Daniel A. Weinstein et al.

Patent Trials and Appeals Board

Aug 21, 2019

14707995 - (D) (P.T.A.B. Aug. 21, 2019)

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

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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

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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
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Application 14/707,995

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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)
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Application 14/707,995

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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