Ex Parte Wheatley

Patent Trial and Appeal Board

Jun 13, 2016

13681661 (P.T.A.B. Jun. 13, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/681,661 11120/2012
27572 7590 06/15/2016
HARNESS, DICKEY & PIERCE, P.L.C.
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
FIRST NAMED INVENTOR
Donald E. WHEATLEY
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.
8454-000034/US 5307
EXAMINER
NGUYEN, CHI Q
ART UNIT PAPER NUMBER
3635
NOTIFICATION DATE DELIVERY MODE
06/15/2016 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):
troymailroom@hdp.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DONALD E. WHEATLEY
Appeal2014-006557 1
Application 13/681,661 2
Technology Center 3600
Before BART A. GERSTENBLITH, PHILIP J. HOFFMANN, and
MATTHEWS. MEYERS, Administrative Patent Judges.
MEYERS, Administrative Patent Judge.
DECISION ON APPEAL
STATEivIENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's
Final rejection of claims 1-15. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 Our decision references Appellant's Appeal Brief ("Appeal Br.," filed
February 11, 2014) and Reply Brief ("Reply Br.," filed May 13, 2014), the
Examiner's Answer ("Ans.," mailed April 21, 2014), and the Final Office
Action ("Final Act.," mailed September 17, 2013).
2 Appellant identifies Donald E. Wheatley as the real party in interest
(Appeal Br. 2).
Appeal2014-006557
Application 13/681,661
CLAIMED INVENTION
Appellant's claimed invention relates generally "to a system and
method of concrete crack repair" (Spec. i-f 1 ).
Claim 1, reproduced below with brackets added, is illustrative of the
subject matter on appeal:
1. A method of repairing a crack in a concrete structure,
compnsmg:
[a] securing a plurality of ports at spaced intervals in
communication with the crack;
[b] adhering a carbon fiber panel to the concrete structure
overtop of the crack using an adhesive; and
[ c] injecting epoxy into each of said plurality of ports to
fill the crack.
REJECTION
Claims 1-15 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Trout et al. (US 4,509,884, iss. Apr. 9, 1985, hereinafter "Trout") and
Isley, Jr. et al. (US 5,649,398, iss. July 22, 1997, hereinafter "Isley"). Final
Act. 2.
ANALYSIS
Independent claim 1 and dependent claims 2-9
We are persuaded by Appellant's argument that the Examiner erred in
rejecting independent claim 1under35 U.S.C. § 103(a) because "[t]he office
action incorrectly asserts that [Isley] disclose[ s] a method of repairing a
crack which includes a plurality of ports 50 and a step of adhering a carbon
fiber panel 12 over top of a crack" (Appeal Br. 8); see also Reply Br. 4
(citing Ans. 2)).
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Appeal2014-006557
Application 13/681,661
In this regard, we note that Isley is directed to a method "for
reinforcing the face or faces of walls so as to prevent or reduce the
likelihood of failure when such walls are subjected to atypical loadings such
as are encountered during earthquakes" (Isley, col. 2, 11. 6-10). Isley
discloses that its "invention is based upon the discovery that the resistance of
walls to structural failure can be increased by applying at least one fabric
layer impregnated with resin over the exposed face or faces of such walls"
(id. at col. 2, 11. 11-14). Isley further discloses "[fJor concrete slab walls,
brick walls and other walls wherein the exposed face of the wall comprises a
portion of the wall structural member, as a feature of the present invention,
the composite reinforcement layer is anchored to the wall using an adhesive
resin or other adhesive product" (id. at col. 2, 11. 37--41).
Isley discloses "drilling holes through facia 44 and into the structural
member 42 so as to define anchor receiving cavities 52 ... with sufficient
depth to receive and hold fabric fasteners 50" (id. at col. 4, 11. 49-53). Isley
further discloses that "[a]fter cavities 52 are formed, fabric fasteners 50 are
partially inserted into cavities 52 so as to seat anchored portions 56 within
cavities 52 against structural member 42. The anchored portions 56 are
preferably impregnated with an adhesive resin or other adhesive product"
(id. at col. 5, 11. 6-10). Isley also discloses "impregnat[ing] the fabric layers
with resin prior to application to face 46 of the wall 40" (id. at col. 5, 1. 66 -
col. 6, 1. 1 ).
However, as Appellant points out, Isley "relates to reinforcing wall
structures with fabric for resisting earthquake damage" (Reply Br. 4--5), but
fails to provide any "disclosure of covering, repairing or injecting epoxy into
a crack" (id. at 5; see also Appeal Br. 7) in contrast to the Examiner's
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Appeal2014-006557
Application 13/681,661
finding (see Final Act. 3; see also Ans. 2). We further note that the
Examiner does not respond to Appellant's argument concerning this issue.
We also note that Trout is directed to "a nozzle for injecting epoxies
or polyester resins into cracks in concrete" (Trout, col. 2, 11. 35-36), and
discloses that its "nozzle may be inserted into a hole 18 which has been
drilled in the concrete 20," wherein "the epoxy or resin is pumped into the
cracked material" (id. at col. 3, 11. 45-57). But, the addition of Trout does
not cure the error identified by Appellant.
In view of the foregoing, we do not sustain the Examiner's rejection
of independent claim 1under35 U.S.C. § 103(a). For the same reasons, we
also do not sustain the Examiner's rejection of dependent claims 2-9.
Independent claim 10 and dependent claims 11-15
Independent claim 10 includes a limitation substantially similar to
independent claim 1 's limitation discussed above. Therefore, we do not
sustain the Examiner's rejection under 35 U.S.C. § 103(a) of independent
claim 10, and claims 11-15 that depend therefrom, for the same reasons set
forth above with respect to independent claim 1.
DECISION
The Examiner's rejection of claims 1-15 under 35 U.S.C. § 103(a) is
reversed.
REVERSED
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