Ex Parte Budd et alDownload PDFPatent Trial and Appeal BoardJan 31, 201813383884 (P.T.A.B. Jan. 31, 2018) Copy Citation 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. 13/383,884 02/01/2012 Michael L. Budd SR. 1137-013 8681 34060 7590 MICHAEL N. HAYNES 1341 HUNTERSFIELD CLOSE KESWICK, VA 22947 EXAMINER HARTMANN, GARY S ART UNIT PAPER NUMBER 3671 NOTIFICATION DATE DELIVERY MODE 02/02/2018 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): PAIR @ MichaelHaynes. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHAEL L. BUDD, SR. and ROY D. SIMMONS, JR. Appeal 2017-000836 Application 13/383,884 Technology Center 3600 Before LYNNE H. BROWNE, LISA M. GUIJT, and PAUL J. KORNICZKY, Administrative Patent Judges. KORNICZKY, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-000836 Application 13/383,884 STATEMENT OF THE CASE Appellants Michael L. Budd, Sr. and Roy D. Simmons, Jr.1 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision, as set forth in the Final Office Action dated September 22, 2015 (“Final Act.”), rejecting claims 1—18 and 20-27 under 35 U.S.C. § 103(a) as being unpatentable over Simmons (US 5,975,793, issued November 2, 1999), Wasserstrom (US 5,988,934, issued November 23, 1999), and McKay (US 2004/0076468 Al; published April 22, 2004).2 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. THE CLAIMED SUBJECT MATTER The claims are directed to a traffic separating median barrier. Claim 1, the only independent claim on appeal, is reproduced below with disputed limitations italicized for emphasis: 1. A traffic separating median barrier comprising: a barrier body comprised of an elongated concrete material, said barrier body defined by a substantially uniform cross section along a longitudinally extending direction, said barrier body defining a body length extending along said longitudinally extending direction, a body width orthogonal to said body length, and a body height orthogonal to said body length and said body width, said barrier body terminating in a first barrier end region and a second barrier end region, said first barrier end region comprising a female interlocking structure attached to said barrier body, said second barrier end region comprising a male interlocking structure attached to said barrier 1 Appellants identify Conmat Group, Inc. as the real party in interest. Appeal Brief, dated December 9, 2015 (“Appeal Br.”), at 1. 2 Appellants cancelled claim 28. Appeal Br. 11. 2 Appeal 2017-000836 Application 13/383,884 body, said female interlocking structure configured to interlock with said male interlocking structure; said female interlocking structure comprising a substantially open-ended tube having a longitudinal axis extending substantially parallel to said body height, said tube defining a slot having a slot width substantially parallel to said body width and having a slot height substantially parallel to said body height; and said male interlocking structure comprising a web having a web thickness extending substantially parallel to said slot width and measuring less than said slot width, said web extending from said barrier end in a direction substantially parallel to said body length and attached to a flange having a longitudinal axis extending substantially parallel to a longitudinal axis of said web and a major surface extending substantially perpendicular to a major surface of said web, said flange having a flange width greater than said slot width; wherein: for any substantially identical pair of said barriers, a longitudinal axis of a barrier body of a first barrier from said pair is configured to be angled horizontally by at least 6 degrees to approximately 15 degrees, or vertically by at least 3 degrees to approximately 4 degrees, with respect to a longitudinal axis of a barrier body of a second adjacent barrier from said pair when a male interlocking structure of said first barrier is interlocked with a female interlocking structure of said second barrier when a web of said first barrier extends through a slot of said second barrier and a flange of said first barrier is located within a tube of said second barrier; said barrier is configured to satisfy all crashworthiness requirements of the American Association of State Highway and Transportation Officials (AASHTO) Manual for Assessing Safety Hardware (MASH) Test Level-3 (TL-3’); 3 Appeal 2017-000836 Application 13/383,884 a length of said male interlocking structure, measured parallel to said body height, is less than 50 percent of said body height', and in an operative arrangement, a top of said female interlocking structure is positioned below a top of said barrier body. DISCUSSION The Rejection of Claims 1—18 and 20—27 as Unpatentable Over Simmons, Wasserstrom, and McKay Appellants argue claims 1—18 and 20—27 as a group. Appeal Br. 11. We select independent claim 1 as the representative claim, and claims 2—18 and 20-27 stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The Examiner finds that Simmons discloses the limitations in claim 1, except for four limitations reciting: (1) a pair of barriers “configured to be angled horizontally by at least 6 degrees to approximately 15 degrees,” (2) each “barrier is configured to satisfy all crashworthiness requirements of the American Association of State Highway and Transportation Officials (AASHTO) Manual for Assessing Safety Hardware (MASH) Test Level-3 (TL-3),” (3) “a length of said male interlocking structure ... is less than 50 percent of said body height,” and (4) “a top of said female interlocking structure is positioned below a top of said barrier body.” Final Act. 2—3; Ans. 4—12. The Examiner’s findings and Appellants’ arguments regarding these four limitations are addressed below. 4 Appeal 2017-000836 Application 13/383,884 The Angled Barrier Limitation Claim 1 recites, in part, a pair of barriers “configured to be angled horizontally by at least 6 degrees to approximately 15 degrees.” The Examiner finds that Simmons discloses that it “is common knowledge that roads are not always completely straight and completely flat and barriers must be capable of accommodating such roadways.” Answer, dated July 28, 2016 (“Ans.”), at 4 (citing Simmons 4:52 — 5:3). Simmons states As shown [in Fig. 5], in a preferred embodiment, there is a gap of 1 inch separation when the barriers are pulled as far apart as possible while in the interconnected state. This permits one barrier to be canted slighted with respect to another so as to permit a curve in a line of barriers without disengaging the interlocking portions of the barriers. Furthermore, the barriers continue to form a structural interconnection between adjacent barriers when forming a curve or other complex pattern along the roadway. This spacing also permits barriers to be interengaged when there is a vertical displacement, i.e., the line of barriers begins to go up or over a hill. Simmons 4:52—5:3 (emphasis added). Based on this disclosure, the Examiner finds that Simmons broadly discloses that the barriers may be angled horizontally relative to each other but does not disclose the specific angles (i.e., at least 6 degrees to approximately 15 degrees) recited in claim 1. Ans. 4—5; Final Act. 2—3. The Examiner finds that Wasserstrom also discloses that the barriers may angled horizontally relative to each other to permit “barriers to be used on roads having curves and undulations, the same type of roads that Simmons state the barrier is to be used upon.” Ans. 5; see id. at 4 (citing Wasserstrom 5:56—6:5). Wasserstrom states both sides of the right end wall 20 also taper inwardly with respect to an imaginary tangent line (not shown) at an angle of 5 Appeal 2017-000836 Application 13/383,884 between about 5—10 degrees. This inwardly tapered configuration of both sides of the left and right end walls 22 and 20 facilitate the ability of a completed barrier system 56, which comprises a plurality of road barriers 10, to extend around curves. Thus, when a plurality of road barriers 10 are arranged in end-to-end configuration, corresponding adjacent end walls are designed so that the connected road barriers 10 can form a straight line, or alternatively can be used to form a larger curved barrier. If for example, the inwardly tapered left and right end walls are arranged at a 7.5 degree angle with respect to a horizontal tangent line T, two connected road barriers 10 can effectively be arranged to form at an angle of up to 15 degrees. Wasserstrom 5:57—6:5 (emphasis added). Thus, the Examiner correctly finds that Wasserstrom discloses that barriers, such as those disclosed in Simmons, may be positioned at the exact angles (i.e., at least 6 degrees to approximately 15 degrees) to form curved barriers, as recited in claim 1. Ans. 2, 4—5. Appellants argue that the Examiner’s findings are erroneous for several reasons. First, relying on the Declarations of Messrs. Williams and Simmons, Appellants argue that there is no record evidence that (1) “Simmons teaches (i.e., describes and enables) or suggests the claimed angles,” or (2) ‘“Wasserstrom teaches enabling [the claimed] adjacent barriers to be [configured for] being angled up to 15 degrees horizontally.’”3 Appeal Br. 23—24. Appellants are attacking the teachings of Simmons and 3 Appellants’ argument is not persuasive because the disclosure of Wasserstrom is presumed to be enabled. In re Antor Media Corp., 689 F.3d 1282, 1287—88 (Fed. Cir. 2012). As long as an examiner makes a proper prima facie case of anticipation by giving adequate notice under § 132, the burden shifts to Appellants to submit rebuttal evidence that the relevant disclosures of Wasserstrom regarding horizontally angled barriers is not enabled. Id. 6 Appeal 2017-000836 Application 13/383,884 Wasserstrom individually, when the rejection is based on the combination of the two references. However, nonobviousness cannot be established by attacking the references individually when the rejection is predicated upon a combination of prior art disclosures. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Here, the Examiner finds that Wasserstrom, not Simmons, discloses the claimed angles (i.e., at least 6 degrees to approximately 15 degrees) to form curved barriers. Final Act. 3; Ans. 4—5. The Examiner’s rejection proposes to modify Simmons’ angles so that they are at least 6 degrees to approximately 15 degrees, as disclosed in Wasserstrom. Id. Appellants do not address the rejection as articulated by the Examiner, and, thus, do not identify error by the Examiner. Second, Appellants argue that one skilled in the art “starting from Simmons, would be discouraged from considering Wasserstrom” because they use different “assembly and replacement procedure[s].” Appeal Br. 25. The Examiner’s rejection, however, does not propose modifying Simmons’ assembly and replacement procedure. Both Simmons and Wasserstrom disclose that the barriers should be configured to be “angled horizontally,” as recited in claim 1. Simmons 4:52—5:3; Wasserstrom 5:57—6:5. The rejection proposes modifying Simmons’ angles using the specific angles disclosed in Wasserstrom. Final Act. 3; Ans. 4—5. Appellants do not address the rejection as articulated by the Examiner, and, thus, do not identify error by the Examiner. Third, Appellants argue that Simmons teaches away from (1) “modifying Simmons to arrive at the claimed subject matter” and (2) “combin[ing] Simmons and Wasserstrom (and/or any other relied-upon reference) to arrive at [the claimed] subject matter.” Appeal Br. 25. 7 Appeal 2017-000836 Application 13/383,884 According to Appellants, Simmons criticizes barrier systems where a shorter female interlocking structure extends over a “portion of the barrier but not vertically over the complete height of the barrier.” Id. (citing Simmons 2:36—38); see Reply Brief dated September 28, 2016 (“Reply Br.”), at 3—5. Appellants argue that Simmons discloses a longer female interlocking structure that extends over the entire barrier height whereas the claimed barrier and Wasserstrom disclose a shorter interlocking structure that only extends over a portion of the barrier height. Id. Appellants’ characterization of Simmons’ discussion of the advantages and disadvantages of different types of barriers is too narrow. Simmons explains, in part, that, in the event of a collision between a car and the barrier, a shorter interlocking structure, as described in Cristiano (US 5,464,306, issued November 7, 1995), provides easier disassembly of the barriers whereas a longer interlocking structure increases the ability of the barrier to resist impact loads. Simmons 2:18—49. Thus, Simmons teaches there is a tradeoff between ease of assembly and impact resistance. Appellants’ argument is not persuasive because neither Simmons nor Wasserstrom criticize, discredit, or otherwise discourage the Examiner’s proposed combination of Simmons and Wasserstrom, including especially the use of Wasserstrom’s barrier angles with Simmons’ barriers. DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (A “reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not ‘criticize, discredit, or otherwise discourage’ investigation into the invention claimed.”) (quoting In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)); see Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (“a 8 Appeal 2017-000836 Application 13/383,884 given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine.”); Winner Int 7 Royalty Corp. v. Wang, 202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“The fact that the motivating benefit comes at the expense of another benefit, however, should not nullify its use as a basis to modify the disclosure of one reference with the teachings of another. Instead, the benefits, both lost and gained, should be weighed against one another”). Fourth, relying on the Declaration of Mr. Williams, Appellants argue that there is “no reasonable expectation of success in combining Simmons with Wasserstrom” “because the combination would be inoperative and/or unfit for its intended purpose, since replacing Simmons’ full-height ‘interlocking structures’ with Wasserstrom's much shorter ‘socket’ and ‘locking pin’ connection arrangement would result in a[] barrier that is extremely prone to connection failure and thus very likely would have exceptionally poor crash performance.” Appeal Br. 26 (citing Williams Deck ^Hf 59—80). Appellants mischaracterize the Examiner’s rejection. The Examiner correctly explains that both Simmons and Wasserstrom disclose that their barriers may be angled horizontally to form curved barriers and it would have been obvious to configure Simmons using the specific angles disclosed in Wasserstrom (i.e., at least 6 degrees to approximately 15 degrees, as recited in claim 1). Final Act. 2; Ans. 4—5. Contrary to Appellants’ argument, the Examiner does not propose substituting Wasserstrom’s and Simmons’ interlocking structure. Because Appellants do not address the rejection as articulated by the Examiner, Appellants do not identify error by the Examiner. Fifth, Appellants argue that 9 Appeal 2017-000836 Application 13/383,884 the relied-upon references do not discuss, teach, suggest, or advance any sensible reason for providing these limitations of the specific claimed subject matter, i.e., . . . a longitudinal axis of a barrier body of a first barrier from said pair is capable of being angled horizontally by at least 6 degrees to approximately 15 degrees. Appeal Br. 26. Appellants’ argument that Simmons or Wasserstrom must teach or suggest the motivation to modify Simmons is unpersuasive and has been rejected by the Supreme Court. According to the Supreme Court, an express teaching or motivation in Simmons or Wasserstrom (or other prior art references) is not required. KSR Int 7 Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Instead, the Examiner need only articulate a reason to modify with some rational underpinning to support the legal conclusion of obviousness. Id. The Examiner’s articulated reasoning to configure Simmons using the specific angles disclosed in Wasserstrom (i.e., at least 6 degrees to approximately 15 degrees, as recited in claim 1) is supported by both Simmons and Wasserstrom which describe the importance of horizontally angling their barriers to form curved barriers. Final Act. 2; Ans. 4—5 ; see Simmons 4:52—5:3; Wasserstrom 5:57—6:5. The MASH TL-3 Limitation Claim 1 recites, in part, each “barrier is configured to satisfy all crashworthiness requirements of the American Association of State Highway and Transportation Officials (AASHTO) Manual for Assessing Safety Hardware (MASH) Test Level-3 (TL-3)” (hereinafter called the “MASH TL- 3 test”). The Examiner finds that “Simmons specifically discloses that meeting federal standards [is] important” and “configuring a barrier to meet federal 10 Appeal 2017-000836 Application 13/383,884 requirements [i.e., the MASH TL-3 test recited in claim l]4 is not patentable since the requirements are clearly known to one skilled in the art.” Final Act. 2 (citing Simmons 5:28-30, for example). The Examiner determines it would have been obvious “to have configured the [Simmons] barriers in this manner in order to be legally useable on roadways, as is the purpose of the barriers.” Id. Appellants argue that the rejection is erroneous for several reasons. First, Appellants argue that the “MASH TL-3 [test] was publicly introduced on 15 October 2009,” after the filing of the present application (Simmons Deck 1 64), the “MASH TL-3 [test] was not a federal requirement until at least 1 January 2011,” and “a person having ordinary skill in the art as of the effective filing date would not consider MASH TL-3 to be a ‘federal requirement’ for the claimed barrier ‘to be legally useable on roadways’.” Appeal Br. 27 (citing the Simmons Deck ^fl[ 60, 64); see Reply Br. 10-12 (engaging in other semantic arguments about the differences between “guidelines,” “regulations,” “updates,” “updated federal regulation^],” and the like). As an initial matter, Appellants do not explain what, if any, differences exists between (1) the MASH TL-3 test recited in the claims on the September 29, 2009 filing date, and (2) the tests that were publicly introduced and that became a federal requirement on October 15, 2009 and January 1, 2011, respectively. Contrary to Mr. Simmons’ statement that the MASH TL-3 test was “publicly introduced” on October 15, 2009 (Simmons 4 We understand that, in the context of the discussion, the Examiner’s reference to “federal requirements” is a shorthand reference to the MASH TL-3 test recited in the claims and the Specification. 11 Appeal 2017-000836 Application 13/383,884 Decl. 1 64), the Specification states that Appellants’ barriers met or exceeded the claimed MASH TL-3 test before the parent application was filed on September 29, 2009. Spec. 132; see also Simmons Decl. 120 (stating the MASH TL-3 test was known before the priority date). If Mr. Simmons is correct that the MASH TL-3 test recited in the claims was not known to those skilled in the art before the priority date, Appellants also do not explain how they were able to obtain the MASH TL-3 test recited in claims, and build and test barriers that met or exceeded the test before the filing of the patent application. If the MASH TL-3 test recited in claim 1 and the Specification was not known to those skilled in the art, as suggested by Appellants, then it is also unclear how the Specification complies with the enablement requirement of 35 U.S.C. § 112, second paragraph. Appellants’ argument also misunderstands the Examiner’s rejection. As the Examiner correctly explains, “even though [the MASH TL-3 test] was not a requirement until after the effective filing date, the fact that [Appellants were] sufficiently familiar with the test [recited in the claims] to have specified it even before it was a requirement is evidence that one skilled in the art actually would have been apprised of the impending regulation and the particulars of the test at the time of the invention.” Ans. 7. As discussed above, we note, for example, that the Specification discloses that Appellants’ barriers “met or exceeded, in independent crash tests,” the claimed MASH TL-3 test before the application was filed. Spec. 132. Thus, the Specification supports the Examiner’s explanation that because Appellants were “able to recite the particulars of the test even before it became a requirement” and “did not have inside information not available to others such that only the appellant was capable of producing a 12 Appeal 2017-000836 Application 13/383,884 barrier in accordance with the new requirement,” the “information regarding the impending requirements are available to those skilled in the art in order for the barriers to be properly built and tested prior to the regulation becoming enforced.” Ans. 7. Appellants do not provide any persuasive evidence rebutting the Examiner’s finding that the MASH TL-3 test recited in the claims was known and available to those skilled in the art. As stated above, if the MASH TL-3 test recited in the claims was not known to those skilled in the art at the time of the invention, then it is unclear how (1) those skilled in the art would know the requirements of the test and whether the limitations of claim 1 are met, and (2) the Specification complies with the enablement requirement of 35 U.S.C. § 112, second paragraph. Second, relying on the Simmons Declaration (e.g., ]Hf 39- 84) and Williams Declaration (e.g., 82-123), Appellants argue that “a person having ordinary skill in the art would have no reasonable expectation that a barrier configured per Simmons (whether considered alone or in combination with Wasserstrom and/or McKay) would be able to satisfy the more stringent crashworthiness requirements of MASH TL-3” because the MASH TL-3 test contains “at least 30 substantive test changes, along with at least 8 significant evaluation criteria changes, with respect to the prior art crashworthiness requirements (which were published in 1993 viaNCHRP Report 350).” Appeal Br. 27—29. Appellants’ argument is not persuasive because neither the Specification nor the claims recite these “30 substantive test changes” and “8 significant evaluation criteria changes.” finally, Appellants argue that “the claimed subject matter provided unexpected results.” Appeal Br. 28 (citing Simmons Decl. 73—74); Reply Br. 13 (citing Simmons Decl. 39-55). In the Simmons Declaration, 13 Appeal 2017-000836 Application 13/383,884 Appellants apparently contend that the claimed subject matter was “unpredictable” and led to “unexpected results.” Simmons Decl. ^fl[ 39—55. Appellants compare a “modified T-LOK barrier” allegedly covered by claim 1 and the “original T-LOK barrier” made in 1993. Id. at || 69-74. According to Appellants, the modified T-LOK barrier had fewer pieces of rebar and an end connection that was shorter (12 inches vs. 32 inches) than the original T-LOK barrier and was expected “to be considerably weaker and less crashworthy than the original T-LOK barrier.” Id. Mr. Simmons summarily states that “the modified T-LO barrier passed the more strenuous crashworthiness test of MASH TL-3.” Id. at 73. However, “when unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1370 (Fed. Cir. 2007) quoting from/w re Baxter-Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Here, Appellants do not compare the crashworthiness of the modified T-LOK barrier to (1) the original T-LOK barrier and (2) closer prior art barriers with shorter interlocking structures such as McKay. For example, there is no evidence whether the original T-LOK barrier or McKay’s barrier also were able to pass the MASH TL-3 test. In addition, “[unexpected results that are probative of non obviousness are those that are ‘different in kind and not merely in degree from the results of the prior art.’” Galderma Laboratories, L.P. v. Tolmar, Inc., 737 F.3d 731, 739 (Fed. Cir. 2013) (citation omitted). “Results which differ by percentages are differences in degree rather than kind, where the modification of the percentage is within the capabilities of one skilled in the art at the time.” Id.; see In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) 14 Appeal 2017-000836 Application 13/383,884 (finding increased efficacy, measured by percentages, to be a difference of degree and not of kind); In re Budde, 319 F.2d 242, 246 (CCPA 1963) (finding no unexpected results where ranges of reaction time and temperature constituted only a difference in degree rather than in kind); In re Aller, 220 F.2d 454, 456-57 (CCPA 1955)(fmding no unexpected results where improved yields over the prior art, measured by percentages, reflect a difference in degree, not in kind). Here, Appellants’ performance results appear to differ by percentages and, thus, are differences in degree rather than kind. Appellants do not explain why the claimed device results in a barrier that is different in kind, rather than degree. Appellants’ argument is not persuasive. The Male Interlocking Structure Limitation Claim 1 recites, in part, “a length of said male interlocking structure . . . is less than 50 percent of said body height.” The Examiner finds that McKay discloses “interlocking structures (42, 44) having the claimed dimensions relative to the barrier height.” Final Act. 3 (citing McKay Figs. 3 and 4, for example). Specifically, McKay discloses a female interlocking structure (i.e., interlocking recess portion 44) which receives a male interlocking structure (i.e., projection 42). The Examiner determines it would have been obvious “to have used any dimensions best suited to a particular application, including the claimed ratios, since McKay exemplifies that the claimed size ratio is suitable for use in barrier structures.” Id. Appellants argue that the Examiner’s rejection is erroneous for several reasons. First, Appellants argue that “there is no record evidence that 15 Appeal 2017-000836 Application 13/383,884 McKay's un-dimensioned, conceptual patent drawings (or its discussion thereof) teach or suggest the claimed dimensional ratio” and “McKay’s drawings ‘obviously never intended to show the dimensions of anything’ and thus cannot show the claimed dimensional ratio.” Appeal Br. 31—32 (citing In re Mraz, 455 F.2d 1069 (CCPA 1972); see Reply Br. 9-10. Figures 4 and 5 of McKay are presented below: Figures 4 and 5 disclose the relative dimensions of different parts. McKay, referring to Figures 4 and 5, discloses that “channel 18 has a depth of less than one half the height h of elongated body 12 ... . In this embodiment, the depth d is approximately 10 inches.” McKay 122. In view of the disclosed dimensions of channel 18 and relative size of the channel 18 and the male structure (i.e., projection 42) in Figures 4 and 5, the Examiner correctly concludes that “it can be seen that the claimed ratios (male structure, 42, is less than 50% of the barrier height) are shown.” Ans. 10 (citing McKay Fig. 3); see In re Mraz, 455 F.2d 1069, 1072 (CCPA 1972) (Drawings in patents are not working drawings, but may be relied upon for what they show clearly). Appellants do not identify error in the Examiner’s findings and reasoning. 16 Appeal 2017-000836 Application 13/383,884 Second, Appellants argue that “a person having ordinary skill in the art would have no sensible reason to consider McKay or to attempt to combine it with Simmons and/or Wasserstrom” because Simmons discourages (1) the use of shorter female interlocking structures which do not extend “vertically over the complete height of the barrier” and (2) the use of “locking pins” that are “inserted and then driven into the roadway,” such as McKay’s “anchor member 56.” Appeal Br. 32 (citing Simmons 2:17-25) As discussed above, Appellants’ characterization of Simmons is too narrow. Simmons merely teaches that there is a tradeoff between ease of assembly and impact resistance. Simmons 2:18^49. Appellants’argument is not persuasive because neither Simmons nor Wasserstrom criticize, discredit, or otherwise discourage the Examiner’s proposed combination of Simmons, Wasserstrom, and McKay, including especially the use of McKay’s female/male interlocking structures in Simmons’ barriers. DePuy, 567 F.3d at 1327. In addition, because the Examiner’s rejection does not propose using McKay’s anchor member 56, Appellants do not address the rejections as articulated by the Examiner, and, thus, do not show Examiner error. The “Female Interlocking Structure” Limitation Claim 1 recites, in part, “a top of said female interlocking structure is positioned below a top of said barrier body.” Appellants argue that Simmons does not disclose this limitation. Appeal Br. 33 (citing Williams Decl. H 123—129). As discussed above, McKay, not Simmons, discloses the female interlocking structure (i.e., interlocking recess portion 44) which 17 Appeal 2017-000836 Application 13/383,884 receives male interlocking structure (i.e., projection 42) that “is less than 50 percent of said body height” recited in claim 1. See, e.g., Final Act. 3. As shown, for example, in Figures 4 and 5 above, McKay also discloses the top of the female interlocking structure 44 is positioned below the top 14 of the barrier body. Appellants’ argument is not persuasive. Summary In sum, for the reasons above, Appellants do not identify error in the Examiner’s findings and reasoning in the rejection of claim 1. Claims 2—18 and 20—27 fall with claim 1. DECISION For the above reasons, the Examiner’s rejection of claims 1—18 and 20-27 under 35 U.S.C. § 103 is AFFIRMED. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2015). AFFIRMED 18 Copy with citationCopy as parenthetical citation