Ex Parte Broadway

Board of Patent Appeals and Interferences

Mar 29, 2011

10173937 (B.P.A.I. Mar. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
10/173,937 06/18/2002 Johnnie B. Broadway III BJH-100-A 7659
7590 03/29/2011
Johnnie B. Broadway III
1268 Sherman St.
Tulare, CA 93274
EXAMINER
HARTMANN, GARY S
ART UNIT PAPER NUMBER
3671
MAIL DATE DELIVERY MODE
03/29/2011 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte JOHNNIE B. BROADWAY III
____________________

Appeal 2009-009335
Application 10/173,937
Technology Center 3600
____________________

Before: WILLIAM F. PATE III, JENNIFER D. BAHR, and
KEN B. BARRETT, Administrative Patent Judges.

PATE III, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2009-009335
Application 10/173,937
2
STATEMENT OF CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 1-
4. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

The claims are directed to an asphalt repair method. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method for patching an opening in a road which
comprises:
a. removing any debris from the opening;
b. placing a quantity of a liquid adhesive consisting
essentially of an oil-based adhesive in the opening and on the
area of the road surrounding the opening;
c. depositing a quantity of asphalt in the opening and on
the adhesive on the area of the road about the periphery of the
opening to create a mound;
d. packing the asphalt down into the hole and onto the
peripheral area;
e. applying a quantity of uncoated sand over the packed-
down asphalt mound;
f. packing the sand down into the packed asphalt; and
g. thereafter removing any excess sand, and wherein the
method is carried out at ambient conditions.

REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Thatcher
Bickley
US 4,302,128
US 5,263,790
Nov. 24, 1981
Nov. 23, 1993

REJECTIONS
Claims 1-4 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bickley and Thatcher. Ans. 3.
Appeal 2009-009335
Application 10/173,937
3
OPINION
We have carefully reviewed the rejection on appeal in light of the
arguments of the Appellant and the Examiner. As a result of this review, we
have reached the determination that the applied prior art does not establish
the prima facie obviousness of the claims on appeal. Therefore the rejection
of the claims on appeal is reversed. Our reasons follow.
Turning first to the issue of claim construction, we note that Appellant
and the prior art use the term “asphalt” in different manners. With respect to
Appellant, Appellant uses the term “asphalt” as the mixture of aggregate and
bitumen that the roadway is constructed of and the patch material is
manufactured from. We know that this is the case because Appellant refers
to “pores” in the asphalt which the sand is packed into. Furthermore
Appellant refers to the road surface as constructed of asphalt in claim 2 and
concrete in claim 3. On the other hand, Bickley is using the term “asphalt”
as the bitumen binder that binds the aggregate together to make the asphaltic
concrete used to patch the roadway.
We are in agreement with the Examiner that Bickley shows removing
debris from the opening or pothole, placing a quantity of adhesive composed
of the asphalt/bitumen binder in the opening, disposing a quantity of
“asphalt” (asphalt binder mixed with aggregate) in the opening and packing
the asphalt down into the hole. Ans. 3. We agree with the Examiner that the
high pressure air used to emplace the mixture into the hole can be considered
as packing the material into the pothole. Ans. 6. We further agree with the
Examiner that it would have been obvious to seal the pothole with a liquid
sealer and place sand into the sealing layer as disclosed by Thatcher. Id.
However, we are not in agreement with the Examiner that Thatcher
discloses packing the sand down into the packed asphalt, nor does Thatcher
Appeal 2009-009335
Application 10/173,937
4
disclose removing any excess sand. See Ans. 6. While we agree that
packing, compressing, or tamping is generally known in the road
construction art, we do not believe that Thatcher teaches this packing step.
Furthermore it is quite apparent that Thatcher desires the sand to be on the
top level of the roadway for its anti-skid properties. See Thatcher, col. 1, ll.
27-38. To pack the sand down into pores of the patch is inimical to the
desired placement of the sand in Thatcher. Finally, we disagree with the
Examiner that vehicles moving over the surface can be considered as
satisfying the method step of removing the excess sand as the independent
claim of Appellant requires.
Accordingly, for these two reasons, it is our conclusion that the
Examiner has not established the prima facie obviousness of the claims on
appeal.

DECISION
For the above reasons, the Examiner’s rejection of claims 1-4 is
reversed.

REVERSED

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