Ex Parte Stuhlbacher et al

Patent Trial and Appeal Board

Jan 13, 2015

11569669 (P.T.A.B. Jan. 13, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FRANZ STUHLBACHER and
MARKUS KRAICZAR
____________

Appeal 2013-001112
Application 11/569,669
Technology Center 3700
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Before JOHN C. KERINS, EDWARD A. BROWN, and
TIMOTHY J. GOODSON, Administrative Patent Judges

GOODSON, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Appellants Franz Stuhlbacher and Markus Kraiczar appeal under
35 U.S.C. § 134(a) from the rejection of claims 10–29. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER
The claims are directed to a fire retarding device for a storage tank.
Spec. 1. Claim 10 illustrates the subject matter on appeal and is reproduced
below:
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10. Device for delaying ignition of flames and reducing
burning temperature in open or roofed storage tanks for
combustible liquid media comprising:
a fixed tank for receiving the liquid media,
cover bodies made of rolled-up stretched material
containing a plurality of cavities, arranged in a lined-up
manner, and positioned and arranged for at least one of being
carried by the liquid and being coupled to a roofing located
over the liquid, and
a floating agent is contained within the cover bodies.

PRIOR ART
The Examiner relies on the following evidence:
Baum
Sandborn
Szego
Alhamad
US 3,687,329
US 4,213,280
US 4,249,669
US 5,794,707
Aug. 29, 1972
July 22, 1980
Feb. 10, 1981
Aug. 18, 1998

GROUNDS OF REJECTION
I. Claims 10, 12–14, 17–20, and 25–29 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Sandborn. Ans. 3.
II. Claims 10, 12, 14, and 17–20 stand rejected under 35 U.S.C.
§ 102(b) as being anticipated by Baum. Id. at 6.
III. Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of Sandborn. Id. at 7.
IV. Claims 15, 16, and 21–23 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable in view of Sandborn and Szego. Id. at 8.
V. Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable in view of Sandborn and Alhamad. Id. at 10.

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OPINION
Rejection I
The Examiner’s rejection of independent claim 10 is premised, in part,
on a finding that Sandborn discloses “cover bodies made of rolled-up
stretched material containing a plurality of cavities.” Ans. 3; Claims App’x
28. The Examiner finds that Sandborn’s modular units 10 or 20 correspond
to the recited cover bodies, and the envelope 32 corresponds to the claimed
cavities. Ans. 3 (citing Sandborn Fig. 2).
Appellants challenge the Examiner’s finding, arguing that Sandborn’s
modular units are not “made of rolled-up stretched material” as claimed.
App. Br. 10. In response, the Examiner explains that “the claim language as
written does not narrowly limit the cover bodies to being in a rolled-up
shape, but rather simply requires the cover bodies be made of a material
which has been, at some point, rolled-up and stretched.” Ans. 12. The
Examiner reasons that Sandborn’s modular units 10 satisfy this limitation
because they are “formed from a rolled-up metal as shown by elements 40
and 52 in Figure 8 which is then stretched by the press 44.” Id. at 11.
However, in Sandborn, there is no point at which the material from
which modular units 10 are made is both rolled-up and stretched. When the
metal 39 is in a roll, on roller 40, it has not yet been stretched by the press
44. See Sandborn, col. 3, ll. 11–18, Fig. 8. And when the metal 39 reaches
the press 44, it is no longer rolled up. Id. The material on roller 52 that
forms the other side 32b is not subjected to the pressing operation in press
44, and when sides 32a and 32b “are joined together by a pressure hot roller
58 or otherwise,” the material of 32b has already been drawn from the roller
52 and cut. Id. at col. 3, ll. 18–23, Fig. 8. Insofar as the Examiner interprets
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“rolled-up stretched material” as covering material that is rolled up at one
point in time and then stretched at a different time when the material is no
longer rolled up, the Examiner’s interpretation is unreasonably broad. A
reasonable interpretation of the limitation requires the material to be both
rolled up and stretched at the same time.
Because the preponderance of evidence does not support the
Examiner’s finding that Sandborn discloses “cover bodies made of rolled-up
stretched material,” we do not sustain the Examiner’s rejection of claim 10
as being anticipated by Sandborn. We also do not sustain the rejection of
dependent claims 12–14, 17–20, and 25–29.

Rejection II
In rejecting claim 10 as anticipated by Baum, the Examiner points to
Baum’s buoyant bodies 8 as corresponding to the recited “cover bodies.”
Ans. 8. Appellants argue that this rejection is improper because Baum, like
Sandborn, fails to disclose “cover bodies made of rolled-up stretched
material containing a plurality of cavities.” App. Br. 16. According to
Appellants, Baum’s buoyant bodies 8 are formed by blow molding from
plastic material. Id. The Examiner agrees that Baum’s bodies 8 “are made
by blow-molding plastic.” Ans. 12; see also Baum, col. 2, ll. 35–37, col. 4,
ll. 3–5. However, the Examiner “maintains that the material of [Baum’s
buoyant bodies] 8 is considered ‘rolled-up’ because of its round shape.”
Ans. 12.
The Examiner’s interpretation of “rolled-up” as including any material
having a round shape is not reasonable. While we do not find any express
definition of rolled-up material in the Specification, the plain meaning of
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“rolled-up . . . material” is material that is rolled up. Indeed, this is the
meaning the Examiner imparted to this limitation in Rejection I discussed
above, in which he stated that the limitation “simply requires the cover
bodies be made of a material which has been, at some point, rolled-up and
stretched.” Id. The Examiner does not identify any material in Baum that
has been rolled up. Rather, it is undisputed that Baum’s bodies 8 are formed
by blow-molding plastic.
Accordingly, we do not sustain the rejection of claim 10 as being
anticipated by Baum. We also do not sustain the rejection of dependent
claims 12, 14, and 17–20.

Rejections III–V
The obviousness rejections of dependent claims 11, 15, 16, and 21–24
all rely on Sandborn as disclosing the subject matter of independent claim
10. Ans. 8–11. Niether the Examiner’s use of Szego for Rejection III nor
Alhamad for Rejection IV remedies the deficiency of Sandborn discussed
above with respect to Rejection I. Accordingly, we do not sustain the
rejections of claims 11, 15, 16, and 21–24.

DECISION
We REVERSE the Examiner’s rejections of claims 10–29.

REVERSED

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