Ex Parte Haas

Board of Patent Appeals and Interferences

Sep 13, 2007

10615746 (B.P.A.I. Sep. 13, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES LYNN HAAS
____________

Appeal 2006-2300
Application 10/615,746
Technology Center 1700
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Decided: September 13, 2007
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Before EDWARD C. KIMLIN, PETER F. KRATZ, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-13 and 20, the
only claims pending in the application. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
Appeal 2006-2300
Application 10/615,746

The invention relates to a fabrication process for producing reinforced
polymeric foam composites. Claim 1 is illustrative of the invention and is
reproduced below:
1. A process for fabricating a fiber reinforced polymeric foam
composite comprising introducing a foamable mixture into a low binder
fiber mat and then expanding the foamable mixture into a polymeric foam
between top and bottom facing sheets such that the fibers of the low binder
fiber mat become dispersed within the polymeric foam, wherein the low
binder fiber mat is part of a first composite web that further comprises a
support mat and wherein a roll of first composite web is used to supply the
process with the first composite web.
The Examiner relies on the following prior art references to show
unpatentability:
Londrigan US 5,837,743 Nov. 17, 1998
Hoffmann US 4,804,425 Feb. 14, 1989
The Examiner made the following rejection:1
Claims 1-13 and 20 under 35 U.S.C. § 103 as unpatentable over
Londrigan in view of Hoffmann.
BACKGROUND
The Examiner contends that Londrigan discloses the invention as
claimed with the exception of a supply roll of composite comprising a low
binder fiber mat and a support web (Answer 5). The Examiner further
contends that it would have been obvious to have replaced the two
individual supply rolls of low binder fiber mat and support mat in

1 The rejection of claims 1-13 and 20 under 35 U.S.C. § 103 as unpatentable
over Gluck in view of Hoffmann has been withdrawn (Answer 2). The
rejection of claims 14-16 under 35 U.S.C. § 103 as unpatentable over
Londrigan in view of Hoffmann has also been withdrawn (Answer 3).

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Application 10/615,746

Londrigan’s process with a single supply roll of composite comprising a low
binder fiber mat and a support mat (Answer 5). According to the Examiner,
the motivation for this modification is process simplification, i.e.,
elimination of multiple feed rollers and the need to synchronize feeding
speeds of the low binder fiber mat supply and the support mat supply
(Answer 6). The Examiner relies on Hoffmann as evidence that one of
ordinary skill in the art “could effectively and interchangeably supply a low
binder fiber mat and a support mat as a composite on a single feeding roll or
separately feed them in different feeding rolls to a foam injection station and
a laminating station” (Answer 5-6).
Appellant concedes that Hoffmann discloses forming a composite web
comprising a “meshwork web” and facer sheet for use as feeding stock in a
foaming process (Br. 5-6). However, Appellant contends that Hoffmann
fails to disclose that the meshwork web may be an expandable fiber mat and,
more specifically, a low binder fiber mat (Br. 6). Appellant contends that
Hoffmann, at best, “suggests a narrow form of composite web consisting of
a low binder fiber mat and a facing sheet could be obvious to try – and that
is insufficient to make the invention obvious” (Br. 6).
Based on the contentions of the Examiner and the Appellant, the issue
before us is: Are the facts and reasons relied on by the Examiner sufficient
to establish that one of ordinary skill in the art, upon considering the
combined teachings of Londrigan and Hoffmann, would have been
motivated to replace the individual supply rolls of low binder fiber mat and
support mat in Londrigan’s process with a single supply roll of composite
comprising a low binder fiber mat and a support mat as claimed? For the
reasons discussed below, we answer this question in the affirmative.
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Appeal 2006-2300
Application 10/615,746

RELEVANT FINDINGS OF FACT
1) Londrigan discloses a method for continuous production of a
polymeric foam board.
2) According to the method, flexible facing materials are fed from
supply rolls, i.e., a roll 30 of lower facing material 31, and a roll 30' of
upper facing material 31' (Londrigan, col. 12, ll. 41-44).
3) The flexible facing materials are in the form of continuous or
semicontinuous sheets (Londrigan, col. 12, ll. 27-29).
4) Londrigan discloses that a wide variety of materials are
employable as the upper and lower facing material. Suitable materials
include a steel or aluminum metal sheet, asphalt-saturated felt, an asphalt
fiber glass sheet, a fiber glass sheet, paper, paperboard, a metal or plastic
foil, and combinations thereof (Londrigan, col. 12, ll. 30-40).
5) In accordance with Londrigan’s process, foamable chemicals are
dispensed to either lower facing material 31 or upper facing material 31’
prior to passing through metering rollers 32 and 33. Metering rollers
bring the upper and lower facing materials 31’, 30 in surface-to-surface
opposition relative to each other, with the foamable mixture sandwiched
in between (Londrigan, col. 13, ll. 32-43).
6) Londrigan discloses the use of polyurethane or polyisocyanurate
foam-forming mixes (Londrigan, col. 15, ll. 6-8).
7) According to Londrigan, “[a] preferred method for the production
of froth foams of the invention is disclosed in U.S. Pat. No. 4,572,865”
(Londrigan, col. 9, ll. 29-31).
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Application 10/615,746

8) Londrigan discloses that reinforcing web(s) may be introduced
above and/or below the foamable chemicals (Londrigan, col. 13, ll. 52-
57).
9) The reinforcing web may be fed from a roll 49 toward the nip
between the two rotating metering rolls 32 and 33 (Londrigan, col. 14, ll.
1-3).
10) “The nip or gap 47 formed between the rolls 32 and 33 is
accurately adjustable so as to insure contact of the foamable mixture
with the facing sheets and any reinforcing material and cause the desired
uniform distribution of the mixture across the width of the sheets. Rolls
32 and 33 thus serve as a device to meter the amount of chemicals being
passed downstream for formation of the desired board thickness”
(Londrigan, col. 14, ll. 40-46).
11) According to Londrigan, a preferred reinforcing web material is
fiberglass fibers, for example, the type of expandable glass mat used in
producing the structural laminate of U.S. Pat. No. 4,028,158, i.e., a thin
mat of long, generally straight glass fibers (Londrigan, col. 13, ll. 57-62).
12) Londrigan further states that “[b]y generally following the method
of foam reinforcement described in Example 1 of U.S. Pat. No.
4,028,158 and utilizing a foam-forming mixture having the consistency
of the liquid foamable mixture of this example, the glass mat becomes
distributed within the foam core” (Londrigan, col. 13, ll. 62-67).2

2 Example 1 of U.S. Pat. No. 4,028,158 discloses the use of a mat of glass
fibers which is substantially incompressible and has an overall thickness of
0.030 inches. The glass fibers forming the mat are described as “long,
straight fibers having an average diameter of less than 25 microns and
lengths varying from 5 to 12 feet with an average length of over 5 feet.”
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Application 10/615,746

13) Londrigan discloses that more than one fibrous web may be used
as reinforcement materials (Londrigan, col. 14, ll. 17-19).
14) In Figure 2, Londrigan discloses the use of three reinforcement
webs, an upper material 52 and lower materials 52’ and 48 (Londrigan,
col. 14, ll. 19-21). The reinforcement materials are fed to the apparatus
along with respective adjacent upper and lower facing sheets
(Londrigan, col. 14, ll. 37-39). The reinforcement materials may be the
same or different types of fibrous webs including an expandable glass
mat (Londrigan, col. 14, ll. 23-31).
15) Hoffmann discloses a process and a laminator for the continuous
production of laminates of foam with facings wherein “[a]n upper facing
and a lower facing and a web of meshwork are introduced into the
foaming space of a laminator and a fluid reaction mixture is spread over
the lower facing before it runs into the foaming space. The reaction
mixture penetrates the web of meshwork as it foams up on its journey
through the foaming space and becomes bonded to the facings”
(Hoffmann, col. 1, ll. 10-16).
16) In one embodiment, the lower facing comprises a prefabricated
composite web of facing and meshwork web (claim 3). The web may be
bonded to the facing by adhesive or welding.
17) Hoffmann states that “[i]t is well known to cover the back of
facings with non-woven fiber webs or to run them into the foaming
“Two facing sheets of aluminum foil, each having a thickness of about
0.0015 inches are positioned one on each side of the glass fiber mat and
foam-forming mixture” to produce a structural laminate.

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Application 10/615,746

space together with reinforcing webs such as glass fiber fabric”
(Hoffmann, col. 1, ll. 21-24).
18) According to Hoffmann, a problem with conventional glass fiber
fabrics is that they cannot prevent the formation of gas bubbles
underneath the upper facing as the foam expands (Hoffmann col. 1, ll.
45-48).
19) Hoffmann solves this problem by using a meshwork web having
openings of a particular size (see Hoffmann, col. 2, ll. 15-20 and 33-37).
20) Hoffmann discloses that the meshwork web may be made of any
of the materials typically used for reinforcing webs, such as glass fibers,
metal fibers or wires (Hoffmann, col. 2, ll. 44-47).
21) In one embodiment, Hoffmann discloses the formation of a foam
laminated with facings using a composite layer of an aluminum foil and
meshwork web (Hoffmann, col. 5, ll. 22-26).
22) The Specification states that “[a] composite web comprises a low
binder fiber mat disposed onto a support mat prior to conveying either
the low binder fiber mat or the support mat into a fiber reinforced foam
fabrication process” (Specification 4:8-10).
23) The Specification states that low binder fiber mats typically
comprise multiple fibers held together by some binder “to facilitate
handling, but theoretically need not have any binder” (Specification
3:31-4:1).
24) According to the Specification, “[s]uitable fibers include “glass
fibers, polymer fibers, ceramic fibers, metal fibers, and organic fibers
such as cotton or wool.” Most preferably, the fibers are glass fibers.
(Specification 3:11-13).
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Application 10/615,746

25) According to the Specification, “[e]xamples of non-penetrable
support mats include flexile metal sheet (e.g., aluminum foil), paper,
paperboard, plastic foils, asphalt-saturated felt, fiberglass sheet”
(Specification 5:27-29).
26) According to the Specification, “[e]xamples of penetrable support
mats include fiber scrims, netting, and even porous paper or sheet
materials” (Specification 5:31-6:2).
27) The Specification states that “[s]uitable examples of foamable
mixtures for producing polyurethane and polyisocyanurate foams are in
USP 4,572,865” (Specification 8:12-14).
ANALYSIS AND CONCLUSIONS
The Examiner determined that one of ordinary skill in the art would
have been motivated to simplify Londrigan’s process by replacing individual
supply rolls of a low binder fiber mat and a support mat with a single supply
roll containing a composite thereof, identifying process simplification as
motivation for the modification. The Examiner noted that substitution of a
composite supply roll for two separate supply rolls “is an art recognized
effective alternative way for supplying a non-woven web and a covering
layer into a belt-press foaming laminator as exemplified in the teachings of
Hoffman [sic, Hoffmann]” (Answer 5). In our view, the facts and reasons
relied on by the Examiner properly establish a prima facie showing of
obviousness based on the guidelines set forth in KSR Int'l Co. v. Teleflex
Inc., wherein the Supreme Court explained that “[w]here there is a design
need or market pressure to solve a problem and there are a finite number of
identified, predictable solutions, a person of ordinary skill in the art has good
reason to pursue the known options within his or her technical grasp. If this
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Application 10/615,746

leads to the anticipated success, it is likely the product ... of ordinary skill
and common sense.” 127 S. Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007).
We do not find Appellant’s arguments persuasive in overcoming the
Examiner’s prima facie showing of obviousness, because they fail to address
the facts and reasons relied on by the Examiner in rejecting the claims.
Appellant’s arguments focus on his contention that Hoffmann does
not utilize a low binder, or any other type of expandable, fiber mat (Br. 7).
Thus, Appellant first argues that Hoffmann does not suggest the combination
of “a low binder fiber mat and a support mat as a composite web in a single
feeding roll (Br. 5). However, it is abundantly clear from the Answer that
the Examiner is not relying on Hoffmann for the disclosure of a composite
of a low binder fiber mat and support mat (Answer 9). Rather, the Examiner
is relying on Hoffmann to show that, in the manufacture of fiber reinforced
polymeric foam composites, use of a single supply roll of a composite is a
known alternative to multiple supply rolls of the individual materials
forming the composite (Answer 9).
Appellant also argues that one of ordinary skill in the art would not
have looked to Hoffmann for improvements to Londrigan’s process because
Hoffmann is not concerned with the problems associated with feeding a low
binder fiber mat into a foaming process (Br. 7). This argument likewise fails
to address the Examiner’s reliance on Hoffmann for a general disclosure of
using a single supply roll of a composite in a fabrication process similar to
Londrigan’s (Answer 9). While the analysis in support of an obviousness
determination should “identify a reason that would have prompted a person
of ordinary skill in the art to combine the elements,” in the manner claimed,
KSR, 127 S. Ct. at 1731, 82 USPQ2d at 1389, the “analysis [of whether the
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Application 10/615,746

subject matter of a claim is obvious] need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” Id., 127 S. Ct. at 1741, 82 USPQ2d
at 1396 (quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d 1329, 1336
(Fed. Cir. 2006)). See DyStar Textilfarben GmBH & Co. Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1361, 80 USPQ2d 1641, 1645 (Fed. Cir.
2006)(“The motivation need not be found in the references sought to be
combined, but may be found in any number of sources, including common
knowledge, the prior art as a whole, or the nature of the problem itself.”)
See also In re Beattie, 974 F.2d 1309, 1312, 24 USPQ2d 1040, 1042 (Fed.
Cir. 1992) (“As long as some motivation or suggestion to combine the
references is provided by the prior art taken as a whole, the law does not
require that the references be combined for the reasons contemplated by the
inventor.”).
Appellant presents separate arguments with respect to each of claims
2, 12, 13, and 20. We likewise find these arguments unpersuasive for the
reasons well-stated in the Examiner’s Answer.
With respect to claim 2, Appellant argues that “there is no indication
that fiber uniformity is achieved throughout the foam – or, more particularly,
that the fibers become ‘substantially distributed’ within the foam” (Reply Br.
6). Contrary to Appellant’s contention, we find that the Examiner provided
a reasonable basis to conclude that the combined teachings of Londrigan and
Hoffmann suggest Appellant’s claimed process and would result in a low
binder expandable fiber mat having fibers substantially distributed within the
polymeric foam as claimed (Answer 12). We further note that Londrigan
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Appeal 2006-2300
Application 10/615,746

utilizes the same materials as Appellant for fabrication of a fiber reinforced
polymeric foam composite. (Compare Findings of Fact 4, 7, 11, and 12 with
Findings of Fact 23, 24, and 25.) Thus, the burden was properly shifted to
Appellant to demonstrate that the Examiner’s proposed combination would
not result in a low binder expandable fiber mat having fibers substantially
distributed within the polymeric foam as claimed. See In re Best, 562 F.2d
1252, 1255, 195 USPQ 430, 433-34 (CCPA 1977) (Where patentability rests
upon a property of the claimed material not disclosed within the art, the PTO
has no reasonable method of determining whether there is, in fact, a
patentable difference between the prior art materials and the claimed
material. Therefore, where the claimed and prior art products are identical
or substantially identical, or are produced by identical or substantially
identical processes, the PTO can require an applicant to prove that the prior
art products do not necessarily possess the characteristics of the claimed
product.) Appellant has not met this burden.
With respect to claims 12 and 13, Appellant argues that Hoffmann
only discloses combinations of a meshwork web with a facing sheet (Br. 10).
Appellant has not, however, addressed the Examiner’s determination that
claims 12 and 13 are rendered obvious by Londrigan’s Figure 2 embodiment
wherein multiple reinforcement materials are positioned between facing
sheets (Answer 7 and 12). The reinforcement materials may be adjacent and
may comprise different materials including low binder fiber mats (e.g.,
expandable glass mats) and fibrous webs, the latter of which would appear to
meet the limitation of a penetrable support mat (Findings of Fact 13, 14, and
26).
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Application 10/615,746

With respect to claim 20, Appellant argues that Hoffmann may not be
relied on to show that it would have been obvious to eliminate rollers in
Londrigan because Hoffmann is not concerned with low binder fiber mats
(Br. 13). As again properly pointed out by the Examiner, Appellant’s
arguments are unpersuasive because they fail to address the Examiner’s
explanation of what one of ordinary skill in the art would have understood
from the combined teachings of the references (Answer 13). “When a patent
‘simply arranges old elements with each performing the same function it had
been known to perform’ and yields no more than one would expect from
such an arrangement, the combination is obvious.” KSR, 127 S. Ct. at 1740,
82 USPQ2d at 1395-96 (quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273,
282, 96 S. Ct. 1532, 1537 (1976)).
In summary, we find that the Examiner has established a prima facie
showing of obviousness as to claims 1-13 and 20 which Appellant has failed
to rebut.
ORDER
The rejection of claims 1-13 and 20 under 35 U.S.C. § 103 as
unpatentable over Londrigan in view of Hoffmann 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)(i)(iv).
AFFIRMED

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