Ex Parte Bryant

Patent Trial and Appeal Board

Jul 29, 2013

11640340 (P.T.A.B. Jul. 29, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte MICHAEL J. BRYANT
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Appeal 2011-004239
Application 11/640,340
Technology Center 3700
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Before JOHN C. KERINS, SCOTT A. DANIELS and
JEREMY M. PLENZLER, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

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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);
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(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
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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
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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.
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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.
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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

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