AXENIC POWER, LLCDownload PDFPatent Trials and Appeals BoardMay 19, 20212020003476 (P.T.A.B. May. 19, 2021) Copy Citation 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. 15/112,174 07/16/2016 James C. Juranitch 110405-009041 6123 103376 7590 05/19/2021 Dykema Gossett PLLC 4000 Wells Fargo Center 90 South Seventh Street Minneapolis, MN 55402 EXAMINER IMANI, ELIZABETH MARY COLE ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 05/19/2021 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): Dykema-Patents@dykema.com MN-IPmail@dykema.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAMES C. JURANITCH Appeal 2020-003476 Application 15/112,174 Technology Center 1700 Before LINDA M. GAUDETTE, MICHELLE N. ANKENBRAND, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1–10. See Final Act. 3. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Plasma Tech Holdings, LLC. Appeal Br. 1. Appeal 2020-003476 Application 15/112,174 2 CLAIMED SUBJECT MATTER The claims relate to “a high-temperature flame retardant, cost effective, insulation product and related process.” Spec. ¶ 1. The Specification describes a hybrid insulation that includes both conventional fiberglass insulation and stone wool or other fibers that are more resistant to higher temperature. Id. ¶ 19. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A hybrid insulation product comprising fibers resistant to high temperatures and fiberglass fibers; wherein the hybrid insulation product has flame retarding characteristics; wherein the fibers resistant to high temperatures have a first length and the fiberglass fibers have a second length; and wherein the first length is more than four times greater than the second length. Claims Appendix (Appeal Br. 12). REFERENCES The Examiner’s rejection relies on the following prior art references: Name Reference Date Graves US 5,389,716 Feb. 14, 1995 Cordts US 2012/0097405 A1 Apr. 26, 2012 REJECTION The Examiner maintains the following rejection: Claims Rejected 35 U.S.C. § References/Basis 1–10 103 Cordts, Graves Appeal 2020-003476 Application 15/112,174 3 OPINION We review the appealed rejections for error based upon the issues Appellant identifies and in light of the arguments and evidence produced thereon. Cf. 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) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner’s § 103 rejection for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Claim 12 In rejecting claim 1, the Examiner finds that Cordts teaches almost all of the limitations, but acknowledges that “Cordts does not expressly state the length of the chopped glass fibers.” Final Act. 4. The Examiner finds that Graves teaches a hybrid insulation that includes both glass and mineral wool. Id. The Examiner finds that Graves teaches “[b]y varying the length and diameter of the fibers the structural properties of the finished product may be altered.” Id. The Examiner provides a specific example in Graves in which “fiber with larger dimensions would tend to give the finished mat an abrasive hand or feel.” Id. (citing Graves 11:11–16). Based on these prior art teachings, the Examiner concludes that a skilled artisan would have 2 Appellant argues against the anticipation rejection of claims 1–10 as a group, with claim 1 as the representative claim. See Reply Br. 4–11. These claims stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-003476 Application 15/112,174 4 “optimize[d] the length of the chopped glass fibers taught by Cordts [] according to Graves in order to reduce the abrasive feel of the finished mat.” Id. Because the Examiner acknowledges that Cordts does not explicitly disclose a hybrid product having “the first length [of a high temperature fiber that] is more than four times greater than the second length [of a fiberglass fiber]” as claim 1 recites (Final Act. 4), Appellant’s argument that “Cordts fails to teach or suggest that the high melting point fibers have a length that is more than four times greater than the length of the glass fibers” (Appeal Br. 6) does not address the Examiner’s findings in support of the rejection and is unpersuasive of reversible error. Appellant next argues that “the preferred embodiments of Graves” do not teach or suggest this particular limitation. Appeal Br. 6. Appellant’s argument is unpersuasive first because the argument does not address the Examiner’s finding that it would have been within the ordinary skill in the art to optimize the lengths of the fibers. Compare id., with Final Act. 4. Second, Appellant’s argument – solely directed to the preferred embodiments in the prior art – is unpersuasive because “the fact that a specific [embodiment] is taught to be preferred is not controlling, since all disclosures of the prior art, including unpreferred embodiments, must be considered.” In re Lamberti, 545 F.2d 747, 750 (CCPA 1976). Appellant disagrees with the Examiner’s rationale to combine the references arguing that a skilled artisan would not have combined the references because “both references disclose their own specific and preferred length ranges for both glass fibers and mineral wool fibers.” Appeal Br. 7–8. According to Appellant, Graves already addresses the need to reduce the Appeal 2020-003476 Application 15/112,174 5 abrasive feel of the final product, and “the combination of references would not have been motivated by an unresolved problem in the prior art.” Id. at 8. Appellant’s argument is not persuasive because it lacks evidentiary support. “Attorneys’ argument is no substitute for evidence.” Johnston v. IVAC Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989). Appellant’s argument is unpersuasive also because it does not identify reversible error in the Examiner’s findings in support of the rejection which finds that the lengths of the fibers affect the structure and feel of the finished product. See In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”). Moreover, the Examiner points out that Graves discloses “the length of the chopped [glass] fibers is 1 mm to 75mm while the length of the mineral wool fibers is from 6 to 76 mm” overlapping the range claim 1 recites. Ans. 8. Appellant does not dispute this finding. See Reply Br. 2–3. The evidence in the record supports the Examiner’s rejection and Appellant has not identified reversible error therein. Appellant lastly argues that “Graves in fact teaches that the dimensions of both the mineral wool fibers and the glass fibers affect the functional properties of the finished mat” and, therefore, “teaches away from using the suggested lengths of the mineral and glass fibers as taught by Cordts.” Appeal Br. 9, 10. Appellant’s argument is unpersuasive because the inquiry is whether a prior art reference teaches away from the claimed invention – not the other prior art reference as Appellant argues. See In re Bell, 991 F.2d 781, 783 (Fed. Cir. 1993). Appellant’s argument is unpersuasive also because Graves “does not criticize, discredit, or otherwise Appeal 2020-003476 Application 15/112,174 6 discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). In this particular case, the evidence before us does not show that the prior art criticizes the recited ratio of the fiber lengths and, therefore, the evidence does not support Appellant’s argument. CONCLUSION The Examiner’s rejection is affirmed. More specifically, DECISION SUMMARY Claims Rejected 35 U.S.C. § References/Basis Affirmed Reversed 1–10 103 Cordts, Graves 1–10 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). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation