Ex Parte Meersseman et al

Patent Trial and Appeal Board

Apr 2, 2018

13697078 (P.T.A.B. Apr. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/697,078 11109/2012
75304 7590 04/02/2018
Capitol City TechLaw, PLLC
344 Maple Avenue West, #333
VIENNA, VA 22180
FIRST NAMED INVENTOR
Laurent Meersseman
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.
300-0016/US 1866
EXAMINER
BELL, WILLIAM P
ART UNIT PAPER NUMBER
1745
MAILDATE DELIVERY MODE
04/02/2018 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 LAURENT MEERSSEMAN, MARTIN SEGAERT, BERNARD
TRIERS, BENJAMIN CLEMENT, and CHRISTOPHE MAESEN
Appeal2017-007445
Application 13/697,078
Technology Center 1700
Before MICHAEL P. COLAIANNI, CHRISTOPHER L. OGDEN, and
JANEE. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 request our review under 35 U.S.C. § 134(a) of the
Examiner's decision to finally reject claims 17, 19, 20, 23, 24, 26, 28--41,
and 43. We have jurisdiction over this appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellants identify the real party in interest as FLOORING INDUSTRIES
LIMITED, SARL. Appeal Brief filed December 19, 2016 ("App. Br."), 1.
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Application 13/697 ,078
STATEMENT OF THE CASE
Appellants claim a method for manufacturing a panel having at least a
substrate and a top layer on the substrate that includes at least a printed
synthetic material film and a transparent or translucent synthetic material
layer above the printed synthetic material film. Appellants' Specification
indicates that the panels can be used as flooring panels. Spec. 1, 11. 12-14.
Claim 17 illustrates the subject matter on appeal and is reproduced
below:
1 7. A method for manufacturing a panel having at least a
substrate and a top layer provided on the substrate, the top layer
including at least a printed synthetic material film and a
transparent or translucent synthetic material layer above the
printed synthetic material film, the method comprising:
providing a synthetic material film selected from the
group consisting of a PVC film and a thermoplastic
polyurethane film;
providing a first primer layer on the synthetic material
film, the first primer layer being selected from the group
consisting of polyurethane, polyvinyl butyrate, polyvinyl
alcohol and vinyl acetate;
printing a printed motif using an inkjet printer onto the
first primer layer using UV-based or water-based inks;
providing a second primer layer over the printed motif;
forming the transparent or translucent synthetic material
layer by providing, over the printed motif and the second
primer layer, a vinyl-containing paste;
adhering the printed synthetic material film to the
substrate by means of a first press treatment at a first pressure
and an increased first temperature; and
providing a relief in the transparent or translucent
synthetic material layer by means of a second press treatment at
a second pressure and a second temperature, the relief including
recesses extending into the transparent or translucent synthetic
material layer and having a depth such that the recesses do not
penetrate into the printed motif;
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wherein the first pressure and the first temperature are
applied by a continuously working press device, and the second
pressure and the second temperature are applied by a device
that is separate from the continuously working press device;
and
wherein the relief is exclusively obtained by the second
press treatment, the upper surface of the transparent or
translucent synthetic material layer being free from any relief
at the beginning of the second press treatment.
App. Br. 9--10 (Claims Appendix) (emphasis added).
The Examiner sets forth the following rejections in the Final Office
Action entered August 15, 2016 ("Final Act.") and maintains the rejections
in the Examiner's Answer entered March 17, 2017 ("Ans."):
I. Claims 17, 19, 20, 23, 24, 26, 28-33, 36, 37, 41, and 43 under
35 U.S.C. § 103(a) as unpatentable over Dong (US 2002/0136862 Al;
published September 26, 2002) in view of Zafiroglu (US 2009/0047465 Al;
published February 19, 2009), Mukai (US 2008/0152825 Al; published June
26, 2008), and Chen (US 2009/0031662 Al; published February 5, 2009);
II. Claims 34, 35, and 38--40 under 35 U.S.C. § 103(a) as
unpatentable over Dong in view of Zafiroglu, Mukai, Chen, and Kaufmann
(US 4,225,374; issued September 30, 1980).
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellants' contentions, we affirm the Examiner's rejections of
claims 17, 19, 20, 23, 24, 26, 28--41, and 43 under 35 U.S.C. § 103(a) for the
reasons set forth in the Final Action, the Answer, and below.
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Rejection I
Appellants argue claims 17, 19, 20, 23, 24, 26, 28-33, 36, 37, 41, and
43 as a group on the basis of independent claims 17 and 43, which
Appellants argue together. App. Br. 4--7. We accordingly select claim 17 as
representative, and decide the appeal as to claims 17, 19, 20, 23, 24, 26, 28-
33, 36, 37, 41, and 43 based on claim 17 alone. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants do not dispute the Examiner's finding that Dong discloses
a method of manufacturing a multi-layered decorative laminate (panel) used
for flooring that includes layered materials corresponding to the synthetic
material film, first primer layer, printed motif, second primer layer, vinyl-
containing paste, and substrate of the panel recited in claim 1 7. Compare
Final Act. 2-3, with App. Br. 4--7. Dong discloses forming the laminate
(panel) by layering the constituent individual materials on top of one another
to form charge 100, and drawing charge 100 through double belt press
continuous laminator 20. i-fi-f 103, 105; Fig. 3. Dong discloses that double
belt press continuous laminator 20 is comprised of first endless belt 27 that
runs around a pair of upper drums 22, and second endless belt 27 that runs
around a pair of lower drums 24. i-f 105; Fig. 3. Dong discloses that a
thermally controlled compression zone forms between the upper and lower
drums of the drum pairs. i-f 105. Dong discloses that when charge 100 is
drawn through double belt press continuous laminator 20, it is compressed
within the compression zone under heat and elevated temperature to form
laminate 23. i-f l 05; Fig. 3.
Dong discloses cooling laminate 23 after it exits double belt press
continuous laminator 20, and discloses that before cooling, laminate 23
"may be embossed to provide a decorative or textured surface." i-f 109.
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Dong discloses that the "method for embossing may be selected from those
conventionally known in the art, such as by passing over textured rolls or
stamping." Id.
The Examiner finds that Dong does not explicitly teach conducting
the lamination and embossing processes using separate continuously
working press devices, such that an embossed relief is obtained exclusively
with a second press treatment, and the upper surface of a transparent or
translucent synthetic material layer is free from any relief at the beginning of
the second press treatment. Final Act. 4--5. The Examiner relies on
Zafiroglu for suggesting these features expressly missing from Dong's
disclosures. Id.
Zafiroglu discloses a method of forming a layered composite material
used as a floor covering that involves laminating the constituent materials in
a continuous belt dual laminator followed by surface texturing the resulting
laminate using an embossing calendar. i-fi-12, 14, 15, 168, 177, 187; Fig.
23B. Zafiroglu discloses conducting the lamination process under low
pressure and embossing under significantly higher pressure. i-fi-f 168, 186. In
view of these disclosures, the Examiner finds that one of ordinary skill in the
art would have utilized a separate press device comprising a textured
embossing roll as disclosed in Zafiroglu to emboss the laminate produced
with a double belt press disclosed in Dong, to enable independent control
over the lamination and embossing conditions, such that lower pressure
could be applied during lamination, and higher pressure could be applied
during embossing, as disclosed in Zafiroglu. Final Act. 4--5. The Examiner
finds that use of such separate lamination and embossing processes for
preparing Dong's multi-layered decorative laminate as disclosed in
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Zafiroglu would result in an embossed relief obtained exclusively by the
embossing treatment that follows lamination, such that the upper surface of
Dong's laminate would be free from any relief at the beginning of the
embossing treatment, as recited in claim 17. Id.
Appellants argue that claim 1 7 requires the upper surface of the
transparent or translucent synthetic material layer to be free from any relief
at the beginning of the second press treatment, but the Examiner contends
that Zafiroglu discloses an outer layer free from any embossed relief before
entering the embossing calendar. App. Br. 5. Appellants contend that the
Examiner thus "misstates the claimed invention." Id.
However, as the Examiner explains in the Answer, the Examiner's
statement in the Final Action that Zafiroglu discloses an outer layer free
from any embossed relief before entering the embossing calendar described
in the reference refers to the disclosures of Zafiroglu, and does not refer to
the claimed invention. Ans. 2. The Examiner thus does not misstate
Appellants' claimed invention.
Appellants argue that the outer layer disclosed in Zafiroglu is fibrous,
and as such, the upper surface of the outer layer before embossing
necessarily includes numerous reliefs or recesses, constituted by the spaces
between the fibers. App. Br. 5.
However, Appellants' arguments do not address the rejection
presented by the Examiner, which does not rely on Zafiroglu for disclosing
an upper surface free from any relief at the beginning of a second press
treatment, as recited in claim 17. Rather, as discussed above, the
Examiner's proposed combination of the relied-upon disclosures of Dong
and Zafiroglu involves utilizing a separate press device comprising a
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textured embossing calendar as disclosed in Zafiroglu to emboss a laminate
produced with a double belt press as disclosed in Dong, to allow
independent control of the lamination and embossing conditions. One of
ordinary skill in the art would have understood that due to application of
heat and pressure by a double belt press laminator as disclosed in Dong, a
laminate produced with the laminator would be flat, and thus would be free
from any relief at the beginning of a subsequent embossing process, as
suggested by Zafiroglu. Appellants' arguments regarding the outer layer of
the material disclosed in Zafiroglu are therefore unpersuasive of reversible
error.
Appellants argue Dong and Zafiroglu do not relate to the same field of
endeavor, and those skilled in the art of providing decorative laminates
having a transparent overlay as disclosed in Dong would not have looked to
the art of composites having fibrous outer layers as disclosed in Zafiroglu,
because the two technical fields are related to different problems based on
the differences between a transparent overlay and a fibrous outer layer.
App. Br. 6. Appellants contend that Zafiroglu's press treatment is not
suitable for creating panels with a transparent upper layer because
Zafiroglu's method is specifically directed to forming products with fibrous
upper surfaces, and "[t]here is no understanding if and how such a method
could be implemented in the panels of Dong." Id.
However, Appellants' arguments again do not address the proposed
combination of the applied prior art presented by the Examiner. The
Examiner does not propose forming a multi-layered laminate as disclosed in
Dong using the process disclosed in Zafiroglu. Rather, as discussed above,
the Examiner finds that in view of Dong's disclosure that a laminate
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produced as described in the reference using a double belt press continuous
laminator can be embossed using any method conventionally known in the
art, one of ordinary skill in the art would have utilized a separate press
device comprising a textured embossing calendar as disclosed in Zafiroglu
to emboss such a laminate to enable use of differing pressures during
lamination and embossing.
Contrary to Appellants' arguments, Dong and Zafiroglu are both
directed to composite materials used for flooring applications. Accordingly,
one of ordinary skill in the art seeking to find a suitable embossing technique
to provide surface texturing on a multi-layer laminate produced as disclosed
in Dong to be used as a floor covering reasonably would have looked to
Zafiroglu's disclosure of an embossing calendar utilized separately from a
double belt press laminator to prepare an embossed laminated composite
floor covering. Appellants' arguments are therefore unpersuasive of
reversible error.
Appellants argue that Zafiroglu is non-analogous art. App. Br. 7;
Reply Br. 4--5. Appellants contend that the field of their endeavor is
directed to manufacturing a floor covering panel having a top layer that
includes at least "a printed synthetic material film and a transparent or
translucent synthetic material layer above the printed synthetic material
film." App. Br. 7; Reply Br. 4. Appellants contend that Zafiroglu does not
relate to this field of endeavor because Zafiroglu's laminate does not include
a printed synthetic material film, or a transparent or translucent synthetic
material layer above the printed synthetic material film. App. Br. 7; Reply
Br. 4. Appellants assert that Zafiroglu is also not reasonably pertinent to the
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particular problem with which they were concerned-solving problems
associated with flooring panels having a printed motif. Reply Br. 5.
For a prior art reference to be analogous art, the reference must either
be in the field of the inventors' (Appellants') endeavor, or it must be
reasonably pertinent to the particular problem with which the inventors
(Appellants) were concerned, from the viewpoint of one of ordinary skill in
the art. See, e.g., In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006) (stating
that the analogous art test requires that "a reference is either in the field of
the applicant's endeavor or is reasonably pertinent to the problem with
which the inventor was concerned ... based on the judgment of a person
having ordinary skill in the art."); In re Antle, 444 F.2d 1168, 1171-72
( CCP A 1971) (indicating that section 103 requires a presumption of full
knowledge by the inventor of the prior art in the field of his endeavor, but
does not require a presumption of full knowledge by the inventor of prior art
outside the field of his endeavor, i.e., of non-analogous art. "In that respect,
it only requires us to presume that the inventor would have that ability to
select and utilize knowledge from other arts reasonably pertinent to his
particular problem which would be expected of a man of ordinary skill in the
art to which the subject matter pertains.")
In the present case, Appellants' characterization of the field of
endeavor to which the method of claim 1 7 is directed, and the particular
problem with which they were concerned, is overly narrow because
Appellants ignore the requirement in claim 1 7 of providing a relief with
recesses in the transparent or translucent synthetic material layer of the
panel. The field of endeavor to which the invention of claim 1 7 is directed
is more appropriately characterized as a method of producing an embossed
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laminated floor covering panel. One of ordinary skill in the art would have
understood that methods as disclosed in Zafiroglu for preparing an embossed
laminated composite floor covering were within this field of endeavor. But
even if Zafiroglu's methods were not within the field of Appellants'
endeavor, one of ordinary skill in the art seeking to develop methods for
producing floor covering panels having a substrate and a top layer adhered
to the substrate that includes a printed motif and a transparent or translucent
material layer having a relief with recesses above the printed motif (an
embossed laminate), would have looked to Zafiroglu' disclosure of methods
for embossing a laminated floor covering that allow independent control of
the laminating and embossing conditions. Accordingly, one of ordinary skill
in the art would have understood Zafiroglu to be reasonably pertinent to the
particular problems with which Appellants were concerned.
Accordingly, considering the totality of the evidence relied upon in
this appeal, a preponderance of the evidence weighs in favor of the
Examiner's conclusion of obviousness. We accordingly sustain the
Examiner's rejection of claims 17, 19, 20, 23, 24, 26, 28-33, 36, 37, 41, and
43 under 35 U.S.C. § 103(a).
Rejection II
To address this rejection, Appellants argue that the additional
reference applied in this rejection fails to cure the deficiencies of the prior
art references applied in Rejection I (discussed above). App. Br. 8. Because
we are unpersuaded of reversible error in the Examiner's rejection of claim
17 for the reasons discussed above, Appellants' position as to this rejection
is also without merit.
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Reply Brief
We do not consider the new arguments Appellants present at pages 2
to 3 of their Reply Brief because Appellants could have raised these
arguments in the Appeal Brief, and do not show good cause for not doing so.
37 C.F.R. § 41.37(c)(l)(iv); 37 C.F.R. § 41.41(b)(2) (arguments raised for
the first time in the Reply Brief that could have been raised in the Appeal
Brief will not be considered by the Board unless good cause is shown).
DECISION
We affirm the Examiner's rejections of claims 17, 19, 20, 23, 24, 26,
28--41, and 43 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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