Ex Parte Abdallah

Board of Patent Appeals and Interferences

Mar 9, 2005

09812293 (B.P.A.I. Mar. 9, 2005)

The opinion in support of the decision being entered
today was not written for publication and
is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte DAVID G. ABDALLAH
_____________
Appeal No. 2005-0704
Application No. 09/812,293
______________
ON BRIEF
_______________
Before KIMLIN, GARRIS and OWENS, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 2-10
and 21-23. Claims 11-18, the other pending claims in the present
application, have been withdrawn from consideration.
Claim 21 is illustrative:
21. A green tire incorporating a body ply
comprising an elastomeric sheet and a plurality of rows
of reinforcement cords embedded therein by extruding an
elastomeric material between and around the cords in
the plurality of rows, the body ply having edges
forming an axially extending seam, wherein each of the
reinforcement cords has a diameter d1, wherein adjacent
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Application No. 09/812,293
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cords in a first of the plurality of rows are spaced a
distance da-a and wherein adjacent cords in a second of
the plurality of rows are spaced a distance db-b and
wherein these distances are equal and uniform.
In the rejection of the appealed claims, the examiner relies
upon the following references:
Kiemer 4,274,821 Jun. 23, 1981
Ible 4,300,878 Nov. 17, 1981
Sicka et al. (Sicka) 4,657,718 Apr. 14, 1987
Tompkins 5,292,472 Mar. 08, 1994
Nagumo JP 5-294,104 Nov. 05, 1993
Appellant’s claimed invention is directed to a green tire
having a body ply that comprises an elastomeric sheet with a
plurality of rows of reinforcing cords embedded therein. The
elastomeric sheet is formed by extruding elastomeric material
between and around the cords in a plurality of rows. Also, the
body ply has edges which form an axially extending seam.
Appealed claims 2-10 and 21-23 stand rejected under
35 U.S.C. § 102(b) as being anticipated by JP ‘104. The appealed
claims also stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over JP ‘104 in view of Kiemer, Ible, Sicka and
Tompkins. In addition, claims 8-10 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over JP ‘104.
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For each of the examiner’s three rejections, appellant
submits that the claims stand or fall together with independent
claim 21 (see page 5 of principal brief).
We have thoroughly reviewed each of appellant’s arguments
for patentability. However, we find the examiner’s rejections
well-founded and supported by the prior art evidence relied upon.
Accordingly, we will sustain the examiner’s rejections for
essentially those reasons expressed in the answer, and we add the
following primarily for emphasis.
We consider first the examiner’s rejection of the appealed
claims under § 102 over JP ‘104. Since claim 21 is drafted in
product-by-process format, certain principles of patent
jurisprudence apply. If a product defined by a product-by-
process claim reasonably appears to be substantially the same as
or obvious from the prior art, the claim is unpatentable even
though the prior product was made by a different process. In re
Thorpe, 777 F.2d 695, 697, 227 USPQ 964, 966 (Fed. Cir. 1985).
In the present case, although the body ply comprising a plurality
of rows of reinforcement cords of JP ‘104 is made by laminating
two elastomeric sheets together, as opposed to the recited
extrusion process, we agree with the examiner that the resulting
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green tires of appellant and JP ‘104 reasonably appear to be
substantially the same. In addition to agreeing with the
examiner’s reasoned analysis that the reference lamination of
still hot elastomeric sheets results in a merging of the sheets
that is indistinguishable from a single sheet, we find that Fig.
2 of JP ‘104 suggests a body ply that is essentially a single
elastomeric sheet. We note that the English translation of JP
‘104 describes rubber 6 of Fig. 2 as a “monolayer” (see paragraph
0014, penultimate line). As stated by the examiner, appellant
has not carried his burden of proffering objective evidence
which establishes that an extruded body ply within the scope of
the appealed claims is substantially different than the body ply
fairly taught by JP ‘104. Also, while appellant directs our
attention to the fact that the appealed claims are directed to a
“green tire” that is formed without the heat of vulcanization,
the fact remains that the final product, a vulcanized tire, would
seem to have essentially the same structure for the relevant body
ply whether formed by extrusion or lamination.
Inasmuch as we have affirmed the examiner’s § 102 rejection,
it logically follows that we will sustain the examiner’s § 103
rejections. It is well settled that anticipation is the epitome
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of obviousness. Furthermore, even if, for the sake of argument,
JP ‘104 does not describe the claimed green tire within the
meaning of § 102, we concur with the examiner that it would have
been obvious for one of ordinary skill in the art to replace the
lamination process of JP ‘104 with the recited extrusion process.
The secondary references cited by the examiner, Kiemer, Ible, sk
and Tompkins, simply supply further evidence of what is
acknowledged in appellant’s specification.
Appellant’s specification acknowledges that it was known in
the art to use an extrusion apparatus to form a body ply having
two rows of reinforcement elements, although the advantage of a
seamless ply is at the cost of a significant initial equipment
investment (see paragraph bridging pages 1 and 2 of appellant’s
specification). Also, the specification acknowledges that it was
known in the art to use an extrusion apparatus to form a single
layer body ply having steel belts, and it only requires replacing
a removable guide insert with the insert of the present invention
to produce an elastomeric sheet having a plurality of rows of
reinforcement cords (see page 5 of specification, last paragraph).
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Consequently, we are satisfied that it would have been obvious for
one of ordinary skill in the art to modify the known extrusion
apparatus with a guide insert that corresponds to the known
pattern of reinforcement cords ultimately desired, as long as the
disadvantage of an axially extending seam can be tolerated. We
note that appellant bases no arguments upon objective evidence of
noobviousness, such as unexpected results, which would serve to
rebut the inference of obviousness established by the state of the
prior art.
In conclusion, based on the foregoing, the examiner's
decision rejecting the appealed claims is affirmed.
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No time period for taking any subsequent action in connection
with this appeal may be extended under 37 CFR
§ 1.136(a)(1)(iv).
AFFIRMED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
BRADLEY R. GARRIS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
TERRY J. OWENS )
Administrative Patent Judge )
EAK/vsh
Appeal No. 2005-0704
Application No. 09/812,293
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John H. Hornickel
Chief Intellectual Property Counsel
Bridgestone/Firestone, Inc,
1200 Firestone Parkway
Akron OH 44317