Ex Parte D et al

Patent Trial and Appeal Board

Mar 29, 2017

12950327 (P.T.A.B. Mar. 29, 2017)

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.
12/950,327 11/19/2010 Richard Michael D'Sidocky DN2009191 7541
27280 7590 03/31/2017
THE GOODYEAR TIRE & RUBBER COMPANY
200 Innovation Way
AKRON, OH 44316-0001
EXAMINER
ROGERS, MARTIN K
ART UNIT PAPER NUMBER
1747
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
kathleen.swisher@goodyear.com
patents @ goodyear.com
pair_goodyear @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RICHARD MICHAEL D’SIDOCKY,
REBECCA LEE DANDO, GARY ROBERT
BURG, NEIL PHILLIP STUBER, and
CARL TREVOR ROSS PULFORD
Appeal 2014-004044
Application 12/950,327
Technology Center 1700
Before TERRY J. OWENS, PETER F. KRATZ, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’
rejection of claims 1—5. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a method for forming a tire tread. Claim 1 is
illustrative:
1. A method of forming a tread for a tire formed from a
first compound and a second compound, the tread comprising
two or more layers of rubber, the method comprising the steps
of:
Appeal 2014-004044
Application 12/950,327
extruding a first rubber compound through a main
extruder and a main gear pump;
extruding a second rubber compound through a second
extruder and a second gear pump into said main extruder;
varying the ratio of said first compound to said second
compound by adjusting the speed of the main gear pump and
the speed of the second gear pump, and then applying a strip of
rubber formed of said first compound and said second
compound directly onto a tire building machine to form a first
layer of rubber having a first blend ratio;
adjusting the speed of the main gear pump and the
second gear pump to obtain a second blend ratio of said first
compound to said second compound, and then applying a strip
of rubber formed of said second blend ratio of the first
compound to the second compound to form a second layer of
rubber having a second blend ratio over said first layer of
rubber.
Marshall
The References
US 2,767,437 Oct. 23, 1956
Kozima US 4,319,619 Mar. 16, 1982
Deal US 5,626,420 May 6, 1997
Uphus US 2004/0140583 A1 July 22, 2004
Oku US 2006/0096696 A1 May 11,2006
Galimberti US 2006/0108706 A1 May 25, 2006
Koumo US 7,238,015 B2 July 3, 2007
Mancini US 2008/0314504 A1 Dec. 25, 2008
Skibba US 2009/0080282 A1 Mar. 26, 2009
Katakabe EP 0 485 127 A1 May 13, 1992
Ohashi JP 2006-151166 A June 15, 2006
Kudo1 WO 2008/007420 A1 Jan. 17,
2008
1 The Examiner relies upon US 8,304,056 B2 (issued Nov. 6, 2012;
§317 (c)(1), (2), (4) date Mar. 27, 2009) as an English language equivalent
of WO 2008/007420 A1 (Final Act. 7).
2
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Application 12/950,327
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
2 and 5 over Oku in view of Deal, claim 3 over Oku in view of Deal and
Koumo, claim 4 over Oku in view of Deal and Kudo, claims 1, 2 and 4 over
Ohashi in view of Skibba and Uphus, claim 3 over Ohashi in view of
Skibba, Uphus and Marshall, claim 3 over Ohashi in view of Skibba, Uphus
and Galimberti, claim 5 over Ohashi in view of Skibba, Uphus and Mancini,
claims 1 and 2 over Katakabe in view of Skibba and Uphus, claim 3 over
Katakabe in view of Skibba, Uphus and Marshall, claim 3 over Katakabe in
view of Skibba, Uphus and Galimberti and claims 4 and 5 over Katakabe in
view of Skibba, Uphus and Kozima. Also, claim 3 stands rejected under
35 U.S.C. § 112, first paragraph, as failing to comply with the written
description requirement, and claims 1—5 stand provisionally rejected on the
ground of nonstatutory obviousness-type double patenting as follows:
claims 1, 2, 4 and 5 over claims 1—5 of copending Application
No. 12/950,403, and claim 3 over claims 1 and 3 of copending Application
No. 12/950,403 in view of Marshall.
OPINION
We affirm the rejections.
Rejections under 35 U.S.C. § 103
The Appellants argue only the sole independent claim, i.e., claim 1
(Br. 4—11). We therefore limit our discussion to that claim. See
37 C.F.R. § 41.37(c)(l)(iv) (2012).
Rejection over Oku in view of Deal
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Application 12/950,327
Oku discloses “a method and apparatus for the lamination of
band-shaped uncured rubber members in the building of a pneumatic tire”
(13) and teaches that “[i]n the production of the composite comprised of
various rubbers, a step of laying various uncured rubber members is required
prior to the curing of the composite” (1 5). Oku’s method includes feeding a
first rubber material (A) through a feeder (5) to an extruder (2), extruding
the first rubber material (A) through the extruder (2) and helically winding
the extruded first rubber material (A) onto a rotating support (1) to form a
first rubber layer, and continuously extruding the first rubber material (A)
while feeding a second rubber material (B) through the feeder (5) to the
extruder (2) so as to stepwise or gradually increase a blending ratio of the
second rubber material (B) to the first rubber material (A) while holding the
same extrusion sectional shape and helical winding on the first rubber layer
to form a second mbber layer which overlaps at least a part of the first
rubber layer 15—17, 47, 53; Fig. 1). A feed control (4) individually
adjusts the feeding quantities of the rubber materials (A, B) (| 45; Fig. 1).
Deal continuously mixes two base elastomers fed from separate
hoppers (5) in a controlled ratio through separate twisted knives (53) which
shred and plasticize the elastomers and transfer them to separate gear
pumps (55) which pump the elastomers through separate pipelines (56) to a
single line (57) through which the elastomers go to a mixing chamber (11)
comprising an elongated helical rotor (2) within a cylindrical stator (1)
(col. 1,11. 8-9; col. 6,11. 7-9, 17-21; col.7,11. 7-38; col. 10,11. 18-22, 25-
28, 59-62; Figs. 1,3).
The Appellants assert that Oku does not disclose gear pumps (Br. 5—
6).
4
Appeal 2014-004044
Application 12/950,327
That argument is deficient in that the Appellants are attacking Oku
individually when the rejection is based on a combination of references. See
In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Young, 403 F.2d 754,
757—58 (CCPA 1968). The Examiner relies upon Deal for a suggestion to
use gear pumps to feed Oku’s elastomers (A), (B) to the extruder (2) (Final
Act. 5).
The Appellants argue that “[a] person skilled in the art would
understand that an extruder utilizes pressure in order to force rubber through
a die. Deal’s knife is concerned with shredding, and thus would not quality
as the claimed extruder because of the lack of pressure and die” (Br. 6).
‘“[Djuring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.’” In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Appellants’ Specification
does not indicate that the Appellants’ claim term “extruder” has any
meaning other than its ordinary meaning, i.e., an apparatus for “[fjorcing a
substance through an aperture.”2 Deal’s twisted knifes (53) not only shred,
but due to their helix’s progressively decreasing pitch, also plasticize the
elastomer and force it into a gear pump (55) (col. 4,1. 62 — col.5,1. 6; col. 7,
11. 26—34; Fig. 1). Thus, Deal’s knives are extruders according to the
broadest reasonable interpretation of that term consistent with the
Appellants’ Specification.
The Appellants assert that replacing Oku’s feed controller (4) with
Deal’s gear pumps (55) would destroy Oku’s feed control (Br. 7).
2 Hackh’s Chemical Dictionary 259 (McGraw-Hill 1977).
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Application 12/950,327
The rejection is not based upon replacing Oku’s feed controller (4)
but, rather, is based upon using Deal’s gear pumps (55) to feed Oku’s
controlled elastomer flows to the extruder (2) (Final Act. 6).
The Appellants assert that if all of Deal’s gear pumps are mounted on
the same shaft, it would not be possible to vary the speed of one pump
relative to another (Br. 7).
Deal’s gear pumps (55) which feed the elastomers to the mixing
chamber (11) are on separate shafts (Fig. 3) and the elastomers are fed to the
mixing chamber (11) in controlled relative dosages (col. 6,11. 16—21; col. 10,
11. 18-22, 25-28).
The Appellants assert that neither Deal nor Oku discloses a main gear
pump (Br. 7).
Deal’s mixing chamber (11; Fig. 1) corresponds to the Appellants’
main extruder, and whichever of Deal’s gear pumps (55) pumps the most
elastomer can be considered a main gear pump, the other being considered a
second gear pump.
Rejections over Ohashi or Katakabe,
in view of Skibba and Uphus
Ohashi flflf 11, 23—25; Fig. 1) provides essentially the same relevant
disclosure as that set forth above regarding Oku.
Katakabe discloses an apparatus comprising “mixer-extruder means
for mixing separately produced rubber compositions having a relatively fast
and relatively low vulcanization rate respectively at a variable mixing ratio
and extruding the constituent rubbers thereby obtained having different
vulcanization rates” (col. 2,11. 34—39).
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Application 12/950,327
Skibba discloses “an extrusion conveying apparatus [10] having an
extruder [12] that operates as a mixing device and that can be laterally
supplied with components that are to be mixed, in particular components of
a rubber mixture or thermoplastic elastomer (TPE), whereby a
volumetrically acting conveyor, in particular a gear pump [14], is connected
to an output side of the extruder [12],[3] and whereby the components that
are supplied pass through volumetric subsidiary conveyors [28, 30,32],
which in particular are also embodied as gear pumps and the rotation speed
or feed rate of which is adjustable independently of the feed rate of the
volumetrically acting conveyor [14]” (| 2; Fig.).
Uphus continuously produces rubber mixtures by “plasticizing rubber
in a short-screw extruder [5] to prepare plasticized rubber, and feeding
plasticized rubber through intervention of a gear pump [3] to a twin-screw
extruder [2] at a predetermined temperature and predetermined volume flow.
Suitably, the gear pump [3] and the short-screw extruder [5] can be
separately powered and controlled by a suitable drive system” (| 14; Fig. 1).
The Appellants assert that Ohashi and Katakabe fail to disclose a main
gear pump or a second gear pump (Br. 8, 10).
The Appellants improperly are attacking Ohashi and Katakabe
individually when the rejection is based on a combination of references. See
Keller, 642 F.2d at 426; Young, 403 F.2d at 757—58. The Examiner relies
upon Skibba and Uphus for a suggestion to use gear pumps in Ohashi’s and
Katakabe’s apparatus (Final Act. 8—9, 13—14).
3 “The drive mechanism of the gear pump 14 is independent of the drive
mechanism of the extruder 12” (| 28).
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Application 12/950,327
The Appellants argue that because Ohashi and Katakabe already have
a supply device that individually adjusts the relative amounts of elastomers,
one of ordinary skill in the art would have had no reason to modify their
apparatus (Br. 9, 11).
Setting forth a prima facie case of obviousness requires establishing
that the applied prior art would have provided one of ordinary skill in the art
with an apparent reason to modify the prior art to arrive at the claimed
invention. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Skibba’s disclosure that use of an extruder (12) output gear pump (14)
having a drive mechanism independent of that of the extruder (12) and use
of subsidiary gear pumps having feed rates that are independent of the feed
rate to the extruder (12)’s output gear pump (14) enable good mixing of
components having poor mixing behavior flflf 2, 9, 28) would have provided
one of ordinary skill in the art with an apparent reason to use those gear
pumps in Ohashi’s and Katakabe’s methods to obtain that benefit. Uphus’
disclosure that use of a short-screw extruder (5) to feed plasticized rubber to
a separately-operated gear pump (3) which pumps the elastomer into a
twin-screw extruder (2) provides the benefit of higher throughput at the
same short-screw extruder (5) speed or the same throughput at a reduced
short-screw extruder (5) speed (120) would have provided one of ordinary
skill in the art with an apparent reason to use Uphus’ short-screw
extruders (5) as Skibba’s subsidiary conveyors (28, 30, 32) to obtain that
benefit.4
4 Thus, the Appellants’ assertion that “none of the cited references alone or
in combination teach the step of adjusting the speed of the main gear pump
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Application 12/950,327
For the above reasons we are not persuaded of reversible error in the
rejections under 35 U.S.C. § 103.
Rejection under 35 U.S.C. § 112, first paragraph,
written description requirement and provisional
obviousness-type double patenting rejections
The Appellants do not challenge the rejection under 35 U.S.C. § 112,
first paragraph written description requirement or the provisional
obviousness-type double patenting rejections. Accordingly, we summarily
affirm those rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1, 2 and 5 over Oku in
view of Deal, claim 3 over Oku in view of Deal and Koumo, claim 4 over
Oku in view of Deal and Kudo, claims 1, 2 and 4 over Ohashi in view of
Skibba and Uphus, claim 3 over Ohashi in view of Skibba, Uphus and
Marshall, claim 3 over Ohashi in view of Skibba, Uphus and Galimberti,
claim 5 over Ohashi in view of Skibba, Uphus and Mancini, claims 1 and 2
over Katakabe in view of Skibba and Uphus, claim 3 over Katakabe in view
of Skibba, Uphus and Marshall, claim 3 over Katakabe in view of Skibba,
Uphus and Galimberti and claims 4 and 5 over Katakabe in view of Skibba,
Uphus and Kozima, the rejection of claim 3 under 35 U.S.C. § 112, first
paragraph, written description requirement, and the provisional rejections on
the ground of nonstatutory obviousness-type double patenting of claims 1, 2,
4 and 5 over claims 1—5 of copending Application No. 12/950,403, and
and the second gear pump to obtain a second blend ratio of said first
compound to said second compound” (Br. 9, 11) is not well taken.
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Appeal 2014-004044
Application 12/950,327
claim 3 over claims 1 and 3 of copending Application No. 12/950,403 in
view of Marshall are affirmed.
It is ordered that the Examiner’s decision 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).
AFFIRMED
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