Ex Parte 7464510 et al

Patent Trial and Appeal Board

Sep 30, 2015

95001725 (P.T.A.B. Sep. 30, 2015)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
95/001,725 08/25/2011 7464510 I4060-819320 6479
23370 7590 09/30/2015
KILPATRICK TOWNSEND & STOCKTON LLP
1100 PEACHTREE STREET
SUITE 2800
ATLANTA, GA 30309
EXAMINER
GELLNER, JEFFREY L
ART UNIT PAPER NUMBER
3993
MAIL DATE DELIVERY MODE
09/30/2015 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
____________________

TANDUS FLOORING, INC
Requester

v.

INTERFACE, INC.
Patent Owner
____________________

Appeal 2015-004899
Reexamination Control 95/001,725
Patent US 7,464,510 B21
Technology Center 3900
____________________
Before: STEVEN D.A. McCARTHY, MICHAEL L. HOELTER, and
BRETT C. MARTIN, Administrative Patent Judges.

MARTIN, Administrative Patent Judge.

DECISION ON APPEAL

1 Issued to Scott et al. Dec. 16, 2008 (the '510 patent).
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STATEMENT OF THE CASE
The Patent Owner appeals under 35 U.S.C. §§ 134(b) and 315(a) from
the Examiner’s rejection of claims 1–23. We have jurisdiction under 35
U.S.C. §§ 134(c) and 315(b). Oral arguments were presented in this case on
September 11, 2015, a transcript of which will be entered into the record in
due course. During the hearing, arguments were presented for both the
instant appeal as well as for appeal 2015-004830. The transcript will reflect
this combined hearing.
We are informed that the '510 patent is related to other patents that are
subject to additional proceedings. Patent US 8,381,473 is the subject of four
litigations in the Northern District of Georgia styled Interface, Inc. v. Tandus
Flooring, Inc. & Tandus Flooring US, LLC (case 4:13-cv-00044-HLM);
Interface, Inc. v. J&J Industries, Inc. (case 4:13-cv-00045-HLM); Interface,
Inc. v. Tandus Flooring, Inc. & Tandus Flooring US, LLC (case 4:13-cv-
00046-WSD); and Interface, Inc. v. J&J Industries, Inc. (case 4:13-cv-
00047-HLM). Patent US 7,721,502 is subject to inter partes reexamination
no. 95/001,726. European Patent Application Nos. 05812737.4,
10180426.8, and 10180493.8 are also pending.
We AFFIRM.

THE CLAIMED SUBJECT MATTER
The Patent Owner's claims are directed generally to "systems and
methods for installing floor coverings, particularly including carpet tile and
other modular floor coverings." Spec., col. 1, ll. 20–22. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
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1. A system for installing modular tiles, each having an
underside, on a floor surface without attaching the tiles to the
floor surface, the system comprising connectors each
comprising:
a. a film;
b. a layer of releasable adhesive located on a side of the
film, wherein the layer of adhesive is capable of forming a bond
with the undersides of the tiles so that, when a connector is
positioned above a floor surface and spans adjacent edges of
adjacent tiles so that the layer of adhesive contacts the
undersides of the adjacent tiles, the layer of adhesive prevents
relative movement between the adjacent tiles, the connector
does not adhere to the floor surface, and the connector extends
along only a portion of the adjacent edges without abutting any
other connector; and
c. a primer coat between the film and the adhesive layer.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Robinson
Pears
Puskadi
Culbertson
LaBianca
Kobe
Murphy
US 3,241,662
US 3,819,773
US 4,196,254
US 4,571,363
US 4,920,720
US 5,888,335
US 6,253,526 B1
Mar. 22, 1966
June 25, 1974
Apr. 1, 1980
Feb. 18, 1986
May 1, 1990
Mar. 30, 1999
July 3, 2001
Kinoshita JP H05-163825 A June 29, 1993

THE REJECTIONS ON APPEAL
The Examiner made the following rejections:
1. Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita and Puskadi. RAN 4.
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2. Claims 1–3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita and Culbertson. RAN 4–5.
3. Claims 1, 2, 4, 9–13, and 17–19 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kinoshita and Pears. RAN 5–8.
4. Claims 20–23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita, Pears, and Murphy. RAN 8–9.
5. Claims 7 and 14 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kinoshita, Pears, and Kobe. RAN 10.
6. Claims 5, 6, 8, 15, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kinoshita, Pears, and Kobe. RAN 10–
12.
7. Claims 3, 4, 9, 10, 12–14, and 17–19 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Kinoshita and Robinson. RAN
12–14.
8. Claims 20–23 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita, Robinson, and Murphy. RAN 15–16.
9. Claim 7 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita, Robinson, and Kobe. RAN 17.
10. Claims 5, 6, 8, 15, and 16 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kinoshita, Robinson, and LaBianca.
RAN 17–18.
11. Claims 1, 3, 4, 7, and 9–14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Kinoshita and Kobe. RAN 19–21.
12. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita, Kobe, and Culbertson. RAN 21.
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13. Claim 2 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kinoshita, Kobe, and Pears. RAN 22.
14. Claim 2 stands rejected under 35 U.S.C §103(a) as being
unpatentable over Kinoshita, Kobe, and Puskadi. RAN 22.
15. Claims 5, 6, 8, 15, and 16 stand rejected under 35 U.S.C
§103(a) as being unpatentable over Kinoshita, Kobe, and LaBianca. RAN
22–24.
16. Claims 20–23 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Kinoshita, Kobe, and Murphy. RAN 24–26.
17. Claims 4, 7, 9–14, and 17–19 stand rejected under 35 U.S.C
§103(a) as being unpatentable over Kinoshita, Kobe, and Robinson. RAN
26–30.
18. Claims 5, 6, 8, 15, and 16 stand rejected under 35 U.S.C
§103(a) as being unpatentable over Kinoshita, Kobe, Robinson, and
LaBianca. RAN 31–32.
19. Claims 20–23 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Kinoshita, Kobe, Robinson, and Murphy. RAN 32–34.
20. Claims 4, 7, 9–14, and 17–19 stand rejected under 35 U.S.C
§103(a) as being unpatentable over Kinoshita, Kobe, and Pears. RAN 34–
39.
21. Claims 5, 6, 8, 15, and 16 stand rejected under 35 U.S.C
§103(a) as being unpatentable over Kinoshita, Kobe, Pears, and LaBianca.
RAN 39–41.
22. Claims 20–23 stand rejected under 35 U.S.C §103(a) as being
unpatentable over Kinoshita, Kobe, Pears, and Murphy. RAN 41–42.
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ANALYSIS
As the Patent Owner states, "Kinoshita is the core reference in this
appeal." App. Br. 21. As shown above, every rejection involves a
combination involving Kinoshita. Most of Patent Owner's arguments in one
way or another relate to rebutting the propriety of the Examiner utilizing
Kinoshita in combination with the various other references listed above. As
is seen from representative claim 1, the '510 patent is essentially about a
connector, or a stack of connectors, utilized to install carpet tile.
Kinoshita discloses an adhesive connector used to connect carpet tiles
in much the same way as that disclosed in the '510 patent. Simply viewing a
side-by-side comparison of the main drawings of each patent makes this
abundantly clear.

Above is a side-by-side comparison of Fig. 5 of the '502 patent with Figure 1
of Kinoshita whereby both figures show a grid of carpet tiles with adhesive
connectors at the intersection of four adjacent tiles.
The Patent Owner argues at length that Kinoshita is inadequate to prove
obviousness by suggesting that Kinoshita only "teaches how to apply generic
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'adhesive tape,' a technology known to fail in this application, to tile
installations" (App. Br. 21); and that Kinoshita "rel[ies] on a substance
known to fail in joining tiles" (App. Br. 21–22). We are not aware,
however, of any basis for presuming, as the Patent Owner would have us do,
that a piece of prior art is inadequate to teach that which it explicitly states is
the purpose of its invention. The Patent Owner also has not provided any
persuasive evidence other than attorney argument that Kinoshita would fail
or be insufficient for its stated purpose.
The Patent Owner contends that "Kinoshita says nothing about the
type of carrier film the tape should have or its characteristics" or "of the
characteristics of the adhesives the tape should have (e.g., shear strength)"
while at the same time the Patent Owner informs us that Kinoshita's
connectors rely on a substance known to fail. Id. It is not abundantly clear
how Kinoshita’s connectors can be known to fail when, admittedly, little is
known of the type of carrier film or adhesive employed. Absent persuasive
evidence to the contrary, we presume that Kinoshita enables the process it
discloses. See In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir.
2012).2 We do not deny that Kinoshita is rather sparse in its details
regarding the specifics of the adhesive, but we see no basis to essentially
ignore that Kinoshita teaches the use of adhesive connectors for laying
carpet. Not only do we presume that Kinoshita enables the laying of carpet

2 The disclosures of a prior art reference are presumed to be enabled. Amgen
Inc. v. Hoechst Marion Roussel, Inc., 314 F.3d 1313, 1354 (Fed. Cir. 2003).
Moreover, a “non-enabling reference may qualify as prior art for the purpose
of determining obviousness under § 103.” Antor Media, 689 F.3d at 1292
(citing Symbol Techs. Inc. v. Opticon Inc., 935 F.2d 1569, 1578
(Fed.Cir.1991)).
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tile, we note that Kinoshita discloses a method of installation whereby "it is
also possible to link an appropriate number of the tile carpet units 1 ahead of
time with the adhesive tape 2 to form the blocks, and lay these block using
the same procedure as shown in FIG. 2." Kinoshita, ¶ 15.
Furthermore, Kinoshita displays some skill in the proper selection of
adhesives suitable for carpet installation by stating that, in its double-sided
tape application, the adhesive on the subfloor side should be weaker than the
adhesive that contacts the carpet tiles. Kinoshita, ¶ 0012. This
accomplishes a similar objective as stated in the '510 patent to provide a
floor that can be easily removed without damaging the subfloor upon
removal.
The Patent Owner also argues that Kinoshita does not teach the
limitation that the adhesive connector "prevents relative movement between
adjacent tiles" as recited in claim 1. The Patent Owner argues that the
Examiner fails to consider lateral movement as part of the relative
movement recited in claim 1 and asserts that the Examiner "applies a
construction of the term 'prevents relative movement' such that a layer of
adhesive can be found to prevent relative movement even if it allows lateral
movement." App. Br. 18. We disagree with this characterization of the
Examiner's rejection. All the Examiner states is that the term "relative
movement" does not necessarily require lateral movement and that Kinoshita
explicitly discloses preventing peeling, which would be a type of relative
movement. RAN 49–50. Accordingly, by the teaching of resistance to
peeling, Kinoshita prevents relative movement under the broadest reasonable
interpretation of "preventing relative movement." We see no basis for
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construing the term more narrowly, as proposed by the Patent Owner, to
require prevention of lateral movement.
Even if we were to accept the Patent Owner's construction, it is clear
that Kinoshita would still meet this limitation. First, an adhesive that
prevents peeling would also be capable of preventing lateral movement to at
least some degree as well. Also, as noted above, Kinoshita teaches a method
whereby tiles are connected upside down and then a section of tiles is
flipped for installation. In order to accomplish this installation, Kinoshita's
connectors would have to prevent both peeling and relative lateral
movement so as to effect a proper carpet installation.
Furthermore, neither the claims nor the Specification describes how
resistant the adhesive connector must be to lateral movement of the tiles.
The Patent Owner attempts to introduce an undisclosed method of testing
carpet whereby a chair is rolled across the carpet 50,000 times to test for the
adequacy of the bond at the seams; and asserts that the Examiner is incorrect
to construe the term such that even passing one cycle of this test would be
sufficient to meet the claim. App. Br. 20–21; RAN 48. But again, the '510
patent itself does not provide how resistant the adhesive must be to lateral
movement in order to satisfy claim 1. Accordingly, we are unpersuaded that
the Examiner’s construction of the term "prevents lateral movement" is
unreasonable or that Kinoshita fails to teach this limitation.
The Patent Owner next argues that the various aspects of Kinoshita
that are missing cannot be supplemented by looking to the adhesive art
because adhesive art is not analogous art. See App. Br. 26–30. As with
claim construction, the Patent Owner attempts to assert an overly narrow
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definition of the relevant art by confining it to "the field of developing
systems and methods for installing tiles." App. Br. 30. We first note that
other than contextually identifying the application as tile installation, the
claims at their most basic level refer only to an adhesive connector, thus the
adhesive connector art would definitely be relevant to the subject matter of
the claims. We also find it difficult to accept that a person of ordinary skill
looking to improve upon Kinoshita's invention would have confined himself
or herself only to the field of carpet installation and, as the Requester states,
"be expected to 'reinvent the wheel' and ignore the well-established art of
adhesive tapes." Resp. Br. 4. Even assuming for purposes of this appeal
that the pertinent art is restricted to developing systems and methods for
installing tile, one of ordinary skill in the art familiar with the teachings of
Kinoshita either would have had a working knowledge of adhesives or
would have had reason to consult an expert in the adhesive art in order to
implement Kinoshita’s teachings.
The Requester's expert, Curtis Larson, stated that one of ordinary skill
in the adhesive art presented with an application for an adhesive, with which
he or she may have had no experience, could have determined the necessary
characteristics of the adhesive from the application, utilizing his or her
knowledge in the adhesive art. Larson Dec. 15. This is not an instance
where the Requester and the Examiner are using hindsight to reconstruct the
claims, as asserted by the Patent Owner. App. Br. 16, 31. Rather, the prior
art provides, by way of Kinoshita, the exact problem and solution alleged to
be the purpose of the '510 patent, but without certain details regarding the
specific characteristics of the adhesive tape used therein, which are claimed
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by the Patent Owner. Thus, it is highly relevant for one of ordinary skill in
the art to consult the adhesives art to find suitable properties for a connector
such as that disclosed in Kinoshita to be used in carpet tile installation. As
the Requester states, "any properties of the tape of Kinoshita needed to
achieve the desired result would [have] be[en] an obvious matter of design
choice." Resp. Br. 9.
Although the Patent Owner nominally argues some specifics of the
combinations involving each of Puskadi, Robinson, Culbertson, Pears, and
Kobe, these arguments are not based upon a deficiency of the teachings of
any of the references, but generally repeat the argument regarding the
alleged improper combination of aspects of adhesive art with Kinoshita.
App. Br. 31–36, 42–59. We agree with the Requester and the Examiner that
each of the secondary references teaches the relevant claim limitation at
issue and is properly combinable with Kinoshita. Having already deemed
the adhesive art to be properly within the realm of analogous and relevant
art, we disagree that Kinoshita is not properly combined with any of the
stated references.
The Patent Owner also argues that the Examiner's rejection of claims
5, 6, and 8 over Kinoshita, Pears, and LaBianca is improper because one of
skill in the art would have no reason to reduce the size of Kinoshita's
connectors in relation to the tiles to achieve the claimed sizes. App. Br. 45–
50. We agree with the Requester that "claims 5, 6, and 8 merely recite
possible sizes of the connector without establishing criticality…, thus
rendering the size of the connector a matter of design choice." Resp. Br. 11.
Mr. Larson also states, and we agree, that "[o]ne of ordinary skill in the art
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would readily [have] be[en] able to determine the appropriate size for a
particular adhesive tape." Larson Dec. ¶ 25. Given that LaBianca discloses
that adhesive tapes in the range of one to six inches wide may be suitable,
taking the teaching of Kinoshita's square connectors, it would make sense to
also make the connectors within that range and in fact the claims fall not at
the outer bounds of LaBianca's teaching, but in the middle.
As to claims 15 and 16, which relate to film thickness, we likewise
agree with the Requester that "[l]imitations disclosed as 'preferred' are not
critical" and thus "the Examiner properly held that such features were
obvious variations of Kinoshita." Resp. Br. 10 (citing In re Rauch, 390 F.2d
760 (CCPA 1968)). Mr. Larson also supports that the ranges claimed by the
Patent Owner fall within what one of ordinary skill in the art would select
given this tile installation application. Larson Dec. ¶ 19. Accordingly, we
agree that these claims would be obvious as stated by the Examiner.
The Patent Owner next argues that the Examiner failed to properly
consider the evidence of secondary considerations that allegedly rebut the
obviousness case. App. Br. 37–42. As an initial matter, we agree with the
Requester that in this case, "the Examiner properly determined that the
prima facie case of obviousness is so strong that it cannot be overcome by
any evidence of secondary considerations." Resp. Br. 13, citing Ran 50. See
also, Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 768–769 (Fed.
Cir. 1988) (holding very strong prima facie cases of obviousness not
overcome by evidence of commercial success, copying by others, and other
secondary considerations). As noted above, Kinoshita discloses both the
problem and the solution as set forth in the '510 patent, i.e., laying carpet
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tiles while not permanently adhering them to the floor, and lacks only certain
details about the construction of the adhesive connector. Finding such
details in the related adhesive art amounts to a strong case of obviousness.
a. Long-Felt Need

The Patent Owner argues that the application of glue for carpet tile
installations dominated the market and there was a need for viable glueless
options and for carpet installations with no lateral tile movement. App. Br.
37–38. To establish evidence of a long-felt but unresolved need, a patent
owner must show that there was a persistent problem that was recognized by
those of ordinary skill in the art. See In re Gershon, 372 F.2d 535, 539
(CCPA 1967). The problem must not have been solved previously by
another, and the claimed invention must, in fact, satisfy the long–felt need.
See Newell Cos., Inc. v. Kenney Mfg. Co., 864 F.2d 757, 768 (Fed. Cir.
1988).
Here, although there is some evidence that a prevailing installation
for carpet tiles involved applying glue to the floor, Patent Owner fails to
show when the problem first arose and how long this need was felt. See
Tex. Instruments, Inc. v. U.S. Int’l Trade Comm’n, 988 F.2d 1165, 1178
(Fed. Cir. 1993) (“[L]ong–felt need is analyzed as of the date of an
articulated identified problem and evidence of efforts to solve that
problem."). Furthermore, Patent Owner fails to show that the alleged need
for a glueless installation was not solved by another because Kinoshita
discloses installations of carpet tiles without glue, thus solving the
problem. For the foregoing reasons, the objective evidence proffered by
Patent Owner is insufficient to establish a long–felt, but unmet, need.
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b. Unexpected Results and Skepticism
We are persuaded by Requester’s argument that Patent Owner failed
to show unexpected results. Resp. Br. 13–14. As the Requester states, the
Patent Owner "did not invent the adhesive that purportedly brings about
the desired result recited in the claims and merely selected the adhesive
from a finite number of commercially available products." Resp. Br. 14
(citing the '510 patent, Spec. col. 6, ll. 11–15). Thus, the results achieved
were not unexpected, but were exactly the results that would be expected
when choosing an adhesive for the stated application. Furthermore, we
also agree that, as evidenced by the preexistence of Kinoshita's carpet tile
installation method, "Patent Owner cannot reasonably assert that using a
known adhesive for a known purpose has brought about any truly
unexpected results. Id. (citing MPEP 716.02 and In re Merck & Co., 800
F.2d 1091 (Fed. Cir. 1986)).
c. Commercial Success
Patent Owner asserts that over 123 million TACTILES connectors
have been sold since introduction of the product in 2006. App. Br. 39.
Even assuming that the TACTILES connectors include all the recited
limitations of the claims-at-issue, there is insufficient evidence in the
record to warrant a finding of commercial success that supports a
conclusion of non-obviousness. As previously discussed, glueless
installations were known in the art at the time of the invention of the '510
patent. To the extent the alleged success is based at least partly on this
feature, Patent Owner has not shown that such success is due to the merits
of the claimed invention beyond what was readily available in the art. See
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In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (finding
the prior art possessed the function relied upon by the patent applicant to
establish unexpected results and, therefore, was not a basis for rebutting a
prima facie finding of obviousness); J.T. Eaton & Co., Inc. v. Atlantic
Paste & Glue Co., 106 F.3d 1563, 1571 (Fed. Cir. 1997) (“[T]he asserted
commercial success of the product must be due to the merits of the claimed
invention beyond what was readily available in the prior art.”).
Indeed, the Patent Owner shows its own commercial product
alongside an alleged copy, but one of the prominent features of those two
products is that each has an alignment indicia, which is not claimed in the
'510 patent. We cannot distinguish the basic connector features as
potential bases for commercial success and thus, a proper nexus cannot be
established with respect to claims 1–23. Furthermore, as the Requester
points out, "no evidence was produced that the sales of the connectors are
the direct result of the claimed invention and not due to other factors such
as advertising or heavy promotion." Resp. Br. 14. Accordingly, the
Patent Owner has not carried its burden regarding commercial success.
d. Copying
Lastly, Patent Owner alleges that multiple copycat products have
emerged since the introduction of the TACTILES connectors. App. Br. 40–
42. Copying, as objective evidence of nonobviousness, requires evidence of
effort to replicate a specific product. Wyers v. Master Lock Co., 616 F.3d
1231, 1246 (Fed. Cir. 2010); Iron Grip Barbell Co., Inc. v. USA Sports, Inc.,
392 F.3d 1317, 1325 (Fed. Cir. 2004). In the instant proceeding, the Patent
Owner simply asserts that a competitor's product, ECO-STICKER, "looks
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strikingly similar to Patent Owner's Tactiles® connectors." App. Br. 40.
The allegations that the products look similar and are used to install carpet
tiles without glue in no way show that any of the entities producing those
products actually copied Patent Owner’s TACTILES connectors.
After weighing the Examiner's strong prima facie case of obviousness
against the Patent Owner's evidence of secondary considerations, we
conclude that the Requester has demonstrated that the subject matter of
claims 1–23 would have been obvious as stated in rejections 1–22 above.
Accordingly, we sustain all of rejections 1–22 as set for the by the
Examiner.

DECISION
For the above reasons, we AFFIRM the Examiner’s decision to reject
claims 1–23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). In the event
neither party files a request for rehearing within the time provided in
37 C.F.R. § 41.79, and this decision becomes final and appealable under
37 C.F.R. § 41.81, a party seeking judicial review must timely serve notice
on the Director of the United States Patent and Trademark Office. See
37 C.F.R. §§ 90.1 and 1.983.

AFFIRMED

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PATENT OWNER:
KILPATRICK TOWNSEND & STOCKTON LLP
1100 PEACHTREE STREET
SUITE 2800
ATLANTA GA 30309

THIRD PARTY REQUESTER:
DANA E. STANO
WOMBLE CARLYLE SANDRIDGE & RICE PLLC
P.O. BOX 7037
ATLANTA, GA 30357-0037