Ex Parte Jennings et al

Patent Trial and Appeal Board

Jun 20, 2016

11655653 (P.T.A.B. Jun. 20, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111655,653 01119/2007
63417 7590 06/22/2016
The Dow Chemical Company -- Gary C Cohn
325 7th A venue, #203
San Diego, CA 92101
FIRST NAMED INVENTOR
James K. Jennings
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.
63913A 9827
EXAMINER
COONEY, JOHN M
ART UNIT PAPER NUMBER
1765
NOTIFICATION DATE DELIVERY MODE
06/22/2016 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):
GARYCOHN@SEA T1LEPA TENT.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES K. JENNINGS, THOMAS H. PERRY,
RANDALL D. JENKINES, and ALLEN L. ATKINSON 1
Appeal2014-005034
Application 11/655,653
Technology Center 1700
Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejection under 35 U.S.C. § 103(a) of claims 1-6, 8-17, and 19-22 as
unpatentable over Kazmierski et al. (US 6,372,810 B2, issued Apr. 16, 2002)
("Kazmierski") in view of Holechovsky et al. (US 6,780,895 B2, issued
Aug. 24, 2004) ("Holechovsky"). We have jurisdiction under 35 U.S.C. § 6.
1 Dow Global Technologies LLC is identified as the real party in interest.
App. Br. 1.
Appeal2014-005034
Application 11/655,653
We REVERSE.
Appellants claim a process for preparing a polyurethane cushion
attached to a substrate comprising forming a frothed polyurethane-forming
composition between a substrate and a containment layer, wherein the
containment layer is an impervious material or a semi-permeable material
having small openings or voids that become plugged or filled when the
material is brought into contact with the polyurethane-forming composition,
and curing the composition to form a foamed polyurethane cushion having a
density of no greater than 10 pounds/ cubic foot bonded to both the substrate
and containment layer (sole independent claim 1 ).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A process for preparing a polyurethane cushion attached to a
substrate, comprising:
a) forming a frothed polyurethane-forming composition having a
density of about 300 to 600 grams per liter and a gel time of at least 180
seconds, the polyurethane-forming composition including at least one
polyol, 0.5 to 3.0 parts of water per 100 parts by weight polyol, and at least
one polyisocyanate in an amount sufficient to provide an isocyanate index of
85 to 130;
b) forming a layer of the frothed composition between a substrate and
a containment layer prior to any significant expansion of the polyurethane-
forming composition due to the reaction of the water with polyisocyanate
groups, by (i) dispensing the polyurethane-forming composition onto the
substrate and forming it into a layer and then laying the containment layer
atop the layer of the polyurethane-forming composition or (ii) dispensing the
polyurethane-forming composition onto the containment layer and
forming the composition into a layer and then laying the substrate atop the
layer of the polyurethane-forming composition, wherein the substrate and
the containment layer each comprises a physical barrier to the release of
gases from the frothed composition and further wherein the containment
layer is an impervious material or a semi-permeable material having small
openings or voids that become plugged or filled when the material is
brought into contact with the polyurethane-forming composition and
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Appeal2014-005034
Application 11/655,653
c) curing the frothed composition whereby the water reacts with
isocyanate groups in the polyurethane-forming composition, generating
carbon dioxide gas which expands the composition between the substrate
and the containment layer to form a foamed polyurethane cushion having a
density of no greater than 10 pounds/ cubic foot bonded to both the substrate
and containment layer.
In rejecting claim 1, the Examiner finds that Kazmierski discloses a
process for preparing a polyurethane cushion attached to a carpet substrate
by forming a frothed polyurethane-forming composition on the substrate but
that the process does not use a containment layer as claimed (Final Action
2-3). Concerning this deficiency, the Examiner finds that Holechovsky
discloses applying a secondary backing of jute or polypropylene to the
polyurethane adhesive of tufted carpet and that Holechovsky's secondary
backing corresponds to the containment layer of claim 1 (id. at 3--4). The
Examiner concludes that it would have been obvious to employ the
secondary backing ofHolechovsky in the process of Kazmierski (id. at 3).
Appellants argue that the Examiner fails to provide any evidence or
scientific reasoning in support of the finding that Holechovsky' s secondary
backing corresponds to the claimed containment layer and accordingly that
the Examiner's finding is nothing more than unsupported speculation (App.
Br. 7-8; Reply Br. 2).
Appellants' argument is well taken. The Examiner has proffered no
evidence or reasoning of any kind to support the proposition that the
secondary backing ofHolechovsky corresponds to a containment layer of
impervious material or semi-permeable material of the type defined by claim
1. For this reason, there is merit in Appellants' characterization of the
Examiner's finding as unsupported speculation.
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Appeal2014-005034
Application 11/655,653
Appellants further contend they have established with publication and
Declaration evidence that secondary backing materials used in carpet
manufacture are open-weave materials (App. Br. 8-9; Reply Br. 2-3) and
that using an open-weave secondary backing as a containment layer does not
form a foamed polyurethane cushion having a density no greater than 10
pounds/cubic foot as required by claim 1 (App. Br. 9-10; Reply Br. 3--4).
Appellants' contention and evidence also possess merit. The
Examiner dismisses this contention and evidence as failing to establish
unexpected results (Ans. 7-8). As correctly explained by Appellants,
however, "the [E]xaminer misses the point" (Reply Br. 3). The point of
Appellants' evidence is that the secondary backing of Holechovsky does not
possess the characteristics and does not perform the function of the claimed
containment layer.
In summary, the record before us contains evidence that
Holechovsky's secondary backing does not correspond to the containment
layer required by claim l but no evidence in support of the Examiner's
contrary view. Under these circumstances, the Examiner fails to establish a
prima facie case of obviousness. We do not sustain, therefore, the § 103
rejection of the appealed claims as unpatentable over Kazmierski in view of
Ho lechovsky.
The decision of the Examiner is reversed.
REVERSED
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