Ex Parte Wallick et al

Patent Trial and Appeal Board

Mar 7, 2017

13308691 (P.T.A.B. Mar. 7, 2017)

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.
13/308,691 12/01/2011 Bennett E. WAT,TICK 1109-00-US-01-AFP 1005
138961 7590
Armstrong Flooring, Inc.
2500 Columbia Avenue
P.O. Box 3025
Lancaster, PA 17604
03/09/2017 EXAMINER
KENNEDY, TIMOTHY J
ART UNIT PAPER NUMBER
1743
NOTIFICATION DATE DELIVERY MODE
03/09/2017 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):
afp_patents @ armstrongflooring.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENNETT E. WALLICK and RANDY A. FRIEDEL1
Appeal 2016-004211
Application 13/308,691
Technology Center 1700
Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN, and DEBRA
L. DENNETT, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1, 4—11, 13, 14, 16, and 21—25. We have
jurisdiction under 35 U.S.C. § 6.
We REVERSE.
1 Armstrong World Industries, Inc. is identified as the real party in interest.
Br. 2.
Appeal 2016-004211
Application 13/308,691
Appellants claim a process for forming a product (e.g., a
thermoplastic flooring product such as vinyl tile) comprising feeding a
mixed composition between front and back calendaring rolls (see 122 and
120 respectively in Fig. 2) to form a product having an elongated pattern,
wherein the back roll rotates faster than the front roll (independent claim
23), or wherein the front roll is hotter than the back roll (independent claim
25), or wherein both the back roll rotates faster and the front roll is hotter
(remaining independent claim 1). In certain embodiments, the mixed
composition sticks to the back roll thereby causing the composition to be
smeared by the front roll to create the elongated pattern (claims 1 and 25).
A copy of representative claims 1, 23, and 25, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A process for forming a product, the process comprising:
a) mixing colored particles into a mixed composition;
b) rotating an agitator to obtain a substantially uniform
distribution of the colored particles in the mixed composition;
c) feeding the mixed composition between calendering
rolls, the calendering rolls including a front calendering roll
which is hotter than a back calendering roll and the
back calendering roll rotating at a faster speed than the front
calendering roll, the front calendering roll having a first axis of
rotation and the back calendering roll having a second axis of
rotation;
d) forming a product along a machine direction, the
product having an elongated pattern, wherein the first axis of
rotation is located downstream of the second axis of rotation in
the machine direction
wherein the mixed composition sticks to the back
calendering roll during step c), thereby causing the mixed
composition to be smeared by the front calendering roll to
create the elongated pattern that exists on the product formed in
step d).
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Appeal 2016-004211
Application 13/308,691
23. A process for forming a product, the process comprising:
mixing colored particles and micro-fibers into a mixed
composition;
feeding the mixed composition between calendering rolls
including a front calendering roll and a back calendering roll,
the front calendering roll having a first axis of rotation and
the back calendering roll having a second axis of rotation, the
back calendering roll rotating at a faster speed than the front
calendering roll; and
forming a product along a machine direction, the product
having an elongated pattern, wherein the first axis of rotation is
located downstream of the second axis of rotation in
the machine direction.
25. A process for forming a product, the process comprising:
a) mixing colored particles into a mixed composition;
b) feeding the mixed composition between calendering
rolls, the calendering rolls including a first calendering roll and
a second calendering roll, the front calendering roll having
a first axis of rotation and the back calendering roll having a
second axis of rotation;
c) forming a product along a machine direction, the
product having an elongated pattern;
wherein the first axis of rotation is located downstream of
the second axis of rotation in the machine direction, wherein the
front calendering roll is hotter than the back calendering
roll, and wherein the mixed composition sticks to the back
calendering roll during step b), thereby causing the mixed
composition to be smeared by the front calendering roll to
create the elongated pattern that exists on the product formed in
step c).
Under 35 U.S.C. § 103(a), the Examiner rejects as unpatentable:
claims 1, 4—6, 16, and 25 over Benedict et al. (US 2,694,831, issued
Nov. 23, 1954) in view of Harp (US 3,320,639, issued May 23, 1967) and
Balmer et al. (US 2003/0077431 Al, published April. 24, 2003) (Final
Action 3—6);
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Appeal 2016-004211
Application 13/308,691
claims 7—9 over Benedict, Harp, and Balmer in combination with
Salhofer (US 3,429,959, issued Feb. 25, 1969) {id. at 6—7);
claims 10, 11, 13, and 14 over Benedict, Harp, and Balmer in
combination with Conklin (US 2,319,040, issued May 11, 1943) {id. at 7—8);
and
claims 21—24 over Benedict, Harp, and Balmer in combination with
Clark et al. (US 5,510,398, issued April 23, 1996 ) {id. at 8—9).
In rejecting independent claims 1, 23, and 25, the Examiner finds that
Benedict teaches a process of forming linoleum products by feeding a mixed
composition between front calendaring roll 16 and back calendaring roll 18
{id. at 3; see also id. at 5—6 and 9). The Examiner additionally finds that
“Benedict allows for rolls 16 and 18 to be at any relative temperature or
speed (column 2, lines 75-78), thus the roll 18 can be faster than the roll 16,
and roll 18 can be hotter [sic, colder] than the roll 16” {id. at 3).
Appellants dispute the Examiner’s additional finding by arguing that
the cited column 2 disclosure of Benedict in no way teaches that the rolls 16,
18 may be at any relative temperature or speed (Br. 7—8).
The Examiner responds by emphasizing Benedict’s use of the word
“may” (i.e., “roll 16 may be cooled . . . and roll 16 may rotate slightly faster”
(Benedict col. 2,11. 77—78)) and by contending “in the instance of Benedict,
there are many possibilities, it just happens to be that Benedict explicitly
mentioned only one of those possibilities” (Ans. 9—10).
The common deficiency in rejecting the independent claims is
highlighted by the Examiner’s above acknowledgment that “Benedict
explicitly mentioned only one . . . possibility]” {id.), namely, the expressly
disclosed embodiment wherein front roll 16 is cooled and rotated faster
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Appeal 2016-004211
Application 13/308,691
relative to back roll 18 which is opposite to the independent claim
embodiments. Whether Benedict’s column 2 disclosure would have
suggested these claim embodiments is not before us in this appeal for the
Examiner has not expressed an obviousness conclusion on this matter.
Instead, the Examiner’s rejection of the independent claims is based on the
finding that “Benedict allows for rolls 16 and 18 to be at any relative
temperature or speed (column 2, lines 75-78), thus the roll 18 can be faster
than the roll 16 and the roll 18 can be hotter [sic, colder] than the roll 16”
(Final Action 3). This finding is erroneous because no such an embodiment
is explicitly disclosed by Benedict.
For these reasons, we do not sustain the § 103 rejections advanced in
this appeal.
The decision of the Examiner is reversed.
REVERSED
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