LEICHTBAU-ZENTRUM SACHSEN GMBHDownload PDFPatent Trials and Appeals BoardMay 29, 20202019005037 (P.T.A.B. May. 29, 2020) Copy Citation 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. 14/362,694 06/04/2014 Martin Lepper 6560-P50139 8815 13897 7590 05/29/2020 Abel Schillinger, LLP 5929 Balcones Drive Suite 300 Austin, TX 78731 EXAMINER TUCKER, PHILIP C ART UNIT PAPER NUMBER 1745 NOTIFICATION DATE DELIVERY MODE 05/29/2020 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): hmuensterer@abel-ip.com mail@Abel-IP.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARTIN LEPPER, WERNER HUFFENBACH, ENRICO LADUSCH, JENS WERNER, and ANDRE KIESSLING ____________ Appeal 2019-005037 Application 14/362,694 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, MONTÉ T. SQUIRE, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. § 134(a) of the Examiner’s decision to finally reject claims 26–34, 39–44, 46, 48, and 50–52.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We AFFIRM IN PART. 1 We use the word “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies LEICHTBAU-ZENTRUM SACHSEN GMBH as the real party in interest. Appeal Brief filed January 31, 2019 (“Appeal Br.”) at 3. 2 Final Office Action entered September 4, 2018 (“Final Act.”) at 1. Appeal 2019-005037 Application 14/362,694 2 CLAIMED SUBJECT MATTER Claim 26 illustrates the subject matter on appeal, and reads as follows: 26. A process for the production of a connecting arrangement of a fiber composite component comprising a mesh reinforcement with a second component, the second component comprising at least one flat section having one or more cut-outs which pass through the flat section and the at least one flat section being arranged between at least two sublayers of the fiber composite component, at least one of the at least two sublayers with a layer thickness SF comprising one or more embossments which have an essentially unchanged layer thickness SF and being molded into the one or more cut-outs, wherein the process comprises: - positioning the at least one flat section of the second component between at least two sublayers of a pre-form of the fiber composite component, so that - the at least two sublayers lie flat against the at least one flat section of the second component, at least one of the at least two sublayers being in direct contact with the at least one flat section of the second component, - at least one of the at least two sublayers covering and overlapping the one or more cut-outs passing through the at least one flat section of the second component, - subsequently shaping in at least one of the at least two sublayers having a layer thickness SF one or more embossments with an essentially unchanged layer thickness SF, which embossments are molded into the one or more cut-outs by a molding tool to form a form-fit connection between the pre- form of the fiber composite component and the second component, and - consolidating the pre-form of the fiber composite component at least in part only after removal from the mold of a joined-together connecting arrangement. Appeal Br. 29 (Claims Appendix) (emphasis added). Appeal 2019-005037 Application 14/362,694 3 REJECTIONS The Examiner maintains the following rejections in the Examiner’s Answer entered April 16, 2019 (“Ans.”): I. Claims 26–28, 30, 31, 33, 34, 41–44, 46, and 50 under 35 U.S.C. § 103(a) as unpatentable over Drysdale (US 4,891,179; issued January 2, 1990) in view of Rocher (FR 2783195 A1; published March 17, 2000) and Lowe (US 2004/0119188 A1; published June 24, 2004); II. Claims 29, 39, and 40 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Fuchs (US 2009/0278371 A1; published November 12, 2009); III. Claim 32 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Cattanach (US 4,613,393; issued September 23, 1986); IV. Claim 48 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Sekido (US 2004/0130072 A1; published July 8, 2004); V. Claim 51 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Sekido; and VI. Claim 52 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Flemming (DE 1022799; published May18, 1999). FACTUAL FINDINGS AND ANALYSIS Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejections of claims 26–34, 39, 40, 42, 46, 48, and 50–52 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below, and reverse the Appeal 2019-005037 Application 14/362,694 4 Examiner’s rejection of claims 41, 43, and 44 under 35 U.S.C. § 103(a) for the reasons set forth in the Appeal Brief and below. We review appealed rejections for reversible error based on the arguments and evidence Appellant provides for each issue that Appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections”)). Rejection I We first address the Examiner’s rejection of claims 26–28, 30, 31, 33, 34, 41–44, 46, and 50 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher and Lowe. Appellant presents arguments directed to independent claim 26, and separately argues claims 41, 43, and 44, which each depend from claim 26. Appeal Br. 10–20. Although Appellant also separately argues independent claim 46, Appellant’s arguments for claim 46 are the same as arguments Appellant presents for claim 26. Appeal Br. 20–21. We, therefore, address claims 41, 43, and 44 separately, and select claim 26 as representative of the remaining claims subject to this rejection, which stand or fall with claim 26. 37 C.F.R. § 41.37(c)(1)(iv). Claims 26–28, 30, 31, 33, 34, 42, 46, and 50 Claim 26 recites a process for producing a connecting arrangement of a fiber composite component comprising, in part, positioning at least one flat section of a second component having one or more cut-outs between at least Appeal 2019-005037 Application 14/362,694 5 two sublayers of a pre-form of the fiber composite component comprising a mesh reinforcement, subsequently shaping in at least one of the two sublayers one or more embossments molded into the one or more cut-outs by a molding tool to form a form-fit connection between the pre-form of the fiber composite component and the second component, and consolidating the pre-form of the fiber composite component at least in part only after removal from the mold of a joined-together connecting arrangement. Drysdale discloses a method of manufacturing automotive panel 50 that first involves preforming two glass fiber mats 10 impregnated with a thermoplastic or thermosetting bonding agent into shapes approximating first and second sides of final panel 50. Drysdale col. 2, ll. 32–56; Figs. 1–3. Drysdale discloses conducting this preforming step by separately positioning each mat 10 between heated shaping tools 12, 14, and compressing shaping tools 12, 14 against each mat 10 while heating shaping tools 12, 14 to set the bonding agent in each mat 10 and produce preformed mats 20, 22 having desired shapes. Drysdale col. 2, ll. 39–56; Figs. 2 and 3. Drysdale discloses that the next step of manufacturing automotive panel 50 involves constructing premolded assembly 24 by sandwiching urethane foam core 26 (second component) including a plurality of openings 28 (cut outs) between preformed mats 20, 22 (two sublayers of a pre-form of a fiber composite component) so that the inside surfaces of preformed mats 20, 22 “are closely adjacent each other” at openings 28 (positioning the second component between two sublayers of a pre-form of the fiber composite component). Drysdale col. 2, ll. 57–63; Fig. 4. Drysdale discloses positioning premolded assembly 24 so formed between mold halves 34, 36, and compressing preformed assembly 24 between mold Appeal 2019-005037 Application 14/362,694 6 halves 34, 36, so that a projection in lower molding half 36 forms an embossment in preformed mat 22 by pressing preformed mat 22 into opening 28 of urethane foam core 26 (shaping in at least one of the at least two sublayers one or more embossments molded into the one or more cut- outs by a molding tool to form a form-fit connection between the pre-form of the fiber composite component and the second component). Drysdale col. 3, ll. 1–4; Figs. 5 and 8. Drysdale discloses injecting settable resin 42 into the mold chamber formed by mold halves 34, 36, and discloses that resin 42 impregnates preformed mats 20, 22 and hardens to form panel 50 (consolidating the pre-form of the fiber composite component). Drysdale col. 3, ll. 4–8; Fig. 5. The Examiner finds that “Drysdale does not teach consolidating the pre-form of the fiber composite component at least in part only after removal from the mold of a joined-together connecting arrangement.” Final Act. 5. Rocher, however, discloses producing a molded article comprising plastic foam core 22 covered by two walls formed of glass fiber-reinforced resin (Rocher 1, 5, Abst.); by: (a) shaping foam core 22 between parts 21a, 21b of a first mold (Rocher 11, Abst., Fig. 3A); (b) covering the surface of shaped or molded foam core 22 with a thermosetting polyester resin (Rocher 11, 12, Abst., Fig. 3B); (c) positioning polyester resin-coated foam core 22 between two glass fiber mats 24, 24’ and placing the resulting assembly between parts 25a, 25b of a second mold (Rocher 11, Abst., Fig. 3C); (d) compressing mold parts 25a, 25b to press and deform fiber mats 24, 24’ onto the outer surface of foam core 22 while maintaining mold parts 25a, 25b at a temperature that crosslinks and cures the thermosetting polyester resin so as to bond fiberglass mats 24, 24’ to the outer surface of foam core 22 (Rocher Appeal 2019-005037 Application 14/362,694 7 12, Abst.); (e) removing the resulting assembly from the second mold (removal from the mold of a joined-together connecting arrangement), placing the assembly into the cavity of a third mold having parts 26a, 26b, and clamping mold parts 26a, 26b against one another (Rocher 12–13, Abst., Fig. 3D); and (f) injecting a second thermosetting resin into the third mold to completely impregnate fiber mats 24, 24’, and crosslinking and curing the second resin (Rocher, Abst., Fig. 3D) (consolidating the pre-form of the fiber composite component at least in part only after removal from the mold of a joined-together connecting arrangement). Rocher discloses an alternative manufacturing process in which “the mat molding and resin injection operations are carried out in the same mould.” Rocher 14–16, Abst., Figs. 4A and 4B. Specifically, Rocher discloses that the alternative process involves: (a) shaping foam core 22 between parts 21a, 21b of a first mold (Rocher 14, Fig. 4A); (b) placing molded foam core 22 between two glass fiber mats 24, 24’ disposed in the cavity of a second mold having parts 26a, 26b, and clamping mold parts 26a, 26b against one another (Rocher 15, Fig. 4B); and (c) injecting a thermosetting resin into the second mold to completely impregnate fiber mats 24, 24’, and crosslinking and curing the resin (Rocher 15–16, Fig. 4B). Thus, as the Examiner finds, Rocher discloses “that the shaped fiber component may be successfully impregnated with resin in either the pre- forming mold or a separate resin transfer mold.” Final Act. 5. Based on this disclosure in Rocher, the Examiner determines that “one of skill in the art could have used either method to infuse resin into the fiber component of Drysdale with predictable results (i.e. producing a fiber-reinforced shaped component).” Final Act. 5. Appeal 2019-005037 Application 14/362,694 8 Based on the above findings, the Examiner concludes that “it would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the method taught by Drysdale by consolidating (i.e. infusing with resin and curing in a mold separate from the pre-forming mold) the pre-form of the fiber component at least in part only after removal from the mold of a joined-together connecting arrangement as a matter of simple substitution of one known element for another to obtain predictable results.” Final Act. 5 (citing MPEP § 2143(I)(B)). Appellant argues that the glass fiber mat Drysdale discloses is not a “mesh reinforcement” as recited in claim 26 because a “mat” is “something made up of densely tangled or adhering filaments or strands especially of organic matter,” whereas a “mesh” is “a woven knit, or knotted material of open texture with evenly spaced holes.” Appeal Br. 10–11 (citing https://www.merriam-webster.com/dictionary/mat and https://www.merriam-webster.com/dictionary/mesh). Appellant also points out that the Examiner indicates in an Advisory Action entered November 20, 2018 that “a mesh may also be defined as ‘material made of a network of wire or thread’ or ‘an interlaced structure,’” and, based on this definition, the Examiner determines in the Advisory Action that “one of ordinary skill in the art would appreciate that a glass fiber mat is a material made of a network of wire or thread and an interlaced structure.” Appeal Br. 11 (referring to the definition of “mesh” from https://en.oxforddictionaries.com/definition/mesh cited by the Examiner in the Advisory Action entered November 20, 2018). Appellant argues, however, that according to the same dictionary cited by the Examiner in the Advisory Action, “a ‘mat’ is a ‘thick, untidy layer of something hairy or Appeal 2019-005037 Application 14/362,694 9 woolly,’ which provides evidence that a mesh and a mat are not the same.” Appeal Br. 11–12 (citing https://en.oxforddictionaries.com/definition/mat). The Examiner responds to Appellant’s arguments in the Answer by explaining that according to Roget’s Thesaurus, “mat” and “mesh” are synonyms. Ans. 3–4 (citing www.yourdictionary.com). In response, Appellant argues in the Reply Brief that “several other online dictionaries” do not list “mesh” as a synonym for “mat,” and Appellant “could not find any online dictionary which lists ‘mat’ as a synonym for ‘mesh.’” Reply Br. 2 (citing https://www.thesaurus.com/browse/mat, https://www.collinsdictionary.com/dictionary/english-thesaurus/mat, https://www.synonym.com/synonyms/mat). Appellant’s arguments do not identify reversible error in the Examiner’s rejection, for reasons that follow. We first point out that Appellant does not direct us to a definition or limiting description of a “mesh” in Appellant’s Specification, and we find no such disclosure in the Specification. We, therefore, interpret this term according to its plain and ordinary meaning. In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (During prosecution of patent applications, “the PTO must give claims their broadest reasonable construction consistent with the specification. . . . Therefore, we look to the specification to see if it provides a definition for claim terms, but otherwise apply a broad interpretation.”). As is apparent from the various dictionary definitions cited by both the Examiner and Appellant, the term “mesh” has numerous commonly accepted meanings. In fact, the Collins English Dictionary lists seven American English definitions of “mesh,” one of which is “anything that entangles, snares, or entraps.” Collins Dictionary.com Appeal 2019-005037 Application 14/362,694 10 (accessed May 19, 2020), https://www.collinsdictionary.com/us/dictionary/english/mesh (definition 6 of 7 American English definitions). Because Appellant’s Specification does not limit “mesh” to any particular definition of this term, a broadest reasonable interpretation of “mesh” as recited in claim 26, which is consistent with the Specification, is “a net or network” and “anything that entangles, snares, or entraps.” Collins Dictionary.com (accessed May 19, 2020), https://www.collinsdictionary.com/us/dictionary/english/mesh (definitions 3 and 6 of 7 American English definitions). The term “mat” similarly has numerous commonly accepted meanings, one of which is “anything densely interwoven or felted, or growing in a thick tangle.” Collins Dictionary.com (accessed May 19, 2020), https://www.collinsdictionary.com/us/dictionary/english/mat (definition 5 of 6 American English definitions). Consistent with the Examiner’s position (Ans. 3), the terms “mesh” and “mat,” therefore, both refer to something that entangles, or grows in a thick tangle. Contrary to Appellant’s arguments, the glass fiber “mat” disclosed in Drysdale, therefore, reasonably falls within the scope of a “mesh reinforcement” as recited in claim 26. Appellant argues that the glass fiber mat disclosed in Drysdale is not a fiber composite component as recited in claim 26. Appeal Br. 12. Appellant argues that although Drysdale’s glass fiber mat includes a thermoplastic bonding agent, the thermoplastic bonding agent is used only to hold the mat in its preformed shape, and is not “[t]he plastic component of the fiber composite material of DRYSDALE.” Appeal Br. 12, 14. Appellant argues Appeal 2019-005037 Application 14/362,694 11 that “[t]he fiber composite component of DRYSDALE is formed only after the preformed assembly 24 of mats 20 and 22 and urethane foam core 26 is positioned between two mold halves having surfaces which conform to the shape of the desired end panel and a settable resin 42 is injected into the mold chamber formed by the mold halves which impregnates the preformed mats 20 and 22 and, once set, hardens to form the panel 50.” Appeal Br. 12, 14 (citing Drysdale col. 3, ll. 1–9). Appellant argues that, in contrast, “in the method of claim 26 the components of the fiber composite component are already present before the sublayers of the fiber composite component are contacted with the second component.” Appeal Br. 12 (citing Spec. 16, l. 1–18, l. 8, which indicates that “the starting products for the pre-form of the fiber composite component 1 [illustrated in Figure 4a] are two sublayers 4, 5 made of so-called ‘organic sheet.’ The organic sheets are flat sheets made of thermoplastic material . . . , which are provided with a mesh reinforcement (e.g., carbon or fiber glass).”). Appellant’s arguments do not identify reversible error in the Examiner’s rejection, for reasons that follow. We first point out that claim 26 recites, in pertinent part, a process for producing a connecting arrangement of a fiber composite component comprising a mesh reinforcement with a second component that comprises positioning the second component between at least two sublayers of a pre-form of the fiber composite component. As discussed above, Drysdale discloses glass fiber mats 10 impregnated with a thermoplastic or thermosetting bonding agent, and discloses preforming glass fiber mats 10 into a desired shape. As also discussed above, Drysdale discloses sandwiching urethane foam core 26 Appeal 2019-005037 Application 14/362,694 12 between preformed mats 20, 22 to form premolded assembly 24. Drysdale’s disclosure of sandwiching urethane foam core 26 (second component) between preformed mats 20, 22—that include a thermosetting bonding agent—corresponds to positioning a second component between at least two sublayers of a pre-form of a fiber composite component, as recited in claim 26, because Drysdale’s glass fiber mats 10 correspond to a “mesh” reinforcement as we have interpreted this term (discussed above), and because Drysdale’s glass fiber mats 10 are impregnated with a thermosetting bonding agent. Consistent with the description in the portion of the Specification cited by Appellant (Appeal Br. 12 (citing Spec. 16, l. 1–18, l. 8) of a “pre-form of the fiber composite component” as two sublayers made of thermoplastic material provided with a glass fiber mesh reinforcement, Drysdale’s glass fiber mats 10 impregnated with a thermosetting bonding agent correspond to two sublayers of a pre-form of a fiber composite component, as recited in claim 26. Although Drysdale also discloses impregnating preformed mats 20, 22 of premolded assembly 24 with settable resin 42, the process of claim 26 does not exclude such a step due to the “comprises” transitional phrase that separates the preamble from the body of the claim. Gillette Co. v. Energizer Holdings, Inc., 405 F.3d 1367, 1371–1372 (Fed. Cir. 2005) (“The word ‘comprising’ transitioning from the preamble to the body signals that the entire claim is presumptively open-ended.”); In re Affinity Labs of Tex., LLC, 856 F.3d 902, 907 (Fed. Cir. 2017) (noting that use of the term “comprising” “signals that the breadth of [the method claim] allows for additional steps interleaved between the recited steps,” and that the Board did not err in concluding that the claim does not prohibit additional, Appeal 2019-005037 Application 14/362,694 13 intervening steps between those recited). Appellant argues that Drysdale and Rocher do not teach or suggest that Drysdale’s “fiber composite component made from assembly 24 and settable resin 42 . . . can or should be removed from the mold before the resin 42 injected into the mold is completely set (consolidated).” Appeal Br. 15. Appellant argues that Drysdale explicitly discloses that “once the resin is set, the mold halves are opened and the finished panel is removed.” Appeal Br. 15–16 (citing Drysdale col. 3, ll. 10–12). As discussed above, however, Rocher discloses two alternative processes for producing a molded article comprising plastic foam core 22 covered by two walls formed of glass fiber-reinforced resin. The first process involves shaping foam core 22 in a first mold, coating shaped foam core 22 with a polyester resin, bonding glass fiber mats 24, 24’ to the outer surface of coated foam core 22 in a second mold by pressing glass fiber mats 24, 24’ against foam core 22 while heating the mold parts, placing the resulting assembly into a third mold, injecting a second thermosetting resin into the third mold to completely impregnate fiber mats 24, 24’, and crosslinking and curing the second resin. This approach corresponds to “consolidating the pre-form of the fiber composite component at least in part only after removal from the mold of a joined-together connecting arrangement” as recited in claim 26 because it involves removing the assembly comprised of fiber mats 24, 24’ bonded to the outer surface of coated foam core 22 from the second mold (removal from the mold of a joined-together connecting arrangement), and crosslinking and curing a second thermosetting resin impregnated into fiber mats 24, 24’ in a third mold (consolidating the pre-form of the fiber composite component at least Appeal 2019-005037 Application 14/362,694 14 in part). The second, alternative process disclosed in Rocher involves shaping foam core 22 in a first mold, placing molded foam core 22 between two glass fiber mats 24, 24’ disposed in the cavity of a second mold, injecting a thermosetting resin into the second mold to completely impregnate fiber mats 24, 24’, and crosslinking and curing the resin. This approach corresponds to the process disclosed in Drysdale that involves placing assembly 24, comprised of urethane foam core 26 (second component) sandwiched between mats 20, 22 that were preformed in a first mold (two sublayers of a pre-form of a fiber composite component), into a second mold, compressing the mold halves of the second mold, injecting settable resin 42 into the mold chamber to impregnate preformed mats 20, 22 with resin 42, and hardening settable resin 42 to form panel 50 (consolidating the pre-form of the fiber composite component). One of ordinary skill in the art would have understood from Rocher’s disclosures that both approaches disclosed in the reference could be used to successfully form a molded article comprised of a foam core (second component) bonded or joined to two sublayers of a glass fiber-reinforced resin (a fiber composite component). Consequently, as the Examiner determines, the ordinarily skilled artisan would have understood that either approach could be successfully used in Drysdale’s method of manufacturing an automotive panel comprised of a foam core bonded or joined to two layers or a glass fiber-reinforced resin, rendering substitution of Rocher’s first approach (corresponding to the process recited in claim 26) for the approach disclosed in Drysdale (corresponding to Rocher’s second process) prima facie obvious. In re Fout, 675 F.2d 297, 301 (CCPA 1982) (“Express Appeal 2019-005037 Application 14/362,694 15 suggestion to substitute one equivalent for another need not be present to render such substitution obvious.”). Appellant’s arguments, therefore, do not identify reversible error in the Examiner’s rejection of claims 26–28, 30, 31, 33, 34, 42, 46, and 50, which we accordingly sustain.3 Claim 41 Claim 41 depends from claim 26 and recites that “a moldability of upper and lower sublayers is different.” The Examiner finds that “Drysdale, as modified by Rocher and Lowe, does not explicitly teach a method wherein the moldability of the upper and lower sublayers is different.” Final Act. 8. The Examiner determines, however, that “one of skill in the art recognizes that composite articles are designed to accommodate the expected mechanical loads to be placed on the article by varying well-known design factors such as thickness.” Id. The Examiner concludes that “it would have been obvious to one of ordinary skill in the art at the time of the invention to have used different thicknesses of the upper and lower sublayers to provide a difference in rigidity of the upper and lower surfaces of the composite article. Fiber mats having different thicknesses will have different moldabilities.” Id. The Examiner, however, does not provide any objective evidence to support the assertions that “one of skill in the art recognizes that composite articles are designed to accommodate the expected mechanical loads to be placed on the article by varying well-known design factors such as thickness,” and “[f]iber mats having different thicknesses will have different 3 Appellant does not challenge the Examiner’s reliance on Lowe, which we, therefore, need not address. Appeal 2019-005037 Application 14/362,694 16 moldabilities,” which Appellant challenges. Appeal Br. 17–18 (arguing that “[n]o evidence supporting these allegations is provided by the Examiner”). In response to Appellant’s argument, rather than providing objective evidence from scientific and technical literature to support the position presented in the Final Action, the Examiner indicates in the Answer that “mechanical design by varying thicknesses or structures is a basic engineering principle that does not required evidence, and that one of skill in the art would readily appreciate that the moldability (e.g. the ability to bend and/or the ability to inject a matrix resin) of a glass fiber mat would vary based on the thickness of the mat.” Ans. 8. Although the Examiner may take official notice of technical facts outside of the record to fill gaps that might exist in the evidentiary showing necessary to satisfy the Examiner’s burden of establishing prima facie obviousness, such asserted technical facts must be “capable of such instant and unquestionable demonstration as to defy dispute.” In re Ahlert, 424 F.2d 1088, 1091 (CCPA 1970). However, “[a]ssertions of technical facts in areas of esoteric technology must always be supported by citation to some reference work recognized as standard in the pertinent art . . . [a]llegations concerning specific ‘knowledge’ of the prior art, which might be peculiar to a particular art, should also be supported.” Ahlert, 424 F.2d at 1091. The Examiner’s taking of official notice that “one of skill in the art would readily appreciate that the moldability (e.g., the ability to bend and/or the ability to inject a matrix resin) of a glass fiber mat would vary based on the thickness of the mat,” although not denominated as such, is improper because molding methods for joining a fiber composite component, comprised of a glass fiber mat and a matrix resin, to a second component Appeal 2019-005037 Application 14/362,694 17 made of plastic or metal, to produce an article, such as an automotive panel, concern facts in an esoteric technology, and concern knowledge peculiar to that technology. Because the Examiner improperly relies on official notice, the Examiner’s rejection of claim 41 under 35 U.S.C. § 103(a) lacks a sufficient factual basis to support the legal conclusion of obviousness. We, accordingly, do not sustain this rejection. Claims 43 and 44 Claim 43 depends from claim 26 and recites that “a hollow space in a border area between a cutout and an embossment is filled with a filler material.” Claim 44 depends from claim 43 and recites that “the filler material comprises a matrix material of the fiber composite component.” The Examiner finds that Drysdale discloses infusing resin into fiber mats (sublayers), which “comprise open spaces between the individual fibers.” Final Act. 8. The Examiner determines that “when the fiber mat is formed into the cut-out of Drysdale, a hollow space will be present throughout the cut-out, including at a border area between the cut-out and the embossment,” and “[w]hen resin is infused into the fiber mats, a filler material comprising a matrix material of the fiber composite component will fill the hollow space.” Id. Claim 43 recites, however, that a hollow space in a border area between a cutout and an embossment is filled with a filler material. As discussed above, Drysdale discloses constructing premolded assembly 24 by sandwiching urethane foam core 26 including a plurality of openings 28 (cut outs) between preformed mats 20, 22, comprised of glass fibers impregnated with a thermosetting bonding agent, so that the inside surfaces Appeal 2019-005037 Application 14/362,694 18 of preformed mats 20, 22 “are closely adjacent each other” at openings 28; positioning and compressing premolded assembly 24 between mold halves 34, 36 so that a projection in lower mold half 36 forms an embossment in preformed mat 22 by pressing preformed mat 22 into opening 28 of urethane foam core 26; and injecting settable resin 42 into the mold chamber formed by mold halves 34, 36, so that resin 42 impregnates preformed mats 20, 22 and hardens to form panel 50. Drysdale col. 2, ll. 57–63; col. 3, ll. 1–8; Figs. 4, 5, and 8. Drysdale thus discloses forming an embossment in preformed mat 22, comprised of glass fibers impregnated with a thermosetting bonding agent, by pressing preformed mat 22 into opening 28 (cut out) in urethane foam core 26, to produce a panel in which the embossment in preformed mat 22 is directly adjacent to urethane foam core 26 in the area of opening 28, as show in Drysdale’s Figure 8. Contrary to the Examiner’s assertions, a hollow space, therefore, is not present in a border area between opening 28 (cutout) of urethane foam core 26 and the embossment formed in preformed mat 22, as required by claim 43, because preformed mat 22 is impregnated with a thermosetting resin, and, therefore, would not include hollow spaces, and because the embossment in preformed mat 22 is directly adjacent to urethane foam core 26 in the area of opening 28, such that no hollow space exists between the embossment and urethane foam core 26. Even if preformed mat 22 includes “open spaces in its surface at the cut-out” of urethane foam core 26 as the Examiner asserts in the Answer (Ans. 8), such open spaces would not constitute a hollow space in a border area between a cutout and an embossment as recited in claim 43, because such spaces would be part of the embossment itself, due to the fact that the Appeal 2019-005037 Application 14/362,694 19 embossment is a portion of preformed mat 22. Consequently, as Appellant argues (Appeal Br. 18–20), the Examiner does not provide a sufficient factual basis to establish that Drysdale alone, or in combination with the remaining applied prior art references, discloses or would have suggested “a hollow space in a border area between a cutout and an embossment,” as required by claim 43. We, accordingly, do not sustain the Examiner’s rejection of claim 43, and claim 44, which depends from claim 43, under 35 U.S.C. § 103(a). Rejection III We turn now to the Examiner’s rejection of claim 32 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Cattanach. Claim 32 depends from claim 28, which depends from claim 26. Claim 28 recites that “the molding tool comprises two tool parts which are arranged opposite each other, at least one tool part being formed with a tool surface for molding the one or more sublayers into the one or more cut-outs.” Claim 32 recites that “for molding of the at least two sublayers the tool surface is inherently unstable.” Appellant’s Specification describes an embodiment of Appellant’s invention that involves use of molding tool 26" having upper tool part 27" including a flexible, pressure-resistant layer of foil (pressure foil) 34 as an inherently unstable tool surface, and lower tool part 28' having inherently stable tool surface 33. Spec. 21, ll. 25–22, l. 8; Fig. 5a. The Specification discloses that upper tool part 27" also includes pressure space 35 disposed above pressure-resistant foil 34. Spec. 22, ll. 6–9; Fig. 5a. The Specification discloses fiber composite component 1 that includes metallic Appeal 2019-005037 Application 14/362,694 20 component 2 sandwiched between fiber composite sublayers 4, 5, and discloses placing fiber composite component 1 between tool parts 28', 27". Spec. 22, ll. 12–14; Fig. 5a. The Specification discloses creating high pressure in space 35, which presses space 35 against pressure foil 34. Spec. 22, ll. 15–19; Figs. 5b and 5c. The Specification discloses that pressure foil 34 in turn presses against sublayer 4 of fiber composite component 1, which molds sublayer 4 against metallic component 2 to create an embossment in sublayer 4. Spec. 22, ll. 20–27; Figs. 5b, 5c, and 5d. The Examiner finds that Drysdale discloses molding sublayers of a pre-form of a fiber composite component “by a matched die type of compression molding,” but “Drysdale, as modified by Rocher and Lowe, does not teach that the tool surface is inherently unstable.” Final Act. 13. Cattanach, however, discloses a method of improving the surface finish of an article formed from fiber-reinforced thermoplastic composite material, which comprises positioning a metal foil against superimposed layers of fiber-reinforced thermoplastic material, and transmitting pressure via a resilient member to the superimposed layers through the metal foil. Cattanach col. 2, ll. 9–27; col. 3, ll. 26–41. Cattanach discloses that this method can be incorporated into a process for shaping or molding sheets formed of fiber-reinforced thermoplastic material with a molding tool by placing a metal foil against a fiber-reinforced thermoplastic sheet, and pressurizing a resilient member so that the resilient member presses against the metal foil, which, in turn, presses the sheet against the surface of the molding tool so as to shape the sheet into a desired configuration. Cattanach col. 3, l. 36–col. 4, l. 2; col. 5, ll. 18–41. Cattanach discloses that this process yields an article having improved surface smoothness that is Appeal 2019-005037 Application 14/362,694 21 substantially free of surface blemishes caused by exposed fibers at the surface of the article. Cattanach col. 2, ll. 43–56. The Examiner determines that “the thin metal foil taught by Cattanach is an inherently unstable surface” in view of the disclosure in Appellant’s Specification of “a flexible foil as an inherently unstable tool surface.” Final Act. 13 (citing Spec. 22, ll. 6–8; Cattanach col. 2, ll. 15–31). The Examiner concludes that “[i]t would have been obvious to one of ordinary skill in the art at the time of the invention to have modified the method taught by Drysdale, as modified by Rocher and Lowe, by compression molding the fiber composite materials between the a rigid die and a thin metal foil interposed between the composite material and a resilient member for the benefit of improving the surface finish of the connecting arrangement.” Final Act. 13 (citing Cattanach col. 2, ll. 43–56). Appellant argues that Cattanach “does not have anything to do with molding, let alone with forming a depression in a thermoplastic composite during the joining of layers, but relates to a method of improving the surface finish of articles thermoformed from highly reinforced thermoplastic composite materials.” Appeal Br. 23. Appellant argues that “in the method of CATTANACH the metal foil is not a tool surface which is ‘inherently unstable.’” Id. As discussed above, however, Cattanach discloses a process for shaping—or molding—sheets of fiber-reinforced thermoplastic materials that involves placing a metal foil against a fiber-reinforced thermoplastic sheet, and pressurizing a resilient member so that the resilient member presses against the metal foil, which, in turn, presses the sheet against the surface of a molding tool to shape the sheet into a desired configuration. Appeal 2019-005037 Application 14/362,694 22 Cattanach col. 3, l. 36–col. 4, l. 2; col. 5, ll. 18–41. Contrary to Appellant’s arguments, Cattanach thus explicitly discloses a molding process that involves using a metal foil as a tool surface to mold sheets or layers of fiber- reinforced thermoplastic materials. Consistent with the disclosure in Appellant’s Specification discussed above of a flexible, pressure-resistant layer of foil (pressure foil) 34 as an inherently unstable tool surface, Cattanach’s metal foil corresponds to an inherently unstable tool surface as recited in claim 32. Appellant’s arguments, therefore, do not identify reversible error in the Examiner’s rejection of claim 32 under 35 U.S.C. § 103(a), which we accordingly sustain. Rejection IV We next address the Examiner’s rejection of claim 48 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Sekido. Independent claim 48 is similar to independent claim 26 but, unlike claim 26, claim 48 recites positioning the second component between at least two sublayers of a pre-form of the fiber composite component, “which sublayers are mesh sublayers impregnated with a thermosetting two- component mixture.” Appellant argues that Drysdale does not disclose sublayers of a fiber composite component that are first impregnated with a thermosetting component before a molding and embossing process is performed, but instead discloses injecting a thermosetting resin into a mold after an embossment process has already taken place. Appeal Br. 24. Appellant argues that even if Rocher discloses that a shaped fiber component may be Appeal 2019-005037 Application 14/362,694 23 successfully impregnated with resin in either a pre-forming mold or a separate resin transfer mold, “it is not seen what would have motivated one of ordinary skill in the art to modify the method of DRYSDALE to impregnate the mat 10 with a thermosetting resin in the (first) mold which comprises the shaping tools 12 and 14.” Appeal Br. 24–25. As discussed above in connection with claim 26, however, Drysdale explicitly discloses that Drysdale’s method of manufacturing automotive panel 50 initially involves impregnating glass fiber mats 10 with a thermosetting bonding agent, and then preforming glass fiber mats 10 into a desired shape. Drysdale discloses that the next step of the process involves sandwiching urethane foam core 26 between preformed mats 20, 22 to form premolded assembly 24. Drysdale’s disclosure of sandwiching urethane foam core 26 (second component) between preformed mats 20, 22 corresponds to positioning a second component between at least two sublayers of a pre-form of a fiber composite component, which sublayers are mesh sublayers impregnated with a thermosetting material as recited in claim 48, because Drysdale’s glass fiber mats 10 are impregnated with a thermosetting bonding agent before urethane foam core 26 (second component) is sandwiched between preformed mats 20, 22. Although Drysdale also discloses impregnating preformed mats 20, 22 of premolded assembly 24 with settable resin 42, the process of claim 48 does not exclude such a step due to the “comprises” transitional phrase that separates the preamble from the body of the claim. We, accordingly, sustain the Examiner’s rejection of claim 48 under 35 U.S.C. § 103(a). Appeal 2019-005037 Application 14/362,694 24 Rejections II, V, and VI Finally, we turn to the Examiner’s rejection of claims 29, 39, and 40 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Fuchs (Rejection II), rejection of claim 51 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Sekido (Rejection V), and rejection of claim 52 under 35 U.S.C. § 103(a) as unpatentable over Drysdale in view of Rocher, Lowe, and Flemming (Rejection VI). To address these rejections, Appellant relies on the arguments Appellant presents for claim 26 (discussed above), and argues that the additional references applied in these rejections fail to cure the deficiencies of Drysdale, Rocher, and Lowe. Appeal Br. 22, 27–28. Because Appellant’s arguments do not identify reversible error in the Examiner’s rejection of claim 26 for the reasons discussed above, Appellant’s arguments also do not identify reversible error in the Examiner’s rejections of claims 29, 39, 40, 51, and 52 under 35 U.S.C. § 103(a), which we accordingly sustain. CONCLUSION Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 26–28, 30, 31, 33, 34, 41–44, 46, 50 103(a) Drysdale, Rocher, Lowe 26–28, 30, 31, 33, 34, 42, 46, 50 41, 43, 44 29, 39, 40 103(a) Drysdale, Rocher, Lowe, Fuchs 29, 39, 40 Appeal 2019-005037 Application 14/362,694 25 Claims 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 32 103(a) Drysdale, Rocher, Lowe, Cattanach 32 48 103(a) Drysdale, Rocher, Lowe, Sekido 48 51 103(a) Drysdale, Rocher, Lowe, Sekido 51 52 103(a) Drysdale, Rocher, Lowe, Flemming 52 Overall Outcome 26–34, 39, 40, 42, 46, 48, 50–52 41, 43, 44 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED IN PART Copy with citationCopy as parenthetical citation