Daniel A. Weinstein et al.Download PDFPatent Trials and Appeals BoardAug 21, 201914707995 - (D) (P.T.A.B. Aug. 21, 2019) 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. 14/707,995 05/08/2015 Daniel A. Weinstein RIG-101US 5070 20738 7590 08/21/2019 THOMAS P O'CONNELL 1026A MASSACHUSETTS AVENUE ARLINGTON, MA 02476 EXAMINER TOLEDO-DURAN, EDWIN J ART UNIT PAPER NUMBER 3678 MAIL DATE DELIVERY MODE 08/21/2019 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DANIEL A. WEINSTEIN and REUBEN WEINSTEIN ____________ Appeal 2019-001504 Application 14/707,9951 Technology Center 3600 ____________ Before ANTON W. FETTING, MICHAEL C. ASTORINO, and AMEE A. SHAH, Administrative Patent Judges. ASTORINO, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the Examiner’s decision rejecting claims 23–55. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We REVERSE. 1 “The named inventors, Daniel A. Weinstein and Reuben Weinstein, are the real party in interest.” Br. 4. Appeal 2019-001504 Application 14/707,995 2 STATEMENT OF THE CASE Subject Matter on Appeal The Appellants’ invention generally relates to a base mat that is used to reduce the impact of oil and gas production (e.g., fracking) by containing and controlling the escape of environmental pollutants (e.g., toxic chemicals). Spec. ¶¶ 1–3. Conventionally, a base mat includes a “material . . . intended to provide a barrier to chemicals, drilling fluids, and other materials as may be used in production.” Id. ¶ 3. Claims 23, 38, 41, 47, and 53 are the independent claims on appeal. Claim 23, reproduced below, is illustrative of the claimed subject matter. 23. A flexible layered material configured for fabricating a base mat for protecting a production area, the flexible layered material comprising: a barrier layer that is substantially impervious to diffusion of fluid from production activities on top of the base mat into the ground below the base mat; a fabric top layer affixed to the barrier layer, the fabric top layer including a fabric having a pattern of peaks and valleys on one side thereof and integral therein, the peaks and valleys forming a pattern of fluid channels across the fabric top layer; wherein a piece of the flexible layered material comprises a joining strip along at least one edge thereof; and wherein the joining strip is configured to facilitate joining of the flexible layered material to another piece of the flexible layered material, wherein an assembly of the pieces of flexible layered materials joined together provides for the base mat. Rejection Claims 23–55 are rejected under 35 U.S.C. § 103 as unpatentable over Powell (EP 2,589,705 A1, pub. May 8, 2013) and Adam (US 5,815,995, iss. Oct. 6, 1998). Appeal 2019-001504 Application 14/707,995 3 ANALYSIS The Appellants argue: [I]t would not have been obvious to a person of ordinary skill in the art based on Powell and Adam . . . to provide a base mat material for protecting a production area with “a barrier layer that is substantially impervious to diffusion of fluid from production activities” and “a fabric top layer affixed to the barrier layer, the fabric top layer including a fabric having a pattern of peaks and valleys on one side thereof and integral therein, the peaks and valleys forming a pattern of fluid channels across the fabric top layer,” as Applicant[s’] pending independent claims 23, 38, 41, 47, and 53 demand. Br. 23. The Appellants support this argument by contending that Powell and Adam, by themselves and in combination, fail to teach a fabric geotextile having a pattern of peaks and valleys formed therein. See id. at 24. The Appellants’ argument is persuasive. The Examiner finds Powell’s containment liner, which includes barrier layers 15, geotextile layers 10, and seam bonding surface 20, corresponds to the claimed flexible layered material, which includes a barrier layer, a fabric top layer, and a joining strip, respectively. Final Act. 2–3 (citing Powell Fig. 11, ¶¶ 9, 28, 72). The Examiner also finds, “Powell is silent about the fabric top layer including a fabric having a pattern of peaks and valleys on one side thereof and integral therein, the peaks and valleys forming a pattern of fluid channels across the fabric top layer.” Id. at 3. The Examiner turns to Adam to remedy this deficiency. Id. (citing Adam, Fig. 13, trough 62). The Examiner concludes, “it would have been obvious to a person of ordinary skill in the art to provide a pattern of peaks and valleys on one side thereof and integral therein, the peaks and valleys forming a pattern of fluid channels across the fabric top layer.” Id. The Appeal 2019-001504 Application 14/707,995 4 Examiner specifies that the resulting structure of the combination is a fabric top layer with one side having peaks and valleys forming a pattern of fluid channels across the fabric top layer. Id. The Examiner’s rejection rests on an implication that the combined teachings of Powell and Adam provide one of ordinary skill in the art a basis for introducing peaks and valleys into Powell’s fabric top layer. This implication is not well-supported. Powell teaches a ground containment liner with at least one polymeric barrier layer between top and bottom felt geotextile layers, wherein the at least one barrier layer is embedded partially into at least one of the felt geotextile layers. See Powell, Abstract, ¶ 10, Fig. 1. Powell’s fabric top is made of natural and/or synthetic fibers using woven or non-woven techniques. Id. ¶ 54. Adam teaches a slip-resistant floor covering system including a tile with a plurality of foot-supporting ridges and liquid-collecting troughs to remove slip-inducing substances from a spill site. Adam, Abstract, col. 2, ll. 14–22. Adam’s tile is made of flexible polyvinyl chloride (PVC). Id. at col. 6, ll. 17–24; see Br. 23 (citing Adam, col. 2, ll. 24–31, Fig. 3). Adam’s tile is not a fabric. But see Final Act. 3 (“Adam discloses a top layer having a pattern of peaks and valleys on one side thereof and integral therein, the peaks and valleys forming a pattern of fluid channels (#62. #62 collects fluid and/or debris) across the fabric top layer (Figure 13).” (Emphasis added)). In this case, the Examiner fails to adequately explain on the record how Adam’s teaching of peaks and valleys in a PVC tile teaches one of ordinary skill in the art how to form peaks and valleys into Powell’s ground containment liner, which includes a fabric top layer (i.e., a felt geotextile) Appeal 2019-001504 Application 14/707,995 5 and a barrier layer (i.e., a polymeric geomembrane). Notably, the Examiner determines “that peaks and valleys can be made of a wide variety of depths and widths to avoid the exposure of the [Powell’s] polymer layer #15.” Ans. 16. However, the Examiner fails to support that determination with sufficient evidence and/or technical reasoning. Thus, we do not sustain the Examiner’s rejection of claims 23–55. DECISION We REVERSE the Examiner’s decision rejecting claims 23–55. REVERSED Copy with citationCopy as parenthetical citation