Ex Parte MarlerDownload PDFPatent Trial and Appeal BoardDec 4, 201311389946 (P.T.A.B. Dec. 4, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 11/389,946 03/27/2006 Ron Marler 115982.00001 2912 33448 7590 12/04/2013 THE CHICAGO TECHNOLOGY LAW GROUP, LLC 233 S. Wacker Dr., Willis Tower Suite 9305 CHICAGO, IL 60606-6319 EXAMINER LIU, HENRY Y ART UNIT PAPER NUMBER 3654 MAIL DATE DELIVERY MODE 12/04/2013 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte RON MARLER ____________________ Appeal 2011-011565 Application 11/389,946 Technology Center 3600 ____________________ Before MEREDITH C. PETRAVICK, MICHAEL C. ASTORINO, and PHILIP J. HOFFMANN, Administrative Patent Judges. HOFFMANN, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-011565 Application 11/389,946 2 STATEMENT OF THE CASE Appellant appeals under 35 U.S.C. § 134(a) from the rejection of claims 6, 8, 9, and 13-19.1 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The rejected claims are directed to draper belts. Claims 6 and 13 are the only independent claims. EXEMPLARY CLAIM Claim 6, reproduced below, is representative of the claims on appeal. 6. A 5 ply draper belt comprising a lower first ply of synthetic/natural rubber, a second ply of woven material, a third ply of synthetic/natural rubber, a fourth ply of woven material and a fifth ply of synthetic/natural rubber, wherein the draper belt has a span wise dimension of predetermined extent, wherein the first, second and third plies extend over the entire span wise dimension of the draper belt to comprise a belt body, and wherein the fourth and fifth plies extend over less than the entire span wise dimension of the upper side only of the draper belt to form a reinforcing side laminate adjacent the belt edges for inhibiting belt edge wear or separation and an open space between said reinforcing side laminates. 1 Our decision will refer to Appellant’s Appeal Brief (“App. Br.,” filed December 2, 2010), as well as the Examiner’s Answer (“Ans.,” mailed February 18, 2011). Appeal 2011-011565 Application 11/389,946 3 REJECTIONS The Examiner rejects the claims as follows: Claims 6, 8, and 9 are rejected under 35 U.S.C. § 103(a) as unpatentable over Angioletti (US 3,900,627; iss. Aug. 19, 1975) in view of Mol (US 3,661,245; iss. May 9, 1972); claims 13-17 are rejected under 35 U.S.C. § 103(a) as unpatentable over Verbeek (US 4,316,536; iss. Feb. 23, 1982) in view of Mitchell (US 6,321,904 B1; iss. Nov. 27, 2001); and claims 18 and 19 are rejected under 35 U.S.C. § 103(a) as unpatentable over Verbeek in view of Mitchell, and further in view of Toews (US 2,305,044; iss. Dec. 15, 1942). ANALYSIS Regarding independent claim 6, Appellant argues the rejection is in error because the references do not teach or suggest the limitations “the fourth and fifth plies extend over less than the entire span wise dimension of the upper side only of the draper belt to form a reinforcing side laminate adjacent the belt edges for inhibiting belt edge wear or separation and an open space between said reinforcing side laminates” (Br. 10) (emphasis added). In particular, Appellant argues: Consideration of Mol shows that he does not provide two layers at the sides with open space therebetween. In Mol, the space between the side strips 10, 19 and 10, 20 is completely filled with an abrasion resistant impact product material 18 of a low coefficient of friction contrary to the specific Appeal 2011-011565 Application 11/389,946 4 recitation of claim 6. Mol's final product, shown in Fig. 1, has the lateral space 18 between the 4th and 5th belt layers on opposite edges of the belt filled with product resistant layer 18 which is applied in liquid form and completely fills the space between layers 10 and completely fills the space between most of layers 19, 20 (Mol Spec. col. 2, lines 4-49). (Id.) As stated by the Examiner, however, “Fig. 1 in [Mol] discloses an open space between two layers of open side laminates. The space is not completely filled since there is a clear gap between the side strips.” (Ans. 9). We agree with the Examiner. Mol shows that the space between (i) the reinforcing side laminate formed from ply 10 and surface 19 and (ii) the reinforcing side laminate formed from ply 10 and surface 20 is not completely filled. Further, Mol states that, “[b]est results have been obtained by pouring the level of the surface 17 to a height somewhat below the plane of the tops of the material defining the surfaces 19 and 20 . . .” (Mol, col. 2, ll. 30-32) (emphasis added). Thus, Mol teaches the limitation of “an open space between said reinforcing side laminates” as required by claim 6. We note that Appellant has not presented any evidence, such as a Declaration, nor pointed to anything in the Specification or claims, which would require that we interpret the claim to exclude anything from being disposed between the side laminates. Appellant also has not filed a Reply Brief responding to the Examiner’s statements that Mol teaches an incompletely-filled space, and that this space teaches the claim limitation. Thus, Appellant’s argument is not persuasive. Appellant further argues that Mol teaches away from providing the claimed “an open space between said reinforcing side laminates,” Mol does Appeal 2011-011565 Application 11/389,946 5 not provide any suggestion or motivation to combine Mol with Angioletti (Br. 10). In response to the argument regarding Mol teaching away from the claimed limitation, for the reasons discussed above we find that Mol in fact teaches this limitation. Thus, Appellant’s argument is not persuasive. In response to the argument based on Mol failing to provide proper motivation to combine Mol and Angioletti, we note that the Examiner neither attempts nor is required to establish that Mol provides a motivation to combine Angioletti and Mol. However, the Examiner does state that “[i]t would have been obvious to one of ordinary skill in the art . . . to modify the belt in [Angioletti] with the fourth and fifth ply structure as in [Mol] to create a belt with multiple surface areas for providing both traction and resistance to abrasion and cutting” (Ans. 5). Appellant did not file a Reply Brief arguing that the Examiner’s reason for combining the references is in error. Thus, Appellant’s argument is not persuasive. Appellant further argues that “[i]t is noted, as well, that Angioletti and Mol both issued almost two generations ago (30 plus years) and if a combination of the references in some way, were obvious, it would have occurred long ago” (App. Br. 11). It is well established, however, that the mere age of the references is not persuasive of the unobviousness of the combination of their teachings, absent evidence that, notwithstanding knowledge of the references, the art tried and failed to solve the problem. In re Wright, 569 F.2d 1124, 1127 (CCPA 1977). Absent a showing of long- felt need or the failure of others, the mere passage of time without the claimed invention is not evidence of nonobviousness. Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1324-25 (Fed. Cir. 2004). In Appeal 2011-011565 Application 11/389,946 6 this case, Appellant does not provide sufficient evidence to outweigh the evidence of obviousness. Thus, Appellant’s argument is not persuasive. Based on the foregoing, we sustain the rejection of independent claim 6, as well as the rejection of claims 8 and 9 depending from claim 6. Regarding the rejection of independent claim 13, Appellant argues the references do not teach or suggest “[a] cleat for a draper belt comprising . . . an integral chamfered transition portion attached to the belt throughout its extension” (Br. 11). In particular, Appellant argues: Mitchell Fig. 7 shows no transition portion between cleat portions, or the transition portion itself, attached throughout its extension to the belt. As can clearly be seen in Mitchell Fig. 1 at 86, and Fig. 20, the cleats 48 are secured only at the midpoint dovetail 72 and the upstream and downstream stages of the cleat are separate from the belt, and are shown completely separated from the belt as it proceeds around the drive pulleys (Fig. 1 at 86, and Fig. 20). Thus, the portion of the Mitchell cleat identified by the Examiner is not attached throughout its extension along the belt and does not serve as a transition, stress modifying portion so attached, as claimed. (Id.) As stated by the Examiner, however, Appellant's argument that [Mitchell] shows no transition portion between cleat portions, or the transition portion itself, attached throughout its extensions to the belt . . ., is not persuasive. [Verbeek] teaches a transition portion attached through its extension to the belt (Fig. 2) and [Mitchell] is brought in to teach the chamfered transition. Appeal 2011-011565 Application 11/389,946 7 (Ans. 10). We note that Appellant does not submit any argument in the Appeal Brief as to why the Examiner’s reliance on Verbeek to teach a transition portion attached throughout its extension is in error. Appellant did not file a Reply Brief. Thus, Appellant’s argument is not persuasive. Although not entirely clear, Appellant seems to further argue with respect to claim 13 that the Examiner’s stated reason for combining Mitchell with Verbeek is an advantage that is different than the advantage provided by Appellant’s claim (Br. 12). Even assuming this is in the case, we note that the Supreme Court has stated that in considering obviousness “the analysis 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. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). The Court emphasized “the need for caution in granting a patent based on the combination of elements found in the prior art,” and has affirmed that “[t]he combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” Id. at 415-16. In this case, the Examiner adds a chamfer (taught by Mitchell) to the transition portion of Verbeek. It is extremely well known to add a chamfer to a transition portion to yield the predictable result of distributing stress and facilitating manufacturing. Thus, Appellant’s argument is not persuasive. Based on the foregoing, we sustain the rejection of claim 13 as well as the rejections of claims 14-19 depending therefrom. Appeal 2011-011565 Application 11/389,946 8 DECISION The Examiner’s rejections of claims 6, 8, 9, and 13-19 under 35 U.S.C. § 103(a) are 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 hh Copy with citationCopy as parenthetical citation