Ex Parte Bullock et al

Patent Trials and Appeals Board

May 22, 2019

14446663 - (D) (P.T.A.B. May. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/446,663 07/30/2014 Daniel E. Bullock
50006 7590 05/22/2019
ASPEN AEROGELS INC.
IP DEPARTMENT
30 FORBES ROAD
BLDG. B
NORTHBOROUGH, MA 01532
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1043-06 1007
EXAMINER
CHANG, VICTORS
ART UNIT PAPER NUMBER
1788
MAIL DATE DELIVERY MODE
05/22/2019 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 PATENT TRIAL AND APPEAL BOARD
Ex parte DANIEL E. BULLOCK and AARON R. TOMICH
Appeal2017-009313
Application 14/446,663
Technology Center 1700
Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and
MERRELL C. CASHION JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is a Decision on Appeal under 35 U.S.C. § 134(a) from a final
rejection of claims 1-19. An oral hearing was held on May 14, 2019. 1 We
have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 A written transcript of the oral hearing will be entered into the record when
the transcript is made available.
Appeal2017-009313
Application 14/446,663
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below:
1. A composite comprising at least one first ply of
fiber-reinforced aerogel material adjacent to at least one second
ply of fiber-containing material, wherein fibers from the at least
one first ply of fiber-reinforced aero gel material are interlaced
with fibers from the at least one second ply of fiber-containing
material.
Appellant2 requests review of the following rejections from the
Examiner's Final Action:
I. Claims 1-19 rejected under 35 U.S.C. § 103(a) as unpatentable
over Stepanian (US 2002/0094426 Al, published July 18, 2002) and Sano
(JP 2000-080549 A, published March 21, 2000, and relying on an English
translation of the Abstract dated January 30, 2016).
II. Claims 1-19 provisionally rejected on the ground of
nonstatutory double patenting as unpatentable over claims 1, 3-11, and 19-
21 of copending Application No. 13/486,193.
OPINION
Obviousness Rejection
Appellant argues two groups of claims: claims 1-12; and claims 13-
19. See generally App. Br. Specifically, Appellant's arguments focus on (i)
independent claim 1 and (ii) independent claims 13 and 19 but do not
include additional arguments for dependent claims 2-12 and 14-18.
Accordingly, we address independent claim 1 and, to the extent they have
been argued separately from claim 1 pursuant to 37 C.F.R. § 41.37(c)(l)(iv),
independent claims 13 and 19 collectively as representative of the subject
2 Aspen Aero gels, Inc. is the Applicant/ Appellant and is identified as the real
party in interest. App. Br. 4.
2
Appeal2017-009313
Application 14/446,663
matter before us on appeal. Claims 2-12 and 14-18 stand or fall with their
respective independent claim.
After review of the respective positions provided by Appellant and the
Examiner, we AFFIRM for the reasons presented by the Examiner. We add
the following for emphasis.
Claim 1
Claim 1 is directed to a composite comprising two plies adjacent to
each other, one of which is a fiber-reinforced aero gel material wherein the
fibers of each ply are interlaced.
The Examiner finds Stepanian discloses the general structure and
composition of an aerogel composite having a layer made of an aerogel
matrix with reinforcement fibers therein and a layer of lofty fibrous structure
adjacent to each other. Final Act. 2-3; Stepanian, Fig. 3, ,-J,-J 12, 13, 26, 27,
45. The Examiner further finds Stepanian teaches multilayer composite
comprising layers of two aero gel/fibrous structure with an intervening
thermally conductive layer. Final Act. 2-3; Stepanian, Figs. 4, 6, ,-J,-J 13, 15,
27, 52, 53. The Examiner finds Stepanian does not disclose interlacing the
fiber-reinforced layers of the composite. Final Act. 2-3. The Examiner
turns to Sano to teach as known to laminate a plurality of needle punched
nonwoven fabrics to form a unified laminate fibrous structure. Final Act. 3;
Sano, Abstract. The Examiner determines it would have been obvious to
one of ordinary skill in the art to modify Stepanian's composite by needle
punching the fiber-reinforced layer of the composite in view of Sano' s
teaching. Final Act. 3.
3
Appeal2017-009313
Application 14/446,663
Appellant argues that Stepanian does not teach a composite
comprising more than one ply of material as claimed. App. Br. 8-9.
According to Appellant, Stepanian describes a singular block of
aerogel/fiber composite that can only read, separately, on either the "ply of
fiber-reinforced aerogel" or the "ply of fiber-containing material" presented
in independent claim 1, but not both. Id. at 9. Thus, Appellant contends that
the combined teachings of Stepanian and Sano can only result in a singular
block of fiber-reinforced aerogel material comprising a single aerogel phase
which extends continuously and monolithically through the entirety of a
single, unified reinforcing phase. App. Br. 9; Stepanian ,i,i 26, 62, 64, 65,
75. Appellant asserts that Stepanian's embodiment shown in Figures 3 and 4
is a result of adjoining two separate fibrous layers before an aerogel material
is added to form the singular block of aerogel/fibrous material composite.
App. Br. 13-14; Stepanian ,i,i 26, 62, 64, 65, 75. Appellant argues that the
Examiner did not consider the effect of the processing steps of Stepanian
and Sano on the fiber reinforcement materials in the final composite. App.
Br. 17.
Appellant's arguments are not persuasive of error in the Examiner's
determination of obviousness for the reasons presented by the Examiner.
Ans. 5-7. Moreover, where the Examiner establishes a reasonable belief
that the property or characteristic recited in the claims would have been
inherent to the product or process, the burden of proof shifts to Appellant to
show that this characteristic or property is not possessed by the prior art. See
In re Best, 562 F.2d 1252, 1255 (CCPA 1977); In re Spada, 911 F.2d 705,
708 (Fed. Cir. 1990).
4
Appeal2017-009313
Application 14/446,663
The Examiner determines that the subject matter of claim 1 does not
exclude and, indeed reads on, Stepanian' s singular block structure formed
from multiple layers of fibrous material. Ans. 6. The Examiner specifically
states:
Even though Stepanian refers to the resulting structure as monolithic
since the structure began with a laminate comprising a first ply and a
second ply of fiber reinforced material, the final product would also
have a first ply and a second ply except for now, as a result of the
process, the plies each contain fiber reinforced material aerogel
material.
Ans. 6.
Thus, there is a reasonable basis for one skilled in the art to expect the prior
art composite and the claimed composite to have the same structural
properties (multilayered structures). Accordingly, the burden was properly
shifted to Appellant to demonstrate that the structure of the claimed
composite was not possessed by the prior art composite. Best, 562 F .2d at
1255. Appellant has not adequately explained or directed us to objective
evidence showing why the prior art composite does not necessarily or
inherently possess the disputed property.
Claims 13 and 19
Both independent claims 13 and 19 are directed to laminate
composites that also require the limitations discussed above with respect to
independent claim 1.
To the extent that Appellant relies on the line of arguments similar to
the arguments presented for claim 1 (App. Br. 29-33), we direct Appellant's
attention to our discussion above. We have considered the additional
5
Appeal2017-009313
Application 14/446,663
arguments presented by Appellant for these claims with respect to the
second fiber containing layer (id. at 26-28), and find them unavailing for the
reasons the Examiner states (Ans. 7-8).
As discussed above, we agree with the Examiner's determination that,
even though Stepanian's composite is formed as a singular block of
aerogel/fiber composite, one of ordinary skill in the art would have expected
that Stepanian's composite would have a multilayer structure as claimed.
Ans. 7.
Accordingly, we affirm the Examiner's prior art rejection of claims 1-
19 under 35 U.S.C. § 103 (a) as unpatentable over Stepanian and Sano for
the reasons presented by the Examiner and given above.
Nonstatutory obviousness-type double patenting
The Examiner rejects claims 1-19 on the ground of provisional
nonstatutory obviousness-type double patenting as unpatentable over claims
1, 3-11, and 19-21 of copending Application No. 13/486,193. Final Act. 4.
Appellant does not address the provisional nonstatutory double
patenting rejection in the Appeal or Reply Briefs. See generally App. Br.
and Reply Br.
Accordingly, we summarily sustain the Examiner's rejection of claims
1-19 on the ground of provisional nonstatutory double patenting. See MPEP
§ 1205.02 (2017) ("If a ground of rejection stated by the examiner is not
addressed in the appellant's brief, appellant has waived any challenge to that
ground of rejection and the Board may summarily sustain it."); see also Ex
parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) ("If an
appellant fails to present arguments on a particular issue - or more broadly,
6
Appeal2017-009313
Application 14/446,663
on a particular rejection - the Board will not, as a general matter,
unilaterally review those uncontested aspects of the rejection.").
DECISION
The Examiner's prior art rejection of claims 1-19 under 35 U.S.C.
§ 103(a) is affirmed.
The Examiner's rejection of claims 1-19 on the ground of provisional
nonstatutory double patenting is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ).
AFFIRMED
7