11145383 (B.P.A.I. Mar. 31, 2010)

Ex Parte Bartek et al

Board of Patent Appeals and InterferencesMar 31, 2010

11145383 (B.P.A.I. Mar. 31, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte ROBERT BARTEK and RUBEN G. GARCIA ____________ Appeal 2009-008505 Application 11/145,383 Technology Center 1700 ____________ Decided: March 31, 2010 ____________ Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and PETER F. KRATZ, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 1, 6, 7, and 14-17. We have jurisdiction pursuant to 35 U.S.C. § 6. Appeal 2009-008505 Application 11/145,383 2 Appellants’ claimed invention is directed to roll pre-fabricated waterproof roofing membrane including an asphalt saturated reinforcing substrate, a non-asphalt based coating layer, a polymer primer layer intermediate the substrate and coating layer, and at least one release sheet. The reinforcing substrate includes asphalt layers comprising top and bottom major surfaces thereof. The coating layer is recited as consisting essentially of an acrylic or isocyanate based elastomeric polymer binder and a reflective and emissive pigment with a top surface having specified solar reflectance and thermal emittance properties. The polymer primer layer is impermeable to oils and is directly bonded to a bottom surface of the coating layer and a top surface of the reinforcing substrate. Claim 1 is illustrative and reproduced below: 1. A roll prefabricated asphalt-based waterproof roofing membrane; the prefabricated asphalt-based waterproof roofing membrane having a length and a width; the prefabricated asphalt-based waterproof roofing membrane having a top major surface and a bottom major surface defined by the length and the width, of prefabricated asphalt-based waterproof roofing membrane; the top major surface of the prefabricated asphalt-based waterproof roofing membrane having an exposed portion that is exposed to the weather when the prefabricated asphalt-based waterproof roofing membrane is installed on a roof and a lateral edge portion, extending for the length of the prefabricated asphalt-based waterproof roofing membrane, that is overlapped by an adjacent prefabricated asphalt-based waterproof roofing membrane when the prefabricated asphalt-based waterproof roofing membrane is installed on a roof, the roll prefabricated asphalt-based waterproof roofing membrane comprising: an asphalt saturated reinforcing substrate having a length and a width; the asphalt saturated reinforcing substrate having a top major surface and a bottom major surface defined by the length and the width of the asphalt saturated reinforcing substrate; a top asphalt layer overlaying and coextensive with the top major surface of the asphalt saturated reinforcing Appeal 2009-008505 Application 11/145,383 3 substrate and a bottom asphalt layer overlaying and coextensive with the bottom major surface of the asphalt saturated reinforcing substrate; the top and bottom asphalt layers, with the asphalt saturated reinforcing substrate, forming an asphalt saturated and coated reinforcing substrate; a highly reflective and emissive non-asphalt based elastomeric coating layer; the highly reflective and emissive non-asphalt based elastomeric coating layer consisting essentially of a polymer binder material selected from a group consisting essentially of: acrylic-based elastomers and isocyanate-based elastomers and a reflective and emissive pigment; the highly reflective and emissive non-asphalt based elastomeric coating layer having a top surface forming a top surface of the exposed portion of the top major surface of the prefabricated asphalt-based waterproof roofing membrane; the top surface of the highly reflective and emissive non-asphalt based elastomeric coating layer having an initial solar reflectance of at least 0.70 and a thermal emittance of at least 0.75; a polymer primer layer intermediate and bonded directly to a top surface of the top asphalt layer and a bottom surface of the highly reflective and emissive non-asphalt based elastomeric coating layer that is impermeable to oils and other colored components of the top asphalt layer to keep the oils and other colored components of the top asphalt layer from exuding into the highly reflective and emissive non-asphalt based elastomeric coating layer and reducing the reflectance of the highly reflective and emissive non-asphalt based elastomeric coating layer; and at least one of the top major surface and the bottom major surface of the prefabricated asphalt-based waterproof roofing membrane having a release sheet thereon: that is separable from the prefabricated asphalt-based waterproof roofing membrane, that permits the prefabricated asphalt-based waterproof roofing rnembrane to be wound into a roll for packaging, storage, shipping, and handling without the bottom major surface of the asphalt saturated reinforcing substrate adhering to or otherwise discoloring the top surface of the highly reflective and emissive non-asphalt based elastomeric coating layer, and that permits the prefabricated asphalt-based waterproof roofing membrane to be unwound from the roll for installation. Appeal 2009-008505 Application 11/145,383 4 The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Hart 4,870,796 Oct. 3, 1989 Zanchetta US 2004/0009319 A1 Jan. 15, 2004 Claims 1, 6, 7, and 14-17 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Zanchetta in view of Hart. We affirm for substantially the reasons set forth by the Examiner in the Answer. At the outset, we note that the rejected claims are not argued separately; consequently, the rejected claims stand or fall together. We select independent claim 1 as the representative claim on which we decide this appeal. Appellants recognize that, like Appellants, Zanchetta is directed to providing a bituminous roofing membrane having a surface laminate with high reflectivity and high emissive properties (Br. 5-6). Appellants basically acknowledge that the product of Zanchetta includes asphalt layers 3 and 4 on upper and lower major sides of a reinforcing substrate 2, a top surface laminate 9, and a release liner 11 (Br. 6; Zanchetta, para. 0027, Fig. 1). As shown in Figure 2, the laminate 9 of Zanchetta includes a polyolefinic sheet 15 made of polyester or polyvinyl fluoride that can include a pigment, such as titanium dioxide and which is bonded to a fabric 12 with a bonding agent, such as acrylic adhesive (para. 0032, Fig. 2). The Examiner has found that the fabric layer 12 of Zanchetta is inherently porous (Ans. 4). Appellants do not directly refute this finding of the Examiner (see generally Br.). Appeal 2009-008505 Application 11/145,383 5 The Examiner relies on Hart for teaching the use of elastomeric acrylics as a top coating for weatherproof roofing having superior weathering properties, which retains waterproofing and flexibility properties over a long time (Ans. 3; Hart, col. 1, ll. 25-41 and col. 3, ll. 55-57). The Examiner maintains that one of ordinary skill in the art would have found it obvious to form “the outer reflective pigmented layer of Zanchetta with an acrylic based elastomer, as taught by Hart, motivated by the desire to obtain improved weathering properties” (Ans. 3-4). Appellants do not specifically contest the Examiner’s reliance on Hart and the combination thereof with Zanchetta as proposed by the Examiner to establish the obviousness of employing acrylic based elastomer as part of the pigment-containing top coating thereof; that is, as part of sheet 15 (Br. 7-8). Rather, Appellants argue that the fabric 12 of Zanchetta would still be employed (Br. 7). Consequently, the general thrust of Appellants’ argument appears to be that the modified product of Zanchetta would interpose a polymeric fabric layer 12 between a bonding adhesive 13 and asphalt layer 3 of Zanchetta and, thus, fails, in Appellants’ view, to provide for an impermeable primer layer in direct contact with the top surface of the asphalt layer 3 as would be required for the proposed modified structure of Zanchetta to satisfy the requirements of representative claim 1 (Br. 6-7). We disagree. The Examiner has reasonably found that the asphalt layer 3 would fuse into the fabric layer of Zanchetta, as suggested by the manufacturing steps discussed with respect to Figure 5 thereof (Ans. 4 and 6; Zanchetta, para. 0037). Hence, it is reasonable to expect that the adhesive bonding layer 13 of Zanchetta would be in direct contact with the top surface Appeal 2009-008505 Application 11/145,383 6 of asphalt layer 3, as that surface fuses with and through the porous fabric 12, especially absent a persuasive rebuttal from Appellants regarding the Examiner’s reasoned interpretation as to the porosity of the fabric layer 12. Moreover and even if we could agree with Appellants that the fabric 12 would prevent direct contact of the adhesive bonding layer 13 with the asphalt layer 3 of Zanchetta and/or that Appellants are otherwise suggesting that claim 1 excludes the fabric layer 12 of Zanchetta, Appellants have not articulated how such argument establishes an unobvious difference. This is because the omission of fabric 12 along with its function from the product membrane of Zanchetta would have been an obvious option to one of ordinary skill in the art. In this regard, Appellants do not persuasively dispute the Examiner’s finding that the bonding layer 13 of Zanchetta would have acted as a barrier (primer layer) to the oil and asphalt of layer 3 of Zanchetta (Ans. 4). For example, Zanchetta teaches that even thin layers of adhesive can act as a seal (see, e.g. para. 0036). CONCLUSION Appellants have not identified harmful error in the Examiner’s obviousness rejection based on the arguments presented in the Appeal Brief. It follows that we will sustain the Examiner’s rejection, on this record. ORDER The Examiner’s decision to reject claims 1, 6, 7, and 14-17 under 35 U.S.C. § 103(a) as being unpatentable over Zanchetta in view of Hart is affirmed. Appeal 2009-008505 Application 11/145,383 7 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). AFFIRMED PL Initial: sld JOHNS MANVILLE 10100 WEST UTE AVENUE PO BOX 625005 LITTLETON CO 80162-5005 APJ Initials: [MAILING ADDRESS OF APPELLANT]