Ex Parte Riccelli et al

Patent Trial and Appeal Board

Dec 29, 2016

12642714 (P.T.A.B. Dec. 29, 2016)

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.
12/642,714 12/18/2009 Joseph Riccelli InnovDesign-0801 3086
36787 7590
BLYNN L. SHIDELER
THE BLK LAW GROUP
3500 BROKKTREE ROAD
SUITE 200
WEXFORD, PA 15090
EXAMINER
VONCH, JEFFREY A
ART UNIT PAPER NUMBER
1781
NOTIFICATION DATE DELIVERY MODE
01/03/2017 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):
patents @ BLKLawGroup.com
cbelleci @ BLKLawGroup .com
blynn @ BLKLawGroup. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH RICCELLI and RANDOLPH LOEW
Appeal 2015-006289
Application 12/642,714
Technology Center 1700
Before: JEFFREY W. ABRAHAM, AVELYN M. ROSS, and
BRIAN D. RANGE, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134(a) from the rejection, for at
least the second time, of claims 1—4 and 6—20. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 In our Decision below we refer to the Specification filed December 18,
2009 (Spec.), the Non-Final Office Action mailed July 29, 2014 (Non-
Final), the Appeal Brief filed January 12, 2015 (Appeal Br.), the Examiner’s
Answer mailed April 10, 2015 (Ans.), and the Reply Brief filed June 10,
2015 (Reply Br.).
2 Appellants identify the real party in interest as Innovative Designs, Inc.
Appeal Br. 3.
Appeal 2015-006289
Application 12/642,714
STATEMENT OF CASE
The claims are directed to composite house wrap “that comprises an
insulation function, a moisture vapor transmission function, a moisture
barrier function, a drainage function and further provides for ease of
installation.” Spec. 22. Claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A house wrap for a building consisting essentially of:
A first layer including a reinforcing grid providing a
drainage plane for the house wrap and configured to face the
outside of the building;
A second layer including a breathable, non-perforated
barrier film bonded to the first layer; and
A third layer including a perforated foam layer is bonded
to the second layer, wherein the foam layer is formed of low
density polyethylene foam, and wherein the total thickness of the
house wrap is less than 175 mils and wherein the house wrap has
an insulating R-Value of at least 2.
Claims Appendix at Appeal Br. 22.
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REJECTIONS3
The Examiner maintains the following rejections:
A. Claims 1, 11, and 14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Shepherd,4 Anderson,5
and Lubker.6 Non-Final 5.
B. Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Shepherd, Anderson, Lubker
and further in view of Altman.7 Id. at 7.
C. Claims 1, 2, 4, 6, 9-12, 14, 15, 19, and 20 stand rejected
under 35 U.S.C § 103(a) as being unpatentable over
Maynard,8 Shin,9 Shepherd, and Lubker. Id. at 8.
D. Claims 3, 7, 8, 13, 17, and 18 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Maynard,
3 The Examiner also advises Appellants that “should claims 2—3 be found
allowable, claims 7 and 9, respectively, will be objected to under 37 CFR
1.75 as being a substantial duplicate thereof.” Non-Final 5.
4 Shepherd et al., US 2005/0260904 Al, published November 24, 2005
(hereinafter “Shepherd”). Appellants refer to Shepherd as “the Air and
Moisture Barrier Reference.” Appeal Br. 9.
5 Anderson et al., WO 2007/143782 Al, published December 21, 2007
(hereinafter “Anderson”). Appellants refer to Anderson as “the Insulating
Sheeting Reference.” Appeal Br. 9.
6 John W. Lubker, II, US 6,550,212 B2, issued April 22, 2003 (hereinafter
“Lubker”). Appellants refer to Lubker as “the Protective Drainage Wrap
Patent.” Appeal Br. 9.
7 Altman et al., US 2007/0021023 Al, published January 25, 2007
(hereinafter “Altman”). Appellants refer to Altman as “the Barrier Laminate
Reference.” Appeal Br. 9.
8 Maynard et al., WO 99/14037, published March 25, 1999 (hereinafter
“Maynard”). Appellants refer to Maynard as “the Buoyant Insulating Article
Reference.” Appeal Br. 9.
9 Yong W. Shin, US 4,952,352, issued August 28, 1990 (hereinafter “Shin”).
Appellants refer to Shin as “the Buoyant and Insulating LDPE Process
Patent.” Appeal Br. 9.
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Application 12/642,714
Shin, Shepherd, Lubker, and further in view of Altman.
Id. at 11.
E. Claims 6 and 16 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Maynard, Shin, Shepherd,
Lubker, and in further view of Tai.10 Id. at 12—13.
Appellants seek our review of Rejections A—E. Appeal Br. 9.
OPINION
Rejection A — Obviousness (claims 1,11, and 14)
The Examiner rejects claims 1,11, and 14 as unpatentable over
Shepherd in view of Anderson and Lubker. Non-Final 5. The Examiner
finds that Shepherd teaches a protective wrap for a building having a top
outerfacing mesh (providing a drainage plane) bonded to a breathable non-
perforated barrier layer which is bonded to a perforated foam layer. Non-
Final 5—6. The Examiner also finds that the film layer of Shepherd is about
1 mil in thickness. Id. But, the Examiner notes that Shepherd does not teach
use of LDPE foam, a total wrap thickness of 175 mils, or an insulating R-
value of at least 2. Id. at 6. The Examiner finds that Lubker teaches a
protective wrap drainage wrap “wherein the scrim provides the escape of
water and moisture and provides a drainage pathway (abstract)” and that
typical meshes/scrims have a thickness of 8—12 mils. Id. The Examiner
reasons that “[o]ne of ordinary skill in the art would have been motivated to
use a similar device used in the same field of protective wraps when
searching for suitable scrims.” Id. The Examiner further finds that
Anderson teaches perforated foams made of LDPE that have R-values of
10 Tai et al., US 2005/0019549 Al, published January 27, 2005 (hereinafter
“Tai”). Appellants refer to Tai as “the RFPC Reference.” Appeal Br. 10.
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Application 12/642,714
0.25 to 2.55. Id. In addition, the Examiner finds that Anderson teaches an
LDPE foam having a thickness of 4mm, or 157 mils. Id. The Examiner
rationalizes that one skilled in the art would have reason to combine the
teachings of Anderson to “provide enhanced thermal and acoustic insulation
characteristics and greater resistance to heat and flame.” Id. at 7. The
Examiner finds that the combined thickness of the
Shepherd/Anderson/Lubker insulating sheeting is between 166 to 170 mils.
Id. at 7.
We focus our discussion below on independent claim 1, as Appellants
make no additional substantive arguments regarding independent claim 11 or
dependent claim 14 (which depends from claim 11). See Appeal Br. 11—16.
Appellants argue that, in Anderson, “there is no teaching or
suggestion of the total thickness limitations together with the resulting R
factor in any cited reference.” Appeal Br. 13. Appellants contend that the R
value taught by Anderson—SI R-value = 0.20 m2K/W which equates to a
US R-value of 1.136—is outside the claimed range. Id. And, Appellants
urge that the margin of error in Anderson—i.e., SI R-value of +/- 0.25
m2K/W or US R-value of +/- 1.419—which the Examiner uses to achieve an
R-value greater than 2, is in error. Id. Appellants reason that it “would be
meaningless as a margin of error as it is LARGER than the measured value”
and further, “[t]he lower value would be a NEGATIVE and obviously a
meaningless value.” Id. at 14. Thus, “the applied prior art clearly teaches
away from the thickness and insulating values of the present claimed
invention.” Id.
Appellants’ argument that the prior art combination does not teach an
R-value greater than 2 is persuasive of error. The Examiner aptly explains
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that a reference is presumed operable and that “the burden is on Applicant to
provide facts rebutting the presumption of operability.” Ans. 13. Here, we
find that Appellants have provided facts sufficient to rebut the Examiner’s
findings. In particular, the skilled artisan would understand that the margin
of error, utilized by the Examiner to achieve the claimed R- value of at least
2, is logically flawed and therefore unreliable. Therefore, we do not sustain
the Examiner’s rejection of claims 1,11, and 14 over Shepherd, Anderson,
and Lubker.
Because we reverse claims 1,11, and 14 (Rejection A), claims 12 and
13 depending from claim 11 (i.e., Rejection B) are similarly reversed.
Rejection C— Obviousness (claims 1, 2, 4, 6, 9—12,14,15,19, and 20)
The Examiner rejects claims 1, 2, 4, 6, 9-12, 14, 15, 19, and 20 as
being unpatentable under 35 U.S.C. § 103(a) over Maynard, Shin, Shepherd
and Lubker. Non-Final 8. The Examiner finds that Maynard teaches an
insulating sheet material useful as a construction wrap that comprises:
a prior art (pg. 2, paragraph 6) thin foam layer of low density
polyethylene (third layer) wherein the thickness is between 0.3
and 4 mm (11.8—157 mil), preferably 0.5 and 1.5 mm (19.7—59.0
mil), on the order of 0.7 mm (27.1 mil), (pg. 3, paragraph 2)
having a protective layer (first/second layer) laminated to a first
side, wherein the protective layer comprises at least one sheet
material such as a polyethylene film or textile substrate (pg. 3,
paragraph 4), wherein a particular embodiment has a
polyethylene layer of 10 to 25 pm thick, wherein the entire
laminate is made breathable through perforations through the
film layer being made from a microporous membrane (pg. 4,
paragraphs 2—3).
Id. at 9. The Examiner concedes that Maynard does not explicitly disclose
the claimed R-value, a first layer reinforcing grid that provides a drainage
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plane, or that the total thickness of the construction wrap is less than 30
mils.11 Id. But, the Examiner finds that Shin teaches a method of preparing
a LDPE—the identical process for forming LDPE used by Appellants (see
Spec. 137; Appeal Br. 11)—that has a thickness and density similar to that
of Maynard. Non-Final 9. The Examiner reasons that one of skill in the art
would have been motivated to make the proposed combination “for a thin
thermally resistant low density polyethylene foam sheet that would convey
the same properties.” Id. And, as discussed above (see supra p. 4) the
Examiner finds Shepherd teaches a three layer wrap having an open mesh
drainage layer, a monolithic liquid barrier, and a polymeric foam layer
where the film layer is about 1 mil thick. Id. at 10. The Examiner also
reiterates (see supra p. 4) that Lubker teaches a mesh or scrim layer for
drainage having a thickness of about 8—12 mils. Id. The Examiner reasons
that it would have been obvious to combine the scrim/mesh of Lubker and
the barrier material of Shepherd with the foam of Maynard or Shin, “to
provide a lightweight and liquid/moisture barrier material that is also high in
strength [Shepard [sic], 0017], all desired by Maynard (pg. 6, paragraph 6)
that additionally provides drainage [0008].” Id. The resulting laminate of
the Maynard/Shin/Shepherd/Lubker combination would have a thickness
between 28.1 to 62 mils. Id. at 10—11. And because the Shin process for
making LDPE is the same as Appellants, and “all other layers in the
laminate of Maynard/Shin/Shepherd/Lubker are chemically and physically
11 Claims 1 and 11 require the total thickness to be less than 175 mils.
Claims Appendix at Appeal Br. 22 and 23. Dependent claims 2, 4, 6, 9, 15
and 19, discussed infra p. 11—12, require a thickness of less than 30 mils
(claims 2, 4, 6, 9, and 19) and 40 mils (claims 15). Id. at 22—24.
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the same or equivalent to Applicant’s, the claimed properties are deemed to
be inherent.” Id. at 11.
Appellants present several arguments to address claims 1, 2, 4, 6, 9—
12, 14, 15, 19, and 20 in general, with no additional substantive argument
directed to specific claims, except as identified below (see infra p. 11—12).
See Appeal Br. 16—19. Therefore, we focus our discussion below on
claim 1.
Appellants first argue that because Maynard prefers a sheet material
comprising fifteen layers, as opposed to only 3 layers of claim 112, Maynard
teaches away from Appellants’ house wrap and also argue that the Examiner
ignores Appellants’ use of “consisting essentially of’ language. Appeal Br.
17 and 19. Further, Appellants argue that “the provision of 15 layers of the
preferred embodiment of 0.7mm foam and lOum protective layer as
expressly taught in the newest primary reference is FAR GREATER IN
TOTAL THICKNESS than the claimed ‘total thickness of the house wrap is
less than 175 mils.’” Id.
The Examiner maintains his position and explains that only one
embodiment teaches fifteen layers, “which is not related to the preferred
form of the sheet is a 0.7 mm thick sheet of low density closed-cell
polyethylene foam with a 10 to 25 micron thick (microporous/breathable)
polyethylene film, wherein the foam layer may be perforated to provide
breathability (pg. 6, pg. 6, paragraph 5).” Ans. 15. Moreover, the Examiner
12 Only claim 1, and claims depending therefrom, are written in “consisting
essentially of ’ format. Claims Appendix at Appeal Br. 22—23. Notably,
claim 11 is not limited to 3 layers as it is written using “comprising”
language. Id. at 23.
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Application 12/642,714
explains that “[t]here is no relation to the modified embodiment of the
combination and the embodiment having 15 layers.” Id.
Appellants’ arguments are not persuasive of reversible error. “A
reference must be considered for everything that it teaches, not simply the
described invention or a preferred embodiment.” See In re Applied Materials,
Inc., 692 F.3d 1289, 1298 (Fed. Cir. 2012). As the Examiner finds (Non-Final
9), Maynard teaches an insulating sheet material that includes a LDPE foam
laminated to a polyethylene film. In this regard, Maynard expressly states that:
The essence of the present invention is the use of a foam based
sheet material which has good buoyancy and thermal insulating
properties and which has a laminated structure being provided
with at least one protective layer which strengthens the material.
The sheet material preferably comprises a single layer of said
relatively low density foam with a protective layer laminated to
one or both sides thereof. The foam layer should preferably be
thicker than the or [sic] each protective layer.
Maynard, 3 (emphasis added).
Therefore, contrary to Appellants’ position, Maynard is not limited to
a 15-layer structure but also teaches a two-layered sheet material that when
combined with the mesh of Shepherd/Lubker, creates a three layer design—
compatible with the consisting essentially of language employed in claim 1.
The foam and barrier layer of Maynard similarly does not exceed the
thickness of claim 1. Maynard explains that “[t]he sheet material preferably
has a thickness of less than 6mm. For instance, the thickness may preferably
be between 0.3mm and 4mm, and most preferably between 0.5mm and
1.5mm (for instance of the order of about 0.7mm).” Id. Thus, as the
Examiner finds (Non-Final 9), a total sheet thickness of between 11.8 to
157.0 mils is taught.
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Appellants also contend that no reason exists to modify Maynard to
include the foam of Shin. Appeal Br. 17. Appellants urge that “if the
modification would ‘convey the same properties’ then WHY would one of
ordinary skill in the art seek to replace the original foam?” Id. at 17—18.
We are not persuaded by Appellants’ arguments. The Examiner
explains that the combination does not substitute the foam of Maynard for
that of Shin. Ans. 15—16. Rather, the Examiner finds that Maynard and
Shin teach the same LDPE foam and thus, the properties of the foam of Shin
are necessarily present in Maynard. Id. at 16 (“Shin meets all of those
necessary [properties] in Maynard and also would have the same inherent
qualities relating to the R-values (as evidenced by Applicant utilizing the
LDPE foam made by the process used in Shin [0037]).”). Appellants do not
dispute these findings by the Examiner. We accept these findings as fact. In
re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964) (“Since appellant has not
shown this finding to be clearly erroneous, we accept it as fact.”). Thus,
Appellants’ focus on substitution of foams does not address the rejection as
presented and is not persuasive of error.
Next, Appellants argue the Examiner fails to provide an adequate
reason for the combination of the multiple foam and protective layer
structure of Maynard with the “reinforcing grid” of Shepherd that provides a
drainage plane. Appeal Br. 18. Appellants criticize that “[t]he examiner’s
modification would yield multiple drainage layers in the multi-sheet
structure of the primary reference.” Id.
Appellants do not convince us of reversible error. Appellants rely
upon a single embodiment of Maynard having 15 layers (Appeal Br. 18)
instead of the broader teachings of Maynard in combination with Shin,
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Shepherd, and Lubker used by the Examiner in rejecting the claims. But,
“[a] reference must be considered for everything that it teaches, not simply the
described invention or a preferred embodiment.” See In re Applied Materials,
692 F.3d at 1298. This includes the design of the primary reference Maynard
where the “sheet material preferably comprises a single layer of said
relatively low density foam with a protective layer laminated to one or both
sides thereof.” Maynard, 2 (emphasis added).
Appellants also urge that the skilled artisan would not combine
Shepherd with Lubker “which could yield ‘the possibility of bulk moisture
transmission from the outside to the inside of the wraps.’” Appeal Br. 18.
Appellants’ arguments fail to identify reversible error by the
Examiner. It is well-established that a determination of obviousness based
on teachings from multiple references does not require an actual, physical
substitution of elements. In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en
banc). As the Examiner describes (Non-Final 10; Ans. 16.), Lubker is used
as a secondary reference to teach use of an open mesh, similar to Shepherd,
that allows for water to escape and where “[tjypical drainage wrap
meshes/scrims are 8—12 mils in thickness” (col. 8, lines 56-60). Appellants’
criticism regarding the transmission of bulk moisture into the wrap does not
address the rejection as presented by the Examiner (Non-Final 9), i.e., a
three-layered sheeting material that includes a barrier layer to prevent the
ingress of bulk moisture.
With respect to claims 2, 4, 6, 9, 15, and 19, Appellants separately
argue that “[t]he Examiner ignores that the primary reference teaches a
multilayer construction that would far exceed the thickness limitation” for
several dependent claims. Specifically, claims that require “the total
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thickness of the house wrap is less than 30 mils” [claims 2, 4, 6, 9, and 19]
or that “the total thickness of the house wrap is less than 40 mils” [claim 15].
Claims Appendix at Appeal Br. 22—24.
Appellants do not apprise us of error in the Examiner’s rejection. As
discussed above (see supra, p. 7), the Maynard/Shin/Shepherd/Lubker
combination presented by the Examiner has a thickness of between 28.1 to
62 mils. Non-Final 10—11.
Rejection D — Obviousness (claims 3, 7, 8,13,17, and 18)
The Examiner rejects claims 3, 7, 8, 13, 17, and 18 as unpatentable
over Maynard, Shin, Shepherd, Lubker, and further in view of Altman.
Non-Final 11. These claims additionally require that the barrier film is “a
non-perforated polytetrafluoroethylene (PTFE) film.” Claims Appendix at
Appeal Br. 23—24. The Examiner acknowledges that the
Maynard/Shin/Shepherd/Lubker combination does not teach a barrier layer
made from PTFE. Non-Final 12. But, the Examiner finds that “Altman
teaches a barrier laminate having a breathable waterproof barrier layer . . .
preferably made from PTFE [0031]” and thus, the skilled artisan “would
have been motivated to use a preferred very waterproof and highly
breathable film [0031].” Id.
Appellants contend that each of the references “teaches away from the
present claimed invention” and that “[t]here is no rational basis to combine
these teachings in any manner that leads to the three layer claimed house
wrap.” Appeal Br. 20.
Appellants do not convince us of reversible error by the Examiner.
Appellants do not identify any teaching in Altman that teaches away or
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discourages the skilled artisan from using the PTFE film of Altman as a
barrier layer. In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994)( “A reference
may be said to teach away when a person of ordinary skill, upon reading the
reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was
taken by the applicant.”). Moreover, Appellants’ argument that there is no
reason to combine the prior art teachings to achieve the three-layer structure
taught by Appellant is misplaced (see supra pp. 6—8 (discussing the three-
layer design of the combination) and does not address the rejection as
presented by the Examiner (i.e., the addition of Altman).
Rejection E — Obviousness (claims 6 and 16)
The Examiner rejects claims 6 and 16 as unpatentable over Maynard,
Shin, Shepherd, Lubker, and further in view of Tai. Non-Final 12—13.
Claims 6 and 16, depending from claims 1 and 15 respectively, additionally
require that “the low density polyethylene foam layer is bonded to the
second layer through a continuous layer of adhesive.” Claims Appendix at
Appeal Br. 22—24. The Examiner acknowledges that the
Maynard/Shin/Shepherd/Lubker combination does not teach a continuous
layer of adhesive bonding the polyethylene foam to the second layer. Non-
Final 13. But, the Examiner finds that “Tai teaches either laminating a
thermoplastic polymer film laminated to a foam core primary surface [0034—
0037], having multiple layers or additional adhesive layers, wherein
adhesive layers are continuously extending but permeable [0057—0058].” Id.
The Examiner reasons that using the continuous adhesive layer of Tai would
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have been obvious to the skilled artisan at the time because it was a known
alternative to achieve similar properties. Id. at 13—14.
Appellants argue that one of skill in the art would not have reason to
combine Tai with Maynard, Shin, Shepherd, and Lubker “particularly where
one must IGNORE the express teachings of most references in the suggested
combinations.” Appeal Br. 20. In particular, Appellants note the “preferred
thickness of the FIFTH RFPC Reference [Tai] of preferably 0.25 inches or
more.” Id.
Appellants fail to apprise us of reversible error by the Examiner.
“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference . . . .” In re Keller, 642 F.2d 413, 425 (CCPA 1981). As the
Examiner states, the Examiner is “merely building on the relevant
embodiments” and Appellants’ arguments amount to incorporating some/all
of the non-relevant features [of Altman and Tai] when that is not necessary
for the secondary reference. Id. And, in doing so, Appellants fail to address
the combined teachings of Tai with the combination of
Maynard/Shin/Shepherd/Lubker as presented by the Examiner.
CONCLUSION
The Examiner reversibly erred in rejecting claims 1,11, and 14 under
35 U.S.C. § 103(a) as being unpatentable over Shepherd, Anderson, and
Lubker.
The Examiner reversibly erred in rejecting claims 12 and 13 under
35 U.S.C. § 103(a) as being unpatentable over Shepherd, Anderson, Lubker
and further in view of Altman.
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The Examiner did not reversibly err in rejecting claims 1, 2, 4, 6, 9—
12, 14, 15, 19, and 20 under 35 U.S.C § 103(a) as being unpatentable over
Maynard, Shin, Shepherd, and Lubker.
The Examiner did not reversibly err in rejecting claims 3, 7, 8, 13, 17,
and 18 under 35 U.S.C. § 103(a) as being unpatentable over Maynard, Shin,
Shepherd, Lubker, and further in view of Altman.
The Examiner did not reversibly err in rejecting claims 6 and 16 under
35 U.S.C. § 103(a) as being unpatentable over Maynard, Shin, Shepherd,
Lubker, and in further view of Tai.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—4 and 6—
20 is 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).
AFFIRMED
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