Ex Parte 4944514 et al

Board of Patent Appeals and Interferences

Mar 24, 2009

90007015 (B.P.A.I. Mar. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte SUITCO SURFACE, INC.
____________________

Appeal 2008-6124
Reexamination Control 90/007,015
Patent 4,944,5141
Technology Center 3900
____________________

Decided: March 25, 2009 2
____________________

Before WILLIAM F. PATE, III, ROMULO H. DELMENDO and DANIEL
S. SONG, Administrative Patent Judges.

SONG, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued July 31, 1990 from application Ser. No. 283,863 filed on December
13, 1988.
2 The two-month time period for filing an appeal, as recited in 37 C.F.R. §
1.304, begins to run from the decided date shown on this page of the
decision. The time period does not run from the Mail Date.

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STATEMENT OF THE CASE
The Appellant appeals 35 U.S.C. §§ 134(b) and 306 (2002) from a
Final Rejection of claims 4-8. The patentability of method claims 1-3 has
been confirmed. We have jurisdiction under 35 U.S.C. §§ 134(b) and 306.
The ‘514 patent is presently involved in an infringement litigation
which has been STAYED pending final resolution of the reexamination
proceedings. Middleton, Inc. v. 3M Corp., Case No. 4:03-cv-40493 (S.D.
Iowa) (App. Br. 4).3 That matter has been appealed twice to the Federal
Circuit (Appeal Nos. 99-1201 and 02-1151), the decisions reversing the
District Court’s rulings having been entered into the record of the present
appeal (App. Br. 4; Appx. X1 and X2). An oral hearing with the Appellant’s
representative was held before the Board of Patent Appeals and
Interferences on February 4, 2009.
Patentee claims a material including a uniform flexible film of clear
plastic material that is releasably adhered to a top surface of a floor.
Independent claim 4 reads as follows (Claims Appx., emphasis
added):
4. On a floor having a flat top surface and an improved
material for finishing the top surface of the floor, the
improvement comprising:
at least one elongated sheet including a uniform flexible
film of clear plastic material having a thickness between about
one mil and about twenty-five mils and

3 Middleton, Inc. is said to be an exclusive licensee with respect to the ‘514
Patent (App. Br. 3).
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a continuous layer of adhesive material disposed between
the top surface of the floor and the flexible film, the adhesive
layer releasably adhering the flexible film onto the top surface
of the floor.

The prior art relied upon by the Examiner in rejecting the claims is:
Amos 3,785,102 Jan. 15, 1974
Tarbutton, et. al. (“Tarbutton”) 4,328,274 May 4, 1982
Barrett 4,543,765 Oct. 1, 1985

The Examiner rejected claims 4-8 under 35 U.S.C. § 102(b) as
anticipated by Amos.
The Examiner rejected claims 4 and 6-8 under 35 U.S.C. § 102(b) as
anticipated by Tarbutton.
The Examiner rejected claims 4 and 5 under 35 U.S.C. § 102(b) as
anticipated by Barrett.
We AFFIRM.

ISSUES
The following issues have been raised in the present appeal.
1. Whether the Appellant has shown that the Examiner erred in
finding that Amos, Tarbutton and Barrett each describe the combination of a
floor and an improved material recited in independent claim 4?
2. Whether the Appellant has shown that the Examiner erred in
finding that Amos describes the “boundary line” recited in claim 8?

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FINDINGS OF FACT
The record supports the following findings of fact (FF) by a
preponderance of the evidence.
1. Amos describes a floor pad 15 on a flat top surface of a floor
14, the floor pad 15 including a plurality of elongated sheets 16, which may
be made of transparent polyethylene or polypropylene (i.e., flexible film of
clear plastic material) having a thickness between 0.002 to 0.003 inch (two
mils to three mils) (col. 4, ll. 9-17 and 33-36; figs. 1 and 2).
2. Amos also describes an adhesive layer 23 disposed on the
undersurface 22 of the lowermost sheet 16, the adhesive layer removably
(i.e., releasably) adhering the floor pad 15 onto the top surface of the floor
14 (col. 4, ll. 49-51).
3. Amos further describes that some or all of the sheets may be
“imprinted with a decorative design” (col. 4, ll. 33-36).
4. Tarbutton describes a “transparent” friction surface sheet
material 10 that is used on various surfaces such as on skateboards, boat
trailer fenders, diving boards and surf boards (col. 2, ll. 10-39 and 59-62),
but does not disclose use the use of the sheet material on a floor.
5. Barrett describes a unitized panel 10 with a plurality of
assembled slats 13 that define tiles 12, the unitized panel 10 also including a
cover sheet 16 (i.e., elongated sheet) on the flat top surface of the tile 12, the
cover sheet that may be made of a transparent plastic film (i.e., a flexible
film of clear plastic material) having a thickness of, e.g., about 4 mils thick
low density polyethylene film (col. 4, ll. 31-42; col. 6, ll. 1-8; figs. 1-5).
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6. Barrett also describes an adhesive 14 (i.e., a layer of adhesive
material) disposed between the top surface of the tiles 12 and the cover sheet
16 (col. 4, ll. 31-39; col. 5, ll. 46-51).
7. Barrett further describes that the adhesive 14 releasably adheres
the cover sheet 16 onto the top surface of the tiles, stating:
The adhesive must provide satisfactory bonding between the
cover sheet and the tiles. It need be a strippable adhesive, it
is required to have a stronger bond to the cover sheet, be it
plastic sheet 16 or paper sheet 18, than to the tiles so that it
will strip clean with the cover sheet when such sheet is
pulled or peeled away from the assembled tiles.

(col. 5, ll. 49-55).

PRINCIPLES OF LAW
“A claim is anticipated only if each and every element as set forth in
the claim is found, either expressly or inherently described, in a single prior
art reference.” Verdegaal Bros. v. Union Oil Co. of California, 814 F.2d
628, 631 (Fed. Cir. 1987). Analysis of whether a claim is patentable over
the prior art under 35 U.S.C. § 102 begins with a determination of the scope
of the claim. We determine the scope of the claims in patent applications
not solely on the basis of the claim language, but upon giving claims their
broadest reasonable construction in light of the specification as it would be
interpreted by one of ordinary skill in the art. In re Prater, 415 F.2d 1393,
1395-96 (CCPA 1969); In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359,
1364 (Fed. Cir. 2004). This is the standard for claim interpretation in both
original examination and re-examination. See In re Yamamoto, 740 F.2d
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1569, 1571 (Fed. Cir. 1984). The properly interpreted claim must then be
compared with the prior art.
“Absent claim language carrying a narrow meaning, the PTO should
only limit the claim based on the specification or prosecution history when
those sources expressly disclaim the broader definition.” In re Bigio, 381
F.3d 1320, 1325 (Fed Cir. 2004). Giving broad construction to claim terms
is not unreasonable during examination because the applicant can amend the
claims. In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d at 1364. It is the
appellants’ burden to precisely define the invention, not the PTO’s. In re
Morris, 127 F.3d 1048, 1056 (Fed. Cir. 1997). Broad construction of the
claim reduces the possibility that the claim, once issued, will be interpreted
more broadly than is justified. In re Prater, 415 F.2d at 1404-05.
In addition, “the Board is required to use a different standard for
construing claims than that used by district courts.” In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d at 1369. “[I]t is error for the Board to ‘appl[y] the
mode of claim interpretation that is used by courts in litigation, when
interpreting the claims of issued patents in connection with determination of
infringement and validity’” Id. (citing In re Zletz, 893 F.2d 319, 321 (Fed.
Cir. 1989)). “It would be inconsistent with the role assigned to the PTO in
issuing a patent to require it to interpret claims in the same manner as judges
who, post-issuance, operate under the assumption the patent is valid.” In re
Morris, 127 F.3d at 1054.

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CLAIM CONSTRUCTION
With respect to a preamble of a claim, “[i]n general, a preamble limits
the invention if it recites essential structure or steps, or if it is ‘necessary to
give life, meaning, and vitality’ to the claim.” Catalina Marketing Int’l.,
Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 808 (Fed. Cir. 2002).
“Conversely, a preamble is not limiting ‘where a patentee defines a
structurally complete invention in the claim body and uses the preamble only
to state a purpose or intended use for the invention.’” Id.
The preamble of claim 4 recites “[o]n a floor having a flat top surface
and an improved material for finishing the top surface of the floor, the
improvement comprising”. Hence, independent claim 4 is structured as a
Jepson claim in which the elements of the preamble are presumed to be
admitted prior art and do not patentably distinguish the invention. See In re
Ehrreich, 590 F.2d 902, 910-11 (CCPA 1979).
The use of Jepson form, however, indicates the intention “to use the
preamble to define, in part, the structural elements of his claimed invention.”
Rowe v. Dror, 112 F.3d 473, 479 (Fed. Cir. 1997). In this regard, the
preamble in the present appeal limits claim 4 in that it sets forth an essential
structure, namely, “a floor having a flat top surface” which is referred to in
the body of the claim in defining the positioning of the adhesive material,
and the function thereof (i.e., “releasably adhering the flexible film onto the
top surface of the floor”).
The preamble also recites “an improved material for finishing the top
surface of the floor”. This statement is amenable to two differing
constructions: that “material for finishing the top surface of the floor” is a
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structural recitation in its entirety which limits the claim; or that “for
finishing the top surface of the floor” is merely a statement of intended use
for the recited “material” which is completely set forth in the body of the
claim, and thus, does not limit the claim. While in our view, either
construction results in the same ultimate outcome, for the purpose of this
appeal, we adopt the first construction of claim 4 as discussed below.
We construe the recitation “material for finishing the top surface of
the floor” in the preamble of claim 4 as requiring a material that is
structurally suitable for placement on the top surface of a floor. In
construing the meaning of “material for finishing” broadly, we observe that
the Appellant’s invention is not a liquid material conventionally associated
with finishing a floor that is applied and dried on the surface of the floor.
Rather, the Appellant’s invention is a sheet film that is attached to the floor
surface using an adhesive. Hence, the term “finishing” is used more broadly
by the Appellant than conventionally used, and must be construed to
encompass a solid sheet film that is adhesively bonded to a floor surface
which is the invention claimed. In addition, claim 4 uses the open-ended
transition term “comprising”. Thus, claim 4 does not preclude additional
unrecited elements. See Genentech, Inc. v. Chiron Corp., 112 F.3d 495, 501
(Fed. Cir. 2005). The specific arguments of the Appellant directed to claim
construction is addressed in detail infra.

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ANALYSIS
The Appellant submits arguments directed to claim construction as
well as to the alleged deficiencies of the prior art rejections. We address
these arguments under appropriate sub-headings infra.

Claim construction
The Appellant’s initial arguments that the preamble of claim 4 limits
the claim and defines the invention (App. Br. 11 and 12; Reply Br. 3) is
moot in that we agree with the Appellant that the preamble recites elements
of the invention that should be considered. However, we disagree with the
Appellant as to how the recitation “an improved material for finishing the
top surface of the floor” limits claim 4.
The Appellant contends that “[t]he common meaning of the term
‘finish,’ when used as a noun, is a ‘special top layer: a surface texture or
final coat applied to something, especially wood or metal’” (App. Br. 12;
citing an on-line dictionary (emphasis added by the Appellant); Reply Br. 4).
The Appellant provides examples of finishing materials as “clear coats on
automobiles, varnishes on wood furniture, semi-gloss paints on walls and
urethanes on wood floors” (App. Br. 12). However, the Appellant’s
invention is not a “finish” in the conventional sense of the word as proffered
by the Appellant because the claimed invention is not a liquid material that
is applied to a given surface, and dried or cured thereon to provide a
conventional “finish”. Instead, the Appellant’s claimed invention is a film
of material that is attached to the floor surface by an adhesive, without any
limitation as to the presence of unrecited layers.
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As noted by the Examiner (Ans. 9), claim 4 does not recite, or specify,
that the “material for finishing” must be the top, or final, layer. Nor do we
construe claim 4 as requiring that the material for finishing be the top or
final layer. The only positional requirement in claim 4 is that the film
material be releasably adhered “onto the top surface of the floor”. Thus,
while claim 4 implicitly requires the order of: a film material layer, an
adhesive layer, and the floor, no other positional requirement is recited or
required. More importantly, claim 4 uses the open-ended transition term
“comprising” which does not preclude additional unrecited elements from
being included in the floor/material combination claimed. Thus, in view of
the above, the broadest reasonable construction of the claim language does
not require the narrow construction advocated by the Appellant in which the
recited material is the final, top layer. See In re Am. Acad. of Sci. Tech. Ctr.,
367 F.3d at 1364. We again note that it is the Appellant’s burden to
precisely define the invention. In re Morris, 127 F.3d at 1056; In re ICON
Health and Fitness, 496 F.3d 1374, 1379 (Fed. Cir. 2008) (“[A]s applicants
may amend claims to narrow their scope, a broad construction during
prosecution creates no unfairness to the applicant or patentee.”).

Rejection of claims 4-8 based on Amos
The Appellant contends that “the claimed clear plastic layer must be
the top layer of the finishing material that sits on the floor” and that “the
clear layer in Amos cannot be the clear finish layer recited in claim 4 . . .
because it is not the top layer of the finishing material” (App. Br. 14,
emphasis in original).
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However, as noted by the Examiner (Ans. 9), there is no recited
requirement that the clear plastic material be the uppermost, “top” layer
which is devoid of any other layer thereon, as discussed supra. Moreover,
claim 4 also uses the open-ended transitional term “comprising” which does
not exclude additional, unrecited elements. Thus, we agree with the
Examiner (Ans. 5 and 9) that Amos describes the limitation “material for
finishing the top surface of the floor” when given its broadest reasonable
interpretation (FF 1 and 2).
In further arguing that the clear plastic layer must be the top layer, the
Appellant refers to dependent claims 6-8 stating “one purpose of the claimed
invention is to provide a clear plastic material in order to see opaque
decorations through the clear plastic layer” which would be impaired in the
sticky-surfaced sheet of Amos which removes dust and dirt from shoe soles
(App. Br. 14 and 15; Reply Br. 7).
The Appellant’s argument is not persuasive. Amos itself describes
that some or all of the sheets of the described floor pad may be transparent
and “imprinted with a decorative design” (FF 3; Ans. 5). Moreover, the fact
that Amos includes an additional adhesive layer on top of the plastic layer to
perform an additional function of removing dust and dirt which eventually
impairs the visibility of the decorative design does not detract from the fact
that Amos describes the recited limitations of claim 4, which again, does not
preclude additional layers by virtue of its transitional term “comprising”.
The Appellant further contends that Dr. Garth Wilkes (expert retained
by the adverse party) testified in the district court action that the claimed
clear plastic layer the ‘514 patent had to be the top surface of the floor
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finishing material because that layer was to be used to finish the top surface
of the floor (App. Br. 15). The Appellant argues that such statements
agreeing with the Appellant’s position by an expert hired by the adverse
party is highly relevant evidence (App. Br. 15). However, Dr. Wilkes’s
testimony is not in evidence in the present appeal for us to consider its value,
if any. We decline to accept the Appellant’s argument as a substitute for Dr.
Wilkes’s testimony. See In re Scarbough, 500 F.2d 560, 566 (CCPA 1974);
In re Cole, 326 F.769, 773 (CCPA 1964). Secondly, in Markman v.
Westview Instruments, Inc, the Supreme Court affirmed the long-held view
that expert testimony into how a claim shall be construed amounts to little
more than a legal opinion, being precisely the type of process that a judge
must undertake. Markman, 517 U.S. 370, 387-90 (1996). Accordingly,
judges have discretion to adopt a claim construction from an expert, to find
guidance from it, or to ignore it and exclude it. Id.
The Appellant also takes issue with the fact that Amos does not
expressly state that the described plastic sheets are “uniform” as recited in
claim 4 (App. Br. 19; Reply Br. 8 and 9), this term having been construed by
the Federal Circuit to mean “having always the same form”. Middleton, Inc.
v. 3M Corp., 311 F.3d 1384, 1389 (Fed. Cir. 2002). The Appellant
concludes that because Amos describes the sheet as “being from 0.002 to
0.003 inch in thickness,” the sheets can have “a variation in thickness of up
to 50%” and need not be uniform, and thus, fails to anticipate the subject
claims (App. Br. 19 and 20).
The Examiner states that his position is the same as that of the Federal
Circuit which found that “uniform flexible film” need not have the same
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thickness throughout, but rather, must merely exhibit a “same form” which
includes textured surfaces that would necessarily have different thicknesses
(Ans. 11). Indeed, the Federal Circuit also stated that “a uniform flexible
film includes, for example, a flexible film having the same thickness
throughout, as well as a flexible film having the same textured surface
throughout” so that same thickness is not required. Middleton, Inc. v. 3M
Corp., 311 F.3d at 1389. Moreover, the Examiner also contends that the
sheets of Amos appear to be uniform, and “have a thickness selected to a
constant thickness selected from the range of 0.002-0.003 inches thick. For
example, the thickness is either .002 inch throughout or .003 inches thick
throughout” (Ans. 11 and 12).
We find no error in the Examiner’s reasoning. The fact that Amos is
silent as to uniformity does not support Appellant’s argument that Amos is
not uniform to a preponderance of the evidence. Absence of evidence is not
evidence of absence. In addition, when considering the scope and content of
the prior art, “it is proper to take into account not only specific teachings of
the reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.” In re Preda, 401 F.2d 825, 826
(CCPA 1968). There is nothing in Amos that precludes the Examiner’s
interpretation of Amos, or precludes drawing the reasonable inference that
the described sheets have uniform thickness and/or surface texture in view of
the lack of any specific teachings to the contrary. Moreover, the Appellant
has not directed us to any description in the Specification that limits the
variation in thickness of the films to any extent, let alone a description that
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distinguishes the term “uniform” over the normal tolerances in thickness of
the prior art films such as the films described in Amos.
Therefore, we concur with the Examiner (Ans. 5) that Amos describes
each and every limitation of independent claim 4 (FF 1 and 2) and conclude
that the Appellant has not shown that the Examiner erred in rejecting claim 4
as lacking novelty over Amos. The Appellant also does not separately argue
the Examiner’s rejections of claims 5-7 that ultimately depend from
independent claim 4. Thus, claims 5-7 fall with independent claim 4. See 37
C.F.R. 41.37(c)(1)(vii) (2007).
With respect to claim 8 which recites “at least one boundary line
affixed to the undersurface of the clear plastic layer,” the Appellant argues
that such a feature is not described in Amos because the recited “boundary
line” is “not the line or edge of an imprinted image” as described in Amos,
but rather, is a boundary line “for an athletic court, such as a foul line on a
basketball court, or a service line on a volleyball court” (App. Br. 22; Reply
Br. 10).
The Appellant’s argument is not based on limitations appearing in the
claims. In re Self, 671 F.2d 1344, 1348 (CCPA 1982). Instead, the
Appellant is seeking to narrow the meaning of “boundary line” based on the
specification of the ‘514 patent (App. Br. 22). However, we again note that
“[a]bsent claim language carrying a narrow meaning, the PTO should only
limit the claim based on the specification or prosecution history when those
sources expressly disclaim the broader definition.” In re Bigio, 381 F.3d at
1325. The cited portion of the ‘514 patent relied upon by the Appellant is
not an express disclaimer which limits the definition of “boundary line.”
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Therefore, the Appellant has not shown that the Examiner erred in rejecting
claim 8 as anticipated by Amos.

Rejection of claims 4 and 6-8 based on Tarbutton
Tarbutton describes a transparent friction surface sheet material that
could be used on various surfaces such as skateboards, boat trailer fenders,
diving boards and surf boards (FF 4). The Examiner asserts that the recited
“floor” of claim 4 is satisfied by Tarbutton which describes that the material
may be placed in pedestrian areas and surfaces (Ans. 13). The Appellant
argues that Tarbutton is not anticipatory because it does not describe a
“floor” (App. Br. 15 and 16). We agree with the Appellant.
While the Examiner has identified various portions of Tarbutton
teaching the use of the described friction surface sheet material (Ans. 13) on
a surface to be stepped on and subject to “foot traffic”, that does not mean
that floors are described. Hence, the Examiner’s anticipation rejection of
claims 4 and 6-8 depending therefrom based on Tarbutton cannot stand, and
the Appellant has shown that the Examiner erred.

Rejection of claims 4 and 5 based on Barrett
Barrett describes a protective cover sheet that is removably adhered to
slats made of wooden tiles (FF 5-7). The Examiner contends that Barrett
describes each of the limitations of claim 4 (Ans. 6). The Appellant argues
that in Barrett, “the wooden tiles on which the protective layer is disposed
can already be ‘finished’” (App. Br. 18; Reply Br. 13 and 14). However, the
Appellant’s argument is not persuasive because claim 4 does not recite any
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limitations with respect to the floor surface prior to application of the
flexible film thereon. In re Self, 671 F.2d at 1348.
The Appellant also takes issue with the fact that Barrett, like Amos,
does not expressly state that the described plastic sheets are “uniform” as
recited in claim 4 (App. Br. 20; Reply Br. 14 and 15). However, the
Appellant’s arguments are not persuasive for substantially the same reasons
already discussed supra relative to Amos. Whether the patterns of holes in
the sheets of Barrett are uniform is moot.
Moreover, the Appellant’s argument that Barrett fails to expressly
teach an adhesive layer that releasably adheres the flexible film onto the top
surface (App. Br. 21) is not fully understood. Claim 4 states that the
adhesive layer releasably adheres the film to the floor. Barrett explicitly
describes that the sheet is “pulled or peeled away from the assembled tiles”
(FF 7). Hence, the adhesive of Barrett releasably adheres the sheet to the top
surface, thereby satisfying the recited claim limitation as found by the
Examiner (Ans. 18).
Therefore, we concur with the Examiner (Ans. 6) that Barrett
describes each and every limitation of claim 4 (FF 5-7), and conclude that
the Appellant has not shown that the Examiner erred. The Appellant also
does not separately argue the Examiner’s rejection of claim 5 depending
from claim 4. Thus, claim 5 also falls with independent claim 4. See 37
C.F.R. 41.37(c)(1)(vii).

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CONCLUSIONS
1. The Appellant has not shown that the Examiner erred in finding
that Amos and Barrett each describes the combination of a floor and an
improved material recited in independent claim 4.
2. The Appellant has shown that the Examiner erred in finding
that Tarbutton describes the combination of a floor and an improved material
recited in independent claim 4.
3. The Appellant has not shown that the Examiner erred in finding
that Amos describes the “boundary line” recited in claim 8.

ORDERS
1. The Examiner’s rejection of claims 4-8 as lacking novelty over
Amos is AFFIRMED.
2. The Examiner’s rejection of claims 4 and 6-8 as lacking novelty
over Tarbutton is REVERSED.
3. The Examiner’s rejection of claims 4 and 5 as lacking novelty
over Barrett is AFFIRMED.
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

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MAT

For Patent Owner:

William A. Blake
JONES, TULLAR & COOPER, P.C.
P.O. BOX 2266 Eads Station
Arlington VA 22202

For Third Party Requester:

Office of Intellectual Property Counsel
3M Innovative Properties Company
P. O. Box 33427
St. Paul, MN 55133-3427