AXENIC POWER, LLC

Patent Trials and Appeals Board

May 19, 2021

2020003476 (P.T.A.B. May. 19, 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.
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

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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).
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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
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Application 15/112,174

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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
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Application 15/112,174

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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