Ex Parte Cox

Patent Trial and Appeal Board

Sep 20, 2016

13596847 (P.T.A.B. Sep. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/596,847 09/18/2012 Ronald E. Cox
40842 7590 09/21/2016
B. CRAIG KILLOUGH
P. 0. DRAWER H
CHARLESTON, SC 29402
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.
3734.001 7591
EXAMINER
MATTEI, BRIAN DAVID
ART UNIT PAPER NUMBER
3633
MAIL DATE DELIVERY MODE
09/21/2016 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)
L11'-~ITED STATES PATENT AND TRADE~'v1ARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RONALD E. COX
Appeal2014-005623
Application 13/596,847
Technology Center 3600
Before LINDA E. HORNER, CHARLES N. GREENHUT, and
GORDON D. KINDER, Administrative Patent Judges.
HORNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Ronald E. Cox (Appellant) seeks our review under 35 U.S.C. § 134 of
the Examiner's decision, as set forth in the Final Action, dated July 24, 2013
("Final Act."), rejecting claims 1-19. We have jurisdiction under 35 U.S.C.
§ 6(b). We AFFIRM.
Appeal2014-005623
Application 13/596,847
CLAIMED SUBJECT MATTER
Appellant's claimed subject matter relates to "building blocks for
constructing and/or supporting walls, barriers, dams and the like." Spec.,
para. 1. 1 Claim 1 is the sole independent claim and is reproduced below.
1. A structure formed of building blocks, comprising:
a plurality of blocks, wherein each of the blocks of the
plurality of blocks consists of six sides that surround a central
void, wherein the central void extends from a first end of each of
the blocks to a second end of each of the blocks, the six sides
forming an equilateral hexagonal shape at the first end of each of
the blocks and an equilateral hexagonal shape at the second end
of the each of the blocks, and wherein one of the six sides of each
of the blocks contacts one of the six sides of another of the
plurality of blocks;
wherein each of the blocks is a solid and unitary member
formed of an elastomeric and water repellent material.
EVInENCE
The Examiner relied upon the following evidence in the Final Action:
Brown us 4, 172,680 Oct. 30, 1979
Bores us 4,801,220 Jan.31, 1989
Drews us 5,316,708 May 31, 1994
Herron US 2010/0263300 Al Oct. 21, 2010
Bigger US 2011/0086189 Al Apr. 14, 2011
1 Citations to "Spec." refer to the Substitute Specification filed on July 11,
2013.
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Application 13/596,847
REJECTIONS
The Final Action contained the following rejections:
1. Claims 1-5, 8, 9, 12-14, 16, 17, and 19 under 35 U.S.C. § 103(a)
as unpatentable over Brown and Herron.
2. Claims 1 and 15 under 35 U.S.C. § 103(a) as unpatentable over
Bigger and Herron.
3. Claims 6, 7, 10, and 11 under 35 U.S.C. § 103(a) as unpatentable
over Brown, Herron, and Bores.
4. Claim 18 under 35 U.S.C. § 103(a) as unpatentable over Brown,
Herron, and Drews.
ANALYSIS
First Ground of Rejection
Appellant presents arguments directed to the patentability of claim 1,
and provides separate arguments for the patentability of claims 2, 4, and 12-
14 over Brown and Herron. Appeal Br. 6-11. We select claim 1 as a
representative claim for the first ground of rejection, and the remaining
claims that were not separately argued, i.e., claims 3, 5, 8, 9, 16, 17, and 19,
stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). We address the
arguments presented for claims 2, 4, and 12-14 infra.
Claim 1
The Examiner found that Brown discloses a structure formed of
building blocks substantially as claimed, except that "Brown does not
disclose the material of the block as elastomeric and water repellent." Final
Act. 2. The Examiner found that "Herron teaches a structure formed of
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Application 13/596,847
building blocks wherein each of the blocks is formed of an elastomeric and
water repellent material." Id. at 2-3 (citing Herron, para. 61). See also
Ans. 2 (finding that Herron discloses the building blocks can be formed of
ethylene propylene diene monomer (EPDM), which "is well-known to be
elastomeric and a rubber material as evidenced by the definition of EPDM
provided on eHOW.com and on wikipedia.com"). The Examiner
determined that it would have been obvious to construct the building blocks
of Brown of elastomeric and water repellent material based on the teachings
of Herron. Id. at 3.
Appellant contends that the Examiner erred in finding that Herron
teaches blocks formed of an elastomeric material, as called for in claim 1.
Appeal Br. 6-10. According to Appellant, Herron discloses assembling flat
panels formed of ceramifying polymers, such as acrylonitrile butadiene
styrene (ABS), to form blocks, and "ABS is a thermoplastic, and not an
elastomer." Id. at 6. As to the Examiner's finding that EPDM is elastomeric
and a rubber material, Appellant does not contest this finding, except to
allege generally that Appellant's cited sources are more reliable than the
sources relied on by the Examiner. Reply Br. 2-3 (challenging the
Examiner's reliance on Wikipedia.com). Appellant's cited sources,
including a Declaration of Dr. Barbara J. Wagner ("Wagner Dec."),
however, do not address the composition ofEPDM specifically, and focus
instead on the general understanding in the art of the meaning of an
elastomer and the categorization of ABS as a thermoplastic. We find no
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specific argument in the record contesting the Examiner's finding that
EPDM is an elastomer.
Herron discloses that the panel "can be made of a thermoplastic
material, which can be an energy-absorbing thermoplastic material."
Herron, para. 61. Herron further teaches that, "[f]or example, panels 24 can
be made of a variety of polymers including various ceramifying polymers."
Id. Herron discloses that "[ e ]xamples of suitable polymers that can be used
include, but are not limited to: acrylonitrile butadiene styrene (ABS) ... and
ceramifying ethylene propylene diene monomer (EPDM)." Id. (emphasis
omitted).
Appellant asserts that ASTM D l 566-66T defines elastomers as
"macromolecular material that returns rapidly to approximately the initial
dimensions and shape after substantial deformation by a weak stress and
release of the stress." Appeal Br. 6 (citing ASTivI standards, Part 28, April
1967); see also Wagner Dec., para. 8. Appellant contends that "[a]n
elastomer is a rubber-like material that can be or already is modified to a
state exhibiting little plastic flow and quick and nearly complete recovery
from an extending force." Id. (citing Harper, Charles A. (1975) Handbook
of Plastics and Elastomers, McGraw-Hill, New York, p. 1-106), see also
Wagner Dec., para. 8. Appellant notes that "IUPAC defines an elastomer as
a 'polymer that displays rubber-like elasticity."' Id. (quoting Pure and
Applied Chemistry, Vol. 79, No. 10, pp. 1801-1829, 2007); see also Wagner
Dec., para. 8. Appellant further asserts that "[a] thermoplastic elastomer is
defined as an 'elastomer comprising a thermoreversible network."' Appeal
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Br. 8 (quoting IUPAC Pure and Applied Chemistry, Vol. 79, No. 10, pp.
1811, 2007 (emphasis added))); see also Wagner Dec., para. 8.
Taking the facts presented by Appellant as to the meaning of an
elastomer as true, we find inadequate support in Herron for the Examiner's
finding that ABS is an elastomer. Despite Herron' s description of the
butadiene component of ABS as "rubber-like" (Herron, para. 61), we
understand ABS to be a thermoplastic material, as asserted by Appellants.
That finding does not end our inquiry, however, because Herron also
discloses that EPDM is a suitable material for the panels that form the
construction block. We agree with the Examiner's finding that EPDM is an
elastomer. Ans. 2 (citing https://en.wikipedia.org/wiki/EPDM _rubber
(describing EPDM as a type of synthetic rubber and as an elastomer); see
also Drobny, J.G., Handbook of Thermoplastic Elastomers, pp. 151, 277
(2007) (describing EPDivI as a thermoplastic elastomer). As such, we find
adequate support in Herron for the Examiner's finding that Herron discloses
a structure formed of building blocks wherein each of the blocks is formed
of an elastomeric and water repellent material. 2
Appellant further contends that"[ n ]either Herron nor Brown
contemplates a solid, unitary, elastomeric block in which compressibility is a
2 As noted supra, although Appellant specifically challenges whether ABS is
an elastomer, Appellant does not make a similar argument about EPDM,
although Herron discloses both materials as suitable for forming the building
blocks. Appellant also does not contend that EPDM is not water repellent.
Appellant's Specification describes, "The blocks are preferred to be made of
an elastomeric and water repellant material. The blocks may be made from
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key feature." Appeal Br. 8. In particular, Appellant argues that "Herron
teaches panels or coated panels, neither of which is solid, unitary,
elastorneric block" and "Brown teaches an armor unit, necessarily not
compressible, suitable for resisting hydraulic forces, for use as a
breakwater." Id. at 9. These arguments address each reference individually
and fail to address the Examiner's proposed modification of the solid,
unitary block of Brown to rnake it of a compressible elastomer, as suggested
by Herron. Nonobviousness cannot be established by attacking the
references individually when the rejection is predicated upon a combination
of prior art disclosures." See In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986).
With regard to the proposed modification of Brown, Appellant
contends that because "[ rn ]ass of the blocks is important [in Brown] to
prevent washing away of the blocks," there would be no motivation to rnake
Brown's blocks of elastomer because elastorners possess "relatively low
density [and] would be subject to washing away." Appeal Br. 9.
Appellant's contention is contradicted by the teaching in Herron, which
discloses that its blocks can be used to provide protection against "flooding
caused by hurricanes." Herron, para. 107. This disclosure suggests that the
use of construction blocks formed frorn an elastomer, such as EPDM, would
be suitable for use underwater, and thus, when loaded with ballast, as taught
in Herron (see Herron, para. 118), would not be subject to washing away.
natural or synthetic rubber." Spec., para. 39.
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Appellant's contention that a construction block made of elastomer would
not be suitable for use underwater is further belied by the general knowledge
of one having ordinary skill in the art at the time of Appellant's invention, as
evidenced by Drews, which teaches that construction blocks made of a
homogeneous mixture of shredded rubber (i.e., an elastomer) and latex,
"meets Army Corps of Engineer specifications for underground and in-water
usages" such as "land erosion control, bank stabilization control, temporary
flood control, construction of temporary dams," and that the density of the
blocks can be adjusted for different purposes. Drews, col. 2, 11. 8-24, col. 3,
ll. 8-10,col. 8,ll. 52-62.
Appellant further argues that "[p]orosity of Brown's blocks is
important to allow controlled water flow through the breakwater constructed
of the blocks," and thus one would not be motivated to modify Brown's
blocks to make them water repellent, as called for in the claim. Appeal
Br. 9. Brown teaches forming the blocks to have passageways (e.g., water
passage 14) to allow water to flow through the breakwater. The Examiner
did not propose to eliminate this water passage in the proposed modification
of Brown's blocks. Rather, the blocks of Brown, as modified, would still
allow water to pass through the water passage formed in the block.
Appellant has not demonstrated error in the Examiner's rejection of
claim 1. For the reasons discussed supra, we sustain the rejection of
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claim 1, and claims 3, 5, 8, 9, 16, and 17, which fall with claim 1, under 35
U.S.C. § 103(a) as unpatentable over Brown and Herron.
Claims 2 and 4
Claims 2 and 4 depend from claim 1 and recite that the central void of
each of the blocks comprises "an inelastic material" (claim 2) and "an
aggregate" (claim 4 ). Appeal Br. 13 (Claims App.). The Examiner found
that Herron discloses filling a central void with inelastic material and
aggregate and that it would have been obvious to modify the construction
block of Brown to fill the center void with the claimed material to "act as a
ballast to provide strength to the building block structure." Final Act. 3--4
( citing Herron, para. 118, Fig. 31 ). Appellant argues that "the cited
references do not teach or suggest a solid, unitary, water repellent and
elastomeric (elastic) block having a central void with inelastic material
(Claim 2), such as an aggregate (Claim 4), therein." Appeal Br. 10.
Herron discloses filling the load chambers of the building blocks with
ballast material such as concrete, or, alternatively, "dirt, sand, mud, salt,
gravel, rocks, ice, snow, water, ceramics, and stabilized injectable aluminum
foam such as Cymatâ„¢" or "pumice or other extinguishing materials."
Herron, para. 118. For the reasons stated above in our analysis of claim 1,
we agree with the Examiner's finding that the proposed modification of
Brown's blocks, to make them from an elastomer, as taught by Herron,
would result in a solid, unitary, water repellent and elastomeric block. We
further agree with the Examiner's findings, which are uncontested by
Appellant, that Herron teaches filling a void in the block with ballast
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material that may be made from inelastic material, such as an aggregate.
Further, we find that the Examiner's proposed modification to add ballast
material to the modified blocks of Brown is based on rational underpinnings,
as it would be beneficial to the breakwater of Brown to provide further
strength and stability to the structure through the use of ballast material, as
taught by Herron. For these reasons, Appellant's arguments do not
demonstrate error in the rejection of claims 2 and 4. Accordingly, we
sustain the rejection of claims 2 and 4 under 35 U.S.C. § 103(a) as
unpatentable over Brown and Herron.
Claim 12
Claim 12 depends from claim 1 and recites "wherein an end of a block
of the plurality of blocks joins an end of another block of the plurality of
blocks so that the central voids thereof align and form a conduit." Appeal
Br. 14 (Claims App.). The Examiner found that Herron discloses blocks
joined as called for in claim 12. Final Act. 4-5 (citing Herron, Fig. 26). The
Examiner determined it would have been obvious to modify the structure of
Brown to stack the blocks, as shown in Herron, to "allow for a taller
breakwater structure to prevent larger waves from damaging the beachfront
as well as maintaining the functionality by still allowing for a passage of
water through the aligned voids." Id. at 5. Appellant argues that "the
assembled panels of Herron (Fig. 8) would not result in a water[-]tight
structure." Appeal Br. 11. This argument does not persuade us of error in
the Examiner's rejection.
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As noted by the Examiner, the claims do not call for the stacked
blocks to be "water-tight." Rather, claim 1, from which claim 12 depends,
calls for the blocks to be water repellent. For the reasons discussed supra in
our analysis of claim 1, we agree with the Examiner's finding that Brown's
blocks, as modified to be made of an elastomer as taught in Herron, would
be water repellent. For these reasons, Appellant's arguments do not
demonstrate error in the rejection of claim 12. Accordingly, we sustain the
rejection of claim 12 under 35 U.S.C. § 103(a) as unpatentable over Brown
and Herron.
Claims 13 and 14
Appellant argues claims 13 and 14 as a subgroup. Appeal Br. 11. We
select claim 13 as representative of the subgroup, and claim 14 stands or
falls with claim 13. Claim 13 depends from claim 1 and recites that the
central void of the plurality of blocks comprises "a compressible and energy
absorbing material." Appeal Br. 15 (Claims App.). The Examiner found
that "[w]hen placed in the central void, most of [the] materials [disclosed in
paragraph 118 of Herron for use as ballast material] will be compressible
and energy absorbing." Ans. 5. Appellant argues that "Herr on does not
teach filling his block, which is not unitary or elastomeric, with additional
materials that will enhance the absorption of mechanical energy by the
block." Appeal Br. 11.
For the reasons discussed above in our analysis of claims 1 and 2, the
block of Brown, as modified by Herron, would result in a unitary and
elastomeric block filled with ballast material. Further, as noted above,
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Herron discloses examples of ballast material, such as dirt, sand, gravel,
foam, etc., that would be, as found by the Examiner, compressible and
energy absorbing. See Spec., para. 45 (describing that energy absorbing
materials "are compressible upon impact" and include foam). For these
reasons, Appellant's arguments do not demonstrate error in the rejection of
claims 13 and 14. Accordingly, we sustain the rejection of claims 13 and 14
under 35 U.S.C. § 103(a) as unpatentable over Brown and Herron.
Second Ground of Re} ection
Appellant presents arguments directed to the patentability of claims 1
and 15 as a group. Appeal Br. 11. We select claim 1 as a representative
claim for the second ground of rejection, and claim 15 stands or falls with
claim 1. 37 C.F.R. § 41.37(c)(l)(iv). The second ground of rejection relies
on Bigger to disclose a structure formed of building blocks substantially as
claimed, and relies on the same findings as to Herron and reason to modify
Bigger's blocks to make them of elastomer, as relied upon in the first ground
of rejection. Final Act. 6-7. Appellant argues the Examiner erred in this
rejection because "Bigger and Herron each teach interlocking elements that
form a structure (Bigger, Paragraph 0002; Herron, Figs. 1-21 ). Bigger and
Herron do not teach, alone or in combination, a solid, unitary block."
Appeal Br. 11.
The Examiner found that Bigger discloses building blocks wherein
each block "is a solid and unitary member." Final Act. 6 (citing Bigger,
Fig. 11 ). Bigger discloses, in Figure 11, a hexagonal tube 202 that forms a
solid and unitary member having a central void. Bigger, para. 61, Fig. 11.
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The central void is shown filled with inserts 203c, 203d, 203e and filler
material 1101. Id. Bigger discloses that components used to fabricate
structures can be made so that they can be packed flat or nested together and
take their final shape when the structure is assembled. Id. at 3. Bigger also
discloses, however, that another approach is to make the components of cast
concrete. Id.; see also id. at 30 (disclosing that "[t]he tube can be monolithic
or fabricated from multiple elements" and "[t]he tubes can be rigid or
flexible"). As such, we find adequate disclosure in Bigger to support the
Examiner's finding that Bigger discloses building blocks wherein each of
the blocks is a solid and unitary member. Further, for the reasons discussed
supra in our analysis of the first ground of rejection, we agree with the
Examiner that Herron discloses blocks made of elastomer and that when
Bigger's blocks are modified as proposed by the Examiner, the resulting
blocks will be a solid and unitary member formed of an elastomeric and
water repellent material, as called for in claim 1. For these reasons, we
sustain the rejection of claim 1, and claim 15, which falls with claim 1, as
unpatentable under 35 U.S.C. § 103(a) over Bigger and Herron.
Third and Fourth Grounds of Rejection
The third and fourth grounds of rejection add the teachings of Bores
and Drews, respectively, to the underlying combined teachings of Brown
and Herron. Appellant does not present any arguments specifically
contesting these grounds of rejection. We assume that Appellant intended to
rely on the arguments presented against the first ground of rejection as
support for the patentability of claims 6, 7, 10, 11, and 18, which are subject
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to these third and fourth grounds. For the reasons set forth supra in our
analysis of the first ground of rejection, we likewise sustain the third and
fourth grounds of rejection.
DECISION
The decision of the Examiner to reject claims 1-19 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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