Ex Parte Dilyard et alDownload PDFPatent Trial and Appeal BoardJun 26, 201511151166 (P.T.A.B. Jun. 26, 2015) Copy Citation 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. 11/151,166 06/10/2005 Ricky L. Dilyard 24380-0002-U1 3558 26587 7590 06/26/2015 MCNEES WALLACE & NURICK LLC 100 PINE STREET P.O. BOX 1166 HARRISBURG, PA 17108-1166 EXAMINER GUIDOTTI, LAURA COLE ART UNIT PAPER NUMBER 3727 MAIL DATE DELIVERY MODE 06/26/2015 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 RICKY L. DILYARD and GARY L. LEISURE ____________________ Appeal 2013-005962 Application 11/151,166 Technology Center 3700 ____________________ Before JOHN C. KERINS, WILLIAM A. CAPP, and LISA M. GUIJT, Administrative Patent Judges. GUIJT, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Ricky L. Dilyard and Gary L. Leisure (“Appellants”) seek our review under 35 U.S.C. § 134(a) of the final rejection of claims 38–47. Final Act. 1.1 Claims 1–30 are cancelled, and claims 31–37 are withdrawn. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Final Action mailed Oct. 28, 2011. Appeal 2013-005962 Application 11/151,166 2 CLAIMED SUBJECT MATTER Claims 38 and 43 are independent. Claim 38 is illustrative of the subject matter on appeal and reads as follows: 38. A roller cover for applying paint and stain to a surface, consisting of: (a) a core, wherein the core consists of non-woven material, wood, silica, metal, thermoplastic rubber, thermoplastic elastomer, nylon, glass filled nylon, or combinations thereof; (b) a single-ply paint and stain applying cover having a substantially homogeneous surface texture for evenly applying paint and stain to a surface, wherein the cover consists of a non-fiberglass, non-woven material further consisting of natural fibers, synthetic fibers, or a combination thereof, and wherein the fibers have been interconnected by mechanical means, chemical means, thermal means, solvent means, or combinations thereof; and (c) a non-fiberglass substrate disposed between the core and the cover and attached to both, wherein the substrate is operative to provide dimensional stability to the roller cover by reducing the formation of gaps on the core, and wherein the substrate consists of paper, phenolic impregnated paper, olefin sheets, cloth, metal, elastomer, non-woven materials, or combinations thereof. Br. 8, Claims App. THE REJECTION Claims 38–47 are rejected under 35 U.S.C. § 102(b) as anticipated by Langford (US 5,146,646; iss. Sept., 1992). ANALYSIS Independent Claims 38 and 43 — “a core . . . of non-woven material” The Examiner finds Langford discloses a core consisting of non- woven material because Langford discloses, inter alia, a core made of Appeal 2013-005962 Application 11/151,166 3 cardboard. Ans. 6 (citing Langford, col. 4, ll. 25–27); see also Final Act. 2. In support, the Examiner relies on a dictionary definition of the term cardboard as “a ‘thin stiff board made from paper pulp.” Ans. 6 (citing www.dictionary.com). The Examiner maintains that Langford’s cardboard meets the definition of the term non-woven provided in Appellants’ Specification because cardboard “is a web of material created by bonding and/or interlocking pulp fibers and filaments by means.” Id. (citing Spec. ¶ 9). Appellants argue that “paper is not recognized by those skilled in the art as a non-woven material.” Br. 4. Appellants submit that (a) the term non-woven has a specific meaning in the art of textiles, and “simply because something is not a woven material does NOT make it a ‘non-woven’ material”; (b) paragraph 9 of Appellants’ Specification defines the term non- woven as “a sheet, matrix, or web of fabric or material that is created by bonding and/or interlocking fibers, yarns, or filaments using mechanical, thermal, chemical, solvent means, or other means,”, and Appellants submit that “[t]he term ‘fiber’ is used in its generic sense, and refers to yarns, threads, filaments, and the like, as well as to actual fibers”; and (c) “the treatise Nonwoven Fabrics . . . defines ‘non-woven’ as being ‘a manufactured sheet, web, or batt or directionally or randomly oriented fibres, bonded by friction, and/or cohesion and/or adhesion, excluding paper and products which are woven, knitted, tufted, stitch-bonded incorporating binding yarns or filaments, or felted by wet-milling, whether or not additionally needed.” Id. (citing Nonwoven Fabrics, Wiley-VCH (2003)).2 2 A copy of Nonwoven Fabrics, Wiley-VCH (2003) is not made part of the record. Appeal 2013-005962 Application 11/151,166 4 We interpret claims using the broadest reasonable construction in light of the specification, and according to this standard, claim terms are given their “ordinary and customary meaning” as would be understood by one of ordinary skill in the art in the context of the entire disclosure. In re Translogic Tech. Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007) (quoting Phillips v. AWH Corp., 415 F.3d 1303, 1312 (Fed. Cir. 2005) (en banc)). An inventor may rebut that presumption by providing a definition of the term in the specification with “reasonable clarity, deliberateness, and precision.” In re Paulsen, 30 F. 3d 1475, 1480 (Fed. Cir. 1994). Here, Appellants expressly provide a definition in the Specification, which we adopt as the broadest reasonable interpretation for the term non-woven. See Spec. ¶ 9. Appellants’ definition is not, however, limited to textiles or fabrics, as Appellants urge, but rather includes “fabric or material.” Thus, we are not persuaded by Appellants’ arguments. In particular, Appellants fail to provide persuasive argument or evidence that cardboard is not known to be a web material created by bonding fibers by mechanical or chemical means, in that cardboard is made by binding wooden fibers together, for example, by pressing and heating. In addition, as noted by the Examiner, the treatise cited by Appellants is only relevant to non-woven fabrics, as compared to the claimed non-woven materials. Claim 38 The Examiner further finds, with respect to claim 38, that Langford’s layer 20 is a single-ply cover, as claimed. Final Act. 2; see also Ans. 7 (citing Langford, Fig. 2). The Examiner interprets Langford’s layer 24 as a Appeal 2013-005962 Application 11/151,166 5 non-fiberglass substrate disposed between Langford’s core 10 and cover 20. Ans. 7. Although Appellants contend that “the term substrate is only used by Langford to refer to the core component” (Br. 6 (citing Langford, col. 4, ll. 63–65)), an ordinary definition of the term substrate (or substratum) is “an underlying support,”3 and Langford teaches that layer 24 underlies layer 20 and that layer 20 bonds to layer 24. Thus, we are not apprised of error in the Examiner’s finding that Langford’s layer 24 meets the definition of a substrate. Appellants also argue that “Appellants’ claimed stabilizing substrate has been narrowly defined to include material not taught by Langford.” Br. 6. However, the Examiner specifically finds that Langford discloses that layer 24 “consists of elastomer or non-woven materials as it is an open-cell polymeric foam such as polyurethane foam” (see Ans. 8 (citing Langford col. 2, ll. 57–68)), and Appellants have not challenged the Examiner’s finding that Langford’s layer 24 is made of at least one of the same materials for the substrate as recited in claim 38. Appellants further assert that Langford’s layer 24 “is not a substrate that is ‘operative to provide dimensional stability to the roller cover by reducing the formation of gaps on the core’” as claimed, “but rather serves simply as a reservoir for containing paint.” Br. 5 (citing Langford, col. 2, ll. 12–24, 49–56). However, Appellants have not provided persuasive argument or evidence to address the Examiner’s finding that Langford’s layer 24 “provides an inherent degree of support or stability to the outer 3 Merriam-Webster on-line dictionary, http://www.merriam- webster.com/dictionary/substratum (last accessed June 15, 2015). Appeal 2013-005962 Application 11/151,166 6 cover that is bonded to it” or that Langford’s Figure 2 “shows that there are no gaps formed on the core.” Ans. 8. Accordingly, we sustain the Examiner’s rejection of claim 38. Claim 43 Regarding claim 43, which claims a core and single-ply cover without a substrate disposed therebetween,4 the Examiner finds the combination of Langford’s components 20 and 24 is a single-ply cover, as claimed. Final Act. 3; see also Ans. 8. Appellants argue that Langford only teaches a two- ply cover. Br. 5 (citing Langford, col. 2, ll. 12–24, 49–56). Appellants contend that (a) Langford’s paint applicator “requires both of these layers to function;” (b) Langford’s Figure 2 depicts both layers 20 and 24 mounted on core 19; and (c) Langford refers to components 20, 24 as “layers.” Id. (citing Langford, col. 4, ll. 35–42; Fig. 2). In support of the Examiner’s position that components 20, 24 may form a single-ply cover, Langford expressly discloses that “it may be feasible to incorporate both the reservoir and metering layer[s] into a single layer of progressively smaller openings from interior to exterior.” Langford, col. 5, ll. 17–19 (emphasis added). Appellants have not challenged the Examiner’s finding that Langford’s layer 20 “consists of non-fiberglass, non-woven material further consisting of synthetic fibers . . . interconnected by mechanical [or other means].” Final Act. 2 (citing Langford, col. 5, ll. 42–54; col. 6, ll. 60–65; col. 7, ll. 1–44). Thus, we are not apprised of any error in the Examiner’s finding that Langford discloses an embodiment of a 4 Claim 43 employs the closed-ended transitional phrase “consisting of.” Appeal 2013-005962 Application 11/151,166 7 roller cover that consists of only a core and a single-ply cover, as recited in claim 43. Accordingly, we sustain the Examiner’s rejection of claim 43. Dependent claims 39–42, 44–47 Appellants do not present separate arguments with respect to the patentability of the dependent claims; therefore, we also sustain the Examiner’s rejection of claims 39–42 and 44–47, which depend from independent claims 38 and 43, respectively. Br. 8, 9. SUMMARY The Examiner’s decision to reject claims 38–47 under 35 U.S.C. § 102(b) 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)(1)(iv). AFFIRMED llw Copy with citationCopy as parenthetical citation