Ex Parte Kelley

Board of Patent Appeals and Interferences

Feb 25, 2009

10691416 (B.P.A.I. Feb. 25, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte PATRICK W. KELLEY
____________

Appeal 2008-4931
Application 10/691,416
Technology Center 1700
____________

Decided:1 February 25, 2009
____________

Before CHUNG K. PAK, TERRY J. OWENS, and PETER F. KRATZ,
Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2008-4931
Application 10/691,416

This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1 and 4-13. We have jurisdiction
pursuant to 35 U.S.C. § 6.
STATEMENT OF THE CASE
Appellant’s claimed invention is directed to a plastic log comprising
at least 80 percent thermoplastic materials including at least one polyolefin
selected from polyethylene and/or polypropylene. The log is characterized
by a length greater than two inches, a specified flexural modulus, and a
specified diameter deviation. The Specification discloses that Appellant’s
logs can contain recycled plastic and that they are useful for fencing
applications (Spec. 2). Claims 1 and 5 are illustrative and reproduced
below:
1. A plastic log having an average diameter greater than 2 inches, a
flexural modulus at 40°F of at least 70,000 psi and a diameter deviation in
the range of 2 to 60% wherein said log comprises at least 80% thermoplastic
materials comprising at least one polyolefin selected from the group
consisting of polyethylene and polypropylene.

5. A plastic log having deviations in diameter simulating a natural
wood log comprising at least 80% polypropylene and having an average
diameter greater than 2 inches, a flexural modulus at 40°F of at least 90,000
psi and a diameter deviation defined by the algorithm ((D-d)/D)x100 in the
range of 2 to 60%, where D is the maximum diameter and d is the minimum
diameter.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Bonnema US 4,913,473 Apr. 3, 1990
Christian US 5,253,458 Oct. 19, 1993
Erwin US 5,728,330 Mar. 17, 1998
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The Appellant furnishes an exhibit said to comprise “a
communication to the USPTO of October 15, 2005 which includes a table
showing the mechanical properties of vinyl polymer (PVC)” (App. Br. 10;
Evidence Appendix).2
The Examiner maintains the following grounds of rejection:
I. Claims 1 and 4-13 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Christian in view of Bonnema;
II. Claims 1 and 4-13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Christian in view of Erwin; and
III. Claims 1and 4-13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Erwin.
We affirm the stated rejections for reasons set forth in the Examiner’s
Answer and as further explained below.
Appellant does not present reasonably specific and distinct arguments
for the separate patentability of the individual appealed claims. In this
regard, we note that the provision of a brief description as to what an
individual claim may recite is not a separate argument. Thus, we select
claim 1 as the representative claim on which we shall primarily focus in
deciding this appeal as to each of the stated rejections.
Appellant presents several arguments in the Appeal Brief in
opposition to the Examiner’s obviousness rejections, which arguments are
capsulated below.

2 PTO records show that two data sheets corresponding to Exhibit 1 were
submitted on October 15, 2004.
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Concerning the Examiner’s first stated obviousness rejection over
Christian in view of Bonnema, Appellant maintains that the plastic material
requirements of the claimed plastic log for post and rail fencing, including
flexural modulus, diameter, diameter deviation, and the polyolefin material
requirement, are not taught by either of the applied references and would not
have been suggested to one of ordinary skill in the art by their combination
given that Christian relates to foam filled plastic logs used for constructing a
log home whereas Bonnema is directed to the formation of a corrugated
plastic pipe (App. Br. 4-9).
Regarding the Examiner’s second stated obviousness rejection over
Christian in combination with Erwin, Appellant notes that Christian (U.S.
Patent No. 5,253,458) is referenced at column 1, line 30 of Erwin and
argues, in essence, that the applied prior art references, alone or in
combination, do not teach or suggest plastic logs as required by appealed
claims 1 or 5; that is, logs that are characterized by Appellant’s claimed
diameter deviation and/or 80 percent polyolefin requirement (App. Br. 9 and
10).
As to the third-stated obviousness rejection over Erwin, Appellant
contends that Erwin is concerned with “foam-filled extruded product” like
the filled plastic pipe of Christian (App. Br. 10). In this regard, Appellant
conclusively argues that Erwin advances no teaching or suggestion about the
properties of plastic logs that would have brought one of ordinary skill in the
relevant art to arrive at the claimed subject matter. Id.

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ISSUES
Has Appellant established reversible error in any or all of the
Examiner’s separate obviousness rejections based on the aforementioned
arguments, as more fully set forth in the Appeal Brief?

SUMMARY DISPOSITION
We answer this question in the negative as to each of the Examiner’s
separate obviousness rejections.

PRINCIPLES OF LAW
On appeal to this Board, Appellants must show that the Examiner
erred in finally rejecting the claims. Cf. In re Kahn, 441 F.3d 977, 985-86
(Fed. Cir. 2006); see also 37 C.F.R. § 41.37(c)(1)(vii).
During examination, claims terms must be given “their broadest
reasonable construction consistent with the specification.” In re Icon Health
and Fitness, Inc., 496 F.3d 1374, 1378-79 (Fed. Cir. 2007). In proceedings
before the PTO, such a broadest reasonable interpretation of the claims in an
application involves reading the claim language in light of the Specification
as it would be interpreted by one of ordinary skill in the art. See In re Sneed,
710 F.2d 1544, 1548 (Fed. Cir. 1983). However, limitations are not to be
read into the claims from the Specification. In re Van Geuns, 988 F.2d
1181, 1184 (Fed. Cir. 1993) citing In re Zletz, 893 F.2d 319, 321 (Fed. Cir.
1989).
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
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differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) any secondary considerations. Graham v.
John Deere Co., 383 U.S. 1, 17-18 (1966). “[A]nalysis [of whether the
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.” KSR Int’l Co. Teleflex, Inc.,
127 S. Ct. 1727, 1741 (2007). See Okajima v. Bourdeau, 261 F.3d 1350,
1355 (Fed. Cir. 2001) (“[T]he absence of specific findings on the level of
skill in the art does not give rise to reversible error ‘where the prior art itself
reflects an appropriate level and [the] need for testimony is not shown’”).
The analysis supporting obviousness should be made explicit and
should “identify a reason that would have prompted a person of ordinary
skill in the relevant field to combine the elements” in the manner claimed.
KSR, 127 S. Ct. at 1741. However, “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR, 127 S. Ct. at 1739.
“A reference is reasonably pertinent if, even though it may be in a
different field from that of the inventor’s endeavor, it is one which, because
of the matter with which it deals, logically would have commended itself to
an inventor’s attention in considering his problem.” In re Clay, 966 F.2d
656, 659 (Fed. Cir. 1992). In other words, “familiar items may have obvious
uses beyond their primary purposes.” KSR, 127 S. Ct. at 1742 (2007).
In considering the question of the obviousness of the claimed
invention in view of the prior art relied upon, we are guided by the basic
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principle that the question under 35 U.S.C. § 103 is not merely what the
references expressly teach but what they would have suggested to one of
ordinary skill in the art at the time the invention was made. See Merck &
Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) and In re
Keller, 642 F.2d 413, 425 (CCPA 1981). That is, the question of
obviousness cannot be approached on the basis that an artisan having
ordinary skill would have known only what they read in the references,
because such artisan is presumed to know something about the art apart from
what the references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA
1962).
Nor is it necessary that suggestion or motivation be found within the
four corners of the references themselves. “The obviousness analysis cannot
be confined by the formalistic conception of the words teaching, suggestion
and motivation, or by overemphasis on the importance of . . . the explicit
content of issued patents.” KSR, 127 S. Ct. at 1741. Indeed, a conclusion of
obviousness may be made from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference. See In re Bozek, 416 F.2d 1385, 1390 (CCPA
1969). After all, it is well settled that “[t]he person of ordinary skill in the
art is a hypothetical person who is presumed to know the relevant prior art.”
Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc., 807 F.2d 955, 962
(Fed. Cir. 1986).
It is axiomatic that admitted prior art in an Applicant's Specification
may be used in determining the patentability of a claimed invention and that
consideration of the prior art cited by the Examiner may include
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consideration of the admitted prior art found in an Applicant's Specification.
In re Nomiya, 509 F.2d 566, 570-571 (CCPA 1975); In re Davis, 305 F.2d
501, 503 (CCPA 1962); In re Hedges, 783 F.2d 1038, 1039-1040 (Fed. Cir.
1986).

FINDINGS OF FACT
In addition to findings of fact set forth elsewhere in this Decision, we
determine the following relevant findings of fact by a preponderance of the
evidence standard:
The subject Specification defines a preferred embodiment “log” as “a
nominally cylindrical, extruded shape which can be cut into useful lengths”
(Spec. 3).
The aforementioned Specification definition for “log” does not state a
requirement for a hollow or solid log shape, and/or require the log to be a
monolithic structure. Id.
The Specification discloses that preferred embodiments of Appellant’s
asserted inventive plastic log is characterized by a suitable size for fence
applications (average diameter greater than 2 inches), a flexural modulus of
at least 70,000 pounds per square inch (psi), such as 100,000 psi, and a
diameter deviation (2%-60%) that yields a log-like appearance (Spec. 2-3).
The Specification discloses that Appellant’s plastic log can be made from
recycled thermoplastic material, including polyethylene or polypropylene
(Spec. 2 and 4). Further, the subject Specification notes that the inventive
log, that is, a log having the aforementioned characteristics, could
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substantially comprise other plastic materials such as ABS, polycarbonates,
other styrenic polymers, acrylics, nylon, and PET (Spec. 2).
Appellant’s Specification references U.S. Patent No. 5, 916, 932 and
acknowledges that it is known to form a molded product from recycled
plastic, which plastic product can be employed, for example, in railroad tie
applications (Spec. 1). The acknowledged prior art recycled plastic source,
useful for building material fabrication, includes high density polyethylene
(HDPE) and polypropylene. Id.
Furthermore, Appellant acknowledges that “[p]lastic products for
fencing and lumber are common real world architectural products . . . ”
(App. Br. 1).
Also, Appellant acknowledges that “[i]t is true that pipe can be used
for fencing . . .” (App. Br. 6).
Christian discloses or suggests a simulated construction log having the
appearance of a real log can be formed from plastic tubing as in the prior art,
or the simulated log may be formed from pre-cast polyvinyl chloride (PVC)
plastic pipe that is filled with foam in accordance with the Christian
disclosure (col. 1, ll. 18-49; col. 3, ll. 31-38). Christian states that the plastic
simulated log product comprises “knots, cracks, and wood grain” (col. 1, ll.
50-51).
The Examiner has reasonably found that introducing surface
imperfections into a log (pipe), such as the knots, cracks, and wood grain as
taught by Christian, would have suggested a diameter deviation within the
range claimed (2 -60 percent) for the log of Christian (Ans. 3-4).
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Bonnema discloses a double-wall molded plastic pipe that preferably
can be formed from “high density polyethylene, PVC, or polypropylene”
(col. 4, ll. 41-61).
Erwin discloses or suggests that plastic products are a substitute for
wood for use in construction and that such substitution can reduce the rate of
tree harvesting; thereby, conserving and protecting this renewable woodland
resource (col. 1, ll. 13-19). Erwin discloses or suggests a wood substitute
comprising a plastic product that includes an extruded outer thermoplastic
shell and a foam core, such as polyurethane foam, of a predetermined shape
and size (Abstract; col. 1, l. 45 - col. 2, l. 5; col. 4, l. 54). Erwin discloses
that the plastic product shell can be “preferably made from
polyvinylchloride, but other materials such as acrylic, ABS, polyethylene,
polypropylene, polycarbonate, and blends and alloys of two or more of these
materials can be used” (col. 4, ll. 56-59).
Erwin discloses that the extruded plastic product can be cut into sizes
of a predetermined length (col. 4, ll. 26-29).
The Examiner has reasonably found that: (1) the aforementioned
disclosure of Erwin would have suggested a plastic extruded product made
with polyethylene, polypropylene, or mixtures including these materials as
disclosed therein; and (2) based on these materials of formation, the Erwin
product would have been reasonably expected to possess a flexural modulus
corresponding to Appellant’s claimed flexural modulus (Ans. 5-6).
Appellant acknowledges that polyethylene and polypropylene are
material choices identified by Erwin for the shell of Erwin’s plastic product
(App. Br. 10-11).
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Appellant states that “. . . PVC has a flexural modulus of 10,000 psi
. . . ”; that is, the flexural modulus can be measured as a polymer property in
accordance with ASTM D790 (App. Br. 7; Evidence Appendix, Exhibit I).
Appellant further states that “. . . polyolefins are characterized by unique
physical properties of strength, durability and flexural modulus, e.g., at least
70,000 psi at 40°F, a characteristic that makes them uniquely suitable for
plastic logs intended for real world post and rail fencing . . .” (App. Br. 9).
In a description of the preferred embodiments of their invention, Appellant
also instructs that “flexural modulus” can be determined via center span load
testing a product of a predetermined length of log having an average radius
using a given formula (Spec. 3 and 7).
Erwin refers to U.S. Patent No. 5,523,458 (Christian) in the
background of the Invention section thereof (col. 1, ll. 31-37).
ANALYSIS AND CONCLUSIONS
Claim Construction
Based on our findings above and giving representative claim 1 its
broadest reasonable construction consistent with the Specification, we
determine that the plastic log product called for in claim 1 includes a hollow
or solid log form that may or may not be monolithic in construction. The
log is required to be of a form possessing an average diameter greater than
two inches and having a diameter variation of from two to 60 percent along
a length thereof. The log includes 80 percent thermoplastic material, which
thermoplastic material component includes at least one polyethylene or
polypropylene as a part thereof. Representative claim 1 does not require or
preclude the provision of a filling material as being part of the log.
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Representative claim 1 further requires a log characterized by a
flexural modulus of at least 70,000 psi at 40 °F. The flexural modulus
determination according to the provided formula in the Specification
preferred embodiments Section is not limited to any particular load (W)
being applied to any particular length of log center span to any particular
span length (L) of the log (Spec. 3). In this regard, we note that Appellant
references Exhibit I (copy supplied in the Appendix to the Appeal Brief) as
showing the Flexural Modulus for a particular polyvinyl chloride (PVC)
polymer (POLYONE GEON® 87350) as being a property of the polymer,
not a property of a particular log structure made with the polymer (App. Br.
7; Evidence Appendix, Exhibit 1). The Flexural Modulus for the PVC
polymer was reported as 10 ksi (10,000 psi) when the material was tested in
accordance with ASTM D790. However, Appellant has not provided that
the flexural modulus log testing technique furnished by Appellant in the
Specification, much less the flexural modulus of representative claim 1, is
restricted to a modulus measured by an ASTM D790 standard material
testing technique for a given material.
In other words and in giving representative claim 1 its broadest
reasonable construction, we determine that one of ordinary skill in the art
would construe representative claim 1 as requiring the recited flexural
modulus property for a plastic material used as a component of the log as per
ASTM D790 or, in the alternative, as requiring the recited flexural modulus
property for a log that is otherwise within the scope of representative claim 1
when measured based on Applicant’s Specification preferred embodiment
formula for anyone of all the possible load values (W) that could be applied
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to any center span section length of the log when the log is supported in any
manner so as to furnish a span length (L) of any value for the log testing in
accordance with the Specification flexural modulus formula (App. Br. 7 and
9; Evidence Appendix, Exhibit I; Spec. 3 and 7).
Representative claim 1 is drawn to a plastic log and is not limited to
a particular use of a plastic log, including use as any element of a fence.
REJECTIONS I AND II
Concerning the first and second obviousness rejections, the Examiner
acknowledges that Christian does not expressly disclose using thermoplastic
material, such as polyethylene and/or polypropylene in making a plastic log
as a full or partial replacement for the PVC described by Christian (Ans. 3-
4). However, in light of the additional teachings of either Bonnema or
Erwin with respect to the art recognized availability of these thermoplastic
polyolefins for use in making substantially rigid pipe/log shaped structures,
the Examiner has reasonably found that it would have been obvious to one
of ordinary skill in the art to employ these known engineering plastics as
alternatives to the PVC of Christian and, with the exercise of routine skill in
so doing, arrive at a pipe (log) structure having the claimed flexural modulus
property, diameter, diameter deviation, and polymer content requirements as
broadly required by representative claim 1 (Ans. 3-9).
Appellant has not particularly identified in any reversible error in the
Examiner’s first and second stated obviousness rejections of the appealed
claims based on the arguments set forth in the Appeal Brief.
Concerning the obviousness rejection over Christian in view of
Bonnema, we, of course, agree with Appellant that Bonnema is not directed
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to making a simulated wood log out of plastic material, like Christian.
However, Appellant’s arguments to the effect that Bonnema represents non-
analogous art and/or is so remote from the subject mater of Christian so as to
not be suggestive to one of ordinary skill in the relevant art of the
Examiner’s proposed modification of Christian based on the teachings of
Bonnema are not persuasive. After all, the Examiner is principally relying
on Christian for showing that polyethylene and polypropylene are known
thermoplastic materials that can be employed in making a shaped structure
having some rigidity such as a pipe (log) structure, which is the type of
shaped structure desired by Christian. Indeed, Appellant’s have
acknowledged that such polyolefin plastic materials are readily available and
usable in making simulated wood products from plastic as set forth above an
in the subject Specification and Appeal Brief (Spec. 2; App. Br. 1). We note
again that representative claim 1 is not drawn to a fence or component of a
fence. Consequently, the plethora of arguments respecting such a utility for
the representative claim 1 log are off the mark and unpersuasive as directed
to a non-issue with respect to the claimed subject matter before us.
As for the claimed log diameter greater than two inches, we agree
with the Examiner that Christian would have reasonably suggested such a
diameter for a log product for reasons set forth in the Answer (Ans. 6).
Similarly and with regard to the diameter deviation limitation of
representative claim 1, we agree with the Examiner that Appellant has not
proffered a fairly reasoned rebuttal to the Examiner’s determination that
such a diameter deviation provision in a simulated log made from plastic
would have been readily within then purview of an ordinarily skilled artisan
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in seeking a plastic simulated log product that looks real, as sought by
Christian (App. Br. 6; Ans. 7; Christian, col. 1, ll. 29-31).
In this regard, we note that the claimed diameter and diameter
deviation required by representative claim 1 does not require more that one
deviation location along any portion of a length of a greater than two inch
diameter log, including one or more of its ends, for the small diameter
deviation required. As Christian is concerned with making logs for
construction purposes, one of ordinary skill in the art would have recognized
that these plastic products can be made, shaped, or cut into different sizes
and shapes for such a purpose (Christian; col. 4, ll. 34-42).
We again note that Appellant has acknowledged that a pipe or log
shape can be used as a fence construction element. Moreover, Appellant has
acknowledged that the claimed flexural modulus relates to the materials of
construction (App. Br. 9). Against this backdrop and absent a substantiated
rebuttal of the Examiner’s reasonable position that the claimed flexural
modulus would be expected to result upon substitution of polyethylene
and/or polypropylene for the PVC of Christian, as suggested by either of
Erwin or Bonnema, we find no error in the Examiner’s obviousness
assessment of the claimed subject matter on this record premised on the
arguments made in the Appeal Brief. This is particularly so in light of the
prior art admissions in the Specification.,
Further concerning the Examiner’s second presented obviousness
rejection, we observe that the Examiner has rejected all of the appealed
claims as being obvious, within the meaning of 35 U.S.C. § 103(a) as being
unpatentable over the combined teachings of Christian and Erwin.
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Consequently, it follows from our disposition as to the Examiner’s
obviousness rejection over Erwin alone, as set forth below, together with our
findings of fact and analysis with respect thereto, that we shall also affirm
the Examiner’s second stated rejection on the basis that the Examiner has
furnished adequate evidence based on Erwin’s teachings to render the
subject matter of representative claim 1 at least prima facie obvious based on
Erwin in combination with Christian.
Indeed, Erwin references Christian, as we note in our findings of fact
above. Not withstanding Appellant’s argument to the contrary, Erwin does
add to the teachings of Christian in a significant way with respect to the
representative claim 1 requirement for a plastic log made with polyethylene
or polypropylene, as alternate plastic materials to be used in place of or
together with PVC in forming a plastic log as a wood substitute for
construction purposes. Concerning Appellant's argument that Erwin would
not have suggested employing at least 80 percent polyolefin in an extruded
product and diameter deviations as set forth in claim 1 (App. Br. 10), we
note that representative claim 1 requires a log comprising 80 percent
thermoplastic materials, not 80 percent polyolefin. In this regard, we note
that Appellant has not persuasively argued, much less established, that the
foam that may be employed as a filling or core section of the pipe or log of
Christian or Erwin would have been a non-thermoplastic foam, of necessity.
After all, the foam filling or core, if or when used, would either be
characterized as thermoplastic or thermosetting, in characteristic.
Aside from Christian stating that their plastic simulated log product
comprises “knots, cracks, and wood grain” (col. 1, ll. 50-51), Erwin evinces
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an extrusion process for making a plastic log having a predetermined shape
and size for use as a wood substitute (Abstract; col. 1, l. 63-col. 2, l. 5).
Consequently, arguments with respect to these alleged patentable
distinctions are not persuasive of error in the Examiner’s obviousness
rejection of representative claim 1 over the combined teachings of Christian
and Bonnema, or Christian and Erwin.
REJECTION III
As we found above, Erwin discloses or suggests a plastic product
substitute for wood comprising an extruded thermoplastic “log” of a
predetermined size and shape that can comprise a polyethylene or
polypropylene shell and a polyurethane foam material filling. The Examiner
has basically determined that one of ordinary skill in the art would have
recognized that Erwin suggests that thermoplastic logs can be fabricated
from polypropylene and/or polyethylene containing materials for at least a
shell portion thereof with a filling, such as polyurethane foam (thermoplastic
or thermosetting), as a core. In other words, the Examiner determined that
Erwin’s disclosure would have reasonably suggested a thermoplastic log of
an average diameter and shape and having appropriate materials and hence
physical properties for a wood substitute, including properties as required by
representative claim 1. This would have been readily understood by one of
ordinary skill in the art of making plastic-containing wood substitutes. After
all, a person of ordinary skill in this art would have been expected to be
familiar with the known properties of commercially available polyethylene
and polypropylene polyolefins, including their flexural modulus
characteristics and the characteristic needed for a given wood-substitute
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product that may be used for a particular application, such as for a fencing
material or other construction purpose.
Against this backdrop, Appellant’s unsubstantiated and generalized
arguments that “Erwin does not teach any of the characteristics of plastic
logs” and that “[t]here is simply no teaching or suggestion in Erwin to lead a
person of ordinary skill in the art to the claimed subject matter” are not
persuasive of reversible error in the Examiner’s obviousness rejection over
Erwin. (App. Br. 9-10). This is so given the prior art acknowledgements of
Appellant in the Specification and the level of skill available as evinced by
Appellant’s Specification and the applied reference. Indeed, Appellant
acknowledges that Erwin discloses using thermoplastic polymers, including
polyethylene and polypropylene, as material sources for forming a shell
portion of Erwin’s wood-substitute “log” product structure (App. Br. 9-10).
Appellant has not furnished any persuasive evidence to buttress the
argument that Erwin would not have suggested a plastic log possessing the
representative claim 1 product characteristics to one of ordinary skill in the
art as a wood-substitute.
In sum, Appellant’s argument against the Examiner’s rejection is
undercut when Erwin is considered in light of Appellant’s admissions in the
Specification, which reasonably suggests that the hypothetically ordinarily
skilled artisan knows that shaped composites can be made from plastic
tailings comprising high amounts of polyethylene as a substitute for wood
building materials. In particular, this admitted knowledge and disclosure
evinces, at least inferentially, that one of ordinary skill in the art at the time
of the invention had a skill level and knowledge informed with respect to
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thermoplastic materials and their properties and their shaping techniques for
fashioning wood-substitute construction materials (logs) of a desired
dimension and structural strength from such plastics. This skill level and
knowledge is such that the claimed subject matter would have been within
the ready reach of such an ordinarily skilled artisan in making thermoplastic
logs, of the type claimed, for use as wood substitutes.
On this record, we are not persuaded of reversible error in the
Examiner’s obviousness rejection of the appealed claims over Erwin based
on Appellant’s arguments set forth in the Appeal Brief.
CONCLUSION
Appellant has not established reversible error in any or all of the
Examiner’s separate obviousness rejections based on the aforementioned
arguments, as more fully set forth in the Appeal Brief.

ORDER
The decision of the Examiner to reject claims 1 and 4-13 under
35 U.S.C. § 103(a) as being unpatentable over Christian in view of
Bonnema; to reject claims 1 and 4-13 under 35 U.S.C. § 103(a) as being
unpatentable over Christian in view of Erwin; and to reject claims 1 and 4-
13 under 35 U.S.C. § 103(a) as being unpatentable over Erwin 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)(1)(iv).

AFFIRMED

cam
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THOMAS E. KELLEY
P O BOX 302
MYSTIC CT 06355
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