds that it would have been obvious to modify the retaining wall
resulting from the combined teachings of Vidal, Benson, and Araújo with
Budge’s teaching of a shear key in order to provide increased stability for
the face panel. Final Act. 7. Figure 12 of Budge is illustrative and is
reproduced below.

Figure 12 of Budge shows “a cross-sectional view of the wall forming
system with notched-out masonry block at bottom of panel.” Budge, col. 4,
ll. 9–10, col. 5, ll. 15–20. Although Budge does not use the term “shear
Appeal 2021-000900
Application 13/835,100

18
key,” the Examiner finds, and we agree, that one of ordinary skill in the art
would recognize the shear key structure by looking at the notched structure
of Budge. Ans. 7; compare Budge, Fig. 12, with Spec. ¶ 43 (describing the
shear key as a depression in the base sized to fit the bottom of the face
panel).
Appellant also argues that the Examiner has not made a clear finding
that the base further comprises a shear key extending downwardly from the
bottom surface of the base panel, as recited in claims 12 and 29. Appeal
Br. 36.
In response, the Examiner explains that element 7 in Figure 1 of Vidal
illustrates a shear key extending downwardly from the base. Ans. 7. We
agree. As described in Vidal, a shear key (7) is integrally connected to the
footing (i.e., base) via a plurality of reinforcing bars (8).
For the reasons discussed supra, we are unpersuaded of Examiner
error. Accordingly, we sustain the Examiner’s rejection of claims 8, 9,
26–31, 37, 43, and 44. See also 37 C.F.R. § 41.37(c)(1)(iv).

CONCLUSION
We affirm the Examiner’s decision rejecting claims 1, 4–13, 26–31,
37, 43, and 44 under pre-AIA 35 U.S.C. § 103(a).

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 4–7,
10–13
103(a) Vidal, Benson,
Araújo, Official
Notice
1, 4–7,
10–13

Appeal 2021-000900
Application 13/835,100

19
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
8, 9, 26–31,
37, 43, 44
103(a) Vidal, Benson,
Araújo, Official
Notice, Budge
8, 9,
26–31, 37,
43, 44

Overall
Outcome
1, 4–13,
26–31, 37,
43, 44

TIME PERIOD FOR RESPONSE
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). See
37 C.F.R. § 41.50(f).
AFFIRMED