Ex Parte Yassin Alhamad

Board of Patent Appeals and Interferences

Mar 31, 2008

10758714 (B.P.A.I. Mar. 31, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte SHAIKH GHALEB MOHAMMAD YASSIN ALHAMAD
____________

Appeal 2008-0351
Application 10/758,714
Technology Center 1700
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Decided: March 31, 2008
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Before EDWARD C. KIMLIN, CHUNG K. PAK, and PETER F. KRATZ,
Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 13 through 16, and 31 through 35.
Claims 17 through 30 and 36 through 38, the other claims pending in the
above-identified application, stand withdrawn by the Examiner as being
directed to a nonelected invention. We have jurisdiction pursuant to
35 U.S.C. § 6.
We AFFIRM.
Appeal 2008-0351
Application 10/758,714

STATEMENT OF THE CASE
The subject matter on appeal is directed to “an expandable slit metal
foil which may be stretched into a three-dimensional metal net having
unique properties” (Spec. 3, l. 28 to 4, l. 1). “By substituting other materials
[such as cardboard or strong kraft paper] for the metal foil in producing an
expandable product, it is possible to use the product in a number of different
industries or applications, such as the packaging, insulation, or construction
industries or as decorative items” (Spec. 41, l. 29 to 42, l. 6). To the
expanded net, a mixture of melted tar and sand may be distributed or filled
(Spec. 43, ll. 11-24). Further details of the appealed subject matter are
recited in representative claims 13 and 31 reproduced below:
13. A construction material comprising:
a sheet of flexible material having a longitudinal
dimension and discontinuous slits in spaced-apart lines
parallel to each other and transverse to the longitudinal
dimension;
the sheet longitudinally expanded to form cells in the
sheet; and
a hardened mixture of sand and tar, coated with sand
particles, disposed in each of the cells.
31. A construction material comprising:
a sheet of flexible material having a thickness of
about 0.028 to 1.0 mm and discontinuous slits, separated by
gaps and each having a length, in parallel lines which are
spaced apart about 1 to 4 mm;
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the length of each of the slits being about 1 to 2.5
cm, and the gaps each having a length of about 2 to 6 mm;
the sheet expanded to form cells in the sheet; and
a hardened mixture of sand and tar disposed in each of
the cells.
The Examiner has relied upon the following references as evidence of
unpatentability of the claimed subject matter:
Kinney 312,864 Feb. 24, 1885
Stock 3,825,465 Jul. 23, 1974

The Examiner has rejected claims 13 through 16 and 31 through 35
under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of
Stock and Kinney.
The Appellant appeals from the Examiner’s decision rejecting the
claims on appeal under 35 U.S.C. § 103(a).

RELEVANT FACTUAL FINDINGS, PRINCIPLES OF LAW, ISSUES AND
ANALYSES
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the differences
between the claimed subject matter and the prior art; (3) the level of ordinary
skill in the art; and (4) secondary considerations. Graham v. John Deere Co.,
383 U.S. 1, 17-18 (1966). “[A]nalysis [of whether the subject matter of a
claim would have been obvious] need not seek out precise teachings directed
to the specific subject matter of the challenged claim, for a court can take
account of the inferences and creative steps that a person of ordinary skill in
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Application 10/758,714

the art would employ.” KSR Int’l Co., v. Teleflex, Inc., 127 S. Ct. 1727, 1740-
41 (2007) quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006); see also
DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co.,
464 F.3d 1356, 1361 (Fed. Cir. 2006) (“The motivation need not be found in
the references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the nature
of the problem itself.”); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969)
(“Having established that this knowledge was in the art, the examiner could
then properly rely, as put forth by the solicitor, on a conclusion of obviousness
‘from common knowledge and common sense of the person of ordinary skill
in the art without any specific hint or suggestion in a particular reference.’”);
In re Hoeschele, 406 F.2d 1403, 1406-407 (CCPA 1969) (“[I]t is proper to
take into account not only specific teachings of the references but also the
inferences which one skilled in the art would reasonably be expected to draw
therefrom . . . .”).
Here, we find that Stock teaches forming a three dimensional, open
mesh structure by expanding a sheet metal, paper or cardboard having slits in
a predetermined pattern and in desired spacing distance (col. 1, ll. 14-20 and
col. 2, ll. 25-46). We find that Stock teaches that this structure is well known
to be used in the construction industry (col. 1, ll. 46-47). We find that Stock
teaches this structure may be used with an optional reinforcement member and
may be filled with plastic materials, plaster or concrete to form a wall
structure (col. 3, ll. 70-75 and col. 4, ll. 27-48). Although Stock at Figure 1
illustrates a metal sheet having slits that run in the longitudinal direction, it
clearly teaches employing slits in any predetermined directions, inclusive of
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the claimed transverse direction, as indicated supra. Moreover, as correctly
found by the Examiner (Ans. 4), Kinney teaches employing a sheet metal
having slits in the transverse direction to form three dimensional, open mesh
structure fences or other structures (p. 1, l. 5 to p. 2., l. 3, p. 2, ll. 31-35, and
Figs. 1-4). We find that Kinney teaches that the stiffness and strength for a
given thickness could be affected by the arrangement of slits, e.g., the distance
and direction of slits (p. 2, ll. 3-31).
Given the above teachings, we concur with the Examiner that one of
ordinary skill in the art would have been led to provide a optimally thick
(claimed thickness) metal sheet having slits in any predetermined pattern,
including the claimed transversal directions, and spacing distance, based on
the desired application and/or desired stiffness and strength of the structure
involved, with a reasonable expectation of successfully forming a three
dimensional, open mesh structure useful for the construction industry. See
also In re Boesch, 617 F.2d 272, 276 (CCPA 1980)(“[D]iscovery of an
optimum value of a result effective variable… is ordinarily within the skill of
the art.”); In re Aller, 220 F.2d 454, 456 (CCPA 1955)(“[W]here the general
conditions of a claim are disclosed in the prior art, it is not inventive to
discover the optimum or workable ranges by routine experimentation.”) This
is especially true in this case since one of ordinary skill in art interested in
improving Stock’s structure would have looked to the structure taught by
Kinney because their structural similarities, their broad construction industry
purposes and the effect of slit arrangements in a metal sheet recognized by
Kinney. See, e.g., In re Bigio, 381 F.3d 1320, 1324-25 (Fed. Cir. 2004).
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The Appellant contends that one of ordinary skill in the art would not
have been led to include tar and sand in the apertures or cells in the three
dimensional, open mesh structure suggested by Stock alone, or in combination
with Kinney, in the claimed manner (Br. 7-14).
The dispositive question is, therefore, whether one of ordinary skill in
the art would have been led to include tar and sand in the apertures or cells in
the three dimensional, open mesh structure suggested by Stock alone, or in
combination with Kinney in the claimed manner. On this record, we answer
this question in the affirmative.
As correctly determined by the Examiner (Ans. 6):
The claim language only requires the tar and sand filler to be
"disposed” in the cells. It does not require that the cells be
entirely filled with only the tar and send composition. The
instant claim language also does not exclude the presence of
reinforcing members in the cells.

The Examiner also correctly finds at page 8 of the Answer that Stock teaches
coating both the inside and outside of the apertures or cells of its three
dimensional, open mesh structure with tar to impart a stiffness and filling the
resulting apertures or cells with concrete (col. 2, ll. 25-40 and col. 27 and 27-
35). The Appellant does not challenge the Examiner’s finding (official notice)
that the concrete is well known to contain sand. Compare Ans. 8, with Br. 7-
26. Thus, we concur with the Examiner that one of ordinary skill in the art
would have included at least some amounts of tar and sand in the cells or
apertures of the three dimensional, open mesh structure suggested by Stock
and Kinney.
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Application 10/758,714

Even were we to interpret the claims as requiring the filling of the
cells or apertures of the claimed three dimensional, open mesh structures in
their entirety with tar and sand, our conclusion would not be changed. We
find that Stock teaches a reinforcement member as an optional item; it need
not be placed in the cells or apertures of its three dimensional, open mesh
structure. Specifically, we find that Stock teaches (col. 3, ll. 70-74):
If desired, a reinforcement member can be placed in each of the
apertures, i.e., in each of the cells defined by the superimposed
array of apertures, or some of such cells can be void of any
reinforcement members.

We find that Stock teaches filling these apertures or cells with concrete as
indicated supra. We note that the Appellant does not challenge the
Examiner’s finding that “[a]sphalt, which comprises sand or other aggregate
in a tar or bitumen binder, is a well-known substitute for concrete in building
and road fabrication. Thus, we are constrained to agree with the Examiner
that one of ordinary skill in the art would have been led to fill at least some or
all apertures or cells of the three dimensional, open mesh structure suggested
by Stock and Kinney with asphalt (sand and tar) or concrete (sand and
inorganic cement binder) with a reasonable expectation of successfully
forming a structure useful for the building construction purposes.
In view of the forgoing, we determine that the preponderance of
evidence weighs most heavily in favor of obviousness within the meaning of
35 U.S.C. § 103(a).
ORDER
The decision of the Examiner is affirmed.

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Application 10/758,714

TIME PERIOD
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

cam

MICHAEL WINFIELD GOLTRY
4000 N. CENTRAL AVE., SUITE 1220
PHOENIX, AZ 85012

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