Ex Parte Fleck et al

Patent Trial and Appeal Board

Feb 1, 2017

13110149 (P.T.A.B. Feb. 1, 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.
P2008-176 2914
EXAMINER
COLE, ELIZABETH M
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
13/110,149 05/18/2011
47988 7590 02/02/201
Walter Ottesen, P.A.
PO BOX 4026
GAITHERSBURG, MD 20885-4026
Andreas Fleck
02/02/2017 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 ANDREAS FLECK, HENNING KANZOW,
CLAUS-LUDER MAHNKEN, SIEGMAR GEBHARDT,
ANTOINE ISHAK, MARKO SCHLEICHER,
REINHOLD MOSES, THOMAS BALTES,
and REINHARD TEVES
Appeal 2016-000199
Application 13/110,149
Technology Center 1700
Before: LINDA M. GAUDETTE, AVELYN M. ROSS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—7, 10-19, and 22—29. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 In our Decision below we refer to the Specification filed July 18, 2011
(Spec.), the Final Office Action mailed November 11, 2014 (Final Act.), the
Appeal Brief filed April 9, 2015 (Appeal Br.), the Examiner’s Answer
mailed August 10, 2015 (Ans.), and the Reply Brief filed September 17,
2015 (Reply Br.).
2 Appellants identify the real party in interest as ContiTech Antriebssysteme
GmbH, the assignee of the instant application. Appeal Br. 2.
Appeal 2016-000199
Application 13/110,149
STATEMENT OF CASE
The claims are directed to an article, and method for producing an
article, having an elastic foundational body and textile ply where “the textile
cover ply includes a mesh construction which permits the passage of the
vulcanizate to the textile surface” and where “there is embedded a coating
mass which together with the vulcanizate appears at the textile surface to
form a textile-vulcanizate-coating hybrid system.” Spec. 3^4. Claim 1,
reproduced below (emphasis added), is illustrative of the claimed subject
matter:
1. An article having an elastic foundational body based on a
vulcanizate having a wear-susceptible article surface which is
provided with a textile cover ply, wherein the textile cover ply
includes a mesh construction, which permits the passage of the
vulcanizate to the textile surface to form a textile-vulcanizate
hybrid system,
wherein the vulcanizate fraction at the textile surface is
controllable via the mesh count, mesh size and thread
construction of the textile cover ply,
wherein between the foundational body and the textile
cover ply there is embedded a coating mass which together with
the vulcanizate appears at the textile surface to form a textile-
vulcanizate-coating hybrid system, and
wherein the coating mass is a chemical- and/or oil-
resistant polymer.
Claims Appendix at Appeal Br. 18.
2
Appeal 2016-000199
Application 13/110,149
REJECTIONS
The Examiner maintains the rejection of claims 1—7, 10—19, and 22—
29, under 35 U.S.C § 103(a), as being unpatentable over Knutson3 in view of
Baldovino.4 Final Act. 2.
OPINION
The Examiner rejects claims 1—7, 10-19, and 22—29 as obvious over
Knutson and Baldovino. Final Act. 2. The Examiner finds that Knutson
teaches “a belt comprising an open mesh textile fabric . . . [that] is
impregnated with a vulcanizable elastomeric material.” Id. According to
the Examiner, the vulcanizable elastomeric material of Knutson can be
rubber or rubber in combination with other additives. Id. And, the
Examiner finds that because Knutson teaches a mesh textile fabric where the
openings permit penetration of the elastomer into the void, the “penetration
of the elastomer is controlled by the textile structure (i.e., mesh count, mesh
size, and thread construction).” Id. The Examiner similarly finds that
Knutson “discloses the claimed method of making the belt including the
steps of forming a vulcanizate, forming a belt backing, forming a textile
cover ply with a mesh construction which enables the vulcanizable
elastomer to penetrate the textile and vulcanizing to form an integrated
structure.” Id. at 3. The Examiner acknowledges that Knutson fails to teach
that the “outer face of the belt comprises a combination of the elastomeric
material and a coating such as chemical and/or oil resistant polymer,” but
3 Paul S. Knutson, US 6,572,505 Bl, issued June 3, 2003 (“Knutson”).
4 Baldovino et al., US 2007/0240658 Al, published October 18, 2007
(“Baldovino”).
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Appeal 2016-000199
Application 13/110,149
finds that Baldovino teaches “forming the outer layer of a belt so that it
comprises a combination of the elastomeric material making up the body of
the belt in combination with an oil and/or water resistant material such as a
fluorine containing polymer.” Id. The Examiner reasons that it would have
been obvious at the time of the invention “to have incorporated a portion of
a fluoropolymer as taught by Baldovino into the elastomer making up the
surface of the textile reinforcement in the belt of Knutson with the
expectation that this would improve the wear resistance of the resulting
belt.” Id.
Claims 1 and 3:
Appellants contend the Examiner’s findings are in error because
neither Knutson nor Baldovino teach or suggest that “between the
foundational body and the textile cover ply there is embedded a coating
mass which together with the vulcanizate appears at the textile surface to
form a textile-vulcanizate-coating hybrid system,” as required by claims 1
and 3. Appeal Br. 12. Rather, Appellants argue that the combination of
Knutson and Baldovino “would entail covering an entire surface, including
any mesh material that may be present at that surface, with the resistant
layer 8 [of Baldovino]” as opposed to a “power transmission belt in which
the fabric material of Baldovino et al and the resistant layer 8 are both
present at the same surface of the belt.” Id. at 13. By way of illustration,
Appellants provide drawings (reproduced below) to compare the claimed
textile with the textile that would result from the combination of Knutson
and Baldovino. See Reply Br. 3.
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Appeal 2016-000199
Application 13/110,149
vuSeamzste
\
X-
text8e cover ply coating mass
/ /
f $ 1 Jr% & f 1
(Claimed Textile Structure)
resistant SayerS
Id. Appellants explain that Baldovino states that “the use of a resistant
layer 8 above the layer of fabric 5” does not teach a resistant layer
“interspersed with the elastomeric material.” Id. at 4. Appellants also urge
that the benefits of Baldovino come from “a continuous outer layer” that
prevents the belt from expanding due to contact with the oil. Appeal Br. 14
(citing Baldovino 115). Thus the “skilled artisan does not learn from
Baldovino et al whether providing material of resistant layer 8 only within
the meshes is sufficient to prevent the undesired expansion.” Id.
In response, the Examiner urges that “the claims do not recite that the
combination of the resistant polymer and the elastomer is between the mesh
and the foundational body, but only that between the foundational body and
the textile ply there is embedded a coating mass which together with the
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Appeal 2016-000199
Application 13/110,149
vulcanizate appears at the textile surface to form ma [sic] textile-
vulcanizate-coating hybrid system.” Ans. 6. Thus, according to the
Examiner, the combination of elements is not required to be between the
mesh and the body. Id. The Examiner also asserts that “Knutson already
teaches that the elastomeric material is within the meshes. By adding the
fluoropolymer of Baldovino to the elastomer of Knutson the claimed
structure wherein the combination of elastomer and fluoropolymer is within
the meshes necessarily would result.” Ans. 5; see also id. at 6—7.
After consideration of the respective positions of Appellants and the
Examiner, we agree with Appellants that the facts and reasons provided by
the Examiner are insufficient to support a conclusion that the combination of
Knutson and Baldovino suggests an article where “between the foundational
body and the textile cover ply there is embedded a coating mass which
together with the vulcanizate appears at the textile surface to form a textile-
vulcanizate-coating hybrid system,” as recited in the claims. Specifically we
find no teaching in Baldovino, and the Examiner points to none, that would
suggest to the skilled artisan a solution where the coating mass (or resistant
material of Baldovino) is between the body and textile mesh and together
with the vulcanizate appears at the textile surface. Rather, Baldovino
teaches that the resistant material is applied as a layer over the fabric
coating. Baldovino Figure 1 and H 35 (“resistant layer 8 positioned on the
outside of the fabric 5”), 40 (“an adhesive material can be placed between
the coating fabric 5 and the resistant layer 8”), 44 (“the use of a resistant
layer 8 above the layer of fabric 5”), and 62 (“the resistant layer 8 on the
fabric 5”). Moreover, the Examiner’s position that “Baldovino teaches
adding the wear resistant fluoropolymer to the elastomer” would necessarily
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Appeal 2016-000199
Application 13/110,149
result in the vulcanizate and coating mass between the mesh (Ans. 6; see
also Final Act. 3), is not supported by Baldovino. Although Baldovino does
teach that the resistant layer includes a fluorinated polymer and an
elastomeric material, it does not teach—as Appellants note (Reply Br. 4)—
that a fluoropolymer may be added to the main elastomeric material, i.e., the
vulcanizate, making up the belt body. Baldovino Tflf 30 and 36. Nor does
the Examiner provide a reason for making this proposed modification, that
is, adding a fluoropolymer to the main elastomeric body. Therefore, on this
record, we cannot sustain the Examiner’s rejection.
Claim 16:
Claim 16, similar to claims 1 and 3, is directed to a process for
producing a drive belt. Claims Appendix at Appeal Br. 20—21. Appellants
contend that the process step requiring “disposing a coating mass between
the foundational body and the textile cover ply before the belt blank is
finally vulcanized, the coating mass appearing together with the vulcanizate
at the textile surface to form a textile-vulcanizate-coating hybrid system,” is
not suggested by the combination of Knutson and Baldovino. Appeal Br.
16. Appellants argue that because “Baldovino . . . explicitly suggests] that
the coating layer is applied on the side of the fabric layer 5 that is opposite to
the elastomeric body 2[,] Baldovino et al fail[s] to suggest that the [coating
mass] layer is applied between the elastomeric body 2 and the fabric layer
5.” Id. For the reasons discussed above for claims 1 and 3, we do not
sustain the Examiner’s rejection of claim 16.
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Appeal 2016-000199
Application 13/110,149
CONCLUSION
The Examiner reversibly erred in rejecting claims 1—7, 10—19, and
22—29 as unpatentable under 35 U.S.C. § 103(a) over Knutson and
Baldovino.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—7, 10—19,
and 22—29 is reversed.
REVERSED
8