Ex Parte Zhang et al

Patent Trial and Appeal Board

Aug 22, 2018

14248069 (P.T.A.B. Aug. 22, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/248,069 04/08/2014
29602 7590 08/24/2018
JOHNS MANVILLE
10100 WEST UTE A VENUE
PO BOX 625005
LITTLETON, CO 80162-5005
FIRST NAMED INVENTOR
Mingfu Zhang
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.
8277 6973
EXAMINER
IHEZIE, JOSHUA K
ART UNIT PAPER NUMBER
3633
NOTIFICATION DATE DELIVERY MODE
08/24/2018 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):
lavoie@jm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MINGFU ZHANG, THOMAS JOHN FELLINGER,
and DANIEL ELDEN NEAR
Appeal2017-010843
Application 14/248,069
Technology Center 3600
Before STEFAN STAICOVICI, LEE L. STEPINA, and
ARTHUR M. PESLAK, Administrative Patent Judges.
STAICOVICI, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Mingfu Zhang et al. ("Appellants") 1 appeal under 35 U.S.C. § 134(a)
from the Examiner's decision in the Final Office Action (dated Dec. 29,
2016, hereinafter "Final Act.") rejecting claims 1-24. We have jurisdiction
under 35 U.S.C. § 6(b ).
SUMMARY OF DECISION
We REVERSE.
1 According to Appellants' Appeal Brief ( dated Mar. 13, 2017, hereinafter
Appeal Br.) the real party in interest is Johns Manville. Appeal Br. 3.
Appeal2017-010843
Application 14/248,069
INVENTION
Appellants' invention relates to a system and method "for installing
loose-fill insulation within a cavity." Spec. para. 3.
Claims 1, 9, and 17 are independent. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A method of applying loose-fill insulation within a cavity
compnsmg:
providing a loose-fill insulation blowing apparatus having:
a hopper configured to house the loose-fill insulation
material, the loose-fill insulation material comprising fibers with
a diameter between 0.5 and 5 microns;
a shredder configured to break compressed loose-fill
insulation material into a plurality of insulation nodules;
a blower/air lock assembly configured to blow the loose-
fill insulation nodules into the cavity, the blower/air lock
assembly being positioned proximally to the shredder;
a hose member connected to the blower/air lock assembly;
and
a nozzle attached to a distal end of the hose member
through which the loose-fill insulation nodules are blown during
application of the loose-fill insulation material within the cavity;
blowing the loose-fill insulation nodules through the
nozzle and into the cavity via the blower/air lock assembly; and
applying a water mist to the loose-fill insulation nodules
as the insulation nodules are blown through the nozzle and into
the cavity so that a moisture content of the installed loose-fill
insulation is between about 2% and 20%, the applied water mist
aiding in retaining the loose-fill insulation nodules within the
cavity without requiring the use of an enclosure member that
encloses the cavity, the loose-fill insulation material being free
of an aqueous or powdered adhesive material that adheres the
loose-fill insulation nodules together within the cavity such that
the installed loose-fill insulation is free of an adhesive material.
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Appeal2017-010843
Application 14/248,069
REJECTIONS
I. Claims 1--4, 6, 7, 9--12, 14, 15, 17-19, 21, 22, and 24 are
rejected under 35 U.S.C. § I03(a) as being unpatentable over
Fellinger (US 7,520,935 B2, iss. Apr. 21, 2009, hereinafter
"Fellinger '935"), Fellinger (US 7,594,618 B2, iss. Sept. 29,
2009, hereinafter "Fellinger '618"), and Romes et al. (US
5,641,368, iss. June 24, 1997, hereinafter "Romes").
II. Claims 5, 13, and 20 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Fellinger '935, Fellinger '618, Romes, and
Hagen, Jr. et al. (US 2005/0055973 Al, pub. Mar. 17, 2005,
hereinafter "Hagen").
III. Claims 8, 16, and 23 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Fellinger '935, Fellinger '618, Romes, and
Schmidt et al. (US 2005/0014896 Al, pub. Jan. 20, 2005,
hereinafter "Schmidt").
DISCUSSION
Rejection I
Claim 1 recites, inter alia, "applying a water mist to the loose-fill
insulation nodules as the insulation nodules are blown through the nozzle
and into the cavity so that a moisture content of the installed loose-fill
insulation is between about 2% and 20%." Appeal Br. 15 (Claims App.).
Independent claims 9 and 17 include a similar limitation. See id. at 17, 18.
The Examiner finds that Fellinger '935 discloses most of the
limitations of the independent claims, including applying a water mist to
loose-fill insulation particles/nodules (see Fellinger '935, col. 6, 11. 33-35),
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Application 14/248,069
but relies on Fellinger '618 to disclose that the moisture content of the loose-
fill insulation is between about 2-20% (see Fellinger '618, col. 4, 11. 43--46,
col. 8, 11. 46-51, col. 10, 11. 4--5). Final Act. 3. The Examiner concludes that
it would have been obvious to a person of ordinary skill in the art to modify
Fellinger '935 so that a moisture content of the loose-fill insulation is
between about 2-20%, as taught by Fellinger '618, in order to "add adhesive
properties to the loose-fill insulation without making the loose-fill insulation
too watery since watery loose-fill insulation will not remain in the cavity or
stick to the walls of the cavity." Id.
Appellants argue that the references do not disclose "applying a water
mist to insulation nodules so that a moisture content of the loose-fill
insulation is between 2% and 20%." Appeal Br. 5; Reply Brief 3 (filed Aug.
14, 2017, hereinafter "Reply Br."). Appellants contend that Fellinger '618
applies water to "pils," which have a different structure than the nodules of
Fellinger '935. Appeal Br. 5; Reply Br. 2. Appellants explain that in
contrast to "nodules," which constitute "an unmodified piece of insulation,"
"pils" are "a structurally modified piece of insulation with fibers extending
from a body." Appeal Br. 7; Reply Br. 2. Thus, according to Appellants,
the skilled artisan would readily appreciate that the projecting fibers 28 that
extend from body 27 ofpils 26 of Fellinger '618 "facilitate physical[]
entanglement[s] with neighboring pils" such that it "enables Fellinger [']618
to spray insulation with a low moisture content." Appeal Br. 9; see also
Fellinger '618, Fig. 2. Appellants conclude that "there is no teaching within
the art that a lower moisture content [between 2% and 20%] would provide
sufficient adhesion between the nodules [of Fellinger '935] without the use
of a separate adhesive." Reply Br. 4.
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Appeal2017-010843
Application 14/248,069
In response, the Examiner takes the position that because "[p ]ils are
shredded nodules[,] ... they are also nodules." Examiner's Answer 2 (dated
June 14, 2017, hereinafter "Ans."). According to the Examiner, because
both pils and nodules are a product of shredded loose-fill insulation and
because both comprise fibers, they "are the same thing." Id.
Fellinger '618 discloses that "[ n ]odules are defined as very small
diameter of fibrous insulation of O .25 inch diameter and smaller," whereas
pils are "pieces whose bodies are about 0.2 inch and smaller with a majority
of pils having a diameter of less than about 0.15 inch and, typically a
majority of the pils having a diameter of less than about 0.13 inch or
smaller." Fellinger '618, col. 3, 11. 15-30. Fellinger '618 further discloses
that "shredder section 8 reduces the sizes of the clumps and nodules to pils
(piliform) size," with "projecting fibers 28 extending from the 'body' of the
pils." Id. at col. 5, 11. 55---64. Hence, although we appreciate that both
nodules and pils comprise fibers and are shredded, as the Examiner asserts,
nonetheless, it is not only the size of the pils that structurally distinguish
them over nodules, but rather it is also their projecting fibers that form
entanglements with adjoining pils for installing insulation. See id. at col. 3,
11. 34--37, col. 5, 11. 64---67; see also Appeal Br. 11.
We, thus, agree with Appellants that "[p ]ils and nodules ... have ...
different physical structures that provide distinct adhesion properties."
Reply Br. 3. As pils 26 of Fellinger '618 are structurally different from the
nodules of Fellinger '935 due to projecting fibers 28 that facilitate physical
entanglement with neighboring pils 26 to support adhesion of the loose-fill
insulation, the Examiner has not established adequately that the nodules of
Fellinger '935 having a moisture content of less than about 5 weight percent,
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Application 14/248,069
as taught by Fellinger '618, would adhere in the same manner as the pils of
Fellinger '618. In other words, although Fellinger '935 discloses applying a
water mist to loose-fill insulation nodules, the Examiner has not persuasively
shown that a person of ordinary skill in the art would recognize that its
nodules, which do not include projecting fibers, would exhibit the adhesive
properties of the pils of Fellinger '618 of being retained within a cavity
during installation, when having the recited moisture level of between about
2% and 20%. Therefore, the Examiner's rationale for the legal conclusion
of obviousness is not supported by sufficient factual evidence, and thus,
cannot stand. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967)
(holding that "[t]he legal conclusion of obviousness must be supported by
facts. Where the legal conclusion is not supported by facts it cannot stand").
The Examiner's use of the disclosure of Romes does not remedy the
deficiencies of the Examiner's combination of Fellinger '93 5 and Fellinger
'618. See Final Act. 3; Ans. 3.
In conclusion, for the reasons discussed above, we do not sustain the
rejectionofclaims 1--4,6, 7,9-12, 14, 15, 17-19,21,22,and24under35
U.S.C. § 103(a) as unpatentable over Fellinger '935, Fellinger '618, and
Romes. 2
2 Because we have determined that the Examiner's rejection is not supported
by sufficient factual evidence, we do not need to reach the evidence
presented in the joint declaration of Mingfu Zhang and Tom Fellinger, filed
under 37 C.F.R. § 1.132, on June 23, 2016.
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Appeal2017-010843
Application 14/248,069
Rejections II and III
Claims 5, 8, 13, 16, 20, and 23 depend directly or indirectly from
claims 1, 9, or 17. The Examiner's use of the Hagen and Schmidt
disclosures does not remedy the deficiency of the Examiner's rejection
based on Fellinger '935, Fellinger '618, and Romes discussed supra. See
Final Act. 7-8.
Accordingly, for the same reasons discussed above, we also do not
sustain the rejections under 35 U.S.C. § 103(a) of claims 5, 13, and 20 as
unpatentable over Fellinger '935, Fellinger '618, Romes, and Hagen, and of
claims 8, 16, and 23 as unpatentable over Fellinger '935, Fellinger '618,
Romes, and Schmidt.
DECISION
The Examiner's decision to reject claims 1-24 is reversed.
REVERSED
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