Ex Parte DUDDING

Patent Trial and Appeal Board

May 18, 2018

14516986 (P.T.A.B. May. 18, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/516,986 10/17/2014 CARLTON DUDDING
99344 7590 05/22/2018
Patent Law of Virginia, PLLC
PO Box 9319
Richmond, VA 23227
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.
AWT4Cl 3311
EXAMINER
MAYO-PINNOCK, TARA LEIGH
ART UNIT PAPER NUMBER
3671
NOTIFICATION DATE DELIVERY MODE
05/22/2018 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):
brian@patentlawva.com
brianjteague@gmail.com
eofficeaction@appcoll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARL TON DUDDING
Appeal2017-007993
Application 14/516,986
Technology Center 3600
Before DANIEL S. SONG, WILLIAM A. CAPP, and
RICHARD H. MARSCHALL, Administrative Patent Judges.
CAPP, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 seeks our review under 35 U.S.C. § 134(a) of the final
rejection of claims 1-3, 6-14, and 17-22 under 35 U.S.C. § 103(a) as
unpatentable over Johnson (US 4,526,615, iss. July 2, 1985) and Moss
(US 7,097,390 Bl, iss. Aug. 29, 2006), and claims 4, 5, 15, and 16 as
unpatentable over Johnson, Moss, and Wissa (US 2009/0050025 Al, pub.
Feb. 26, 2009). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies Applicant A WT IP, LLC as the real party in interest.
Appeal Br. 2.
Appeal2017-007993
Application 14/516,986
THE INVENTION
Appellant's invention relates to containment berms. Spec. i-f 2.
Claim 1, reproduced below, is illustrative of the subject matter on appeal.
1. A berm comprising:
fill material comprising contaminated fill material fully
encapsulated by an impermeable membrane, the impermeable
membrane being impermeable to fluids;
a covering portion comprising structural fill material, the
covering portion at least partially covering the fill material; and
a drainage system within the impermeable membrane;
wherein the contaminated fill material comprises one or
more of fossil fuel combustion product, fly ash, bottom ash,
boiler slag, flue gas desulphurization material, non-hazardous
contaminated soil, contaminated crushed glass, contaminated
crushed concrete, contaminated crushed asphalt, sand blast grit,
foundry sand, properly dewatered dredge spoils, or
combinations thereof; and wherein the contaminated fill
material is contaminated with one or more of a metal, an acid, a
base, a volatile organic compound, a semi-volatile organic
compound, a petroleum product, selenium, mercury, lead,
boron, cadmium, thallium, a polycyclic aromatic hydrocarbons
compound, or combinations thereof.
OPINION
Unpatentability of Claims 1-3, 6-14, and 17-22
over Johnson and Moss
Claims 1-3, 6-10, 12-14, and 17-21
Appellant argues claims 1-3, 6-10, 12-14, and 17-21 as a group.
Appeal Br. 7-10. We select claim 1 as representative. See 37 C.F.R.
§ 41.37(c)(l)(iv).
The Examiner finds that Johnson discloses the invention substantially
as claimed except for: (1) the contaminated fill material being fully
encapsulated by an impermeable membrane; and (2) a drainage system
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Application 14/516,986
within the berm. Final Action 3--4. The Examiner relies on Moss as
disclosing a fully encapsulating membrane. Id. at 3. The Examiner
concludes that it would have been obvious to a person of ordinary skill in the
art at the time of the invention to modify Johnson's berm so that the fill
material would be fully encapsulated as taught by Moss. Id. According to
the Examiner, a person of ordinary skill in the art would have done this to
improve the structural integrity of the berm. Id.
The Examiner further finds that Johnson teaches a drainage system
within an impermeable membrane, but fails to teach the drainage system
being disposed within the berm. Id. at 4. The Examiner concludes that it
would have been obvious to a person of ordinary skill in the art at the time
the invention was made to modify the combination of Johnson and Moss
such that the berm would include a drainage system. Id. According to the
Examiner, a person of ordinary skill in the art would have done this to drain
fluid from the backfill. Id.
Appellant traverses the Examiner's rejection by first arguing that
element 86 of Johnson, which the Examiner identified as corresponding to
the contaminated fill material, is not part of any berm, but rather is material
that is merely retained by the berm. Appeal Br. 7. Appellant further argues
that Johnson teaches away from having earthen dam 84 contain
contaminated material. Id. at 7-8. In response, the Examiner explains that
Johnson discloses both an upper element 86 and a lower element 86. Ans. 2,
citing Johnson, Figs. 2 and 9. The Examiner identifies lower element 86 of
Johnson as the contaminated fill material. Id. Inasmuch as Appellant only
references upper element 86 in their Appeal Brief, the Examiner takes the
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Application 14/516,986
position that Appellant fails to fully address the Examiner's rejection. Id.
at 3.
Johnson is directed to a process for leaching metal values from ore.
Johnson, Abstract. Johnson constructs a plurality of cellular heaps formed
by loading ore onto an impermeable pad. Id. Johnson features a triangular
earthen dam 84 (or berm) surrounding the heaps that serves to contain the
ore in the adjacent cell. Id. col. 4, 11. 54--55; col. 12, 11. 4--11. Various cells
are built on top of one another in the course of building the overall heap
system. Id. col. 6, 11. 51-54, Fig. 2. When it becomes desirable to seal off
an underlying ore layer, an impermeable layer of bentonitic clay is disposed
on top of the ore layer. Id. col. 11, 59---64. Figure 9 of Johnson depicts ore
material disposed within earthen dam 84. Id. Fig. 9. Thus, Johnson's
earthen dam 84 contains ore from which metal has been leached and claim 1
identifies "metal" as a contaminant. Claims App. Thus, having considered
the competing positions of Appellant and the Examiner, we determine that
the Examiner's finding of fact that Johnson features a berm comprised of
contaminated fill material is supported by a preponderance of the evidence.
Appellant next argues that a person of ordinary skill in the art of
would not fully encapsulate Johnson's fill material as such would destroy the
functionality of Johnson's system. Appeal Br. 8. In response, the Examiner
reiterates that lower element 86, not upper element 86, of Johnson
corresponds to the fill material that is encapsulated. Ans. 3--4. According to
the Examiner, encapsulating a lower layer would not interfere with leaching
operations through layers disposed above lower element 86. Id.
As previously discussed, Johnson's system contemplates building a
system with a plurality of layers. Johnson, Fig. 2. When it becomes
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Application 14/516,986
desirable to seal off an underlying ore layer, an impermeable layer of
bentonitic clay is disposed on top of the ore layer. Id. col. 11, 11. 59---64. The
Examiner is correct in observing that encapsulating a lower layer of ore
would not interfere with leaching operations in a layer disposed above the
encapsulated layer. Id. Thus, Appellant's argument does not apprise us of
error.
Appellant next argues that a person of ordinary skill in the art would
not modify Johnson to put a drainage system in its berm. Appeal Br. 9. In
response, the Examiner reiterates that it would have been obvious to include
a drainage system in the volume of contaminated fill material encapsulated
by the impermeable membrane. Ans. 4. According to the Examiner, a
person of ordinary skill in the art would have done this to drain fluids from
within the impermeable membrane. Id.
As between the Appellant and the Examiner, the Examiner states the
better position here. Johnson already demonstrates an awareness that leaks
can occur from the sides of the berm area. Johnson, col. 7, 11. 33-37.
Johnson also discloses a drainage system in connection with its leaching
operation. Johnson, col. 7, 1. 65 - col. 8, 1. 11. Furthermore, Johnson's
system is comprised of multiple layers and there is no indication that the
drain pipe facilities are removed when a layer is completed and sealed off.
Id. col. 9, 11. 9-12, col. 11, 59---64. For each succeeding layer it is
understood that:
[A] leach solution collection system is provided between
underlying ore layer 64a and overlying ore layer 64b. This
collection system is advantageously constructed by laying down
an impermeable barrier 68, which may be plastic or bentonitic
clay, onto the top of the underlying ore layer so as to seal it off
from further leaching. A collection pipe 70, similar to
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collection pipe 58 of the reservoir system, is connected to
standpipe 60, and collection pipe 70 is also connected to a
plurality of horizontal perforated pipes 72 corresponding in
function to reservoir pipes 56. A permeable layer 74 of sand or
the like is then placed over the effluent collection system
comprised of barrier 68 and pipes 70 and 72 so that the leach
solution will be evenly collected from overlying ore layer 64b.
Id., col. 10, 11. 18-32. In summary, Johnson is aware that a berm can leak
and also discloses that it was known to install a drainage system beneath a
heap of metal containing ore (i.e., contaminated fill material). When a
patent "simply arranges old elements with each performing the same
function it had been known to perform" and yields no more than one would
expect from such an arrangement, the combination is obvious. KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 417 (2007), quoting Sakraida v. Ag Pro, Inc.,
425 U.S. 273, 282 (1976). Placing Johnson's drain facilities under the
earthen dam amounts to no more than arranging an old element to perform a
familiar function. Appellant provides neither evidence nor persuasive
technical reasoning as to why placing drainage facilities under the berm
portion of Johnson would have required more than ordinary skill.
In view of the foregoing discussion, we determine the Examiner's
findings of fact are supported by a preponderance of the evidence and that
the Examiner's legal conclusion of unpatentability is well-founded.
Accordingly, we sustain the Examiner's unpatentability rejection of
claims 1-3, 6-10, 12-14, and 17-21 over Johnson and Moss.
Claims 11 and 22
Claim 11 depends from claim 1 and adds the limitation: "wherein the
covering portion fully covers the fill material." Claims App. Claim 22
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contains a substantially similar limitation. Id. Appellant appears to argue
these two claims together and we will treat claim 11 as representative. 2
Appellant argues that Johnson would not have been modified to fully
cover the fill material as such would interfere with Johnson's purpose, which
is a leaching operation. Appeal Br. 10. In response, the Examiner shows
that Moss already teaches a fully covered berm. Ans. 4--6 (incorporating
annotated Figures from Johnson and Moss).
Appellant's argument as to the purpose of Johnson is not persuasive.
It is well settled that it is not necessary for the prior art to serve the same
purpose as that disclosed in Appellants' Specification in order to support the
conclusion that the claimed subject matter would have been obvious. See In
re Lintner, 458 F.2d 1013, 1016 (CCPA 1972). "A reference may be read
for all that it teaches, including uses beyond its primary purpose." In re
Mouttet, 686 F.3d 1322, 1331 (Fed. Cir. 2012), citing KSR, 550 U.S. at 418-
21. "[N]either the particular motivation nor the avowed purpose of
[Appellant] controls" in an obviousness analysis." KSR at 419.
We are not apprised of error and, accordingly, we sustain the
Examiner's unpatentability rejection of claims 11 and 12 over Johnson and
Moss.
2 Contrary to our rules, Appellant fails to separately argue claims 11 and/
or 22 under a separate subheading. See 37 C.F.R. § 41.37(c)(l)(iv) (claims
argued separately shall be argued under a separate subheading that identifies
the clam(s) by number).
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Unpatentability of Claims 4, 5, 15 and 16
over Johnson, Moss, and Wissa
Appellant does not argue for the separate patentability of claims 4, 5,
15, and 16 apart from arguments presented with respect to claim 1, which we
have previously considered. Consequently, we sustain the Examiner's
rejection of claims 4, 5, 15, and 16 over Johnson, Moss, and Wissa. See 37
C.F.R. § 41.37(c)(l)(iv) (failure to separately argue claims).
DECISION
The decision of the Examiner to reject claims 1-22 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)(l )(iv).
AFFIRMED
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