Ex Parte Tibor et al

Patent Trials and Appeals Board

May 13, 2019

14111052 - (D) (P.T.A.B. May. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/111,052 10/10/2013
104330 7590 05/15/2019
Dority & Manning, P.A. and Ticona LLC
Post Office Box 1449
Greenville, SC 29602
FIRST NAMED INVENTOR
Timothy L. Tibor
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.
CICT-82-PCT-US
2011P0051
CONFIRMATION NO.
9225
EXAMINER
CAPOZZI, CHARLES
ART UNIT PAPER NUMBER
1717
NOTIFICATION DATE DELIVERY MODE
05/15/2019 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):
usdocketing@dority-manning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY L. TIBOR, TIMOTHY A. REGAN,
AARON H. JOHNSON, and DAVID W. EASTEP
Appeal2018-006094
Application 14/111,052
Technology Center 1700
Before LINDA M. GAUDETTE, JAMES C. HOUSEL, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-006094
Application 14/111,052
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from a rejection2 of
claims 1, 5 and 13-1 7, which constitute all the claims pending in this
application. Claims 2--4, 6-12, and 19 have been cancelled. Claims 18 and
20 have been withdrawn. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
CLAIMED SUBJECT MATTER
The claims are "directed to an impregnation section of a die and a
method for impregnating fiber rovings with a polymer resin." Spec. ,r 33. 3
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. An impregnation section of a die for impregnating a
plurality of fiber rovings with a polymer resin, the impregnation
section comprising:
an impregnation zone configured to impregnate the
plurality of rovings with the resin, the impregnation zone
comprising a plurality of contact surfaces, each of the plurality
of contact surfaces being a curved lobe, wherein all of the
plurality of contact surfaces within the entire impregnation zone
form a sinusoidal pathway and are configured such that the
plurality of rovings traverse all of the plurality of contact
surfaces at an angle in the range between 1 degree and 30
degrees; and
a gate passage in fluid communication with the
impregnation zone for flowing the resin downward
therethrough such that the resin impinges on a surface of each
1 The real party in interest is identified as "Ticona LLC." Appeal Brief of
December 18, 2017 ("Br."), 1.
2 Final Office Action of July 25, 2017 ("Final Act."). In this opinion, we also
refer to the Examiner's Answer of March 28, 2018 ("Ans.") and the Reply
Brief of May 25, 2018 ("Reply Br.").
3 Application No. 14/111,052 filed October 10, 2013 ("Spec.").
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Appeal2018-006094
Application 14/111,052
of the plurality of rovings facing the gate passage and
substantially uniformly coats the plurality of rovings, the entire
gate passage extending vertically to the impregnation zone,
having a decreasing cross-sectional profile in a flow direction
of the resin, and positioned upstream in a nm direction of the
plurality of rovings of any contact surfaces of the impregnation
zone.
Claims Appendix (Br. 8).
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Glemet et al. ("Glemet")
Ekkehard
Tam et al. ("Tam")
Yano
us 4,883,625
EP 0712716
US 6,669,993 B2
US 2007 /0227646 Al
REJECTIONS
Nov. 28, 1989
May 22, 1996
Dec. 30, 2003
Oct. 4, 2007
Claims 1, 5, 15, 16, and 17 are rejected under pre-AIA 35 U.S.C. §
I03(a) as being unpatentable over Glemet in view ofYano and Ekkehard.
Final Act. 3.
Claims 13 and 14 are rejected under pre-AIA 35 U.S.C. § I03(a) as
being unpatentable over Glemet in view of Yano, Ekkehard and Tam. Final
Act. 6.
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence
produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
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Application 14/111,052
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to
identify the alleged error in the examiner's rejections.")). After having
considered the evidence presented in this Appeal and each of Appellants'
contentions, we are not persuaded that Appellants identify reversible error,
and we affirm the Examiner's § 103 rejections for the reasons expressed in
the Final Office Action and the Answer. We add the following primarily for
emphasis.
Rejection of Claim 1 4
The Specification provides that the recited apparatus includes an
impregnation zone which is used to impregnate fiber rovings with a polymer
resin. Spec. ,r 33. The impregnation zone "is defined between two spaced
apart opposing plates" and includes a plurality of contact surfaces. Id. ,r,r 60,
61. Rovings are traversed over these contact surfaces and the impingement
of the rovings on the surfaces "creates shear and pressure sufficient to
impregnate" the rovings with resin. Id. ,r 60.
The Examiner finds that Glemet describes an apparatus to
manufacture thermoplastic resin reinforced fibers which includes an
impregnation zone 3. Final Act. 3 (citing Glemet 4:5-23, Figs 1, 3 & 4). The
prior art impregnation zone 3 includes baffles which "are arranged so that
opposite surfaces of the coated ... strip of roving alternately contact the
baffles to force the coating into and through the roving." Glemet 3:40-49.
Appellants argue that the Examiner erred in rejecting claim 1 because
the references do not teach or suggest "an impregnation zone" as recited.
4 Because Appellants do not argue claims 5 and 13-17 separately, they stand
or fall with claim 1. Br. 3---6; see also 37 C.F.R. § 4I.37(c)(l)(iv).
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Application 14/111,052
Appellants argue that "the impingement required by the gate passage of
independent claim 1 provides initial impregnation of the fibers with resin
before traversal through the impregnation zone, thus facilitating improved
overall impregnation" which is not taught by the "coating zone" described in
Glemet. Br. 4 (arguing that coating has a different meaning from
impregnation); Reply Br. 2 (arguing the same).
Appellants' argument does not identify reversible error in the
Examiner's finding because the argument does not structurally distinguish
the recited "impregnation zone." "[T]he patentability of apparatus or
composition claims depends on the claimed structure, not on the use or
purpose of that structure." Catalina Mktg. Int'!, Inc. v. Coolsavings.com,
Inc., 289 F.3d 801, 809 (Fed. Cir. 2002). Appellants' argument, directed
solely to the "coating zone" in Glemet also does not address the Examiner's
factual findings in support of the rejection-in particular, the finding that it is
the impregnation zone 3 in Glemet that teaches or suggest the limitation at
issue. Br. 4 (arguing based on Glemet 3:32-35); see Final Act. 3 (citing
Glemet 4:5-23, Figs 1, 3 & 4); see also Glemet 3:36-61 (describing
impregnation zone 3 and the resulting impregnated fibers).
Appellants next argue that Ekkehard does not teach or suggest an
"entire gate passage extending vertically to the impregnation zone" as
recited in claim 1. Br. 4. Appellants do not dispute the Examiner's finding
that Ekkehard teaches a vertical gate passage that regulates the uniformity of
the distribution of the resin. Compare Br. 5, with Final Act 4--5; compare
Reply Br. 5---6, with Ans. 14. Appellants, however, argue that contrary to the
passage in Ekkehard, the vertical orientation as recited results in more than
"mere coating" of the resin. Br. 5. Appellants' argument does not
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Application 14/111,052
structurally distinguish the prior art passage gate and is therefore not
persuasive of reversible error. Appellants' argument that Glemet modified
by Ekkehard would be "undesirable" is not supported by factual evidence
and the purported undesirability does not identify reversible error in the
Examiner's rationale to combine the references. Compare Br. 5-6, with
Final Act. 4 (stating that given Ekkehard's teaching of using the gate
passage to regulate the distribution of resin in an apparatus for fiber
impregnation, a skilled artisan would have combined Ekkehard with Glemet
to arrive at the apparatus of claim 1 ).
We further note that Appellants acknowledge the Specification
provides that the gate passage "may extend at any suitable angle between
vertical and horizontal such that resin 214 is allowed to flow through." Spec.
,r 56; see Br. 6. The Examiner's finding that the function performed by the
gate passage is not dependent on the recited vertical configuration and a
skilled artisan would have known how to arrange the gate (Final Act. 5; Ans.
15-16) is therefore supported by Appellants' own Specification. Changes
that do not alter function are ordinarily obvious variations. See In re Rice,
341 F .2d 309 (CCP A 1965) (holding that the Examiner properly found that
claimed dimensional relationship between collection chamber and walls of
main air chamber "does not produce any different effect or result"); Gardner
v. TEC Sys., Inc., 725 F.2d 1338 (Fed. Cir. 1984) (holding that where the
only difference between the prior art and the claims was a recitation of
relative dimensions of the claimed device and a device having the claimed
relative dimensions would not perform differently than the prior art device,
the claimed device was not patentably distinct from the prior art device); In
re Rose, 220 F.2d 459,463 (CCPA 1955) (stating that "the size of the article
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Application 14/111,052
under consideration ... is not ordinarily a matter of invention"); In re
Rinehart, 531 F.2d 1048, 1053 (CCPA 1976) (holding that mere scaling up
of a prior art process capable of being scaled up, if such were the case,
would not establish patentability in a claim to an old process so scaled).
DECISION
The Examiner's decision 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). See 37 C.F.R.
§ 1.136(a)(l )(iv).
AFFIRMED
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