Ex Parte D et al

Patent Trial and Appeal Board

Mar 7, 2017

12950403 (P.T.A.B. Mar. 7, 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.
12/950,403 11/19/2010 Richard Michael D'Sidocky DN2009192 7692
27280 7590 03/09/2017
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
03/09/2017 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 PULFORD1
Appeal 2014-004046
Application 12/950,403
Technology Center 1700
Before PETER F. KRATZ, CHRISTOPHER C. KENNEDY, and
AVELYN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claim 6. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Appellants identify the real party in interest as The Goodyear Tire &
Rubber Company, the assignee of the instant application. Appeal Br. 3.
2 In our Decision below we refer to the Specification filed November 19,
2010 (Spec.), the Final Office Action mailed June 6, 2013 (Final Act.), the
Appeal Brief filed November 6, 2013 (Appeal Br.), the Examiner’s Answer
mailed November 26, 2013 (Ans.).
Appeal 2014-004046
Application 12/950,403
STATEMENT OF CASE
The claims are directed to a method for forming a stratified rubber
article with a variable cure rate for application in tire manufacturing. Spec.
2—\. Claim 6, reproduced below, is illustrative of the claimed subject
matter:
6. A method of forming a tread comprising two or more
layers of rubber, the method comprising the steps of:
extruding a rubber compound through a first extruder and
a first gear pump;
extruding an accelerant through a second extruder and a
second gear pump and then into the first extruder for mixing the
rubber compound with the accelerant, and then applying one or
more first strips of a rubber mixture having a first cure rate from
the output of the first gear pump directly onto a tire building
machine;
adjusting the amount of accelerant to obtain a second cure
rate different than said first cure rate, and then applying one or
more second strips of rubber mixture having a second cure rate
directly onto the tire building machine, wherein one of the cure
rates is faster than the other cure rate.
Claims Appendix at Appeal Br. 10 (emphasis added).
REJECTIONS
The Examiner maintains the rejection of claim 6 under 35 U.S.C.
§ 103(a) as being unpatentable over Katakabe3 in view of Skibba4 and
Uphus.5 Final Act. 2.
Appellants request our review of the rejection of claim 6. Appeal Br.
4.
3 Yuji Katakabe, EP 0 485 127 Al, published May 13, 1992 (“Katakabe”).
4 Olaf Skibba, US 2009/0080282 Al, published March 26, 2009 (“Skibba”).
5 Uphus et al., US 7,354,188 B2, issued April 8, 2008 (“Uphus”).
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Appeal 2014-004046
Application 12/950,403
OPINION
The Examiner rejects claim 6 as obvious in view of Katakabe, Skibba
and Uphus. Final Act. 2. The Examiner finds that Katakabe teaches a
method of forming a tread that includes:
extruding a rubber compound (Column 4, lines 28—30) through
an extruder and mixing with an accelerator (Figure 1:
16)(Column 3, line 21) and then applying one or more first strips
(Figure 3:7a) of rubber having a first cure rate (Abstract) onto a
tire building machine (Figure 1:20); adjusting the amount of
accelerant to obtain a second cure rate different than said first
cure rate (Abstract), and then applying one or more second strips
of rubber having a second cure rate onto the building machine
(Figure 3:7b—f), wherein one of the cure rates is faster than the
other cure rate (Column 8, lines 44-54).
Id. at 3. The Examiner finds that Katakabe does not teach using gear pumps
in conjunction with an extruder. Id. The Examiner finds that Skibba
“discloses that by equipping a continuous mixing extruder with feed and
outlet gear pumps, it is possible [to] improve and control the degree of
mixing ([0015]).” Id. The Examiner additionally finds that Uphus
“discloses that a self-cleaning, low-wear, low-maintenance, high capacity,
and precise (Column 2, lines 9-19) conveying device can be achieved by
providing a feeding gear pump (Column 2, line 12)(Figure 1:7) which
cooperates with an extruder (Column 2, line 49)(Figure 1:6).” Id. at 3^4.
Appellants present several arguments to oppose the rejection of claim
6. See e.g. Appeal Br. 5—7. Appellants first argue that the addition of the
Skibba gear pump to the system of Katakabe would fail to teach or suggest
the entirety of claim 6. Appeal Br. 6. Specifically, Appellants explain that
to satisfy claim 6, the Skibba gear pump would need to be
connected to the output of the continuous extruder. If this is the
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Appeal 2014-004046
Application 12/950,403
case, then after the rubber flow exits the Katakabe extruder and
then Skibba’s gear pump, it would then be calendered [sic],
cooled through rollers, and then applied to the drum in sheets,
following the teachings of Katakabe, (since the office action
stated it would be obvious to equip the extruder with a gear
pump, and makes no mention of substituting the gear pump for
the calendaring system and cooling rollers).
Id. at 6. As a result, the step requiring “applying one or more first strips of a
rubber mixture having a first cure rate from the output of the first gear pump
directly onto the tire building machine,” is unsatisfied. Id. (emphasis
added).
The Examiner finds that the term “directly,” as used in Appellants’
Specification, does not preclude the use of intervening structures, i.e., a
calendaring or cooling structure between the extruder and tire building
machine. Ans. 2. Specifically, the Examiner points to the applicator 92 that
is positioned between the gear pump 25 and the tire building machine 95 to
support the Examiner’s position that additional components may be present.
Id. at 3. The Examiner finds the Appellants’ position—that is, the use of the
word “directly” excludes intervening rollers and conveyor belts yet includes
an applicator between the gear pump and building machine—unreasonable.
Id.
We have considered the respective positions articulated by the
Examiner and Appellants, and find Appellants’ arguments persuasive of
reversible error. “[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); see also, In re Am. Acad, of
Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004) (The scope of the
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Application 12/950,403
claims in patent applications is not determined solely on the basis of the
claim language, but upon giving claims their broadest reasonable
construction in light of the specification as it would be interpreted by one of
ordinary skill in the art.); Phillips v. AWH Corp., 415 F.3d 1303, 1315 (Fed.
Cir. 2005) (“[T]he specification is always highly relevant to the claim
construction analysis .... it is the single best guide to the meaning of a
disputed term.” (internal citation omitted)). In addition, claims are construed
with an eye toward giving effect to all terms in the claim. See Stumbo v.
Eastman Outdoors, Inc., 508 F.3d 1358, 1362 (Fed. Cir. 2007) (denouncing
claim constructions that render phrases in claims superfluous); see also
Merck & Co., Inc. v. leva Pharm. USA, Inc., 395 F.3d 1364, 1372 (Fed. Cir.
2005) (“A claim construction that gives meaning to all the terms of the claim
is preferred over one that does not do so.” (internal citations omitted)).
Here, the Examiner does not give proper effect to the term “directly”
as that term is used in claim 6. Rather, the Examiner’s interpretation of
“directly,” as permitting any intervening components, effectively renders the
word “directly” superfluous. Thus, we disagree with the Examiner’s overly
broad interpretation.
Moreover the Examiner’s interpretation is inconsistent with the
Specification. The Specification explains that
[t]he output mixture of compound C exits the main extruder 20
and enters a main gear pump 25. The main gear pump 25 is
preferably located adjacent a tire building station 95 for direct
application onto a core, tire blank buffed carcass for a retreaded
tire or tire building drum 95, as shown in Figure 1. Gear pump
25 preferably has a nozzle 92 which applies the compound
formulation output from the gear pump 25 directly onto the tire
building machine 95 in strips which are wound onto a tire
building drum or core.
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Application 12/950,403
Spec. 131. The Specification makes clear that the nozzle 92, which is part
of the gear pump 25, is used to facilitate the direct application of the rubber
compound onto the tire building machine. Thus, Appellants intended to
include components that facilitate application, such as a nozzle, but not
intervening and separate components that would further work the rubber
compound prior to application. With this understanding of the term
“directly,” we find that neither Katakabe, nor the remaining references, teach
or suggest “applying one or more first strips of a rubber mixture . . . from the
output of the first gear pump directly onto a tire building machine.”
Because we find Appellants’ first argument persuasive—i.e., that the
limitation of claim 6 requiring the application of “one or more first strips of
a rubber mixture having a first cure rate from the output of the first gear
pump directly onto a tire building machine” is not taught by the combination
of references—we need not address the remainder of Appellants’ arguments.
CONCLUSION
The Examiner reversibly erred in rejecting claim 6 as obvious over
Katakabe, Skibba, and Uphus.
DECISION
For the above reasons, the Examiner’s rejection of claim 6 is reversed.
REVERSED
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