Ex Parte Boyer et al

Board of Patent Appeals and Interferences

Sep 28, 2006

10109343 (B.P.A.I. Sep. 28, 2006)

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for publication and is not binding precedent of the Board.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 CHRIS BOYER,
MELVIN D. KISER, and STEPHEN E. SEE
______________

Appeal 2006-1080
Application 10/109,343
Technology Center 1700
_______________

Decided: September 28, 2006
_______________

Before KIMLIN, WARREN, and GAUDETTE, Administrative Patent
Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the decision of the
Examiner finally rejecting claims 1 through 5 and 22, all of the claims in the
application.1

1 Contrary to Appellants’ statement re “Status of Claims” in the Substitute
Brief filed August 23, 2005, which we consider, claims 6 through 21 have
been canceled. See amendment filed February 7, 2005 (amendment 2-3).
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Claim 1 illustrates Appellants’ invention of a porous board or fibrous
material having a coating of petroleum pitch or coal tar pitch, and is
representative of the claims on appeal:
1. A porous board or fibrous material having a non-tacky surface
coating of less than 10 mil thickness of petroleum or coal tar pitch, and
wherein said pitch is a brittle, glassy non-asphaltic solid at ambient
temperature and at least a portion of said pitch penetrates into said porous
board or fibrous material, said pitch having a density of about 1.20g/cc or
greater, wherein the pitch has a softening point above 200F, is brittle as a
neat sample at room temperature, and is applied at conditions sufficient to
ensure a sufficiently thin coating and penetration of said coating into said
porous surface, to prevent shattering when screws, nails, staple or other
fastening means are driven into said porous board or fibrous material
wherein at least about 10% of the pitch penetrates into the porous board or
fibrous material.
The references relied on by the Examiner are:
Rothbühr US 4,154,808 May 15, 1979
Stern US 4,227,356 Oct. 14, 1980
Seitz US 4,788,803 Dec. 6, 1988
Lamport US 5,753,018 May 19, 1998
Rajalingam US 6,271,305 Aug. 7, 2001
Jackson UK 1 558 176 Jul. 7, 1976
(United Kingdom Patent Specification)

Robert H. Wombles and Melvin D. Kiser (Wombles), Developing Coal
Tar/Petroleum Pitches 1-5 (Koppers, Harmarville Technical Center. 2000).
The Examiner has advanced the following grounds of rejection on
appeal:
claims 1 and 22 under 35 U.S.C. § 103(a) as being obvious over Jackson in
view of Stern, as evidenced by Rajalingam, Lamport, Rothbühr and
Wombles (Answer 3-5);
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claims 1, 3 through 5, and 22 under 35 U.S.C. § 103(a) as being
unpatentable over Jackson in view of Stern, as evidenced by Rajalingam,
Lamport, Rothbühr and Wombles (id. 5-7); and
claims 1 through 5 and 22 under 35 U.S.C. § 103(a) as being unpatentable
over Seitz in view of Jackson and Stern, as evidenced by Rajalingam,
Lamport, Rothbühr and Wombles (id. 5-7).
Appellants argue the claims in each ground of rejection as a group
(Substitute Br. in entirety). Thus, we decide this appeal based on appealed
claim 1 as representative of the grounds of rejection and Appellants’
groupings of claims. 37 C.F.R. § 41.37(c)(1)(vii) (2005).
We affirm.
We refer to the Answer and to the Substitute Brief for a complete
exposition of the positions advanced by the Examiner and Appellants.
OPINION
We have carefully reviewed the record on this appeal and based
thereon find ourselves in agreement with the supported position advanced by
the Examiner that, prima facie, the claimed porous board or fibrous material
having a coating of petroleum pitch or coal tar pitch encompassed by
appealed claim 1 would have been obvious over the combined teachings of
Jackson, Stern, Rajalingam, Lamport, Rothbühr and Wombles and of Seitz,
Jackson, Stern, Rajalingam, Lamport, Rothbühr and Wombles to one of
ordinary skill in this art at the time the claimed invention was made.
Accordingly, since a prima facie case of obviousness has been established by
the Examiner, we again evaluate all of the evidence of obviousness and
nonobviousness based on the record as a whole, giving due consideration to
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the weight of Appellant’s arguments in the Substitute Brief. See generally,
In re Oetiker, 977 F.2d 1443, 1445, 24 U.S.P.Q.2d 1443, 1444 (Fed. Cir.
1992); In re Piasecki, 745 F.2d 1468, 1472, 223 U.S.P.Q. 785, 788 (Fed.
Cir. 1984).
We agree with the Examiner’s findings of fact from the references and
conclusions of law based on this substantial evidence as set forth in the
Answer, to which we add the following for emphasis.
The principal issues in this appeal involve whether the combination of
Jackson and Stern and of Seitz, Jackson and Stern would have taught to one
of ordinary skill in this art the claim limitations “a porous board or fibrous
material having a non-tacky surface coating of less than 10 mil thickness of .
. . coal tar pitch . . . wherein at least about 10% of the pitch penetrates into
the porous board or fibrous material.” There is no dispute that the claimed
coal tar pitch of Jackson falls within the “coal tar pitch” as claimed.
Accordingly, since there is no issue in this respect, we need not discuss the
Examiner’s reliance on Rajalingam, Lamport, Rothbühr and Wombles.
We determine that the plain language of claim 1 specifies an article
having any manner of “a porous board or fibrous material” which has a
“non-tacky surface coating” in the range having an upper limit of “less than
10 mil thickness” of any amount of any manner of coal tar pitch having the
properties specified in the claim, wherein an amount of the pitch in the range
having a lower limit of at least 10% of the applied pitch penetrates to any
extent into the porous board or fibrous material.
We find that Jackson would have disclosed to one of ordinary skill in
this art thermal insulating material comprising “a foamed polymeric
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material, foamed glass, foamed concrete, cellulose fibres, cork or a
dispersion of expanded mineral particles in an organic matrix . . . in sheet . . .
form . . . coated on all faces with a substantially water-impervious
bituminous coating” which can be of, among others, “coal tar pitch,” which
is desirably “substantially non-tacky when dry” (Jackson 1:21-27 and 2:11-
13; see also 1:28 to 2:1). Jackson would have taught this person that the
bituminous coating can be applied by dipping the sheet into a “hot melt”
thereof as well as by spraying or brushing so as to apply the coating to all
edges of the insulating material, and that “it had been found [experimentally]
that a bituminous thickness of at least 5 thousandths of an inch is desirable
to ensure the desired impermeability to water vapour” (id. 2-7). We find that
“5 thousandths of an inch” is 5 mil.
We find that one of ordinary skill in this art routinely following the
teachings of Jackson would have reasonably recognized that “coal tar pitch”
can be used according to the disclosed application methods and applied after
heating to a porous sheet which can be of fibrous material in a manner that
would form a substantially water-impervious sheet. 2 This person would
have reasonably inferred from these teachings that the coal tar pitch must
penetrate the pores of the sheet in order to provide the desired
impermeability and that penetration into the surface of the sheet is necessary

2 It is well settled that, as a matter of fact, a reference stands for all of the
specific teachings thereof as well as the inferences one of ordinary skill in
this art would have reasonably been expected to draw therefrom, see In re
Fritch, 972 F.2d 1260, 1264-65, 23 U.S.P.Q.2d 1780, 1782-83 (Fed. Cir.
1992); In re Preda, 401 F.2d 825, 826, 159 U.S.P.Q. 342, 344 (CCPA
1968), presuming skill on the part of this person. In re Sovish, 769 F.2d 738,
743, 226 U.S.P.Q. 771, 774 (Fed. Cir. 1985).
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to adhere the applied coal tar to the sheet after it has cooled. Indeed, we are
of the view that penetration into a porous sheet by hot bituminous material
would have been readily observed by one of ordinary skill in this art
following the teachings of Jackson. In this respect, we find that Stern further
evinces that this person would have recognized that bituminous materials
can penetrate into porous foam insulation (Stern col. 5, ll. 24-29). Thus, this
person would have further applied the coal tar in an amount which would
result in a coating thickness of about 5 mil on top of the sheet, taught to be
desirable, as well as provide for penetration as taught by Jackson. We find
that Seitz further evinces that this person would have recognized that roof
sections 18 can comprise insulating materials including, among others,
corrugated cardboard in forming roof portion 14 to which weather resistant
material can be applied (Seitz col. 2, ll. 7-13 and 58-63, col. 3, ll. 25-28, and
FIG. 1).
Accordingly, on this record, the claimed coal tar pitch coated article
encompassed by appealed claim 1 appears to be identical or substantially
identical to the insulating material article coated with coal tar pitch to
provide water impermeability taught by Jackson, thus shifting the burden to
Appellants to submit effective argument and/or evidence which patentably
distinguishes the claimed article over Jackson, even though the ground of
rejection is under § 103(a). See, e.g., In re Best, 562 F.2d 1252, 1255-56,
195 U.S.P.Q. 430, 433-34 (CCPA 1977) ( “Where, as here, the claimed and
prior art products are identical or substantially identical, or are produced by
identical or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily or inherently
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possess the characteristics of his claimed product. See In re Ludtke,
[441 F.2d 660, 169 U.S.P.Q. 563 (CCPA 1971)]. Whether the rejection is
based on ‘inherency’ under 35 U.S.C. §102, on ‘prima facie obviousness’
under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the
same, and its fairness is evidenced by the PTO’s inability to manufacture
products or to obtain and compare prior art products. [Footnote and citation
omitted.]”); In re Skoner, 517 F.2d 947, 950-51, 186 U.S.P.Q. 80, 82-83
(CCPA 1975) (“Appellants have chosen to describe their invention in terms
of certain physical characteristics . . . . Merely choosing to describe their
invention in this manner does not render patentable their method which is
clearly obvious in view of [the reference]. [Citation omitted.]”); cf. In re
Spada, 911 F.2d 705, 708-09, 15 U.S.P.Q.2d 1655, 1657-58 (Fed. Cir. 1990)
(“The Board held that the compositions claimed by Spada ‘appear to be
identical’ to those described by Smith. While Spada criticizes the usage of
the word ‘appear’, we think that it was reasonable for the PTO to infer that
the polymerization by both Smith and Spada of identical monomers,
employing the same or similar polymerization techniques, would produce
polymers having the identical composition.”).
We are of the opinion that Appellants have not carried their burden.
In view of the teachings and inferences that one of ordinary skill in this art
would have reasonably found in Jackson, we disagree with Appellants’
position that Jackson would not have taught penetration of the coal tar pitch
coating into the surface of a porous substrate as claimed (Substitute Br. 4, 5,
7, and 8). Indeed, to the contrary, the mere fact that Jackson is silent with
respect to penetration does not patentably distinguish the claimed article
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encompassed by claim 1 over the teachings of the reference, because as we
have found, it is clear from the teachings of the reference that penetration
would necessarily inherently occur and would have been so recognized from
the teachings of the reference by one of ordinary skill in the art. Stern
provides further evidence in this respect. See Skoner, 517 F.2d at 950-51,
186 U.S.P.Q. at 82-83. Thus, not only would Jackson have taught forming a
coating of coal tar pitch of about 5 mil on top of the porous substrate but
also applying sufficient coal tar pitch to penetrate the porous substrate,
which combined would reasonably appear to fall within the ranges specified
in claim 1 as we interpreted this claim above.
We cannot agree with several points raised by the dissent with respect
to the Examiner’s position (see below p. 15). First, the Examiner has in fact
identified the bituminous composition “coal tar pitch” in Jackson and
established that one of ordinary skill in this art would have reasonably
expected this material to have the properties falling within those specified in
appealed claim 1 for “coal tar pitch” (Answer 3-4). We pointed out that
Appellants do not dispute the Examiner’s findings (see above p. 4). Second,
with respect to the claim limitation that “at least about 10% of the [coal tar]
pitch penetrates into the porous board or fibrous material,” we found that
one of ordinary skill in this art would have recognized that the application of
the hot coal tar pitch to a foamed sheet to form the desired impervious
coating following the teachings of Jackson must result in the coal tar
penetrating the porous foam surface of the sheet (see above pp. 5-6). As the
Examiner points out (Answer 3-4), Stern evinces that bituminous material
penetrates into the pores of foam insulation(see above p.6), and we agree
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with the Examiner that one of ordinary skill in the art would have found it
obvious to determine the amount of penetration into the porous substrate that
optimizes the bonding between the coal tar pitch and the porous substrate.
As noted by the Examiner, Rajalingam teaches that such material has a high
penetration value for porous substrates, which is a different property than the
ASTM International penetration value referred to by the dissent.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of obviousness found in the
combined teachings of Jackson, Stern, Rajalingam, Lamport, Rothbühr and
Wombles and of Seitz, Jackson, Stern, Rajalingam, Lamport, Rothbühr and
Wombles with Appellants’ countervailing evidence of and argument for
nonobviousness and conclude that the claimed invention encompassed by
appealed claims 1 through 5 and 22 would have been obvious as a matter of
law under 35 U.S.C. § 103(a).
The Examiner’s decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv) (2005).
AFFIRMED
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Gaudette, Administrative Patent Judge, dissenting

I respectfully dissent from the majority decision affirming the
rejections of claims 1-5 and 22. In my view, the Examiner’s findings are
based on impermissible hindsight reconstruction and unsupported by the
evidence of record. Therefore, I would reverse as to all three grounds of
rejection for the reasons discussed below.
The invention relates to a porous board or fibrous material having a
non-tacky surface coating of a petroleum or coal tar pitch. The invention is
used in building applications, such as roofing materials. According to the
Specification, prior art roofing materials are typically manufactured by
applying a glue or an adhesive to a fibrous material and attaching a roll felt
material (Specification 1). A drawback of this prior art coating method is
the excess penetration of glue or adhesive into the board (Spec 1). One
method of reducing penetration of adhesive is to apply a small amount of
asphalt, usually diluted with solvent, to allow a limited amount of asphalt
sealer to soak into the board (Specification 1-2). According to the
Specification, this approach is undesirable because evaporation of the
solvent creates volatile organic compounds which contribute to air pollution
(Specification 2). Moreover, a coating which is heavy enough to provide
effective waterproofing requires a long drying time and tends to create an
undesirable sticky surface on top of the board (Specification 2). According
to the inventors, they have:
discovered that it was possible, using a glassy substance, to
provide a superb waterproofing coating which could be nailed
without shattering and which required much less, or even no,
solvent . . . [and] that pitch, preferably petroleum pitch with a
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softening point above that of boiling water, could be applied
and dried in less than a second, especially when the preferred
roller coating technique of pitch application was used.
Specification 3, ll. 7-11.
Independent claim 1 includes the limitations that the “pitch is a
brittle, glassy non-asphaltic solid at ambient temperature.” The
Specification states that “[a] suitable material will, if heated and poured onto
a surface in the form of a thin layer a few mm thick, form a brittle glassy
solid which can be shattered if hit” (Specification 3, ll. 29-30). Although
the pitch is described as brittle, the specification states that when applied
under certain conditions, the resultant coating “becomes an integral part of
the board and will not break excessively when hit with a hammer”
(Specification 8, ll. 32-33). Thus, claim 1 further requires that the pitch is
applied at conditions which ensure a sufficiently thin coating and penetration
of coating into the porous surface to prevent shattering of the coating when
screws, nails, and the like are driven into the board. Claim 1 recites, in
particular, that “at least about 10% of the pitch penetrates into the porous
board.” The Specification states that one suitable method of applying the
coating involves first heating the board such that the top of the board is
heated but the inner portions are relatively cool (Specification 9). According
to the Specification, the superficial heating allows some of the pitch to
penetrate into the board until it encounters cooler substrate where it will then
thicken (Specification 9).
According to Appellants, the Examiner has failed to establish a
prima facie case of obviousness because the applied prior art does not teach
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or suggest a surface of coating of less than 10 mil thickness and at least 10%
penetration of the pitch into the porous board or fibrous material. See In re
Kahn, 441 F.3d 977, 985-86, 78 U.S.P.Q. 1329, 1335 (Fed. Cir. 2006) (an
appellant may overcome a rejection by showing insufficient evidence of
prima facie obviousness); In re Piasecki, 745 F.2d 1468, 1472, 223 U.S.P.Q.
785, 788, (Fed. Cir. 1984) (noting that the prima facie case requires that the
examiner initially produce evidence sufficient to support a ruling of
obviousness and only then does the burden shift to the applicant). The
Examiner concedes that Jackson does not specify the amount of penetration
into his substrate (Answer 3), but maintains that coal tar pitch inherently
meets the claim limitation of “at least a portion of said pitch penetrates into
said porous board or fibrous material” because it is known in the art to have
a relatively “high penetration value” when applied to most porous substrates
(Answer 4 & 6 (citing Rajalingam, col. 1, ll. 35-48) & 10).3 The Examiner
also takes the position that it would have been obvious to one of ordinary
skill in the art at the time the invention was made to optimize the amount of
coal tar pitch that penetrates into the substrate in order to optimize the bond
between Jackson’s coating and the substrate (Answer 3-4 & 6). The
Examiner bases this conclusion on his finding that Stern teaches that “the

3 The referenced portion of Rajalingam states:
Due to the low cost of bituminous material, its relatively high
penetration value when applied to most porous surfaces,
weather-resistant nature, and impermeability to water,
bituminous material has traditionally been used as a main
component of protective films, adhesive binders in asphalt
emulsions (M. Lalanne and J. Serfass, U.S. Pat. No. 4,724,245),
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Application 10/109,343
bond between a porous substrate and bituminous coating increases as the
penetration of the asphalt into the substrate increases” (Answer 3 & 5-6).
To establish unpatentability under 35 U.S.C. § 103, the Examiner
must provide a prima facie showing that the differences between the claimed
invention and the prior art are such that the subject matter as a whole would
have been obvious at the time the invention was made to a person having
ordinary skill in the pertinent art. Cf. Princeton Biochemicals, Inc. v.
Beckman Coulter, Inc., 411 F.3d 1332, 1337, 75 U.S.P.Q.2d 1051, 1054
(Fed.Cir.2005) (The relevant inquiry is whether “an artisan of ordinary skill
in the art at the time of the invention, confronted by the same problems as
the inventor and with no knowledge of the claimed invention, would have
selected the various elements from the prior art and combined them in the
claimed manner”). Because most things, once described, explained, and
understood, appear to be "obvious," our reviewing court requires that a
prima facie case of obviousness include evidence showing that the prior art
disclosed a motivation, teaching, or suggestion — a reason to do or make —
what an applicant now claims. See Alza Corp. v. Mylan Laboratories, Inc.,
No. 06-1019, --- F.3d ----, 2006 WL 2556356 at *3 (Fed. Cir. Sept. 6, 2006)
(“At its core, our anti-hindsight jurisprudence is a test that rests on the
unremarkable premise that legal determinations of obviousness, as with such
determinations generally, should be based on evidence rather than on mere
speculation or conjecture.”). See In re Kotzab, 217 F.3d 1365, 1371, 55
U.S.P.Q.2d 1313, 1317 (Fed.Cir.2000) (“particular findings must be made as

in blends used for paving and roofing, joint sealants, paints, and
other end uses.
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Application 10/109,343
to the reason the skilled artisan, with no knowledge of the claimed invention,
would have selected these components for combination in the manner
claimed”).
In my view the Examiner has failed to explain the motivation,
suggestion or teaching in the applied prior art that would have led one of
ordinary skill in the art to use a pitch that is a brittle, glassy, non-asphaltic
solid at ambient temperature and apply it to a porous board or fibrous
material under conditions that result in a non-tacky coating which penetrates
into the board such that the coating will not shatter when fastening means
are driven into the board. The Examiner found that the coal tar pitch of
Jackson meets the recited claim limitations because the prior art shows that
coal tar pitch is known to have the following features:
1. brittle (Lamport, col. 1, ll. 67+)
2. glassy (Rothbuhr, col. 9, ll. 39 & 40)
3. relatively high penetration value when applied to most porous
substrates (Rajalingam, col. 1, ll. 35-48), and
4. softening point of 109.4°C (230°F), a density of 1.336g/cc, and an
ash content of 0.17wt% (Wombles, Table 11, 4).
Answer 4 & 6-7.
Notably, the Examiner must rely on several references because the features
of coal tar pitch vary. Indeed, Jackson indicates that bituminous
compositions having a permanently tacky surface on drying are suitable for
use in the invention (See, e.g., Jackson, p. 2, ll. 33-37). According to
Jackson, such compositions may be formulated “by including in the
composition bitumens having a low penetration value” (Jackson, p. 2,
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Application 10/109,343
ll. 41-42). The Examiner fails to identify any teaching in Jackson or offer
any explanation to establish that one of ordinary skill in the art would have
selected a bituminous composition having all of the claimed features.
Likewise, the Examiner fails to provide a convincing explanation as to why
one of ordinary skill in the art would have been motivated to apply the
bituminous coating in a manner which achieved at least 10% penetration into
the board.4 The Examiner does not provide an evidentiary basis to support
his finding that the term “penetration value,” when used in the context of
coal tar pitch, provides a measure of the amount of penetration of the coating
into the substrate.5 See In re Ahlert, 424 F.2d 1088, 1091,

4 The phrase “penetration into the substrate” as used in the present
claims defines the portion of pitch which actually soaks into the wood or
porous material and binds with it. See Specification 8, ll. 40-41 (“The most
significant constraint is applying the coating in such a way that a significant
portion of the pitch actually soaks into the wood or other porous material
and binds with it.”). “The person of ordinary skill in the art is deemed to
read the claim term not only in the context of the particular claim in which
the disputed term appears, but in the context of the entire patent, including
the specification.” See Phillips v. AWH Corp., 415 F.3d 1303, 1313,
75 U.S.P.Q.2d 1321, 1326 (Fed. Cir. 2005) (en banc), cert. denied,
126 S.Ct. 1332 (2006).

5 The term “penetration value” appears to refer to a measure of the
depth of penetration of a needle into an asphalt sample. See, e.g., ASTM D
5, “Standard Test Method for Penetration of Bituminous Materials” ASTM
International, June 1, 2006. See Jackson, p. 2, ll. 41-42 (“Bituminous
compositions can be formulated so as to retain a permanently tacky surface
on drying by including in the composition bitumens having a low
penetration value.”).

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165 U.S.P.Q. 418, 420-21 (CCPA 1970) (“[A]ssertions of technical facts in
areas of esoteric technology must always be supported by citation of some
reference work” and “allegations concerning specific ‘knowledge’ of the
prior art, which might be peculiar to a particular art should also be
supported.”). With respect to Stern, I find that one of ordinary skill in the art
would more likely conclude that little, if any coating penetrates into the
board given Stern’s teaching that the formation of post perforations is
required to allow the coating to penetrate the corrugated paper. Moreover,
Stern uses “asphalt and/or other roofing adhesive” (col. 5, ll. 24-25) and
does not disclose or suggest the use of a particular bituminous composition.
In sum, while the examiner has identified various claim elements in
the prior art, he fails to provide the requisite evidence to support his reasons
for combining those elements to achieve the invention as a whole. In re
Kahn, 441 F.3d at 986, 78 U.S.P.Q. at 1335 (Fed. Cir. 2006) (citations
omitted) (“Most inventions arise from a combination of old elements and
each element may often be found in the prior art. . . . [M]ere identification
in the prior art of each element is insufficient to defeat the patentability of
the combined subject matter as a whole.”). When the Examiner does not
explain the motivation, or the suggestion or teaching, that would have led
the skilled artisan at the time of the invention to the claimed combination as
a whole, there is an inference that the Examiner relied on hindsight to
conclude that the invention was obvious. See In re Lee, 277 F.3d 1338,
1343, 61 U.S.P.Q.2d 1430, 1433 (Fed. Cir. 2002). Therefore, I would
reverse the rejections.

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clj

Emch, Schaffer, Schaub & Porcello Co.
P.O. Box 916
One Seagate Suite 1980
Toledo, OH 43967

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