10183841 (B.P.A.I. Oct. 29, 2010)

Ex Parte Ma et al

Board of Patent Appeals and InterferencesOct 29, 2010

10183841 (B.P.A.I. Oct. 29, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________ Ex parte WENGUANG MA and KURT FEICHTINGER ____________ Appeal 2010-003794 Application 10/183,841 Technology Center 1700 ____________ Before PETER F. KRATZ, CATHERINE Q. TIMM, and JEFFREY T. SMITH, Administrative Patent Judges. KRATZ, Administrative Patent Judge. DECISION ON APPEAL1 This is a decision on an appeal under 35 U.S.C. § 134 from the Examiner’s final rejection of claims 17, 19, 20, 24-27, and 51-53. We have jurisdiction pursuant to 35 U.S.C. § 6. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-003794 Application 10/183,841 Appellants’ claimed invention is directed to a structural sandwich composite comprising a block of core material bonded to one or more structural skins. The composite is disclosed as being useful in boating, aviation, rapid transit, recreational vehicles, and other construction applications (Spec. 1). Claim 17, the sole independent claim on appeal, is illustrative and reproduced below: 17. A structural sandwich composite comprising: a block of core material bonded to one or more structural skins, said skin made from a material selected from the group consisting of thermosetting polymer, thermoplastic polymer reinforced with glass fibers, metallic fibers, inorganic fibers, or carbon fibers; wood; fiberglass; and metal; said core material comprising a plurality of foamed polyester strands rigidly bound to one another with substantially no inter-strand voids between the strands, and formed by extrusion through a multi-orifice die, said strands defining a plurality of discrete volumes, each discrete volume comprising an interior section and a corresponding jacket, wherein the average cell size in the interior section is larger than the average cell size in the jacket. The Examiner relies on the following prior art references as evidence in rejecting the appealed claims: Soda 3,720,572 Mar. 13, 1973 Kohn 4,536,427 Aug. 20, 1985 Kelch 5,000,992 Mar. 19, 1991 Ishiwatari 5,958,164 Sep. 28, 1999 Grinshpun 6,844,055 B1 Jan. 18, 2005 The Examiner maintains the following grounds of rejection: Claims 17, 19, 20, 24-27, and 53 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Ishiwatari and Kelch. 2 Appeal 2010-003794 Application 10/183,841 Claims 51 and 52 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Ishiwatari and Kelch as applied to claim 17 and further in view of Kohn. Claims 17, 19, 20, 24-27, and 53 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Grinshpun and Kelch. Claims 51 and 52 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Grinshpun and Kelch as applied to claim 17 and further in view of Kohn. We reverse the stated rejections. Our reasoning follows In all of the stated rejections, the Examiner relies on Soda for disclosing a structural sandwich composite comprising one or more structural skins bonded to a block of core material (Ans. 3-9; Soda, col. 8, ll. 1-20, Figs. 5 and 17). In so doing, the Examiner takes the position that “[t]he specification of the present invention does not specifically define what is meant by a “structural skin”” and that the expanded strands Z of Soda’s polystyrene block as depicted in Figure 17 “ reads on [the] claimed structural skin” (Ans. 8). On the other hand, Appellants urge that Soda does not disclose a structural skin component in addition to a core material block corresponding to the structural skin of the claimed structural sandwich composite that includes a structural skin bonded to a block of core material as required by all of the appealed claims (Br. 10-14, 16, and 19). Has the Examiner erred by employing an unreasonably broad interpretation of the claimed structural sandwich composite including core and structural skin components in asserting that Soda includes a structural skin comprising expanded strands Z in addition to a block of core material corresponding to the claimed composite requirements for structural skin and core components of the claimed structural sandwich composite? 3 Appeal 2010-003794 Application 10/183,841 We answer this question in the affirmative and we reverse the stated obviousness rejections. The background portion of the Specification provides that structural sandwich composites are “sandwich-like arrangements of a relatively low- density core material bonded between comparatively thin, high-strength and high-stiffness skins . . .” (Spec. 1). The Specification further defines a “structural sandwich composite” as “an article comprising a core material integrally bonded to one or more skins” and a “core material of the invention” as “a foamed article prepared by extruding a melt comprising a foamable polyester and one or more blowing agents through a multi-orifice die . . .” (Spec. 7). The Specification is consistent in making it plain that the skin bonded to the core material is a separate component of the composite sandwich that is bonded to a foamed core material and is not a portion of the block of foamed core itself (see also Spec. 27 and 28). Thus, the Examiner’s assertion that a portion of the block of core material of Soda constitutes the claimed skin portion of the claimed composite is premised on an unreasonable claim construction and a strained reference interpretation that is inconsistent with the reach of the claimed subject matter when given its broadest reasonable interpretation consistent with the subject Specification as it would have been understood by one of ordinary skill in the art. As all of the Examiner’s obviousness rejections are bottomed on this erroneous claim construction and application of a portion of the block of foamed core material of Soda (expanded strands Z, Fig. 17) as corresponding with the claimed skin portion of the claimed composite, we reverse the stated obviousness rejections. 4 Appeal 2010-003794 Application 10/183,841 CONCLUSION/ORDER The Examiner’s decision to reject claims 17, 19, 20, 24-27, and 53 under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Ishiwatari and Kelch; to reject claims 51 and 52 under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Ishiwatari and Kelch as applied to claim 17 and further in view of Kohn; to reject claims 17, 19, 20, 24-27, and 53 under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Grinshpun and Kelch; and to reject claims 51 and 52 under 35 U.S.C. § 103(a) as being unpatentable over Soda in view of Grinshpun and Kelch as applied to claim 17 and further in view of Kohn is reversed. REVERSED tc RATNERPRESTIA P.O. BOX 980 VALLEY FORGE, PA 19482 5