Michael M¿Ller et al.

Patent Trials and Appeals Board

Sep 20, 2019

15372994 - (D) (P.T.A.B. Sep. 20, 2019)

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.
15/372,994 12/08/2016 Michael M¿ller 727087 7232
23548 7590 09/20/2019
LEYDIG VOIT & MAYER, LTD
1900 Duke Street
SUITE 420
Alexandria, VA 22314
EXAMINER
PLESZCZYNSKA, JOANNA
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
09/20/2019 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):
Chgpatent@leydig.com
DCpatent@leydig.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MICHAEL MÖLLER and SVEN ROHDE
__________

Appeal 2019-000285
Application 15/372,994
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134 the final rejections of
claims 1–4, 8, 10, 15–20, 22, 26, 28, and 29. Claims 6, 9, and 21 are
withdrawn. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
The invention is directed to a thermally insulating spacer profile made
of a plastics material for façade or glass roof constructions and elements for
windows and doors. Spec. ¶ 2. Spacer profiles are said to fill gaps between

1 According to the Appeal Brief, the real party in interest is “Ensinger
GmbH.” Br. 1.
Appeal 2019-000285
Application 15/372,994

2
adjacent glass panes or panels of façade and glass roof constructions. Id.
at 3.
Claim 1 is illustrative:
1. A thermally insulating spacer profile made of a plastics
material, comprising: a basic body extending in a longitudinal
direction of the spacer profile with an outer contour which is
substantially rectangular or trapezoid-shaped in a cross-section
perpendicular to the longitudinal direction;
wherein the basic body comprises a first transverse wall and a
second transverse wall which are connected to one another by a
single side wall element and are held at a pre-set spacing h;
wherein the side wall element comprises at least one portion
which is arranged substantially perpendicularly to the first
transverse wall or the second transverse wall;
wherein the side wall element ends with a first end at a first
edge region of the first transverse wall and with a second end at
a first edge region of the second transverse wall;
wherein the side wall element forms a path for thermal
conduction from the first transverse wall to the second
transverse wall, said path having a length approximately
1.1 or more times the spacing h;
and comprising a strip-like anchoring protrusion which is held
on the first transverse wall and which extends from the basic
body in a direction opposite to the second transverse wall; and
wherein the spacer profile comprises, in cross-section, on at
least one of the first and second transverse walls and/or on at
least one of the portions of the side wall element, a profiling
which is configured as a screw guide.

Appellants appeal the following rejections:
1. Claims 1–4, 8, 10, 19, 22, and 26 are rejected under 35 U.S.C. § 103
as unpatentable over Lafond (US 5,658,645, issued Aug. 19, 1997) in
view of DE 29900770 U1 (published June 10, 1999, and relying on a
Appeal 2019-000285
Application 15/372,994

3
translation dated Oct. 11, 2016, “’770” ), and Givoni et al.
(US 8,650,827 B2, issued Feb. 18, 2014, “Givoni”).
2. Claim 15 is rejected under 35 U.S.C. § 103 as unpatentable over
Lafond in view of ’770, Givoni, and Siodla et al. (US 2008/0256893
A1, published Oct. 23, 2008, “Siodla”).
3. Claim 16 is rejected under 35 U.S.C. § 103 as unpatentable over
Lafond in view of ’770, Givoni, and Bouquot et al. (US 2014/0245675
A1, published Sept. 4, 2014, “Bouquot”).
4. Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable over
Lafond in view of ’770, and Rawlings (US 2011/0011028 A1,
published Jan. 20, 2011).
5. Claim 18 is rejected under 35 U.S.C. § 103 as unpatentable over
Lafond in view of ’770, Givoni, and Kessler (US 4,113,905, issued
Sept. 12, 1978).
6. Claim 20 is rejected under 35 U.S.C. § 103 as unpatentable over
Lafond in view of ’770, Givoni, and Schmidlin (US 4,471,589, issued
Sept. 18, 1984).
7. Claims 28 and 29 are rejected under 35 U.S.C. § 103 as unpatentable
over Lafond in view of ’770, Givoni, and Hortrich (US 2012/0028027
A1, published Feb. 2, 2012).
With regard to all rejections, Appellants’ arguments focus on the subject
matter of independent claim 1 only. Br. 3–8. Accordingly, any claim not
argued separately will stand or fall with our analysis of claim 1 under
rejection (1).
Appeal 2019-000285
Application 15/372,994

4
FINDINGS OF FACT & ANALYSIS
REJECTION (1)
The Examiner’s findings and conclusions with respect to claim 1 are
located on pages 2 to 4 of the Final Action.
Figure 7 of Lafond, which illustrates an end view of an insulation
spacer strip, is reproduced below.

Figure 7 illustrates features of cap 58, engaging members 44 and 46,
base 42, a support member having partitioning members 74 and 76,
desiccated material area 78, and hollow air containing area 80.
The Examiner finds that Lafond teaches a thermally insulating spacer
profile made of a plastic material, wherein the body comprises a first
transverse wall (i.e., element 44) and a second transverse wall (i.e., the
element parallel to element 46). Final Act. 2; see Lafond Fig. 7. The
Examiner finds, inter alia, that Lafond’s first and second transverse wall
elements are connected by a single side wall element, which holds the wall
elements at the requisite pre-set spacing h. Final Act. 2–3; see Lafond Fig.
7. The Examiner further finds that Lafond’s side wall element comprises
two portions, which are arranged substantially perpendicularly to the first
Appeal 2019-000285
Application 15/372,994

5
and second transverse walls and that the side wall element has a length
overlapping the length of 1.1 or more times the spacing h. Final Act. 3, see
Lafond Fig. 7.
The Examiner finds that Lafond’s body discloses or suggests the
remaining limitations recited in claim 1 except that Lafond is silent
regarding: (i) “the profile comprising a strip-like anchoring protrusion which
is held on the first transverse wall and which extends from the basic body in
a direction opposite the second transverse wall,” Final Act. 3, and (ii) “the
spacer profile comprising in cross-section, on at least one of the first and
second transverse walls and/or on at least one of the portions of the side wall
element[,] a profiling which is configured as a screw guide.” Id. at 4.
With regard to missing limitation (i), the Examiner finds that ’770’s
strip-like anchoring protrusion element 15 discloses or suggests the claimed
features. Id. at 3. The Examiner concludes that it would have been obvious
to incorporate ’770’s strip-like anchoring protrusion (i.e., element 15) in
Lafond’s profile “to provide for engaging the profile with another element,
as Lafond suggests additional reinforcing means on the profile.” Id. (citing
’770 4–5, Figs. 5, 6; Lafond 3:14–19).
Regarding missing limitation (ii), the Examiner relies on Givoni’s
profiling, which is configured as a screw guide. Final Act. 3. The Examiner
concludes that it would have been obvious to incorporate Givoni’s profiling,
which is configured as a screw guide, in Lafond’s spacer profile “to provide
for a screw attachment of the profile to another element.” Id. at 4 (citing
Givoni 3:63–67, 4:1–15; Figs. 4, 7, 8).
Appellants argue that Lafond’s support member, which is alleged by
the Examiner to teach the claimed single side wall element, cannot disclose
Appeal 2019-000285
Application 15/372,994

6
or suggest “‘at least one portion which is arranged substantially
perpendicularly to the first transverse wall or the second transverse wall.’”
Br. 5. Appellants contend that the support member’s “portion of side wall at
76 and across from it, as shown [in Fig. 7],” are not encompassed by the
requisite substantially perpendicular arrangement because “these portions
are curved throughout.” Id.
We are not persuaded by these arguments.
The Examiner persuasively finds that, although Lafond’s side wall
element at 76 and between 74 and 78 are depicted as curved sections, there
are portions therein that are arranged substantially perpendicular to either the
first transverse wall or the second transverse wall. Ans. 12 (citing Lafond
Figs. 7, 4 (“[a] portion of curved part 62 is perpendicular to element 44 and
element . . . parallel to element 46.”)). Absent any special definitions, we
give claim terms their ordinary and customary meaning, as would be
understood by one of ordinary skill in the art at the time of the invention. In
re Translogic Tech., Inc., 504 F.3d 1249, 1257 (Fed. Cir. 2007); see also
TriVascular, Inc. v. Samuels, 812 F.3d 1056, 1062 (Fed. Cir. 2016) (“Under
a broadest reasonable interpretation, words of the claim must be given their
plain meaning, unless such meaning is inconsistent with the specification
and prosecution history.”). The Examiner’s claim construction is reasonable
in view of Appellants’ disclosure, which does not attribute any special
meaning to the claim term “portion.”
Appellants argue that Lafond’s support member cannot disclose or
suggest “‘a single side wall element,’” which connects a first transverse wall
and a second transverse wall because Lafond’s supporting member includes
a plurality of elements. Br. 6. Appellants contend that Lafond’s plurality of
Appeal 2019-000285
Application 15/372,994

7
elements are distinguished from the claimed invention because they provide
support, while increasing the thermal conduction capacity of the spacer
element. Id. at 6–7.
We are not persuaded by these arguments because they are directed to
limitations not recited in claim 1, which does not preclude additional
elements or functions for the single side wall element. As the Examiner
finds, Lafond’s depiction shows that the supporting member comprised of a
plurality of elements is formed from a single side wall element. Ans. 13,
citing Lafond Figs. 4, 7.
Appellants argue that the Examiner’s proposed modification of
Lafond’s spacer profile to incorporate Givoni’s screw guide configuration
would have been “detrimental to the function of Lafond, as the protrusions
would [have] ke[pt] two glass panes spaced apart from the transverse walls
(engaging members 44 and 46),” which “closely abut the glass panes.” Br.
7, citing Lafond Figs. 2, 3.
Appellants’ arguments are not persuasive because Lafond explicitly
discloses that “the spacer element may include additional reinforcing
means.” Lafond 3:16. In our view, one of ordinary skill in the art would
have gleaned from the applied prior art that Givoni’s screw guide would
have provided Lafond’s spacer profile additional reinforcing means. In re
Preda, 401 F.2d 825, 826 (CCPA 1968) (“[I]n considering the disclosure of
a reference, it is proper to take into account not only specific teachings of the
reference but also the inferences which one skilled in the art would
reasonably be expected to draw therefrom.”).
Appellants’ arguments, furthermore, are allegedly supported by
Lafond’s Figures 2 and 3. We note, however, that the Examiner did not rely
Appeal 2019-000285
Application 15/372,994

8
on these Figures. See Final Act. 3. Unlike Figures 4, 6, and 7, Figures 2 and
3 do not depict a spacer profile with the requisite portions therein arranged
substantially perpendicular to either the first or the second transverse walls.
Thus, a preponderance of the evidence favors the Examiner’s conclusion that
the claimed subject matter would have been obvious in view of Lafond,
’770, and Givoni. Appellants’ arguments do not persuade us that the
Examiner reversibly erred.
On this record, we affirm the Examiner’s § 103 rejection (1) above.
REJECTIONS (2) to (7)
On this record, we affirm the Examiner’s § 103 rejections (2) to (7).
DECISION
The Examiner’s decision is affirmed.
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). See
37 C.F.R. § 41.50(f).
ORDER
AFFIRMED