Ex Parte BryantDownload PDFPatent Trial and Appeal BoardJul 29, 201311640340 (P.T.A.B. Jul. 29, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MICHAEL J. BRYANT ____________ Appeal 2011-004239 Application 11/640,340 Technology Center 3700 ____________ Before JOHN C. KERINS, SCOTT A. DANIELS and JEREMY M. PLENZLER, Administrative Patent Judges. KERINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-004239 Application 11/640,340 2 STATEMENT OF THE CASE Michael J. Bryant (Appellant) seeks our review under 35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1-13. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM-IN-PART. THE INVENTION Appellant’s invention is directed to a free venting pipe. Independent claim 1, reproduced below, is representative of the claimed subject matter: 1. A free venting pipe comprising: a permeable tubular core member; a permeable hoop reinforcement layer outside of said core member; a membrane layer outside of said hoop reinforcement layer wherein said membrane layer is substantially non-permeable to oil or gas; and a permeable tensile reinforcement layer outside of said membrane layer whereby a free volume annulus does not exist between any of the layers of the free venting pipe. THE REJECTIONS Appellant appeals from the following rejections: (i) claims 1, 11 and 13 under 35 U.S.C. § 102(b) as being anticipated by Dupoiron (US 2006/0130924 A1, published Jun. 22, 2006); (ii) claims 2 and 12 under 35 U.S.C. § 103(a) as being unpatentable over Dupoiron in view of Cheetham (US 4,402,346, issued Sep. 6, 1983); Appeal 2011-004239 Application 11/640,340 3 (iii) claims 1, 2, 9 and 10 under 35 U.S.C. § 103(a) as being unpatentable over Cheetham in view of Kalman (US 6,446,672 B1, issued Sep. 10, 2002); (iv) claims 1 and 3-5 under 35 U.S.C. § 103(a) as being unpatentable over Bryant (US 2003/0026928 A1, published Feb. 6, 2003) in view of Cheetham and Kalman; and (v) claims 6-8 under 35 U.S.C. § 103(a) as being unpatentable over Bryant in view of Cheetham, Kalman and Dupoiron. ANALYSIS Claims 1, 11 and 13--Anticipation--Dupoiron The Examiner found that Dupoiron discloses each limitation in claims 1, 11 and 13. Ans. 3-4. Appellant first argues that Dupoiron does not anticipate the claims, in that Dupoiron includes an external sealing sheath or layer 6, which “necessarily creates an annulus region” between that layer and an internal sealing pressure sheath 3. Appeal Br. 8. This, according to Appellant, is contrary to the claim limitation setting forth that “a free volume annulus does not exist between any of the layers of the free venting pipe.” Id.; Claims Appendix. The Examiner points out that the claims employ the open-ended transitory term “comprising”, and thus do not exclude additional layers such as the external sheath 6 in the Dupoiron pipe. Ans. 8. Further, the Examiner notes that the Specification describes annulus regions as spaces between the inner core and other layers, and that Dupoiron shows no gaps between layers. Id.; see Spec., p. 3, ll. 4-6. To the extent that Appellant is arguing that an annulus might, once the Dupoiron pipe is placed in use, form an annulus between sheaths 3 and 6, the argument is not commensurate in Appeal 2011-004239 Application 11/640,340 4 scope with the claim as written. We are thus not apprised of Examiner error on this front. Appellant additionally argues that Dupoiron fails to anticipate a tubular core, in that the element in Dupoiron that is analogous to the claimed core is a carcass 2, and not the antiturbulence sheath 30 cited by the Examiner. Appeal Br. 8-9. Appellant presents no evidence in support of this argument, in terms of what a person of ordinary skill in the art would understand in this regard. The Examiner responds that the antiturbulence sheath is the innermost layer of the tube structure, and is thus properly regarded as being the core of the tube. Ans. 9-10. The Examiner further notes that the fact that sheath 30 performs the function of reducing turbulence does not disqualify the sheath from being regarded as a core of the pipe. Ans. 9. Given that the claims in no way structurally distinguish over the antiturbulence sheath 30 in Dupoiron, we find that the Examiner has the better position here. The rejection of claims 1, 11 and 13 as being anticipated by Dupoiron is sustained. Claims 2 and 12--Obviousness--Dupoiron/Cheetham Appellant presents no separate arguments directed to this ground of rejection, apparently relying solely on the arguments presented for claims 1 and 11, from which these claims depend. The rejection is sustained for the reasons set forth above. Claims 1, 2, 9 and 10--Obviousness--Cheetham/Kalman The Examiner takes the position that Cheetham discloses all of the structure recited in these claims, with the exception of forming the interior core member so as to be permeable by providing holes therein. Ans. 4. In Appeal 2011-004239 Application 11/640,340 5 this rejection, the Examiner does not identify which elements in Cheetham are responsive to each of the recited claim elements. We note, however, in the rejection of claims 2 and 12 as being unpatentable over Dupoiron and Cheetham, the Examiner finds element 10 of Cheetham to be responsive to the claimed hoop reinforcement layer and element 12 of Cheetham to be responsive to the claimed substantially non-permeable membrane layer. Id. These findings call into question what element in Cheetham the Examiner regards as being responsive to the claimed permeable tubular core member. In any event, the Examiner then relies on Kalman for the proposition that “it is old and well known in the art to form the interior layer of a venting pipe with a permeable polymeric layer provided with holes or without.” Ans. 4-5. The Examiner thus concludes that it would have been obvious to make “the interior polymeric layer of Cheetham permeable by providing holes therein as suggested by Kalman.” Ans. 5. Appellant maintains that Kalman does not teach that it is well known to intentionally use a permeable inner core or a perforated inner core. Appeal Br. 11. We, too, fail to see where Kalman suggests making an inner layer permeable by providing holes therein.1 It is apparent from considering the Kalman reference as a whole that Kalman is not purposely providing a 1 Although the Examiner does not specify where such a disclosure exists in Kalman, it is possible that the mention of “limiting the moisture that permeates from the bores of the layer 12” was relied on as disclosing a core layer with holes therein. See Kalman, col. 1, ll. 40-44. In the context of the earlier mention of the inner layer 12 being an extruded plastic sheath “for conveying fluid through its bore”, it appears that the use of the term “bores” was erroneously used in place of “bore”, and that Kalman there was not contemplating providing bores extending through the thickness of the core layer. Appeal 2011-004239 Application 11/640,340 6 permeable inner core, but is providing structure to allow for venting of gases in the event that they do permeate the core layer. See, e.g., Kalman, col. 2, ll. 5-11. Cheetham, too, is constructed to provide a path for gases that inevitably permeate its core layer. Neither reference presents a construction in which permeation of gases though the core layer is desired, rather the constructions are intended to handle any inevitable permeation. The Examiner’s stated reason to combine Cheetham and Kalman thus lacks rational underpinnings. The rejection of claims 1, 2, 9 and 10 is not sustained. Claims 1 and 3-5--Obviousness--Bryant/Cheetham/Kalman The Examiner again, in this rejection, proposes to modify the Bryant structure to make the inner core permeable “by providing holes therein as suggested by Kalman.” Ans. 5. For the reasons discussed in the preceding section, the rejection lacks rational underpinnings, and is not sustained. Claims 6-8--Obviousness--Bryant/Cheetham/Kalman/Dupoiron This rejection also is based on the same erroneous findings and underpinnings as the preceding rejection. The rejection is not sustained. DECISION The decision of the Examiner to reject claims 1, 11 and 13 under 35 U.S.C. § 102(b) as anticipated by Dupoiron is AFFIRMED. The decision of the Examiner to reject claims 2 and 12 under 35 U.S.C. § 103(a) as being unpatentable over Dupoiron and Cheetham is AFFIRMED. The decision of the Examiner to reject claims 1, 2, 9 and 10 as being unpatentable over Cheetham and Kalman is REVERSED. Appeal 2011-004239 Application 11/640,340 7 The decision of the Examiner to reject claims 1 and 3-5 as being unpatentable over Bryant, Cheetham and Kalman is REVERSED. The decision of the Examiner to reject claims 6-8 as being unpatentable over Bryant, Cheetham, Kalman and Dupoiron is REVERSED. 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). AFFIRMED-IN-PART mls Copy with citationCopy as parenthetical citation