Ex Parte Delantar

Board of Patent Appeals and Interferences

Mar 17, 2010

10250021 (B.P.A.I. Mar. 17, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PEDRO H. DELANTAR, JR.
__________

Appeal 2009-0012239
Application 10/250,021
Technology Center 1700
____________

Decided: March 17, 2010
____________

Before MICHAEL P. COLAIANNI, LINDA M. GAUDETTE, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1, 2, 4-7, and 10-16. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
Appellant discloses a molded coarse particle product useful as
housewares, furniture, or architectural components (Spec. ¶ [0004]).

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Claims 1, 7, and 10 are illustrative:
1. A molded coarse particle product comprising:

coarse particles of random irregular sizes bonded together with an
adhesive binder and pressed into a mold such that said molded coarse
particle product comprises a coarse texture, wherein said coarse particles
comprise wood or dried grass; and

a reinforcing means in said molded coarse particle product,

wherein the surface texture of said molded coarse particle product
comprises the original contour, the original appearance, or the original color
of the coarse particles when the coarse particles of said molded coarse
particle product are viewed collectively;

wherein said molded coarse particle product comprises a metal frame
or a stone base; and

wherein said molded coarse particle product is an article selected from
the group consisting of a utility article holder, an article of furniture, and a
decorative houseware article.

7. A molded coarse particle product according to claim 1, wherein
said coarse particles are admixed during said bonding, and wherein said
pressing is light cold pressing performed manually.

10. A molded coarse particle product according to claim 1, wherein
said molded coarse particle product comprises (a) coarse particles
comprising wood and (b) coarse particles comprising dried grass.

The Examiner relies on the following prior art references as evidence
of unpatentability:

Williamson 2,645,587 Jul. 14, 1953
Gramelspacher 2,649,034 Aug. 18, 1953
Arbour 4,207,936 Jun. 17, 1980
Kleinguenther 4,233,752 Nov. 18, 1980
Kelley 4,685,255 Aug. 11, 1987
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Appellant appeals the following rejections:
1. Claims 1, 2, 4, 6, 7, and 11-16 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Gramelspacher in view of Arbour,
Kleinguenther, and Kelley.
2. Claims 5 and 10 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Gramelspacher in view of Arbour, Kleinguenther,
Kelley, and Williamson.1
With respect to rejection (1), Appellant argues claims 1 and 7 only.
With respect to rejection (2), Appellant separately argues claims 5 and 10.

Rejection (1)
ISSUE
Has Appellant identified reversible error in the Examiner
determination that the combined teachings of Gramelspacher, Arbour,
Kleinguenther, and Kelley would have taught or suggested the subject matter
of claims 1 and 7 for the stated reasons? We decide this issue in the
negative with regard to claim 1 and in the affirmative with regard to claim 7.

1 The Examiner states that claim 10 was inadvertently included in rejection
(1) and omitted from rejection (2) and that Appellant had notice of how
Williamson was applied to meet the feature of claim 10 (Ans. 10-11).
Appellant does not dispute the Examiner’s determination (Reply Br. 3). The
Examiner’s omission of claim 10 from rejection (2) is harmless error.
Accordingly, we include the correct statement of rejection (2) as understood
by the Examiner and Appellant.
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PRINCIPLES OF LAW
When determining whether a claimed invention would have been
obvious over a combination of references, “a court must ask whether the
improvement is more than the predictable use of prior art elements according
to their established functions.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
417 (2007).
The test for obviousness is what the combined teachings of the
references would have suggested to one of ordinary skill in the art. In re
Keller, 642 F.2d 413, 425 (CCPA 1981).

FACTUAL FINDINGS (FF)
1. Appellant does not dispute the Examiner’s finding that
Gramelspacher teaches a wood particle base molding and that
Gramelspacher teaches “more than just veneers” (Ans. 4, 8; App.
Br. & Reply Br. generally).
2. Gramelspacher teaches that the invention is directed to veneer
sheets or molded articles of manufacture made from sawdust,
wood chips and wood pulp suitably bonded together (col. 1, ll.
30-35). Gramelspacher further teaches molding or shaping
laminated sheets of wood product veneer (col. 5, ll. 1-5).
3. The Examiner finds that Arbour teaches one of ordinary skill in the
art that a wood product having a roughened appearance is desirable
(Ans. 8). The Examiner’s stated rejection and primary rationale
for the combination does not propose physically combining
Arbour’s method of roughening the surface of the wood with
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Gramelspacher’s method of forming a molded product (Ans. 4-5,
8).
4. The Examiner relies on Kleinguenther to teach using wire mesh to
reinforce wood veneer moldings (Ans. 4). Kleinguenther teaches
the wood or fibrous material may be shaped to form a fibrous
shaped product (col. 5, ll. 32-40). Kleinguenther further teaches
that a mesh may be used to reinforce “laminated wood products,
panels or the like” (col. 13, ll. 37-50). Kleinguenther discloses
molding a wood or other fibrous material, which may be
impregnated with resin (col. 5, ll. 17-40; col. 14, ll. 3-32; Fig. 11).
The reinforcing means may be applied to a single sheet of “veneer
or the like” (Kleinguenther, col. 13, ll. 47-50).
5. The Examiner relies on Kelley to teach using wood panels on
metal frames to form decorative wall panels on modular walls,
which include tables, shelves and other elements integral with the
modular walls (Ans. 4, 9).

ANALYSIS
Appellant argues that one would not look to Gramelspacher, Arbour,
Kleinguenther, and Kelley either alone or in combination to arrive at
Appellant’s claimed invention (App. Br. 4). Appellant contends that
Gramelspacher and most of the other references are directed to veneer sheets
which is not a molded coarse particle product as claimed and the applied
prior art does not teach forming a utility article holder, an article of furniture,
or a decorative houseware as claimed (App. Br. 5). Appellant contends
veneer products as in Gramelspacher are not coarse textured, but are smooth,
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such that Gramelspacher’s teaching to adjust the pressure and amount of
resin to control strength and porosity would not have resulted in a coarse
textured product absent hindsight (App. Br. 7).
Appellant contends that Arbour discloses a texturing process on a
piece of lumber such that there would have been no reasonable expectation
of successfully using the texturing process on Gramelspacher’s compressed
wood materials (App. Br. 8). Appellant further argues that Kleinguenther
teaches only using reinforcing material in veneer sheets not molded particle
products such that an ordinarily skilled artisan would not look to
Kleinguenther to reinforce a molded particle product (App. Br. 9).
Appellant argues that Kelley only teaches a modular office wall and not an
article of furniture or a decorative houseware article as claimed (App. Br.
10). Appellant argues that the Examiner has not supplied a single proper
rationale that supports the obviousness rejection (App. Br. 11).
Appellant’s arguments are unpersuasive because they improperly
attack the references individually instead of addressing what the combined
teachings would have suggested to one of ordinary skill in the art as stated in
the Examiner’s rejection. Keller, 642 F.2d at 425. On pages 3-5 and 8-9,
the Examiner finds that the prior art teachings, as a whole, would have
suggested the claimed invention for the reasons specified. Appellant has not
persuasively responded to the Examiner’s findings/reasoning.
Specifically, the Examiner finds that Gramelspacher’s disclosure is
not limited solely to veneer sheets as argued by Appellant, but rather
includes molded manufactured wood products (FF 1 and 2). Appellant
never addresses or identifies error in this finding. Accordingly, Appellant’s
arguments focusing on Gramelspacher’s veneer sheets are unpersuasive.
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Similarly, Appellant’s argument that there is no reasonable
expectation of success in using the Arbour process of treating a piece of
lumber with a texturing device to form a roughened surface on
Gramelspacher’s compressed wood product fails to address the Examiner’s
stated case. The Examiner’s primary rationale is not based on physically
combining Arbour’s texturing process with Gramelspacher. To the contrary,
the Examiner’s obviousness analysis is based on Arbour’s teaching that a
roughened wood surface texture is desirable such that one of ordinary skill
in the art would have manipulated Gramelspacher’s pressure and resin
amount to achieve the desired roughened characteristic (Ans. 4-5, 8).
Therefore, manipulating Gramelspacher’s pressure and amount of resin to
achieve a coarse texture is not based on impermissible hindsight as argued
but the teachings of Gramelspacher and Arbour taken as a whole, which
Appellant’s argument fails to address.
Appellant’s arguments regarding Kleinguenther fail to identify error
in the Examiner’s finding that one of ordinary skill in the art in controlling
the pressure and resin amount to increase the porosity, which weakens the
fibrous particle structure as taught by Gramelspacher, would have looked to
related references (i.e., Kleinguenther) to strengthen or reinforce the fibrous
structure (Ans. 9). In other words, the art would have suggested the
modification to one of ordinary skill in the art.
Though Appellant contends that Kleinguenther’s disclosure is limited
to laminated veneers not molded products, such an argument fails to address
the Examiner’s findings that including Kleinguenther’s reinforcing material
into Gramelspacher’s molded article is nothing more than the predictable use
of a prior art element (i.e., a wire mesh reinforcing material) according to its
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established function (i.e., providing strength to a molded article) (Ans. 9).
Appellant’s argument that Kelley is directed to modular walls is
unpersuasive because it fails to address the Examiner’s finding that Kelley
shows tables, shelves and other elements are integral with the modular walls
such that the decorative layers are used on furniture (Ans. 9). Appellant has
not shown the Examiner’s finding to be erroneous (Reply Br. generally).
Indeed, the Examiner finds that Gramelspacher in view of Arbour teach
forming a molded coarse textured veneer sheet that function in the same
manner as Kelley’s decorative panel in the work space management system
(Ans. 9-10). Stated differently, substituting the decorative panel of
Gramelspacher in view of Arbour for Kelley’s decorative panel is nothing
more than the predictable use of prior elements according to their established
function. Appellant’s arguments fail to identify error in the Examiner’s
determinations (Reply Br. generally).
Contrary to Appellant’s argument, the Examiner’s case includes
reasons for modifying Gramelspacher’s article in view of the teachings of
Arbour, Kleinguenther, and Kelley (Ans. 4-5). Appellant has not identified
error in the Examiner’s stated reasoning.
With regard to claim 7, Appellant argues that none of the references
teach or suggest light cold pressing preformed manually to form the molded
product (App. Br. 12). Appellant argues that all the references teach heating
to form the molded product (App. Br. 12). We agree.
Though the Examiner addresses the “light” aspect of the pressing in
product-by-process claim 7, the Examiner fails to address the “cold” aspect
of the pressing and whether the structure such cold pressing would impute to
the final product would have been obvious over the combined teachings of
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the references that teach heated pressing (Ans. 4-5; 10). Accordingly, the
Examiner has failed to establish that the subject matter of claim 7 would
have been obvious over Gramelspacher in view of Arbour, Kleinguenther,
and Kelley.
For the above reasons, we affirm the Examiner’s § 103 rejection of
claims 1, 2, 4, 6, and 11-16 over Gramelspacher in view of Arbour,
Kleinguenther, and Kelley. We reverse the Examiner’s rejection of claim 7
under § 103 over Gramelspacher in view of Arbour, Kleinguenther and
Kelley.

Rejection (2)
ISSUE
Has Appellant identified reversible error in the Examiner’s
determination that the combined teachings of Gramelspacher, Arbour,
Kleinguenther, Kelley, and Williamson would have taught or suggested the
subject matter of claims 5 and 10? We decide this issue in the negative.

PRINCIPLES OF LAW
We rely on the principles of law enumerated earlier in this decision.
A reference may be said to teach away “when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). “The degree of teaching away will of course depend on
the particular facts; in general, a reference will teach away if it suggests that
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the line of development flowing from the reference's disclosure is unlikely to
be productive of the result sought by the applicant.” Id.

FINDINGS OF FACT
6. The Examiner finds that Williamson teaches using straw (i.e., dried
grass) as a particle in a molded article (Ans. 5; 10-11).
7. Williamson discloses that the straw is “finely divided . . . although
extremely fine particles are not necessary” (col. 1, ll. 41-43).
8. The Examiner further finds that Williamson teaches glue, which is
a water-based adhesive, and that thermoplastic resin binder is
equivalent to glue (Ans. 5). The Examiner cites Webster’s
dictionary to define “glue” as “an adhesive obtained by boiling
certain animal proteins,” which the Examiner finds indicate that
“glue” is water-based (Ans. 11).
9. Williamson discloses using a binder that is stable at the heat
treating temperature (col. 2, ll. 47-49). Williamson discloses heat
treating the straw and mixing the heat-treated straw with a binder
to form a molding composition (col. 1, ll. 20-55). In one
embodiment a thermoplastic binder, Vinsol, is mixed with dry
particles, heat treated at between 260-265°C and then molded (col.
3, ll. 56-75; col. 4,ll. 1-13). Williamson teaches that the properties
of the molded products are affected to some extent by the nature of
the binder and that minimum of water absorption and dimensional
stability require using resinous binder (col. 3, ll. 49-55). In other
words, the choice of binder depends on the particular desired
properties and particular heat treatment temperature.
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10. Williamson further teaches that the heat-treatment process
includes heating the lignocellulosic material to a temperature
within the range of 200-300°C (col. 1, ll. 17-29).

ANALYSIS
Appellant argues that Williamson teaches away from using coarse
particles of straw or dried grass because it teaches pyrolytically treating and
pulverizing the straw or dried grass (App. Br. 14-15). Appellant further
argues that Williamson teaches away from water based binders because the
material is heat treated to above water’s boiling point and thus would harm
the glue (App. Br. 15).
Appellant’s argument regarding whether Williamson teaches coarse
particles is not persuasive because such argument attacks the references
individually instead of addressing what the combination of references would
have suggested as stated in the Examiner’s rejection. Specifically, the
Examiner relies on Gramelspacher to teach using coarse particles, not
Williamson.
Furthermore, the claim recites “coarse particles” but does not recite a
particular size for the particles. Appellant does not define what is meant by
“coarse particles” in the Specification. Because the claim is not limited to
any specific coarse particle size, Appellant’s argument that Williamson
teaches away from “coarse particles” is not persuasive.
Appellant’s teaching away argument regarding the water-based glue
feature of claim 5 is not persuasive. Though Williamson teaches an
embodiment where thermoplastic resin is heated along with the particles to a
temperature of 260-265°C, Williamson broadly discloses that previously
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heat-treated particles may be mixed with a binder to form a molding
composition. Williamson further teaches that the properties of the product
depend on the binder used and that resinous binder is required for
dimensional stability and minimum water absorption. The Examiner further
finds that glue, as disclosed by Williamson, includes water-based adhesive
binders, which Appellant does not dispute.
One of ordinary skill would understand from these teachings that the
choice of binder depends upon the desired properties and heat treatment
temperature. The skilled artisan would understand from Williamson that
using a non-resinous binder (e.g., glue, an uncontested water-based
adhesive) produces a product with certain properties that may differ from
resinous binders. However, this teaching does not constitute a teaching
away from using water-based adhesives.
Moreover, Williamson broadly discloses that the heat-treated particles
are incorporated into a molding composition that includes binder (e.g., glue)
(Ans. 11). In other words, after heat-treating the particles within the
elevated temperature range of 200-300°C, the particles may be combined
with the binder to form the molding composition. In such a case, no heat
degradation of the glue would occur. For these reasons, we do not find that
Williamson teaches away from using a water-based adhesive binder.
For the above reasons, we affirm the Examiner’s § 103 rejection of
claims 5 and 10 over Gramelspacher in view of Arbour, Kleinguenther,
Kelley, and Williamson.
DECISION
We affirm the Examiner’s § 103 rejection of claims 1, 2, 4, 6, and 11-
16 over Gramelspacher in view of Arbour, Kleinguenther, and Kelley.
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We reverse the Examiner’s rejection of claim 7 under § 103 over
Gramelspacher in view of Arbour, Kleinguenther and Kelley.
We affirm the Examiner’s rejection of claims 5 and 10 over
Gramelspacher in view of Arbour, Kleinguenther, Kelley, and Williamson.
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v).
AFFIRMED-IN-PART

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