Ex Parte Lubker

Patent Trial and Appeal Board

Sep 29, 2016

11367066 (P.T.A.B. Sep. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/367,066 0310312006
27572 7590 10/03/2016
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
FIRST NAMED INVENTOR
John W. Lubker II
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.
7929-000017-US-COE 5742
EXAMINER
COLE, ELIZABETH M
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
10/03/2016 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):
troymailroom@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN W. LUBKER II 1
Appeal2014-007105
Application 11/367,066
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner's final rejection of claims 1, 3-26, 52, and 53. We have
jurisdiction pursuant to 35 U.S.C. § 6(b ).
We REVERSE.
1 According to the Appeal Brief, the Real Party in Interest is Pactiv
Corporation. (App. Br. 1 ).
Appeal2014-007105
Application 11/367,066
BACKGROUND
Appellant's invention generally relates to protective wraps that are
used to protect against air infiltration and moisture build-up in buildings.
(Spec. 2). Claim 1 is reproduced below from the Claims Appendix to the
principal Brief:
1. A protective drainage wrap comprising:
a cross-woven material portion, cross-laminate material
portion or mesh material portion in a first direction and in a
second direction, the material in the first direction comprising a
polyolefin, polyester, nylon or combinations thereof, the
material in the second direction comprising a polyolefin,
polyester, nylon or combinations thereof, the first direction
being roughly perpendicular to the second direction, the cross-
woven material portion, cross-laminate material portion or
mesh material portion being adapted to facilitate a drainage
path, wherein the first direction material has a first thickness,
the second direction material having a second thickness, the
second thickness being at least about 2 times greater than the
first thickness so as to assist in providing drainage for moisture
build-up; and
a breathable solid layer portion being attached to the
cross-woven material portion, cross-laminate material portion
or mesh material portion, the breathable solid layer portion
being adapted to allow water vapor to flow therethrough in the
absence of pinholes or interstices.
The Examiner maintains, and Appellant appeals, the following 35
U.S.C. § 103(a) rejections:
I. claims 1, 3, 4, 6-10, 12, 13, 15, 16, 18-22, 24, 25, 52 and 53 over
Doyle et al. (US 6,133,168, Oct. 17, 2000) ("Doyle") in view of Waggoner
et al. (US 6,355,333 Bl, Mar. 12, 2002) ("Waggoner").
2
Appeal2014-007105
Application 11/367,066
IL claims 5 and 6 over Doyle, Waggoner and Gasaway (US
3,627,620, Dec. 14, 1971).
III. claim 11 over Doyle, Waggoner and Anwyll, Jr. (US 5,773,123,
Jun. 30, 1998) ("Anwyll").
IV. claims 14, 17, 23 and 26 over Doyle, Waggoner and MacKay et
al. (WO 00/23509 Al, Apr. 27, 2000) ("MacKay").
OPINION2
The dispositive issue on appeal is: Did the Examiner err in
determining that the combination of Doyle and Waggoner would have
suggested a protective drainage wrap comprising a cross-woven material
portion, cross-laminate material portion or mesh material portion in a first
direction and in a second direction, wherein the first direction material has a
first thickness, the second direction material having a second thickness, the
second thickness being at least about 2 times greater than the first thickness
as required by independent claims 1 and 18?
After review of the respective positions provided by Appellant and the
Examiner, we agree with Appellant that the Examiner did not establish that
the combination of Doyle and Waggoner would have suggested a protective
drainage wrap comprising a cross-woven material portion, cross-laminate
material portion or mesh material portion in a first direction and in a second
direction, wherein the first direction material has a first thickness, the second
direction material having a second thickness, the second thickness being at
2 We limit our discussion to independent claims 1 and 18.
3
Appeal2014-007105
Application 11/367,066
least about 2 times greater than the first thickness as required by independent
claims 1 and 18.3
The Examiner found that Doyle discloses a woven fabric made from
yams such as polyolefins or polyesters which is coated with a breathable
polymer layer. (Final Act. 2). The Examiner recognized that Doyle does
not disclose the yams extending in one direction should be at least two or
two to four times thicker than in the other direction. (Id.). To address this
difference the Examiner relied on Waggoner's teaching of a construction
membrane which comprises a reinforcing layer having spacers applied at
regular or random intervals to form channels for facilitating drainage. The
Examiner found that "Figure 2 of Waggoner shows that the channels extend
in one direction. In order to form drainage channels in one direction using a
netting or scrim, the fibers of that netting or scrim would necessarily have to
be thicker in one direction than in the other." (Id. at 2-3). In light of these
teachings, the Examiner determined
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to have formed one direction
of the woven of Doyle so that it had a greater thickness than the
other direction in order to form channels to facilitate drainage
as taught by Waggoner et al.
(Id. at 3).
Appellant argues:
The rejection is improper for several reasons including, inter alia, that
neither Doyle nor Waggoner discloses, teaches or suggest a drainage
path formed in which "the first direction material ha[ s] a first
thickness, the second direction material ha[ s] a second thickness, the
3 The statement of the rejections on appeal appear in the November 30, 2012
Non-Final Office Action.
4
Appeal2014-007105
Application 11/367,066
second thickness being at least about 2 times greater than the first
thickness so as to assist in providing drainage for moisture build-up."
(App. Br. 8).
Appellant further argues the Examiner "erroneously assumes that the
fibers of that netting or scrim of Waggoner would necessarily have to be
thicker in one direction than in the other." (App. Br. 11; Bates Declaration i-f
11).
In response to Appellant's argument, the Examiner, for the first time
in the Answer, points to Waggoner's Barrier sheet Fas teaching "forming
channels by bonding a scrim layer having a vertically oriented diamond
pattern having thicker portions with a thickness of 25 mils at the nodes and
thinner portions with a thickness of 6 mils at other areas." (Ans. 7).
We agree with Appellant that the Examiner's rejection cannot be
sustained. The Examiner has failed to provide an adequate explanation why
the fibers of that netting or scrim of \Vaggoner \vould necessarily have to be
thicker in one direction than in the other. Waggoner does not provide a
teaching or suggestion for forming materials where the thickness in the first
direction is at least two times or four times greater than the second direction
to assist in drainage. (App. Br. 11-12; Bates Declaration i-f 12). We agree
with Appellant that Barrier Sheet F appears to function in a similar manner
as explained in Waggoner to (1) a regular array of individual spacers that
may be small blobs or (2) dots of polymeric adhesive deposited on the sheet
as described by Waggoner. (Waggoner col. 8, 11.15-25; App. Br. 10; Reply
Br. 4--5).
Thus, the Examiner has not established that the relied-upon
disclosures are sufficient to support obviousness of the Appellant's claimed
5
Appeal2014-007105
Application 11/367,066
protective drainage wrap. See Jn re Warner, 379 F.2d 1011, 1017 (CCPA
1967) ("A rejection based on section 103 clearly must rest on a factual basis,
and these facts must be interpreted without hindsight reconstruction of the
invention from the prior art"). Accordingly, we reverse the rejection.
We reverse the appealed prior art rejection.
REVERSED
6