Ex Parte Meerkerk

Board of Patent Appeals and Interferences

Apr 29, 2004

09180901 (B.P.A.I. Apr. 29, 2004)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
Paper No. 30
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte PLEUN MEERKERK
____________
Appeal No. 2004-0941
Application No. 09/180,901
____________
ON BRIEF
____________
Before COHEN, McQUADE, and NASE, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 9, 13,
and 16 through 19. These claims constitute all of the claims
remaining in the application.

Appellant’s invention pertains to a revetment for a water-
retaining structure and to an element for a revetment. A basic
understanding of the invention can be derived from a reading of
exemplary claims 9 and 17, respective copies of which appear in
the Appendix of the main brief (Paper No. 22).
Appeal No. 2004-0941
Application No. 09/180,901
1 Our understanding of this foreign language document is
derived from a reading of a translation thereof prepared for the
United States Patent and Trademark Office. A copy of the
translation is appended to this opinion.
2
As evidence of obviousness, the examiner has applied the
documents listed below:
Steiner 4,521,138 Jun. 4, 1985
Shindo 4,781,492 Nov. 1, 1988
Scheiwiller 5,548,938 Aug. 27, 1996
Manent 2,657,638 Aug. 2, 1991
(France)1
The following rejections are before us for review.
Claims 9 and 13 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Manent in view of Shindo and Steiner.
Claim 16 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Manent in view of Shindo and Steiner, as
applied to claim 13 above, further in view of Scheiwiller.
Claims 17 through 19 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Manent in view of Shindo.
Appeal No. 2004-0941
Application No. 09/180,901
2 In our evaluation of the applied prior art, we have
considered all of the disclosure of each document for what it
would have fairly taught one of ordinary skill in the art. See
In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA 1966).
Additionally, this panel of the board has taken into account not
(continued...)
3
The full text of the examiner’s rejections and response to
the argument presented by appellant appears in the answer (Paper
No. 23), while the complete statement of appellant’s argument can
be found in the main and reply briefs (Paper Nos. 22 and 26).
In the main brief (page 4), appellant states that claims 9,
13, and 16 stand or fall together and that claims 17 through 19
stand or fall together. In light of the above, we select for
review, infra, claim 9 of the first claim grouping and claim 17
of the second claim grouping, with the remaining claim(s) of each
grouping standing or falling with the selected claim of the
grouping.

OPINION
In reaching our conclusion on the issues raised in this
appeal, this panel of the board has carefully considered
appellant’s specification and claims, the applied teachings,2 and
Appeal No. 2004-0941
Application No. 09/180,901
2(...continued)
only the specific teachings, but also the inferences which one
skilled in the art would reasonably have been expected to draw
from the disclosure. See In re Preda, 401 F.2d 825, 826, 159
USPQ 342, 344 (CCPA 1968).
3 We also do not sustain the rejection of claim 16
since it stands or falls with claim 9 as specified, supra. We
only add the comment that the Scheiwiller reference does not
overcome the deficiency of the other applied teachings.
4
the respective viewpoints of appellant and the examiner. As a
consequence of our review, we make the determinations which
follow.
Claim 9
We do not sustain the rejection of claim 9 under 35 U.S.C.
§ 103(a) as being unpatentable over Manent in view of Shindo and
Steiner. It follows that the rejection of claim 13 is likewise
not sustained since it stands or falls with claim 9 as earlier
indicated.3
Claim 9 is drawn to revetment for a water-retaining
structure comprising, inter alia, elements, wherein one
transverse face of each element is made a concave shape and the
other transverse face is made a corresponding convex shape, at
Appeal No. 2004-0941
Application No. 09/180,901
4 A revetment has been defined as a facing (as of stone or
concrete) to sustain an embankment. Webster’s New Collegiate
Dictionary, G. & C. Merriam Company, Springfield, Massachusetts,
1970. This definition comports with appellant’s usage of the term
revetment as being for a bank, water-retaining structure or the
like (specification, page 1).
5
least one of the transverse faces and/or longitudinal faces
having a recess, in such a way that the elements rest with their
transverse faces against each other in various rotated positions,
and the recesses each bound an open space with an opposite wall
and/or recess on an adjacent element, and wherein the elements
form rows in which the transverse sides in each row rest against
each other and elements from adjacent rows rest with their
longitudinal sides against each other.
Clearly, claim 9 sets forth a revetment,4 a revetment that
requires particularly configured elements resting against one
another in rows.
Manent does not address a revetment. On the other hand, we
recognize that the modular construction element of Manent (Fig.
4) does reveal certain features found in the element (Fig. 1) of
the present invention. However, it must be kept in mind that a
specifically configured revetment is set forth in claim 9. The
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Application No. 09/180,901
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elements of Manent, as disclosed, are interfaced with one another
as depicted in Figs. 5 through 7, to effect enclosing walls,
small walls, barriers, palisades or slope support walls
(translation, pages 2, 3, and 10). A cavity inside the head and
tail of the construction element is intended to receive dirt,
gravel or any other similar support so that as to enable planting
of herbs, plants, trees, shrubs, or any other type of
embellishment or ornamentation (translation, pages 5, 6, and 11).
Like the examiner (answer, page 3), we recognize that Manent
fails to address the particular revetment of claim 9. However,
the examiner is of the opinion that the Manent teaching, in
conjunction with the disclosures of Shindo and Steiner, would
have been suggestive of the claim 9 revetment. While we
certainly understand the examiner’s well stated point of view on
this obviousness issue, for the reasons articulated below we
disagree therewith.
Shindo clearly teaches a particularly configured (square-
shaped) block (Fig. 1) for a revetment (Fig. 5) and Steiner
discloses blocks (Fig. 6) for building a wall and shaped hollow
blocks for lining bank slopes. Steiner also expressly indicates
Appeal No. 2004-0941
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7
(column 1, lines 32 through 35) that shaped blocks for building
dry walls or walls without mortar, and for building retaining
walls or revetment walls for stabilizing slopes as protection
against erosion damage or slides are known.

The difficulty we have with the examiner’s conclusion of
obviousness is that, when we set aside in our minds that which
appellant has taught in the present application, and collectively
assess the applied prior art, we do not discern that one having
ordinary skill in the art would have derived a suggestion
therefrom to use a particular arrangement of rows of the blocks
of Manent to rest against one another to effect a revetment, as
now claimed. Instead, it appears to us that, for example, the
Shindo blocks would have been applied by one having ordinary
skill in the art to fabricate a revetment. Akin to appellant’s
perspective (reply brief, page 1), we do not consider the
referenced statement of Steiner as suggestive that all blocks can
be used for any and every purpose. Thus, we cannot sustain the
rejection of independent claim 9 based upon the applied prior art
teachings.
Appeal No. 2004-0941
Application No. 09/180,901
5 We refer to the argument in the reply brief (page 3),
since appellant acknowledges that the argument in the main brief
addressed an old rejection.
8
Claim 17
We do not sustain the rejection of claim 17 under 35 U.S.C.
§ 103(a) as being unpatentable over Manent in view of Shindo.5
The rejection of claims 18 and 19 is also not sustained since
these particular claims stand or fall with claim 17 as noted
above.
Independent claim 17 is drawn to an element for a revetment
with the features, inter alia, of two opposing transverse faces,
a first of the transverse faces having a concave shape with a
first radius and a second of the transverse faces having a convex
shape with the first radius, said second transverse face having a
concavity in an apex of the convex shape with a second radius
smaller than the first radius.
Simply stated, it is quite apparent to this panel of the
Board that the teachings of Manent and Shindo, by themselves,
would not have been suggestive of providing a concavity in the
Appeal No. 2004-0941
Application No. 09/180,901
9
apex of the convex shaped transverse face of Manent (Fig. 4) with
a second radius smaller than the first radius of the transverse
concave and convex faces. In other words, Shindo would not have
been suggestive of a concavity in the apex of a convex shaped
transverse face of a construction element. It is for this reason
that the rejection of claim 17 is not sound.
In summary, this panel of the board has not sustained any of
the rejections on appeal.
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Application No. 09/180,901
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The decision of the examiner is reversed.
REVERSED
IRWIN CHARLES COHEN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JOHN P. McQUADE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JEFFREY V. NASE )
Administrative Patent Judge )
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