Ex Parte Kalinoski et al

Board of Patent Appeals and Interferences

Nov 7, 2007

09970159 (B.P.A.I. Nov. 7, 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The opinion in support of the decision being entered today is not binding
precedent of the Board.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 JOHN P. KALINOSKI and
MICHAEL H. BUNYAN
____________

Appeal 2007-0684
Application 09/970,1591
Technology Center 1700
____________

Decided: 7 November 2007
____________

Before FRED E. McKELVEY, Senior Administrative Patent Judge,
RICHARD E. SCHAFER, and JAMES T. MOORE, Administrative Patent
Judges.

MOORE, Administrative Patent Judge.

DECISION ON APPEAL
The Appellants want to be in an interference against Patent 6,329,014,
issued December 11, 2001 to Helmut Kahl and Bernd Tiburtius from
application 09/393,907, filed March 10, 1999. (Br. at 5).

1 Application filed 02 October 2001. The real party in interest is identified
as Parker-Hannafin Corporation. Br. 3.

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To that end, the Appellants copied claims 43 and 48-51 from the ‘014
Patent. (Br. at 5). The Examiner rejects those claims and claims 23-26 and
declined to forward the application to the Board with a recommendation for
an interference. An interference is not requested with claim 52.
Interferences are not declared when potentially interfering claims are
not allowable; this appeal followed.
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134 from the final rejection
entered May 18, 2004 in this application. The Appellants also appeal a new
ground of rejection entered in the Answer of September 27, 2006 of claims
23-26, 43, and 48-51.2 Claim 52, the only other pending claim, is not
before us on appeal as it has been determined to be allowable by the
Examiner.
We have jurisdiction under 35 U.S.C. § 6(b) (2002).
The broadest independent claim on appeal reads as follows:
23. A process for forming a form-in-place conductive EMI
[electromagnetic interference] shielding gasket on a substrate comprising the
steps of:
a) providing a substrate to be gasketed;

2 We have considered and address only the Final Rejection of May 18, 2004
(“Fin. Rej.”); the Brief of December 19, 2005 (“Br.”), the Answer of
September 27, 2006, (“Answer”) and the Reply of October 6, 2006
(“Reply”). We have not considered the Brief of January 18, 2005, the
Answer of March 23, 2005, the Reply of April 28, 2005, Supplemental
Answer of April 27, 2005, or the Supplemental Reply of June 15, 2005,
which are superseded by the more recent filings.
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b) providing a supply of conductive gasket material formed
from a conductive filled silicone resin;
c) applying the material to the substrate’s surface in a
predetermined pattern; and
d) curing the material in place upon the substrate. (material
in brackets added)
The rejections under review in this appeal are as follows.
Claims 43 and 48-51 stand rejected for failure to comply with the
written description requirement of 35 U.S.C. §112, first paragraph.
Claims 23-26, 43, and 48-51 stand rejected as being unpatentable
under 35 U.S.C. §103(a) as being obvious over the combination of Morgan
and Nakagawa.
Claims 23-26 stand rejected as being unpatentable under 35 U.S.C. §
102(b) as anticipated by, or alternatively under 35 U.S.C. §103(a) as obvious
over, Bogan.
Claims 43 and 48-51 stand rejected under 35 U.S.C. §102(f) as not
being invented by the Applicants.
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DISCUSSION
FINDINGS OF FACT
The following findings of fact and any set out in the Discussion
section are supported by a preponderance of the evidence of record. Any
conclusions of law should be treated as such.
A. Background
The application disclosure
1. According to the Applicants’ Specification (“Spec.”), the
application is concerned with electromagnetic interference (EMI) shielding
gaskets to be used on electronic equipment. (Spec. at 3:1–2.)
2. One way the gaskets are rendered electrically conductive is by the
use of a conductive filler incorporated into an elastomer base (Spec. at 9:1-
10).
Application Claims
3. Claims 23, 43, and 49 are representative of the issues on appeal.
4. Claim 23 reads:
A process for forming a form-in-place conductive EMI
shielding gasket on a substrate comprising the steps of:
a) providing a substrate to be gasketed;
b) providing a supply of conductive gasketing material
formed from a conductive filled silicone resin;
c) applying the material to the substrate’s surface in a
predetermined pattern; and
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d) curing the material in place upon the substrate.

(Br. at 12 (Claims Appendix); paragraphing added.)
5. Claim 43 (copied from claim 1 of Patent 6,329,014) reads:
A method for the manufacture of a housing having two adjacent
housing parts for accommodating electronic functional elements,
comprising:
forming a screening seal to fill a gap between said two
adjacent housing parts, said seal being made from an
electrically conductive elastic plastic material, said electrically
conductive elastic plastic material including a silicon polymer
that dries rapidly in air and at ambient temperature, said
forming including ejecting said polymer in a pasty initial state
with a pressure nozzle over one of said housing portions that is
to be sealed, so that said polymer is deposited directly on said
one of said housing portions, to form said screening seal with a
predetermined profile without a molding tool; and
allowing said screening seal to cure on said one of said
housing portions wherein said screening seal adheres to a
surface of said one of said portions in such a manner that the
screening seal maintains its electrical and sealing characteristics
even after repeated opening of the housing.
(Br. at 12-13 (Claims Appendix); paragraphing added.)
6. Claim 49 (copied from claim 14 of Patent 6,329,014) reads:
A method for the manufacture of a housing having two adjacent
housing parts for accommodating electronic functional elements,
comprising:
forming a screening seal to fill a gap between said two
adjacent housing parts, said seal being made from an
electrically conductive elastic plastic material, said electrically
conductive elastic plastic material including a silicon polymer
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which hardens at room temperature that is applied at ambient
temperature, said forming including ejecting said polymer in an
pasty initial state with a pressure nozzle and passing said
pressure nozzle over one of said housing portions that is to be
sealed, so that said polymer is deposited directly on said one
said housing portions, to form said screening seal with a
predetermined profile without a molding tool; and
allowing said screening seal to cure on said one of said
housing portions wherein said screening seal adheres to a
surface of said one of said portions in such a manner that the
screening seal maintains its electrical and sealing characteristics
even after repeated opening of the housing.
(Br. at 13 (Claims Appendix); paragraphing added.)
The Prior Art
7. The Examiner has relied on the following references:
Bogan US 4,662,967 May 05, 1987
Nakagawa US 4,980,516 Dec. 25, 1990
Morgan US 5,284,888 Feb. 08, 1994
Kahl US 6,329,014 B1 Dec. 11, 2001
Bogan
8. Bogan describes a method of making a gasket for an electronics
enclosure to help keep out electrical interference (1: 18-20).
9. Bogan describes including metallic micro-particles in an elastomer
during fabrication of the gasket. (1:28-30).
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Nakagawa
10. Nakagawa describes an electromagnetic-shielding gasket placed
around a joint between conductive housings of electronic components or
between the conductive housing and a cover member (1:5-8).
11. Nakagawa describes the use of a gasket including an elastomer
containing conductive metallic particles or carbon black (1:26-28).
Morgan
12. Morgan is concerned with the provision of an electromagnetic
shielding gasket which reduces corrosion (1:9-15).
13. Morgan describes the problem of voids and airspace in the
interface between substrates and gaskets when substrates are joined by
preformed gaskets (1:50-57).
14. Morgan describes applying coatings directly to the surfaces to be
joined to create a “formed in place” gasket to solve the problem of voids and
airspace. (1:54-57).
15. Morgan describes one such form in place gasket including a
nickel filler in elastomer applied to substrates. (1:58-62).
16. Morgan describes providing a composition suitable for use as a
sealant, a form in place gasket caulk, or coating which will maintain good
EMI/RFI shielding and cause minimal corrosion. (2:5-11).
Kahl
17. Kahl describes casings for electronic circuits which are sealed
with an elastomeric polymer including metal particles. (4:19-39).
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The Examiner's Rejections and Appellants’ Arguments
A. Lack of Written Descriptive Support (35 U.S.C. § 112, First Paragraph)
18. The Examiner rejects claims 43 and 48-51 as failing to comply
with the written description requirement of 35 U.S.C. §112, first paragraph
(Answer at 4)
19. The Examiner has found that the phrase in these claims “forming
a screening seal to fill a gap” lacks support in that “to fill a gap” is not found
in the Applicant’s disclosure. (Answer, 4-5). Specifically, the Examiner
finds that the Applicant places material on the edges of substrates which will
mate when joined, not gaps.
20. The Examiner has additionally found that the phrase “including a
silicone polymer that dries rapidly in air and at ambient temperature”
likewise lacks support.
Analysis
The rejection cannot be sustained.
The claims at issue establish by their specific language (“forming a
screening seal to fill a gap between said two adjacent housing parts”) that the
“gap” being filled is conceptually the same as a seal around the edge of an
opening of the housing. (See, e.g., Claim 43). The specification provides
adequate support for this concept – p. 14, paragraph 1 describes forming a
gasket from a silicone filled with conductive particles. The bead of silicone
rubber is placed along the peripheral edge of a substrate to be shielded, such
as a cell phone housing.
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Additionally, the specification supports a wide variety of curing
mechanisms, including silicone with chemical curing agents (Spec. 15, lines
1-4). Note that original Claim 14 requires only a silicone resin and a curing
agent which, when mixed and applied to a substrate, create a form stable-
form in place gasket. We find that a silicone with curing agent as described
on page 6, last paragraph as including those which cure either at a critical
temperature or with a curing agent supports room-temperature curing, while
the discussion at page 7 going to fast curing cycles supports a rapidly curing
polymer.
The adequate written description requirement, which is distinct from
the enablement and best mode requirements, serves "to ensure that the
inventor had possession, as of the filing date of the application relied on, of
the specific subject matter later claimed by him; how the specification
accomplishes this is not material." In re Wertheim, 541 F.2d 257, 262, 191
USPQ 90, 96 (CCPA 1976). In order to meet the adequate written
description requirement, the applicant does not have to utilize any particular
form of disclosure to describe the subject matter claimed, but "the
description must clearly allow persons of ordinary skill in the art to
recognize that [he or she] invented what is claimed." In re Gosteli, 872
F.2d 1008, 1012, 10 USPQ2d 1614, 1618 (Fed. Cir. 1989).
Considering the Appellants’ specification and the claim language, we
conclude that the Appellants have met this requirement and reverse the
Examiner’s lack of written description rejection.
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B. Obviousness over Morgan in view of Nakagawa
21. The Examiner rejects claims 23-26, 43, and 48-51 as obvious
over the combination of Morgan and Nakagawa. (Answer at 5.)
22. The Examiner finds that Morgan describes a process of molding a
form-in-place elastic plastic gasket material onto a substrate. The Examiner
specifically finds that Morgan describes providing a composition that
provides electromagnetic interference (EMI) shielding comprising a resin,
conductive filler, and additives, which is mixed and applied to a substrate by
extrusion molding. (Fin. Rej. May 18, 2004, p. 4).
23. The Examiner has additionally found that extrusion molding was
well known to be performed by ejecting resin from a pressure nozzle which
was conventionally pasty or liquid. (Fin. Rej. May 18, 2004 p. 5)
24. The Examiner has also found that Nakagawa describes using
silicone as an EMI gasket material for the added benefit of increased
resistance to heat, oil, and ozone cracks. (Fin. Rej. May 18, 2004, p. 5). The
gasket includes a silicone material blended with a conductive filler material
which is formed into a predetermined profile and then attached to a housing
substrate. (Fin Rej. May 18, 2004, p. 5).
25. The Examiner concludes that it would have been obvious to one
of ordinary skill in the art at the time the invention was made to include
silicone in a form-in-place gasket for the material benefits of increased
resistance to heat, oil, and ozone cracks. (Fin Rej. May 18, 2004, p. 5-6).
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26. The Examiner finds that the further limitations recited in each of
the dependent claims are met by specific elements in Morgan. (Answer at
5.)
27. The Appellants do not contest the Examiner's findings
summarized above in these regards, nor did the Appellants argue any claim
separately. (Br. at 8–9.)
28. However, the Appellants argue that one skilled in the art would
not be motivated to combine the teachings of these references to arrive at the
claimed invention. (Br. 8).
29. First, the Appellants urge that Morgan specifically selects a
polyurethane resin for its chemical and corrosion resistance, and an azole
component to achieve anti-corrosive effects which are synergistic. The
Appellants urges that one of ordinary skill in the art would not substitute
silicone for polyurethane as there is no reasonable expectation that silicone
would achieve these results. (Br. 8-9).
Analysis
This argument is unpersuasive. First, we observe that it is
unsupported by any persuasive evidence of record and is merely attorney
conjecture. Second, it is the combination of references which renders the
claimed invention obvious, not whether one reference may be bodily
incorporated into another. Morgan teaches that:
Conventional shielding gaskets have been used in these applications
to provide EMI/RFI shielding. These gaskets generally provide
satisfactory shielding, but can cause significant corrosion of the
structural metal (e.g. aluminum). In fact, when the metal filler or
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mesh in the shielding gasket is different from either of the adjacent
substrates, a galvanic potential is established across all three elements,
often causing the gasket itself, and eventually the entire assembly, to
corrode. Further, the interface between such preformed gaskets, and
the substrate to which they are applied typically contains voids and
airspace which detracts from shielding effectiveness and may promote
corrosion. Thus, it would be advantageous to provide a composition
which could be used to form a gasket directly on the substrate
(referred to hereinafter as a “form-in-place gasket”).
Morgan (1:41-57).
One of ordinary skill in the art, looking at Morgan, would have
recognized the advantages flowing from a form-in-place gasket for any use,
especially to enhance EMI shielding. Morgan teaches the method of
applying a form-in-place EMI gasket.
Nakagawa, on the other hand, teaches silicone rubber preformed
gaskets with conductive particles are excellent for resistance to heat and oil
in EMI shielding gaskets. (5:61-64).
Section 103 forbids issuance of a patent when 'the differences between
the subject matter sought to be patented and the prior art are such that the
subject matter as a whole would have been obvious at the time the invention
was made to a person having ordinary skill in the art to which said subject
matter pertains.'" KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734, 82
USPQ2d 1385, 1391 (2007).
Both references, when considered together, teach different types of
gaskets may be suitable for different types of service – a polyurethane based
gasket may serve better in salt-corrosive environments, while a silicone
rubber based gasket may serve better in heat and oil stressed environments.
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Both preformed and form-in place were also known, with certain benefits to
form-in-place.
One of ordinary skill in the art is skilled. In re Sovish, 769 F.2d 738,
743, 226 USPQ 771, 774 (Fed. Cir. 1985). "A person of ordinary skill is
also a person of ordinary creativity, not an automaton." KSR, 127 S.Ct. at
1742, 82 USPQ2d at 1397.
When a work is available in one field of endeavor, design incentives
and other market forces can prompt variations of it, either in the same
field or a different one. If a person of ordinary skill can implement a
predictable variation, § 103 likely bars its patentability. For the same
reason, if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.
Id. at 1740, 82 USPQ2d at 1396.
We must ask whether the improvement is more than the predictable
use of prior art elements according to their established functions.
We find ample reason why one of ordinary skill in the art would have
been prompted to use silicone in a form-in-place gasket, for the benefits of
specific resistance to heat and oil, and better EMI shielding. Accordingly,
we shall affirm the rejection of claims 23-26, 43, and 48-51 as obvious over
the combination of Morgan and Nakagawa.
We note the Appellants raise in their Reply, for the first time in the
final briefing on this appeal, a specific issue relating to claim 48 (computer
aided design not being disclosed in the reference) (Reply, p. 3, ll. 4-5).
Raising an issue for the first time in the reply brief, and not the appeal brief,
is not timely. In any event, the Appellant has not explained why the claim
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is separately patentable, i.e. why forming a gasket by computer aided design,
a known process, would not have been obvious to one of ordinary skill in the
art at the time the invention was made. Simply stating what a claim recites
is not separate argument for patentability. 37 CFR §41.37(c)(1)(vii).
Accordingly, the argument does not persuade us of error.
C. Anticipation by Bogan
30. The Examiner rejects claims 23-26 as anticipated (35 U.S.C.
§102) by or obvious (35 U.S.C. § 103) over Bogan. (Answer at 7).
31. The Examiner finds that Bogan describes molding a conductive
gasket material onto a substrate. (Answer at 7.)
32. The Examiner finds further that Bogan describes providing a
substrate for receiving a gasket, providing a supply of conductive material
that includes silicone material filled with conductive particles, applying the
material to the substrate’s surface, and curing the material. (Answer at 7.)
33. The Examiner finds that the further limitations recited in each of
the dependent claims are met by specific elements in Bogan. (Answer at 7-
8.)
34. The Appellants make no separate argument as regards those
claims.
35. The Appellants urge that Bogan is not a “formed-in-place” gasket
in that it is compression molded against one of the structural components
and not formed between two components. (Br. 10).
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36. According to the Appellants, formed-in-place excludes
compression molded gaskets. (Br. 10)
Analysis
It is evident that the scope of claim 23 needs to be interpreted
carefully. Normally, the preamble of a claim is not limiting. DeGeorge v.
Bernier, 768 F.2d 1318, 1322 n.3, 226 USPQ 758, 761 n.3 (Fed. Cir. 1985).
However, the preamble may be limiting “when the claim drafter chooses to
use both the preamble and the body to define the subject matter of the
claimed invention.” Bell Communications Research, Inc. v. Vitalink
Communications Corp., 55 F.3d 615, 620, 34 USPQ2d 1816, 1820 (Fed. Cir.
1995). If the preamble is “necessary to give life, meaning and vitality” to
the claim, then the claim preamble should be construed as limiting. Kropa v.
Robie, 187 F.2d 150, 152, 88 USPQ 478, 480-81 (CCPA 1951). This is
determined “on the facts of each case in view of the claimed invention as a
whole.” In re Stencel, 828 F.2d 751, 754, 4 USPQ2d 1071, 1073 (Fed. Cir.
1987); see also Applied Materials, Inc. v. Advanced Semiconductor
Materials Am., Inc., 98 F.3d 1563, 1572-73, 40 USPQ2d 1481, 1488 (Fed.
Cir. 1996) (“Whether a preamble stating the purpose and context of the
invention constitutes a limitation . . . is determined on the facts of each case
in light of the overall form of the claim, and the invention as described in the
specification and illuminated in the prosecution history.”).
Claim 23 recites:
A process for forming a form-in-place conductive EMI
shielding gasket on a substrate comprising the steps of:
a) providing a substrate to be gasketed;
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b) providing a supply of conductive gasketing material
formed from a conductive filled silicone resin;
c) applying the material to the substrate’s surface in a
predetermined pattern; and
d) curing the material in place upon the substrate.
In this instance, the Appellants’ invention as claimed is intimately
related to the formation of the gasket in contact with the surface to be
gasketed, avoiding some of the problems with nonconforming gaskets such
as waste (Spec. p. 2, ll. 17-20), attachment, and labor costs (Spec. p. 2, ll. 1-
7). Additionally, the claim body notes that the material is cured “in place
upon the substrate.”
Consequently, we conclude that the preamble is limiting on the
particular facts of this case.
We next need to interpret the scope of “form-in-place.”
Claims undergoing examination are given their broadest reasonable
construction consistent with the specification. Burlington Industries v.
Quigg, 822 F.2d 1581, 1583, 3 USPQ2d 1436, 1438 (Fed. Cir. 1987).
The Appellants read “form-in-place” as excluding compression
molding based upon discussion of the drawbacks of compression molding
generally found on page 2 of the specification. We disagree with this
interpretation. Rather, we find the claim language and specification supports
a more inclusive interpretation of claim 23 - as requiring that the gasket be
formed in place upon at least one substrate.
This interpretation is supported by the claim language (“a substrate”)
indicating that the gasket needs to be formed on at least one substrate. No
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restriction on how the gasket is formed is found within the claim other than
it must be on the substrate.
The broader interpretation is also supported by the specification -
compression molding is defined as making the gasket in a specially designed
mold (Spec. p. 1). Compression molding of separate gaskets is then
criticized for difficulty in “the ability to manufacture and attach such gaskets
securely becomes very difficult and labor intensive” (Spec. p. 2). In other
words, the criticized prior art gasket is pre-formed, and then attached. The
Appellants’ invention as claimed is instead directed to forming the gasket in
place.
Turning now to Bogan, we conclude that the Appellants have not
shown that the Examiner erred in determining that Bogan anticipates the
language of claim 23. Bogan forms an EMI shielding gasket (Ref. Num. 18,
see also 3:61) in place upon one housing element, in this instance what also
acts as a mold cover 12 (3:61-66). The gasket is molded in place and is not
cut (4:1-5) avoiding the prior art difficulties of waste and attachment.
Bogan provides a substrate to be gasketed, the cover 12.
Bogan proves a supply of conductive gasketing material formed
from a conductive filled silicone resin. (4:21-26).
Bogan applies the material to the substrate’s surface in a
predetermined pattern (as a flowable elastomer, bonding agent, and
filler into a mold over the cover’s surface)(3:55-59)
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Bogan cures the material in place upon the substrate (using pressure
and heat)(3:60)
Appellants’ argument notwithstanding, Bogan describes all the
elements of claim 23. Accordingly, we affirm the rejection of claims 23-26
as anticipated by Bogan.
There is some controversy as to whether there is also an obviousness
rejection in place. (Reply, p. 4, l. 7-8, contra Answer, p. 7). However, as
the anticipation rejection is affirmed, we summarily affirm the obviousness
rejection of claims 23-26 in view of Bogan. Anticipation is the “ultimate or
epitome of obviousness” In re Kalm, 378 F.2d 959, 962, 154 USPQ 10, 12
(CCPA 1967).
D. The 35 U.S.C. §102(f) Rejection
37. The Examiner has rejected claims 43 and 48-51 under 35 U.S.C.
§ 102(f). (Answer, p. 8)
38. The Examiner has found that the claimed subject matter is
identical to claims 1 and 13-16 of Patent 6,329,014. (Answer, p. 8).
39. The Examiner concludes that the Applicant did not invent the
subject matter of claims 43 and 48-51.
Analysis
This rejection cannot be sustained.
The Examiner has provided no persuasive evidence that the
Appellants did not independently invent the subject matter of claims 43 and
48-51, albeit the inventors named in U.S. Patent 6,329,014 may also have
invented that same subject matter. Copying claims is a way to provoke an
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interference where a patent is granted to another on the same patentable
subject matter. It is not an admission that the Appellants are not themselves
inventors of the subject matter of those claims. Rather, as correctly stated by
the Appellant, copying claims is a mechanism to set up a potential
interference.
Accordingly, the rejection of claims 43 and 48-51 under 35 U.S.C.
§ 102(f) is reversed.
E. Additional Observations
To the extent we have affirmed rejections based on the prior art and
the Appellants feel that the art is equally application to claims in U.S. Patent
6,329,014, the Appellants may wish to file a request for reexamination of
those claims.
CONCLUSION
In view of the foregoing facts and considerations, it is:
ORDERED that the rejection of claims 43 and 48-51 as failing
to comply with the written description requirement of 35 U.S.C. §112, first
paragraph is REVERSED.
FURTHER ORDERED that the rejection of claims 23-26, 43,
and 48-51 under 35 U.S.C. § 103 as obvious over the combination of
Morgan and Nakagawa is AFFIRMED.
FURTHER ORDERED that the rejection of claims 23-26 as
anticipated by(35 U.S.C. §102) or as obvious over (35 U.S.C. § 103) Bogan
is AFFIRMED.
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FURTHER ORDERED that the rejection of claims 43 and 48-
51 under 35 U.S.C. § 102(f) is REVERSED.
FURTHER ORDERED that no time period for taking any
subsequent action in connection with this appeal may be extended under
37 C.F.R. § 1.136(a)(1)(iv) (2006).

AFFIRMED

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