Ex Parte Gerlich

Board of Patent Appeals and Interferences

Mar 30, 2010

10371831 (B.P.A.I. Mar. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JOHAN THEODOOR GERLICH
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Appeal 2009-004572
Application 10/371,831
Technology Center 1700
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Decided: March 30, 2010
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Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
PETER F. KRATZ, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
rejecting claims 1-9. We have jurisdiction under 35 U.S.C. § 6(b). We
AFFIRM.
Claim 1, reproduced below, is representative of the subject matter on
appeal:
Appeal 2009-004572
Application 10/371,831

1. A reinforced plasterboard comprising: a first layer of
paper having at least two sides, wherein said sides are folded to
form a trough;

a layer of cementitious slurry disposed within said trough
formed by said first layer of paper; and

a layer of reinforcing mesh disposed within said
cementitious slurry.

App. Br., Claims Appendix.1
The following Examiner’s rejections are before us on appeal:
(1) Claims 1, 2, 4, and 6-9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dierks2 in view of Knauf3 or Take.4
(2) Claims 3 and 5 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Dierks in view of Knauf or Take and further in view of
Galer.5
B. ISSUE
The Appellant argues the patentability of the claims on appeal as a
group. See Br. 9. Thus, the sole issue on appeal is:
Has the Appellant identified harmful error in the Examiner’s
conclusion that the combined teachings of Dierks and Knauf or Take render
obvious a reinforced plasterboard, as recited in claim 1, wherein the first
layer of paper is in the form of a trough?

1 Appeal Brief dated August 23, 2006.
2 US 3,944,698 to Dierks et al. issued March 16, 1976.
3 US 3,993,822 to Knauf et al. issued November 23, 1976.
4 US 4,544,424 to Take et al. issued October 1, 1985.
5 US 4,450,022 to Galer issued May 22, 1984.
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Appeal 2009-004572
Application 10/371,831

C. FINDINGS OF FACT
The Examiner found that that Dierks discloses a reinforced
plasterboard comprising a first layer of paper, a layer of cementitious slurry
disposed on the first layer of paper, and a layer of reinforcing mesh disposed
within the cementitious slurry. Ans. 3.6
The Examiner found that Dierks does not disclose that the sides of the
first layer of paper are folded to form a trough. Ans. 3.
Knauf discloses a method of manufacturing plaster pasteboard sheets:
On the band-conveyors for the manufacture of plaster
pasteboard sheets, the bottom pasteboard sheet has two edges
which overfold and the cavity formed by the bottom sheet and
its edges is filled with a plaster mixture and is moved to a
forming table. At the same time, an upper pasteboard sheet . . .
covers the cavity to make a sandwich.

Knauf 1:35-42.
Take Figure 1, reproduced below, illustrates a gypsum board. Take
2:15-16.

Take Figure 1 depicts a gypsum board.

6 Examiner’s Answer dated May 30, 2008.
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Appeal 2009-004572
Application 10/371,831

Take discloses that the gypsum board 1 comprises a gypsum core
material 2 and a sheet of base paper 3 which covers the gypsum core
material 2. Take 2:16-19.
Take describes a method of manufacturing the gypsum board:
[T]he slurry is poured on the top side surface of the base paper
3a which has been fixedly formed with the particulate layer 4a.
The bottom side surface of the base paper 3b which is also
formed with the particulate layer 4b subsequently covers the
said surface supplied with the slurry.

Take 2:35-41; see also Take Fig. 2.
The Examiner found that Take Figure 1 illustrates a trough which “is
very similar to Applicant’s own invention.” Ans. 6.
D. PRINCIPLES OF LAW
The patentability of a product recited in a product-by-process claim is
determined based on the product, not on the method of making the product.
In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985).
During patent examination, the pending claims must be interpreted as
broadly as their terms reasonably allow. In re Zletz, 893 F.2d 319, 321 (Fed.
Cir. 1989).
E. ANALYSIS
The Examiner found that Dierks discloses a reinforced plasterboard
within the scope of claim 1 with the exception that the first layer of paper is
not in the form of a trough. Nonetheless, the Examiner concluded that it
would have been obvious to one of ordinary skill in the art to form the first
layer of paper of Dierks in the shape of a trough, as taught by Knauf and
Take, to create a panel that is “secure and self-contained.” Ans. 5.
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Appeal 2009-004572
Application 10/371,831

The Appellant recognizes that Knauf discloses prior art pasteboard
sheets wherein the bottom pasteboard sheet has two edges which overfold to
create a cavity. However, the Appellant argues that the Examiner
overlooked the discussion in Knauf which describes problems associated
with such a construction. The Appellant points to column 1, lines 46-48 of
Knauf for support. Br. 5-6.
The discussion in Knauf referred to by the Appellant discusses
problems associated with using pasteboard sheets as cover plates. See
Knauf 1:46-47 (“Defects develop when the plaster pasteboard sheets are
used as cover plates . . . .”). Knauf does not discuss any disadvantages
associated with a trough-shaped bottom sheet. Thus, on this record, it is
reasonable to conclude that one of ordinary skill in the art would have found
the trough structure described in Knauf useful for containing the
cementitious slurry of Dierks.
As for Take, the Appellant argues that nothing in Take, including
Take Figure 1, suggests “a first layer of paper whose sides are folded to form
a trough.” Instead, the Appellant argues that Take Figure 1 “shows slurry
completely surrounded by base paper.” Br. 7.
The Appellant’s argument is not persuasive of harmful error. Claim 1
is written in product-by-process form. Thus, it is of no moment that the
sides of the paper are folded to form a “trough.” The issue is whether the
subsequently formed trough is the same as the trough illustrated in Take
Figure 1. Thorpe, 777 F.2d at 697.
Take Figure 1 illustrates a gypsum board according to the disclosed
invention. Take 2:15-16. The gypsum board is manufactured by pouring a
slurry on the top side surface of the base paper 3a and subsequently covering
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Appeal 2009-004572
Application 10/371,831

that surface with the base paper 3b. Take 2:35-41. Take Figure 1 shows that
the base paper 3 (comprising base papers 3a and 3b) entirely covers the
gypsum core material 2. Take 2:16-19. Thus, it is reasonable to conclude
that the sides of the base paper 3a and/or 3b are folded or otherwise
configured to cover the sides of the gypsum core material 2, thereby forming
a trough.
Based on the foregoing, the Examiner had a reasonable basis to find
that the trough illustrated in Take Figure 1 and the claimed trough are “very
similar.” Ans. 6. In rebuttal, the Appellant does not direct us to any credible
evidence to the contrary.
Finally, the Appellant argues that Take uses an adhesion layer 4 to
maintain the gypsum slurry on the base paper, thereby obviating the need for
forming a trough to maintain the slurry in place. Br. 8.
This argument is also not persuasive of harmful error. Take expressly
discloses that the adhesive layer 4 is used in combination with the base paper
configuration discussed above. Take 2:15-41.
F. DECISION
The decision of the Examiner 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).
AFFIRMED

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