Ex Parte Guerrini et al

Patent Trial and Appeal Board

Aug 8, 2016

12086272 (P.T.A.B. Aug. 8, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/086,272 07/25/2008
47888 7590 08/10/2016
HEDMAN & COSTIGAN, P,C
ONE ROCKEFELLER PLAZA, 11 TH FLOOR
NEW YORK, NY 10020
FIRST NAMED INVENTOR
Gian Luca Guerrini
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.
1659-002 6333
EXAMINER
BUTLER, PATRICK NEAL
ART UNIT PAPER NUMBER
1742
NOTIFICATION DATE DELIVERY MODE
08/10/2016 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):
PTOmail@hgcpatent.com
ipdocket@hgcpatent.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte GIAN LUCA GUERRINI and ROBERTA ALF ANI 1
Appeal2015-001534
Application 12/086,272
Technology Center 1700
Before CHUNG K. PAK, CHRISTOPHER C. KENNEDY, and
BRIAND. RANGE, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner's
decision to reject claims 1-12 and 19-21. We have jurisdiction under
35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to a process for the production
and form preservation of an extruded product made of cementitious material.
E.g., Spec. 1 :4---6; Claim 1. Claim 1 is reproduced below from page 10
(Claims Appendix) of the Appeal Brief (paragraph breaks added):
1 According to the Appellants, the Real Party in Interest is Ital-Cementi
S.p.A. Br. 1.
Appeal2015-001534
Application 12/086,272
1. A process for the production and form preservation of a neo-
extruded end-product made of cementitious material that is cured
by hydration, said process comprising
a stiffening phase of the neo-extruded end-product made of a
cementitious material that is cured by hydration, characterized in
that said stiffening phase is carried out immediately after
extrusion and said stiffening phase comprises an irradiation of
the neo-extruded end-product with microwaves in order to stiffen
it so that its form is preserved,
followed by a final curing phase to complete the hydration of the
neo-extruded-product,
said irradiation taking place by passage of the neo-extruded end
product through a microwave oven and applying a power ranging
from 0.1 to 60 KW, said neo-extruded product being moved at a
rate ranging from 0.5-5 meters/minute by means of an external
pulling system.
REJECTIONS ON APPEAL
1. Claims 1-7, 10-12, and 19-21 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Redjvani (\VO 93/20990, published Oct. 28,
1993) in view of Bergman et al. (US 2005/0093209 Al, published May 5,
2005), optionally further in view of Curran (US 2,786,252, issued Mar. 26,
1957).
2. Claims 8 and 9 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Redjvani in view of Bergman and Hume (US 4,044,088,
issued Aug. 23, 1977), optionally further in view of Curran.
ANALYSIS
The Appellants argue the claims as a group, focusing on limitations
that appear in claim 1. Therefore, our decision with respect to claim 1 is
dispositive of all claims on appeal.
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After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner's
rejections. Accordingly, we affirm the rejections for reasons set forth below,
in the Final Action, and in the Examiner's Answer. See generally Final Act.
2-12; Ans. 2-7.
The Examiner finds, inter alia, that "Redjvani teaches extrusion of
concrete (cured by hydration) and curing by microwave ovens ... which
would necessarily include stiffening and subsequent curing," but that
Redjvani does not expressly teach a microwave power range of 0.1 to 60
KW or the use of microwaves "immediately after extrusion." Final Act. 2.
The Examiner finds that Bergman teaches a method of "stiffening an
extruded product via a microwave applicator varied up to 600 watts [0.6
KW]" immediately after extrusion, and that Bergman teaches applicability
of its method "to 'any plastically deformable material."' Id. at 2-3 (quoting
Bergman i-f 7). The Examiner determines that "[i]t would have been obvious
... to stiffen with Bergman's microwave applicator in the process of
Redjvani in order to have sufficient power to stiffen the extruded product."
Id. at 3.
The Appellants present several arguments in opposition to the
Examiner's rejection, which we address in tum below.
1. The Appellants argue that "[i]t is a requirement of Redjvani that
when the extruded product leaves the mould, it must be self supporting."
Br. 5. They rely on Redjvani' s teaching that, "when the concrete 18 exits
the mould 1, it is in a substantially hardened and therefore self supporting
state," Redjvani at 5:9-10, to suggest that the process ofRedjvani would not
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benefit from a microwave-stiffening step because it does not need additional
stiffening. See Br. 5---6 ("[I]n Redjvani the technical problem of retaining
the shape of the extruded end-product after the end-product has left the
extruder die does not exist as the product is hardened in the mould.").
We are not persuaded by that argument. Redjvani teaches that its neo-
extruded product may be "substantially hardened," Redjvani at 5: 10, or
"partially cured," id. at 8:24, and that the neo-extruded product may be
"supported by props if required ... to ensure retention of shape whilst
hardening is completed," id. at 5: 10-12. Thus, it is clear not only that
Redjvani' s extrusion process does not necessarily result in a sufficiently
hardened, self-supporting neo-extruded product, but that Redjvani would
benefit from increased stiffening immediately post-extrusion so, for
example, supporting props are not necessary.
2. The Appellants argue that, even if Redjvani's neo-extruded product
is not self-supporting, one would use "props" rather than microwave energy
to provide support and ensure retention of shape. Br. 5---6.
We are not persuaded by that argument because it does not consider
the combined teachings of the references as a whole. See In re Keller, 642
F.2d 413, 426 (CCPA 1981) ("[O]ne cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references."). Redjvani teaches the use of microwave ovens
to achieve accelerated curing. Redjvani at 5: 19-20. A person of ordinary
skill in the art would understand that curing involves hardening/stiffening.
See id. at 5:9-12 (associating curing with hardening and hardening with
"self[-]supporting state"). While Redjvani does not expressly teach at what
point in the process microwave ovens should be used, a person of ordinary
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skill reasonably would have inferred that the use of microwaves immediately
after extrusion would be beneficial in achieving "retention of shape whilst
hardening is completed," given that Redjvani expressly teaches that
microwaves accelerate curing. Id. at 5:10-12, 19-20. To the extent that
Redjvani itself does not suggest the use of microwave ovens immediately
after extrusion to ensure retention of shape, a person of ordinary skill in the
art would have been motivated to use that arrangement by Bergman, which
expressly teaches the use of microwave ovens immediately after extrusion to
solve the problem of "collaps[ing] due to insufficient self-support."
Bergman i-fi-13, 9, 20. Redjvani expresses concern for a similar problem, and
teaches that microwave curing was known to be used for curing/hardening
extruded concrete. Redjvani at 5:10-12 (discussing goal of"ensur[ing]
retention of shape whilst hardening is completed").
To the extent that the Appellants assert error on the basis that
Redjvani teaches the use of microwave ovens to accelerate "curing" rather
than to "stiffen," Br. 6, the Appellants fail to explain why accelerated curing
would not result in stiffening and preserve form. Additionally, that
argument fails to address Bergman, which expressly teaches the use of
microwaves "to stiffen" and preserve form. Bergman i-f 9; see also Keller,
642 F.2d 426. Similarly, to the extent that the Appellants argue that their
Specification teaches that "stiffening ... does not coincide with the final
curing phase," Br. 6, that "claim 1 also requires that the stiffening phase is to
be carried out immediately after extrusion," and that "[t]he Examiner has
conceded that this step is not taught by Redjvani," Br. 6, those arguments are
not persuasive because they do not address the Examiner's reliance on the
collective teachings of Redjvani and Bergman. See Keller, 642 F .2d at 426.
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3. The Appellants argue that a person of ordinary skill in the art
would not look to Bergman because its teachings narrowly apply to ceramic
materials that include a "gelable material as this is what Bergman requires as
being necessary for stiffening to take place." Br. 7-8.
We are not persuaded by that argument. While Bergman focuses on
ceramic materials and teaches stiffening by the use of microwaves to heat
above the gel point of a binder, Bergman also expressly teaches that its
"invention is applicable to any plastically deformable material which is
capable of being molded and shaped by extrusion." Bergman i-fi-17-9. The
Appellants do not dispute that cementitious materials such as those of
Redjvani constitute "plastically deformable material[s] which [are] capable
of being molded and shaped by extrusion," but instead argue that a person of
ordinary skill in the art would read Bergman's statement as extending only
to ceramic materials because Bergman focuses on ceramics. That
interpretation of Bergman contradicts Bergman's plain teaching of
applicability to "any plastically deformable material." Bergman i17
(emphasis added). The Appellants provide no persuasive explanation as to
why, contrary to the plain language of Bergman, a person of ordinary skill
would read Bergman's statement as excluding all plastically deformable
materials other than ceramic materials.
Even if Bergman were concerned solely with ceramic materials, the
Appellants do not argue that Bergman is nonanalogous art, and Bergman's
discussion of the gelable material in the ceramic does not show reversible
error in the Examiner's rationale. See Br. 8. Bergman teaches the benefit of
microwaving plastically deformable materials immediately after extrusion to
solve the problem of "collapse due to insufficient self-support." Bergman
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if 3. While the cementitious materials of Redjvani may not include a
stiffening gelable material such as those included in the ceramics of
Bergman, it was nevertheless known in the art that microwaves accelerate
hardening, i.e., stiffening, of cementitious materials. See Redjvani at 5: 19-
20. Indeed, the Appellants own Specification discloses that "[t]he use of
microwaves is known for the treatment of non-extruded cementitious
materials, in order to accelerate the hardening process." Spec. at 13: 15-17.
Thus, Bergman teaches a solution to the known problem of
insufficient self-support in extruded materials. That solution involves
exposing the extruded material to microwaves immediately after extrusion in
order to stiffen the extruded material. Bergman ifil 3, 9. It was known in the
art that exposure to microwaves accelerates curing and hardening of
cementitious materials. Redjvani at 5:9-20; Spec. at 13: 15-17. It would
have been within the ordinary level of skill in the art, through the use of only
ordinary creativity, to immediately harden or stiffen Redjvani's extruded
cementitious materials with microwaves, as suggested by Bergman, to
predictably solve or reduce the known problem of ensuring retention of
shape during curing. See, e.g., Bergman iii! 3, 6, 7, 9; Redjvani at 5:10-12.
4. The Appellants argue that "[ e ]ven when the teachings of Bergman
and/or Curran are considered with Redjvani, no suggestion can be found that
suggests carrying out a partial cure using microwave irradiation ... with a
subsequent final curing, as two separate operative steps that result in
extruded cementitious products without defects." Br. 6-7.
We disagree. Bergman expressly teaches "applying microwaves to
stiffen a newly formed ceramic extruded structure for providing substantially
improved wet strength and handlingprior to drying and firing [i.e.,
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conventional curing]." Bergman if 6. The Appellants offer no explanation
as to why a person of ordinary skill in the art would not read that as
suggesting that microwaves are used to increase stiffening, resulting in
enhanced self-support during a subsequent final curing process. Similarly,
Redjvani teaches the desirability of "ensur[ing] retention of shape whilst
hardening is completed." Redjvani at 5:10-12. That teaching reasonably
indicates the desirability of stiffening in an early curing phase to "ensure
retention of shape whilst hardening is completed." Id. at 5: 10-20. In
combination, the references reasonably suggest that microwaves should be
used to increase stiffening of a neo-extruded plastically deformable product
so that the product maintains its shape during a conventional curing process.
The Appellants' argument, which simply asserts with no persuasive
explanation that the references do not teach or suggest microwaving
followed by final curing, is not persuasive. See 37 C.F.R. § 41.37(c)(l)(iv)
("A statement which merely points out what a claim recites will not be
considered an argument for separate patentability of the claim."); see also In
re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (holding that "the Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art").
5. The Appellants state that "Example 1 [of their Specification]
shows that piping having a circular section and high vacuum percentages
(so-called fine thickness piping) can be efficiently produced with a low
energy consumption. . . . This technical effect is not derivable at all from the
cited art and is evidence of non-obviousness." Br. 7. They also note that
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"Example 1 also demonstrates that the use of microwave irradiation for
partial hydration results in a reduction in defects .... " Id.
Those statements do not identify any relevant claim limitations or
otherwise purport to identify reversible error in the Examiner's findings and
conclusions. To the extent the Appellants intended them to be arguments
concerning unexpected results, the Appellants have not carried their burden
of establishing unexpected results. For example, they have made no
comparison to the closest prior art, and they have provided no evidence that
those results are unexpected or that the results are commensurate in scope to
the claims.
6. The Appellants argue that Curran's teachings regarding end-
product moving rate do not relate to preliminary stiffening using microwave
energy. Br. 9. That argument fails because the Appellants address Curran
alone rather than considering the combined references. See Keller, 642 F.2d
at 426. Moreover, the Appellants provide no persuasive arguments rebutting
the Examiner's finding that Redjvani recognizes that moving rate is a result
effective variable or the Examiner's rationale for combining Curran with
Redjvani and Bergman. See Final Act 4.
CONCLUSION
We AFFIRM the Examiner's rejection of claims 1-12 and 19-21.
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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