Ex Parte Weiter

Patent Trial and Appeal Board

Nov 17, 2015

12506790 (P.T.A.B. Nov. 17, 2015)

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.
12/506,790 07/21/2009 Bertrand Weiter 7767 4727
29602 7590 11/18/2015
JOHNS MANVILLE
10100 WEST UTE AVENUE
PO BOX 625005
LITTLETON, CO 80162-5005
EXAMINER
PIERCE, JEREMY R
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
11/18/2015 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BERTRAND WEITER
____________

Appeal 2014-001050
Application 12/506,790
Technology Center 1700
____________
Before PETER F. KRATZ, GEORGE C. BEST, and
WESLEY B. DERRICK, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1‒13 and 26‒31 of Application
12/506,790 under 35 U.S.C. § 102(b) as anticipated and/or under 35 U.S.C.
§ 103(a) as obvious. Final Act. (May 1, 2013). Appellant1 seeks reversal of
these rejections pursuant to 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.

1 Johns Manville is identified as the real party in interest. App. Br. 2.
Appeal 2014-001050
Application 12/506,790
2
BACKGROUND
The ’790 Application describes a base interlining for use in a
membrane roofing system. Spec. 1. Methods for making the base
interlining also are described. Id.
Claim 1 is representative of the ’790 Application’s claims and is
reproduced below:
1. A base interlining comprising a textile fabric, wherein the
textile fabric has:
a) a weight per unit area of between 20 to 500 g/m2;
b) an air permeability of between 250 and 1000 l/m2
sec, measured according to EN-ISO 9237;
c) a thermal dimensional stability of up to 0.9% in a
longitudinal direction and up to 0.75% in a
transverse direction, measured according to DIN
18192;
d) a maximum tensile force lengthwise/crosswise of
>500/>300 N/5 cm, measured according to DIN
29073, part 3; and
e) a perforation resistance of >1200 N, measured
according to DIN 54 307.
App. Br. 11 (Claims App’x).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1‒10, 12, 13, 26‒29, and 31 are rejected under 35 U.S.C.
§ 102(b) as anticipated by or, in the alternative, under 35 U.S.C.
§ 103(a) as unpatentable over Baravian.2 Final Act. 3.

2 US 5,118,550, issued June 2, 1992.
Appeal 2014-001050
Application 12/506,790
3
2. Claim 11 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Baravian and Ikeda.3 Final Act. 5.
3. Claim 30 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Baravian and Groh.4 Final Act. 6.
DISCUSSION
On appeal, Appellant presents a single argument for reversal of all
three rejections maintained by the Examiner. See App. Br. 4‒8. We affirm
these rejections based upon the factual findings and reasoning set forth in the
Final Action and the Examiner’s Answer, which we adopt. We add the
following for emphasis.
The Examiner found that Baravian describes production of a base
interlining comprising a textile by substantially the same process as used by
Appellant. Final Act. 3‒4. It has long been the law that under such
circumstances, the Examiner can assume that the product produced by a
process that is substantially identical to the process used to produce the
claimed product inherently has the same properties as the claimed product.
In re King, 801 F.2d 1324, 1327 (Fed. Cir. 1986); In re Best, 562 F.2d 1252,
1256 (CCPA 1977). The burden then shifts to the applicant to produce
evidence that the prior art does not possess the allegedly inherent
characteristic. King, 810 F.2d at 1327.
In this case, Appellant argues that the Examiner erred by finding that
Baravian describes a substantially identical process to that disclosed in the
Specification. In particular, Appellant argues that the difference in the

3 US 4,950,529, issued August 21, 1990.
4 US 6,114,262, issued September 5, 2000.
Appeal 2014-001050
Application 12/506,790
4
pressure applied to the reinforced textile during the calendering process is a
substantial difference between their process and that described in Baravian.
App. Br. 4‒5. Appellant, however, presents no data to support this assertion.
Baravian describes a process that results in a textile that has the
claimed weight per unit area. Baravian col. 4, ll. 43‒50. Furthermore,
Appellant does not challenge the Examiner’s calculations showing that
Baravian’s textile also has approximately the same density as Appellant’s
textile. See Ans. 7.
In view of these uncontested findings, Appellant’s attorney argument
is insufficient to demonstrate error in the Examiner’s finding that Baravian
describes a process that is substantially identical to that described in the ’790
Application’s Specification.
CONCLUSION
For the reasons provided in the Final Action, the Examiner’s Answer,
and above, we affirm the rejections of claims 1‒13 and 26‒31 of the ’790
Application.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

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