Ex parte Graab et al.

Board of Patent Appeals and Interferences

Aug 23, 2000

08390175 (B.P.A.I. Aug. 23, 2000)

1
The opinion in support of the decision being entered
today was not written for publication and is not binding
precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte GERHARD GRAAB,
KLAUS HECKEL,
DIETER RISCHER,
THORSTEN NAHE,
and
HELMUT GRUNHAG
_____________
Appeal No. 1998-1002
Application No. 08/390,175
______________
ON BRIEF
_______________
Before KIMLIN, JOHN D. SMITH, and LIEBERMAN, Administrative
Patent Judges.
LIEBERMAN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the decision
of the examiner refusing to allow claims 1 through 14 as
amended subsequent to the final rejection, which are all the
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claims in the application.
THE INVENTION
The invention is directed to a rubber-based floor
covering of 1 to 4 mm in thickness and having crosslinkable
elastomeric material embedded in the top side of the base
sheeting. The crosslinkable elastomeric material comprises at
least two different granular particle regions having different
colors from each other and from the base sheeting. The
aggregate mixture of the sheeting and the embedded particles
have an overall color approximately equal to that of the
sheeting material.
THE CLAIMS
Claims 1 is illustrative of appellants’ invention and is
reproduced below.
1. A multicolored, patterned floor covering
comprising:
sheeting formed of a cross-linkable elastomeric
material having a first color, said sheeting being
1mm to 4mm in thickness; and
embedded particles formed of a cross-linkable
elastomeric material that are contained within the
sheeting, said particles each having at least a
first and second subregions, each of which subregion
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has a color that contrasts both with the first color
of the sheeting material and the other subregion;
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wherein the colors of the sheeting material
and the colors and quantity of the embedded
particles employed in the in the [sic] sheeting are
such that an aggregate mixture of the sheeting and
embedded particles has an over-all color that
approximately equals the first color of the sheeting
material.
THE REFERENCES OF RECORD
As evidence of obviousness, the examiner relies upon the
following references.
Charlton et al. (Charlton) 3,040,210 Jun. 19,
1962
Sachs 4,239,797 Dec. 16,
1980 Gembinski et al. (Gembinski) 4,784,911 Nov.
15, 1988 Heckel et al. (Heckel) 5,154,868
Oct. 13, 1992
THE REJECTIONS

Claims 1 through 14 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Sachs in view of Charlton,
Gembinski and further in view of Heckel.
OPINION
We have carefully considered all of the arguments
advanced by appellants and the examiner and agree with the
appellants that the aforementioned rejection under 35 U.S.C. §
103 is not well founded. Accordingly, we do not sustain this
rejection.
The Rejections under 35 U.S.C. § 103(a)
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“[T]he examiner bears the initial burden, on review of
the prior art or on any other ground, of presenting a prima
facie case of unpatentability,” whether on the grounds of
anticipation or obviousness. In re Oetiker, 977 F.2d 1443,
1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). On the record
before us, the examiner relies upon a combination of four
references to reject the claimed subject matter and establish
a prima facie case of obviousness. The basic premise of the
rejection is that it would have been obvious to one of
ordinary skill in the art, “to use rubber particles and a
rubber matrix in the flooring of Sachs in view of Charlton et
al. further in view of Gembinski et al in order to produce a
decorative elastomeric flooring because of the teachings of
Heckel et al. ‘868.” See Answer, page 6. We disagree.
Although Sachs discloses a non-skid floor tile having
thermoplastic material embedded in the vinyl tile, column 1,
lines 31-35, we find no suggestion for the utilization of
either rubbery material or of the thickness of the material as
required by the claimed subject matter.
Furthermore, the disclosure of Gembinski is not even
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related to floor coverings. The basic invention of Gembinski
is directed to multicolored plastic parts. We find no
suggestion of either rubbery material or of the thickness of
the material as required by the claimed subject matter.
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Indeed, the only reference relied upon by the examiner
directed to cross-linkable elastomeric patterned floor
coverings is Heckel.
Heckel is directed to patterned floor coverings from a
preform of rubber wherein the rubber is mixed with
contrastingly colored zones. See Abstract. The zones in the
floor covering are formed by mixing a rubber mixture of one
color with contrastingly colored particles of another color.
See column 1, lines 55-61. We find that Heckel states that
“[t]he rubber mixture and the particles used in the mixing
step of the invention are dyed differently to have contrasting
colors. The rubber material forming the particles is in, at
least, an advanced state of vulcanization compared to the
rubber mixture. The particles thereby are inhibited during
vulcanization of the blank from softening with the rubber
mixture, which precludes mutual mixing of the dyes contained
in the particles and in the rubber.” See column 2, lines 32-
40. Based upon the above statement, it is evident that the
particle sections differ in color from that of the base
sheeting. Furthermore, when different color particles are
utilized, the color of each necessarily remains different from
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the others as no mixing of the dyes in the particles occurs.
This disclosure, however, is in direct contrast to the
requirements of the claimed subject matter that, “an aggregate
mixture of the sheeting and embedded particles has an over-all
color that approximately equals the first color of the
sheeting material.”
Moreover, on the record before us, there is no rationale
presented why the person having ordinary skill in the art
would substitute the elastomeric floor coverings of Heckel for
the thermoplastic floor covering of Sachs, or why would one
choose the requisite dyes in Heckel in such a manner so as to
result in overall color approximately the same as the sheeting
material as required by the claimed subject matter.
Accordingly, even if the substitution was made, we still would
not obtain the invention of the claimed subject matter, as
contrasting colors would be obtained contrary to the
requirements of the claimed subject matter.
Based upon the above considerations, even if the examiner
was correct in combining Sachs, Gembinski, Charlton and Heckel
in the manner supra, the structure created would, in any
event, fall short of the invention defined by the claimed
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subject matter, as the aforesaid claimed subject matter
requires features that cannot be achieved by combining the
four references. Uniroyal Inc. v Rudkin-Wiley Corp., 837 F.2d
1044, 1051, 5 USPQ2d 1434, 1438 (Fed. Cir.), cert denied, 488
U.S. 825 (1988). Accordingly, the examiner has not
established a prima facie case of obviousness.
The rejection of the examiner is not sustained.
REVERSED
)
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
JOHN D. SMITH )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
PAUL LIEBERMAN )
Administrative Patent Judge )
PL:hh
Appeal No. 1998-1002
Application No. 08/390,175
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