Ex Parte RUGGIEDownload PDFPatent Trials and Appeals BoardMay 28, 201914034168 - (D) (P.T.A.B. May. 28, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/034,168 09/23/2013 MarkRUGGIE 28410 7590 05/30/2019 BERENATO & WHITE, LLC 6550 ROCK SPRING DRIVE SUITE 240 BETHESDA, MD 20817 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. 16240.M419 US 5941 EXAMINER VAN SELL, NATHAN L ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 05/30/2019 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): uspto.filings@bw-iplaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARK RUGG IE 1 Appeal 2017-010711 Application 14/034, 168 Technology Center 1700 Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and MERRELL C. CASHION, JR., Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This decides an appeal under 35 U.S.C. § 134(a) from the Aug. 2, 2016 final rejection of claims 1-8, 12, 13, and 26-43. An oral hearing was held on May 14, 2019. 2 We have jurisdiction under 35 U.S.C. § 6(b). The following rejections are presented for appeal: Claims 1-8, 12, 13, 26-38, 41, and 43 are rejected under 35 U.S.C. § 103(a) as unpatentable over Luetgert et al. (US 2004/0139673 Al, 1 Masonite Corporation is the Appellant and the real party in interest. (App. Br. 2). 2 A written transcript of the oral hearing will be entered into the record when the transcript is made available. Appeal2017-010711 Application 14/034, 168 published July 22, 2004) ("Luetgert"), in view of Pietruczynik et al. (US 2010/0107530 Al, published May 6, 2010) ("Pietruczynik"). Claims 39, 40, and 42 are rejected under 35 U.S.C. § I03(a) as unpatentable over Luetgert and Pietruczynik in view of Pfau et al. (US 2007 /0082997 Al, published Apr. 12, 2007) ("Pfau"). Appellant's invention relates to a molded article comprising of an exterior surface having integrating molded features that simulate a textural appearance of brush strokes of a paint brush. (Spec. ,r 9). Claim 1 is illustrative of the subject matter on appeal and is reproduced below: 1. A molded article comprising a single molded piece configured as a door skin, the single molded piece having an exterior surface integrating molded features that simulate a textural and visual appearance of paintbrush strokes, the molded features being molded in the single molded piece as integral components so that the molded features constitute part of and are made of the same material as the single molded piece configured as the door skin. OPINI0N3 We have reviewed each of Appellant's arguments for patentability. We will sustain the Examiner's rejections for essentially those reasons expressed in the Answer and the Final action. Claims 1, 30, and 34 The review of the grounds of rejection of the appealed claims necessarily entails the interpretation of the scope of the appealed claims, 3 Appellant's arguments for the patentability of the independent claims are substantially the same. Appellant has also not presented arguments specific to every claim on appeal. Consequently, the non-argued claims will stand or 2 Appeal2017-010711 Application 14/034, 168 giving the broadest reasonable interpretation to the terms thereof consistent with the written description provided in Appellant's Specification as it would be interpreted by one of ordinary skill in this art. See In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). Thus, the terms in the appealed claims must be given their broadest reasonable interpretation including the ordinary meaning unless another meaning is intended by Appellant as established in the written description of their Specification. See, e.g., In re Zletz, 893 F.2d 319, 321-22 (Fed. Cir. 1989). When the Specification does not contain an express definition, a reasonable, supported interpretation of the appealed claims that differs from that urged by applicants can be used to determine the patentability of the claims. Morris, 127 F.3d at 1055-56 ("Absent an express definition in their specification, the fact that appellants can point to definitions or usages that conform to their interpretation does not make the PTO' s definition unreasonable when the PTO can point to other sources that support its interpretation."). Indeed, "[i]t is the applicants' burden to precisely define the invention, not the PTO's. See 35 U.S.C. § 112 ,r 2 [statute omitted]." Morris, 127 F.3d at 1055-56. In this case the claim language "painted brush strokes" is not specifically defined in the Specification. The Specification and Drawings disclose the brush strokes can appear in a variety of design patterns. The Specification specifically states: Simulated brush strokes may incorporate a variety of design features. For example, each brush stroke may include opposing side walls extending out of a principal planar surface, thereby forming ridges fall with independent claim 1. See 37 C. F. R. § 4I.37(c)(l)(iv). We limit our initial discussion to independent claim 1. Separately argued claims will be addressed. 3 Appeal2017-010711 Application 14/034, 168 that may be parallel to one another with grooves or depressions between the ridges. The ridges and grooves correspond to and simulate areas of the principal planar surface that are contacted with paint on the bristles and areas between the bristles of the paint brush. The height of the ridges relative to the depth of the grooves may be selected to reflect bristle length and density. The side walls of the ridges may taper towards each other as they extend away from the principal planar surface. In certain sections the brush strokes may taper to a point or form a plateau. The brush strokes may have straight portions simulating long steady paint-brush strokes and curvilinear portions simulate the ends of the paint-brush strokes or shorter random strokes. (Spec. ,r 44 ). The Specification discloses the simulated brush strokes may be molded to have ridges that are slightly raised above a principal planar surface, forming a textured surface. (Spec. ,r 41 ). Figures 3-10, which are exemplary, depict some of the patterns formed that simulate brush strokes. (Spec. ,r,r 44, 45). Neither claim 1 nor the Specification limits the size of the paintbrush strokes or the size of the paintbrush bristles which are simulated. (Spec. ,r 41 ). The Specification discloses the simulated brush strokes may be oriented parallel with one another in a vertical direction, a horizontal direction, an angled fashion, or any combination thereof. (Spec. ,r 42). Consequently, the Specification does not limit the pattern that is representative of the simulated brush strokes. Appellant argues the applied prior art Luetgert, Pietruczynik and Pfau described the formation of a molding having a natural appearance of wood grain and does not disclose, teach, or suggest integrating molded features that simulate the textural and visual appearance of paintbrush strokes as required by the claimed invention. (App. Br. 11 ). Appellant specifically argues Pietruczynik does not describe the textural and visual appearance of 4 Appeal2017-010711 Application 14/034, 168 paintbrush strokes, as recited in claims 1, 30, and 34 (App. Br. 12) ( citing Pietruczynik ,r 52, Fig 3). Appellant argues Pietruczynik references "brushed low gloss surface finishes" but does not utilize the phrase paintbrush stroke. (App. Br. 12-15). Appellant argues, "the Examiner has impermissibly used the disclosure of the present application to interpret the word 'brushed' in Pietruczynik to mean paintbrush." (App. Br. 14). Appellant also argues it is apparent from the disclosure of Pietruczynik and the common use of the term "brush" in connection with "low gloss surface finishes" means "low gloss." (App. Br. 13). Appellant presents evidence in the form of reference materials, various definitions, to support this position. (App. Br. 13). In addition, Appellant argues the Examiner has failed to adequately consider the secondary indicia of nonobvious as explained by paragraphs 43 and 54 of the present specification. (App. Br. 22-23). Appellant's arguments are not persuasive of reversible error in the Examiner's rejection. Both Luetgert and Pietruczynik describe forming ridges that may be parallel to one another with grooves or depressions between the ridges. Luetgert describes "a molded door skin comprising an exterior surface having outer portions lying on a first plane, spaced grooves recessed from the plain of the outer portions, and half tone portions having space protrusions defined by channels. The channels are recessed from the plain of the outer portions." (Luetgert ,r 8). Pietruczynik describes molded building materials including door skins that are provided with patterns utilizing embossing techniques. (Pietruczynik ,r 41 ). Pietruczynik further discloses the invention provides various patterns including variegated colors on the building materials. (Pietruczynik ,r 4 7). Pietruczynik discloses the embossing process is suitable for providing the finished product with various 5 Appeal2017-010711 Application 14/034, 168 finishes including brushed low gloss surface finishes that look like raised grain wood, rough hewn or split wood, or sanded, sealed and painted wood. Pietruczynik specifically states: Depending on the rollers or belts, fencing, and decking, products and accessories are typically embossed in either rough cedar, wood grain or smooth or brushed low gloss surface finishes that look like raised grain wood, rough hewn or split wood, or sanded, sealed and painted wood .... FIG. 3A discloses embossed surface texture 135, which comprises embossed surface texture elements or features, which are irregular in recessed depth, raised height and area pattern, to appear as randomly shaped surface texture elements or features occurring in respective natural materials. FIG. 3A illustrates an extruded and embossed product 60 in the absence of a capstock layer having an embossed surface texture 13 5 simulating an unpainted low gloss textured rough wood surface, produced by the embosser 30. FIG. 1 lA discloses similar surface texture 235, as well as, streaker grain color 237. FIG. 3B illustrates an extruded and embossed product 60' in the absence of a capstock layer having an embossed surface texture 135 simulating a low gloss textured wood grain pattern having raised and recessed wood grain striations that simulate unpainted or painted surfaces depending upon the color, such as, wood color or paint color thereof. (Pietruczynik ,r 52 ( emphasis added)). As set forth above, Luetgert and Pietruczynik establishes forming building materials having varied patterns -including ridges that are slightly raised above a principal planar surface, forming a textured surface having varied appearances- were known by persons of ordinary skill in the art. Accordingly, we are of the opinion that one of ordinary skill in this art, routinely following the combined teachings of the references as combined by the Examiner, would have reasonably arrived at molded articles that have molded features that simulate a textual and visual appearance of paintbrush strokes as required by claims 1, 30, and 34 without resort to Appellant's 6 Appeal2017-010711 Application 14/034, 168 Specification. See, e.g., KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) ("[ A ]nalysis [ of whether the subject matter of a claim would have been obvious] 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."); In re Translogic Tech. Inc., 504 F.3d 1249, 1260 (Fed. Cir. 2007) ("[A] flexible approach to the ... [teaching, suggestion, or motivation to combine] test prevents hindsight and focuses on evidence before the time of invention without unduly constraining the breadth of knowledge available to one of ordinary skill in the art during the obviousness analysis." (citations omitted)); In re Kahn, 441 F.3d 977, 985-88 (Fed. Cir. 2006); In re Keller, 642 F.2d 413,425 (CCPA 1981) ("[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art."); In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (skill is presumed on the part of one of ordinary skill in the art); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969) ("Having established that this knowledge was in the art, the examiner could then properly rely, as put forth by the solicitor, on a conclusion of obviousness 'from common knowledge and common sense of the person of ordinary skill in the art without any specific hint or suggestion in a particular reference.'"); see also In re O 'Farrell, 853 F.2d 894, 903---04 (Fed. Cir. 1988) ("For obviousness under§ 103, all that is required is a reasonable expectation of success." (citations omitted)). Pietruczynik discloses the techniques are suitable for providing molded articles having patterns that appear as randomly shaped surface texture elements. Pietruczynik discloses the resulting molded article can have the appearance of painted wood. As set forth above, randomly shaped 7 Appeal2017-010711 Application 14/034, 168 surface texture elements form the simulated textural and visual appearance of paintbrush strokes required by the claimed invention. Based on the teachings of the cited prior art, a person of ordinary skill in the art would have reasonably expected that the molding techniques described by both Luetgert and Pietruczynik would have been suitable for producing molded articles that have molded features that simulate a textual and visual appearance of paintbrush strokes. A person of ordinary skill in the art would have had sufficient skill, based on the teachings of Pietruczynik, to form molded articles incorporating ridges that are slightly raised above and below the principal planar surface to form striations resulting in a textured surface having varied appearances including those that simulate paintbrush strokes. (Pietruczynik ,r 41; Fig. 3B) Claims 2---8, 12, and 13 In arguing against the rejection of claims 2-8, 12, and 13, Appellant relies on the arguments presented with regard to independent claim 1. (App. Br. 24--31). Appellant additionally argues claims 2-8, 12, and 13 are patentable because of the integrated molded features specified by these claims. As set forth above, both Luetgert and Pietruczynik describe molding techniques which results in randomly shaped surface texture elements. Based on the teachings of the cited prior art a person of ordinary skill in the art would have reasonably expected that the molding techniques described by both Luetgert and Pietruczynik would have been suitable for producing 8 Appeal2017-010711 Application 14/034, 168 molded articles that have molded features that simulate a textual and visual appearances required by claims 2-8, 12, and 13. Claims 41 and 43 In arguing against the rejection of claims 40 and 41, Appellant relies on the arguments presented with regard to independent claims 30 and 34. (App. Br. 32). As stated above, the arguments presented against the rejection of independent claims 1, 30, and 34 were not found persuasive. Accordingly, for the reasons we stated above, we determine Appellant's arguments are not persuasive of reversible error. Claims 39, 40, and 42 In arguing against the rejection of claims 39, 40, and 42, Appellant argues "Pfau like Luetgert and Pietruczynik fails to teach integrated paintbrush strokes anywhere on the exterior surface, including in the ovalos." (App. Br. 33). The arguments regarding the integration of paintbrush strokes on an exterior surface were addressed above when discussing the rejection of independent claims 1, 30, and 34. The Examiner cited Pfau for teaching composite door structures with door facings having panels having ovalos integrated molded features. (Final Act 7-8). As set forth above, the Examiner cited Luetgert and Pietruczynik for describing molding techniques which results in randomly shaped surface texture elements. Based on the teachings of the cited prior art a person of ordinary skill in the art would have reasonably expected that the molding techniques described by both Luetgert and Pietruczynik would have been suitable for producing molded articles, including composite door structures, that have 9 Appeal2017-010711 Application 14/034, 168 molded features that simulate a textual and visual appearances required by claims 39, 40, and 42. Finally, we note Appellant has not directed us to evidence of unexpected results or other secondary considerations indicia. Accordingly, we sustain the Examiner's obviousness rejections of claims 1-8, 12, 13, and 26-43 for the reasons presented by the Examiner and given above. ORDER The Examiner's obviousness rejections 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)(l). AFFIRMED 10 Copy with citationCopy as parenthetical citation