Ex Parte FERNANDO et al

Patent Trial and Appeal Board

May 29, 2018

15198792 (P.T.A.B. May. 29, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/198,792 06/30/2016
23575 7590 05/29/2018
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
FIRST NAMED INVENTOR
Joseph A. FERNANDO
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.
UNF.P9571B 2431
EXAMINER
KHAN, TAHSEEN
ART UNIT PAPER NUMBER
1781
MAILDATE DELIVERY MODE
05/29/2018 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 JOSEPH A. FERNANDO, CHAD E. GARVEY,
ROBERT RIOUX, KENNETH B. MILER, and GENE JUNG
Appeal2017-008714
Application 15/198, 792
Technology Center 1700
Before CATHERINE Q. TIMM, LILAN REN, and SHELDON M. McGEE,
Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner's decision to reject claims 1-11and13-18 under 35 U.S.C.
1 In explaining our Decision, we cite to the Specification of June 30, 2016
("Spec."), Non-Final Office Action of August 16, 2016 ("Non-Final"),
Appeal Brief of January 22, 2017 ("Appeal Br."), Examiner's Answer of
March 20, 2017 ("Ans."), and Reply Brief of May 19, 2017 ("Reply Br.").
2 Appellants are Applicants, Unifrax I LLC and Lamart Corporation, which,
according to the Appeal Brief, are the real parties in interest. Appeal Br. 3.
Appeal2017-008714
Application 15/198, 792
§ 103 (a) as obvious over Tompkins 3 in view of Richardson, 4 Matsumoto, 5
and Fay6 and to reject claim 12 as obvious over those references further in
view ofGarvey. 7 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The claims are directed to a fire barrier laminate (see, e.g., claim 1)
and a thermal acoustic insulation system containing the fire barrier laminate
(see, e.g., claim 14). The laminate includes a non-fibrous fire barrier layer
having a basis weight in a particular range. Claim 1 is illustrative:
1. A fire barrier laminate comprising:
at least one non-fibrous fire barrier layer directly or
indirectly coated onto at least one first polymeric flame
propagation resistant film layer;
at least one second film layer proximate to the non-
fibrous fire barrier layer opposite the first polymeric flame
propagation resistant film layer;
at least one scrim layer disposed: (i) between the non-
fibrous fire barrier layer and the first polymeric flame
propagation resistant film layer; and/or (ii) between the non-
fibrous fire barrier layer and the second film layer; and/or (iii)
proximate to the first polymeric flame propagation resistant
film layer opposite the non-fibrous fire barrier layer; and/or (iv)
3 Tompkins, WO 2009/052015 A2, published Apr. 23, 2009.
4 Richardson et al., WO 2010/123771 Al, published Oct. 28, 2010
(hereinafter "Richardson").
5 Matsumoto et al., US 2001/0012865 Al, published Aug. 9, 2001
(hereinafter "Matsumoto"). Although the Examiner includes Matsumoto in
the statement of the rejection, the Examiner does not discuss it in the body of
the rejection.
6 Fay et al., EP 1 134 479 A2, published Sept. 19, 2001 (hereinafter "Fay").
7 Garvey, US 2008/0166937 Al, issued July 10, 2008.
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Application 15/198, 792
proximate to the second film layer opposite the non-fibrous fire
barrier layer;
optionally, at least one water-repellant material
incorporated into and/or applied to the nonfibrous fire barrier
layer;
optionally at least one adhesive layer adhering the non-
fibrous fire barrier layer to the first polymeric flame
propagation resistant film layer; and
optionally at least one adhesive layer adhering the scrim
layer to at least one of the nonfibrous fire barrier layer, the first
polymeric flame propagation resistant film layer, or the second
film layer;
wherein the non-fibrous fire barrier layer comprises at
least one inorganic platelet material, at least one organic binder
and/or at least one inorganic binder, and optionally at least one
functional filler; and
wherein the fire barrier laminate has a basis weight of
about 80 gsm to about 120 gsm.
Appeal Br. 22 (claims appendix) (emphasis added).
OPINION
Obviousness of Claims 1-11 and 13-18 over Tompkins, Richardson,
Matsumoto and Fay
Appellants' arguments against the rejection of claims 1-11 and 13-18
as obvious over Tompkins, Richardson, Matsumoto and Fay give rise to
separate issues for claims 7 and 8 as a group, for claim 15, and for claim 18,
otherwise the claims are argued as a group. We select claims 1, 7, 15, and
18 as representative for resolving the issues on appeal.
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Claim 1
Claim 1 requires a non-fibrous fire barrier layer. The Examiner finds
that Tompkins' second, fabric layer 14 is a fire barrier layer, but
acknowledges that this layer contains fibers. Non-Final 5. However, the
Examiner concludes that it would have been obvious to one of ordinary skill
in the art at the time of the invention to modify Tompkins' fabric layer "by
using no fibrous material, as exemplified by Richardson." Non-Final 6
(emphasis omitted). The Examiner reasons that the ordinary artisan would
have been motivated to use a non-fibrous material "to provide insulation
blankets useable in aircrafts that have improved flame spread resistance, as
stated by Richardson, but with the added cost benefit of not needing to spend
on purchasing fibrous material to be placed in its layer and also having the
ability to obtain a lighter weight material if needed." Id. (emphasis omitted).
Appellants call into question the Examiner's finding of a reason to
make the modification and argues that the modification would make
Tompkins' fabric layer unsatisfactory for its intended purpose. Appeal Br.
9-16; Reply Br. 2--4.
The issue is: Have Appellants identified a reversible error in the
Examiner's finding of a reason to use a non-fibrous fire barrier layer as the
fire barrier layer of Tompkins' laminate?
Appellants have not identified such an error.
Both Tompkins and Richardson are directed to laminate sheets that
can be used in thermal and acoustic blankets to be placed in the fuselage of
aircraft. Tompkins, abs., 1:4--12, 3:4--17; Richardson, abs., 1:3---6, 6:1-18.
The thermal and acoustic blanket serves as a barrier to prevent the spread of
flames to insulation material. Id.
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Tompkins' laminate incudes first layer 10 of high temperature stable
polymeric material, adhesive 12, second, fabric layer 14, and third, scrim
layer 18 that may contain adhesive 16. Tompkins 6:25-7:3; Fig. 1. In
addition to non-metallic inorganic fibers in, for instance, nonwoven form,
the second, fabric layer 14 may include inorganic oxide platelets (e.g.,
vermiculite, mica, or talc platelets) to reduce the gas permeability of the
second, fabric layer. Tompkins 17:26-18:15. Typically, when platelets are
used, about 25 to about 70 percent by weight are included based upon the
total weight of the second, fabric layer (excluding the weight of the
platelets). Id. The second, fabric layer of Tompkins is thick enough to
provide "the desired Flammability, Bumthrough Protection, and/or Flame
Propagation properties" required of the sheet material of Tompkins.
Tompkins 8:19-21.
Richardson's laminate includes polymeric moisture layer barrier 11,
inorganic platelet layer 12, and thermoplastic film layer 13. Richardson
2:12-14; Fig. 1. Richardson teaches two embodiments, one in which the
inorganic platelet layer contains 100% platelets, i.e., there is no carrier
material such as resin, adhesive, cloth (fabric) or paper, and another
embodiment in which a lightweight open weave fabric scrim is embedded
into or laid onto the inorganic platelet layer to provide additional strength to
the layer. Richardson 3: 19-32. Similarly to Tompkins, the platelets may be
clay, such as montmorillonite, vermiculate, mica, talc or combinations
thereof. Richardson 4:5-7. Richardson discloses that the platelets provide a
flame and hot gas impermeable barrier. Richardson 4: 1-19. Richardson
includes examples of laminates with a 100% platelet layer that meet FAA
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burnthrough requirements. Richardson 7-10 (Test Methods and Examples),
Table 1, Examples 1 and 2.
Richardson provides evidence that it was known in the art to use a
layer of 100% platelets as an alternative to layers including carrier materials
such as resin, adhesive, fabric, or paper to form the required fire barrier
layer. One can add fabric or a scrim for strength, but the platelets will
suffice to provide flame and burnthrough resistance. "The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 416 (2007). Here, the combination of platelets with or
without resin, adhesive, fabric or paper would have been obvious to the
ordinary artisan for use as the fire barrier layer and the selections would
have been dependent on the predictable properties of each of the elements,
i.e., the flame and burnthrough properties of the platelets and fibers versus
the mechanical strength properties of the fabric or paper taking into account
the weight of each.
This is not a fact situation that supports a determination that removing
the fabric of Tompkins would have rendered the resulting laminate
unsatisfactory for its intended use as was the case for the blood filter of In re
Gordon, 733 F.2d 900, 902 (Fed. Cir. 1984) (reversed because turning the
filter of French upside down would have rendered it inoperable because it
relied on gravity to separate particles from gasoline). Pursuing desirable
properties (flame and burnthrough resistance of platelets) while forgoing the
benefit of other properties (strength of fabric) is within the ordinary skill of
the art when the results are predictable. See, e.g., In re Urbanski, 809 F .3d
1237, 1243 (Fed. Cir. 2016) (holding Urbanski's reliance on Gordon was
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misplaced and explaining that the Board properly found that one of ordinary
skill would have been motivated to pursue the desirable properties taught by
Wong, even at the expense of foregoing the benefit taught by Gross).
Appellants have not identified a reversible error in the Examiner's
finding of a reason to use a non-fibrous fire barrier layer as the fire barrier
layer of Tompkins' laminate.
Appellants also take issue with the Examiner's findings regarding
basis weight. Appeal Br. 15-16. Claim 1 requires the fire barrier laminate
have a basis weight of about 80 gsm to about 120 gsm.
The evidence supports the Examiner's finding that "the basis weight is
a result-effective variable known within the art where it would be expected
for one of ordinary skill in the art to determine the suitable basis weight by
adjusting the thickness and material depending upon what flammability,
bumthrough, flame propagation, handleability, processability and weight
properties are desired in the end product." Non-Final 5.
Tompkins teaches that the laminates of that reference "have a weight
of up to 500 grams per square meter (in some embodiments, up 400, 350,
300, 250, 200, or even up to 150 grams per square meter[)]." Tompkins
22:7-9. Richardson teaches laminates weighing 59.3 gsm (example 1) and
69.5 gsm (example 2) and states that these laminates weighed only 40% and
4 7%, respectively, of that of a Nomex Type 418 comparator, but had far
superior bumthrough resistance. Richardson 9: 1-24. Both Tompkins and
Richardson seek to minimize weight and optimize bumthrough resistance.
Tompkins 8:19-21; Richardson 1:12-15, 9:7-9, 9:22-24. A preponderance
of the evidence supports the Examiner's findings regarding the basis weight.
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Claims 7 and 8
Claims 7 and 8 are directed to the fire barrier laminate of claim 1 and
attempt to further limit the concentrations of inorganic platelet material,
binder, and functional filler. However, claims 7 and 8 are improperly
dependent as they encompass embodiments with no binder, but claim 1
requires binder. In any case, as pointed out by the Examiner, Richardson
teaches including up to 100% inorganic platelets. Non-Final 5. Richardson
also suggests that it was known in the art to include carriers such as resins
and adhesives. Richardson 3: 19-21. Tompkins also provides evidence
regarding the well-known use of binders with platelet materials. Tompkins
18:16-20. Thus, the combination of Tompkins and Richardson supports the
Examiner's determination that the prior art suggests using concentrations
meeting the requirements of claims 7 and 8.
Claim 15
Claim 15 depends from claim 14. Claim 14 requires an exteriorly
facing non-fibrous fire barrier layer and an interiorly facing inboard cover
film different from the exteriorly facing fire barrier laminate. Claim 15
requires the interiorly facing inboard cover film consist essentially of a
polymer film. As found by the Examiner, Tompkins has an interiorly facing
inboard cover film consisting essentially of a polymer film. Non-Final 9.
Tompkins teaches a moisture barrier film outer cover 21 encapsulating
fiberglass insulation 44, which can be made of polyvinylfluoride film.
Tompkins 6:20-24, 23:4--9, 27: 17-24, and Figs. 2, 3.
Appellants contend that because Richardson encapsulates the entirety
of the insulation core with the laminate instead of placing the laminate on
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only one side as done by Tompkins, a person of ordinary skill would have
presumed that the modified laminate must encapsulate the core in order to
provide the desired results. Appeal Br. 18-19. This argument fails to
consider the teachings of both references as a whole and the skill of the
ordinary artisan. Tompkins suggests that the laminate may be placed on one
side only and thus there is a suggestion in the art for so placing the laminate.
Appellants have not identified a reversible error in the Examiner's
rejection of claim 15.
Claim 18
Claim 18 requires the thermal acoustic insulation system of claim 14
be capable of passing the flame propagation and bumthrough resistance test
protocols of 14 C.F.R. § 25.856(a) and (b), Appendix F, Parts VI and VII.
Appellants contend that modifying the fabric layer of Tompkins to
replace its fiber content would render the material of Tompkins
unsatisfactory for its intended purpose, and "if the modification were made,
it is unclear what effect it would have on the fabric layer and/or laminate of
Tompkins." Appeal Br. 19. But this argument ignores the skill of the
ordinary artisan and the teachings of Richardson. "A person of ordinary
skill is also a person of ordinary creativity, not an automaton." KSR Int 'l
Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). Both Thompkins and
Richardson seek to meet federal aviation regulations. Thompkins 1: 17-27,
24: 17-22, 28:28-29:5; Richardson 5 (UL 94 flame classification of V-0),
7-8 (Test Methods). Both inorganic fibers and inorganic oxide platelets are
fire resistant materials. Thompkins and Richardson provide guidance
concerning the effects of these two types of materials in fire resistant
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laminates, and Appellants have not persuaded us that those of ordinary skill
in the art would not have been capable of determining the workable or
optimal amounts of each to use to achieve the flame propagation and
bumthrough resistance required by 14 C.F.R. § 25.856(a) and (b), Appendix
F, Parts VI and VII, which are standards that must be met according to the
teachings of Thompkins and Richardson.
Appellants have not identified a reversible error in the Examiner's
rejection of claim 18.
Obviousness of Claim 12 over Tompkins, Richardson, Matsumoto Fay, and
Garvey
When addressing the rejection of claim 12 over Tompkins,
Richardson, Matsumoto, Fay, and Garvey, Appellants do not add any
arguments raising a separate issue. Thus, for the reasons we stated above,
we determine that Appellants have not identified a reversible error in the
Examiner's rejection of claim 12.
CONCLUSION
In summary:
1-11 13-
'
§ 103(a) Tompkins, 1-11 13-18
'
18 Richardson,
Matsumoto, Fay
12 § 103(a) Tompkins, 12
Richardson,
Matsumoto, Fay,
Garve
Summar 1-18
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DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
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 ).
AFFIRMED
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