Romeo Ciuperca

Patent Trials and Appeals Board

Oct 21, 2020

2019006405 (P.T.A.B. Oct. 21, 2020)

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.
15/218,729 07/25/2016 Romeo Ilarian Ciuperca GREEN-0301 4355
108821 7590 10/21/2020
Greencraft LLC
1831 Warren Place
Suite 200
Norcross, GA 30093
EXAMINER
FIGG, TRAVIS M
ART UNIT PAPER NUMBER
1783
NOTIFICATION DATE DELIVERY MODE
10/21/2020 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):
bob@greencraft.com
gmrfr2@gmail.com
richardsiplaw@comcast.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROMEO ILARIAN CIUPERCA

____________

Appeal 2019-006405
Application 15/218,729
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, N. WHITNEY WILSON, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–7 and 15–19.2 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to the “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the inventor, Romeo Ilarian
Ciuperca, as the real party in interest. Appeal Brief filed May 19, 2019
(“Appeal Br.”) at 3.
2 Final Office Action entered December 20, 2018 (“Final Act.”) at 1.
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CLAIMED SUBJECT MATTER
Claim 1 illustrates the subject matter on appeal and reads as follows:
1. A product consisting of:
a foam insulating panel having a first primary surface and
an opposite second primary surface;
a laminated fabric attached to the first primary surface of
the foam insulating panel,
wherein the laminated fabric is fully impregnated with an
air-resistant, water-resistant, vapor permeable, elastomeric
polymeric material, wherein the air-resistant, water-resistant,
vapor permeable elastomeric polymeric material has an
elongation factor of greater than 100%, a water vapor
transmission rating of at least 0.1 perm and an air permeance of
less than 0.004 cfm/sq. ft. under a pressure differential of 0.3
inches of water,
whereby the air-resistant, water-resistant, vapor
permeable elastomeric polymeric material provides a water-
resistant, vapor permeable air barrier; and
wherein the laminated fabric consists of a woven or
nonwoven first carrier portion and a woven or nonwoven
reinforcing portion attached to and directly contacting the first
carrier portion and a woven or nonwoven second carrier portion
attached to and directly contacting the other side of the
reinforcing portion.

Appeal Br. 16 (Claims Appendix) (emphasis and spacing added).
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered June 25, 2019 (“Ans.”):
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I. Claims 1–7 under 35 U.S.C. § 103 as unpatentable over Cashin3
in view of Roth,4 Porter,5 Grace,6 and Paradis;7
II. Claims 15–18 under 35 U.S.C. § 103 as unpatentable over
Cashin in view of Roth, Porter, Grace, Paradis, and Davis;8 and
III. Claim 19 under 35 U.S.C. § 103 as unpatentable over Cashin in
view of Roth, Porter, Grace, Paradis, Davis, and Kumar.9

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 1–7 and 15–19 under 35 U.S.C. § 103, for the reasons set forth in the
Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the Appellant provides for each issue the 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”)).

3 US 7,984,591 B2, issued July 26, 2001.
4 US 8,181,580 B2, issued May 22, 2012.
5 US 7,148,160 B2, issued December 12, 2006.
6 “PERM-A-BARRIER® VP, Fluid applied vapor permeable air barrier
Membrane” (2009).
7 US 2013/0337709 A1, published December 19, 2013.
8 US 4,351,873, issued September 28, 1982.
9 US 8,277,931 B1, issued October 2, 2012.
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Appellant argues all of the pending claims together on the basis of
limitations common to independent claims 1 and 15. Appeal Br. 6–14. We,
therefore, select claim 1 as representative, and decide the appeal as to claims
1–7 and 15–19 based on claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv).
Cashion discloses composite panel 44 comprising foam substrate 46
(foam insulating panel) and impact resistant sheet material 10 (laminated
fabric). Cashin col. 13, ll. 57–60; Fig. 7. Cashion discloses that impact
resistant sheet material 10 (laminated fabric) includes impact resistant layer
20 to which barrier layer 22 is attached. Cashin col. 4, ll. 62–65; Fig. 3.
Cashion discloses that impact resistant layer 20 includes a plurality of
strands woven at multiple points to form a scrim-like material (woven or
nonwoven reinforcing portion). Cashin col. 6, ll. 16–27; Fig. 3. Cashion
discloses that barrier layer 22 comprises woven or nonwoven fibrous
substrate 24 (woven or nonwoven first carrier portion). Cashin col. 5, l. 3;
col. 9, ll. 5–6. Cashion discloses that “[i]n some embodiments, the fibrous
substrate [24] may be coated with a breathable, liquid impermeable coating,
such as a film layer.” Cashin col. 5, ll. 5–7.
Cashin discloses that “[i]n housewrap and similar applications, it is
generally desirable for the impact resistant sheet material to be both vapor
permeable and water impermeable while also providing a barrier to air
infiltration.” Cashin col. 4, ll. 59–62.
The Examiner finds that Cashin does not explicitly disclose that
impact resistant sheet material 10 (laminated fabric) includes a second
woven or nonwoven fibrous substrate 24 (woven or nonwoven second
carrier portion) “placed and directly contacting the other side of” scrim-like
impact resistant layer 20 (woven or nonwoven reinforcing portion), and the
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Examiner turns to Roth for suggesting inclusion of a second fibrous
substrate 24 (woven or nonwoven second carrier portion) in Cashin’s impact
resistant sheet material 10 (laminated fabric). Final Act. 3–4.
The Examiner relies on Roth’s disclosure of a composite structural
building material comprising foam core 4 and laminar covering 6 (laminated
fabric) adhered to foam core 4. Final Act. 3–4; Roth col. 1, ll. 37–40; col.
29, ll. 23–36. Roth discloses that laminar covering 6 (laminated fabric) is
formed of reinforcing layer 12 (woven or nonwoven reinforcing portion)
sandwiched between two layers of woven or nonwoven fabric web material
14 (woven or nonwoven first and second carrier portions), which Roth
indicates strengthens the structural building material. Roth col. 9, ll. 27–30,
54–55; col. 9, l. 64–col. 10, l. 9; col. 10, ll. 55–56; Fig. 2. Roth discloses
that reinforcing layer 12 can be “a band of substantially parallel reinforcing
cords and/or a fibrous mat” (woven or nonwoven reinforcing portion). Roth
col. 12, ll. 41–44.
In view of these disclosures in Roth, the Examiner concludes that it
would have been obvious to one of ordinary skill in the art to adhere a
second woven or nonwoven fibrous substrate 24 (woven or nonwoven
second carrier portion) to the scrim-like material (woven or nonwoven
reinforcing portion) of Cashin’s impact resistant layer 20 opposite the first
woven or nonwoven fibrous substrate 24 (woven or nonwoven first carrier
portion), to improve the strength of Cashin’s impact resistant sheet material
10 (laminated fabric). Final Act. 4.
The Examiner finds that “Cashin and Roth are silent towards the
laminated fabric being impregnated with an air-resistant, water resistant,
vapor permeable, elastomeric polymeric material with the claimed
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properties,” but, the Examiner finds, “Cashin does teach a desire to improve
moisture vapor permeability with improved water and air resistance,” and
“Cashin proposes achieving these improved properties by the addition of an
optional barrier film layer.” Final Act. 5 (citing Cashin col. 5, ll. 5–42; Fig.
4).
The Examiner relies on Porter’s disclosure of composite sheet
material 100 (laminated fabric) useful as a membrane for house wrap that
includes woven or nonwoven mesh reinforcing layer 14 (woven or
nonwoven reinforcing portion) and film 12 disposed between first and
second nonwoven web materials 10, 40 (woven or nonwoven first and
second carrier portions). Final Act. 5–6; Porter Abst.; col 5, ll. 58–61; col.
7, ll. 60–61; col. 8, ll. 9–11; Fig. 1. Porter discloses that film 12 is water
vapor permeable and substantially liquid water impermeable. Porter col. 2,
ll. 19–21. Porter discloses that the layers or materials of composite sheet
material 100 (laminated fabric) “can be coated or treated with additional
compositions” that include water resistant additives and vapor barriers.
Porter col. 8, ll. 32–34.
In view of these disclosures in Porter, the Examiner determines that
“one of ordinary skill in the art would recognize that either barrier films or
water-resistant additives may be utilized to improve water resistance in
laminated fabric composite panels.” Final Act. 5–6. The Examiner finds,
however, that Porter does not disclose composite sheet material 100
(laminated fabric) “being impregnated with an air resistant, water-resistant,
vapor permeable, elastomeric polymeric material with the required property
values required in claim 1,” and the Examiner relies on Grace and Paradis
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for suggesting impregnation of Cashin’s impact resistant sheet material 10
(laminated fabric) with such a material. Final Act. 6–7.
The Examiner relies on Grace’s disclosure of Perm-A-Barrier, which
Grace indicates is a fluid material designed for application to “construction
surfaces” that cures to form and an air tight, liquid water impermeable, and
vapor permeable, elastomeric sheet. Final Act. 6; Grace p. 1. The Examiner
determines that Grace thus evidences that “it is known in the art of water
vapor permeable insulation materials to utilize elastomeric materials with the
claimed properties to improve protection against water vapor ingress into the
building materials.” Final Act. 6.
The Examiner relies on Paradis’ disclosure of composite board 10
“useful in a variety of building applications,” which comprises foam layer
30 and at least one glass fiber mat 20. Final Act. 7; Paradis ¶¶ 14, 35; Fig. 1.
Paradis discloses that glass fiber mat 20 may be “substantially fully
impregnated with a binding composition,” which can “be effective to
improve the degree of liquid and vapor resistance, which can in turn improve
the weather resistance of the composition board.” Paradis ¶¶ 21, 24.
In view of these disclosures in Grace and Paradis, the Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to fully impregnate Cashin’s impact resistant sheet material 10 (laminated
fabric) as modified by Roth with the Perm-A-Barrier material disclosed in
Grace “to provide improved water vapor permeability properties resulting in
a composite material with improved protection against damages caused by
water vapor ingress,” and “to provide improved weather resistance as taught
by Paradis.” Final Act. 6–7.
Appellant argues that “Cashin, Roth and Porter all disclose the use of
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a polymeric film layer in combination with a multi-layered composite to
achieve the air-resistant, water-resistant, vapor permeable properties,” which
is excluded by the “consisting of” language of claim 1. Appeal Br. 11–13.
Appellant’s arguments, however, do not address the basis for the
Examiner’s reliance on Cashin, Roth, and Porter, and, therefore, do not
address the rejection as presented by the Examiner. Consequently,
Appellant’s arguments do not identify reversible error in the Examiner’s
rejection.
More specifically, as the Examiner explains (Ans. 22), and as
discussed above, Cashin discloses that inclusion of film layer 26 in barrier
layer 22 of Cashin’s impact resistant sheet material 10 (laminated fabric) is
optional by indicating that “in some embodiments, the fibrous substrate [24]
may be coated with a breathable, liquid impermeable coating, such as a film
layer.” Cashin col. 5, ll. 5–7 (emphasis added). As the Examiner also
explains (Ans. 22), and as discussed above, the Examiner relies on Roth for
suggesting inclusion of a second fibrous substrate 24 (woven or nonwoven
second carrier portion) in Cashin’s impact resistant sheet material 10
(laminated fabric) to strengthen the material, and the Examiner relies on
Porter’s disclosure of treating the layers or materials of Porter’s composite
sheet material 100 (laminated fabric) with water-resistant additives. In view
of this disclosure in Porter, and Cashin’s disclosure of breathable, liquid
impermeable film layer 26, one of ordinary skill in the art would have
understood that either inclusion of a liquid impermeable film as disclosed in
Cashin, or treatment with a water-resistant additive as disclosed in Porter,
“may be utilized to improve water resistance in laminated fabric composite
panels,” as the Examiner determines. Final Act. 5–6.
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Thus, although Cashin, Roth, and Porter may disclose “the use of a
polymeric film layer in combination with a multi-layered composite to
achieve [] air-resistant, water-resistant, vapor permeable properties” as
Appellant argues, the Examiner’s rejection is based on strengthening
Cashin’s impact resistant sheet material 10 (laminated fabric)—which does
not include optional film layer 26—by incorporating a second fibrous
substrate 24 (woven or nonwoven second carrier portion) as suggested by
Roth, and to fully impregnate the modified impact resistant sheet material 10
(laminated fabric) with Perm-A-Barrier, as suggested by Porter, Grace, and
Paradis, to impart air tightness, liquid water impermeability, and vapor
permeability to impact resistant sheet material 10 (laminated fabric), as
disclosed in Grace. Cashin’s impact resistant sheet material 10 (laminated
fabric) modified in this manner is not excluded by the “consisting of”
language of claim 1.
Appellant argues that Paradis “teaches away from the present
invention by teaching impregnating the fiber web to achieve vapor
resistance,” but, Appellant argues, because “vapor resistance is an undesired
property for the present invention, a person of ordinary skill in the art would
not be expected to apply the teachings of Paradis et al. regarding
impregnation to the combined disclosures of Cashin, Roth and Porter.”
Appeal Br. 8–9. Appellant argues that “Grace teaches away from the
present invention” by disclosing use of Perm-A-Barrier to form a surface
membrane on a material to which it is applied, rather than disclosing fully
impregnating a material with Perm-A-Barrier. Appeal Br. 9–11. Appellant
argues that “Porter teaches away from the present invention” by teaching
that the layers of Porter’s composite sheet material 100 (laminated fabric)
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can be coated or treated with water resistant additives or vapor barriers, and
“a vapor barrier is the antithesis of the presently claimed invention.” Appeal
Br. 13–14.
Appellant’s arguments, however, are improperly based on Paradis,
Grace, and Porter individually, and do not take into consideration what the
combined disclosures of Cashin, Roth, Porter, Grace, and Paradis reasonably
would have suggested to one of ordinary skill in the art at the effective filing
date of Appellant’s application. In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.”); In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(The test for obviousness “is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”). And
Appellant’s arguments again do not address the basis for the Examiner’s
reliance on Paradis, Grace, and Porter.
As discussed above, Cashin, Roth, Porter, Grace, and Paradis all
disclose building materials. Cashin discloses that water impermeability and
vapor permeability are desired properties for Cashin’s impact resistant sheet
material 10 (laminated fabric), which are imparted by inclusion of a film
layer in the material, while Porter discloses that either inclusion of a film
layer, or treatment of the layers of Porter’s composite sheet material 100
(laminated fabric) with a water-resistant additive, can be used to impart
water resistance to the sheet material. Grace discloses a material—Perm-A-
Barrier—used in construction that forms a liquid water impermeable and
vapor permeable elastomeric sheet, and Paradis discloses completely
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impregnating fiber mat 20 with a binding composition to improve its liquid
and vapor resistance.
In view of these disclosures, one of ordinary skill in the art would
have understood that full impregnation as disclosed in Paradis is a known
technique for “treating” layers of a laminated fabric as disclosed in Porter
with a composition or additive that imparts water-resistance to the laminated
fabric. One of ordinary skill in the art seeking to enhance the water
impermeability and vapor permeability of Cashin’s impact resistant sheet
material 10 (laminated fabric) reasonably would have been led to fully
impregnate impact resistant sheet material 10 (laminated fabric) with Perm-
A-Barrier as suggested by Porter and Paradis, in view of Grace’s disclosure
that Perm-A-Barrier imparts water impermeability and vapor permeability to
building materials.
The Examiner’s proposed combination of Cashin, Roth, Porter, Grace,
and Paradis, therefore, is not based on impregnating Cashin’s impact
resistant sheet material 10 (laminated fabric) with the vapor-resistant binding
composition disclosed in Paradis, or with a vapor barrier additive as
disclosed in Porter, as Appellant appears to argue. Rather, the Examiner’s
proposed combination is based on fully impregnating Cashin’s impact
resistant sheet material 10 (laminated fabric) with the Perm-A-Barrier
disclosed in Grace, in view of Cashin’s disclosure of the desirability of
imparting water impermeability and vapor permeability to Cashin’s impact
resistant sheet material 10 (laminated fabric), and Grace’s disclosure that
Perm-A-Barrier imparts such properties to building materials. And although
Grace teaches surface application of Perm-A-Barrier, the Examiner’s
proposed combination is based on fully impregnating Cashin’s impact
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resistant sheet material 10 (laminated fabric) with Perm-A-Barrier in view of
Paradis’s disclosure that full impregnation is a known technique for
“treating” layers of a laminated fabric as disclosed in Porter with a
composition or additive that imparts water-resistance to the laminated fabric.
Appellant does not identify any disclosure in Paradis, Grace, or Porter
that criticizes or discredits fully impregnating a laminated fabric with an air-
resistant, water-resistant, vapor permeable, elastomeric polymeric material
as recited in claim 1, and we find no such disclosure in these references.
Contrary to Appellant’s arguments, Paradis, Grace, and Porter, therefore, do
not teach away from the product of claim 1. Meiresonne v. Google, Inc.,
849 F.3d 1379, 1382 (Fed. Cir. 2017) (“A reference that ‘merely expresses a
general preference for an alternative invention but does not criticize,
discredit, or otherwise discourage investigation into’ the claimed invention
does not teach away.” (quoting Galderma Labs., L.P. v. Tolmar, Inc., 737
F.3d 731, 738 (Fed. Cir. 2013)).
We, accordingly, sustain the Examiner’s rejections of claims 1–7 and
15–19 under 35 U.S.C. § 103.

CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–7 103 Cashin, Roth,
Porter, Grace,
Paradis
1–7
15–18 103 Cashin, Roth,
Porter, Grace,
Paradis, Davis
15–18
19 103 Cashin, Roth,
Porter, Grace,
10
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Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
Paradis, Davis,
Kumar
Overall
Outcome
1–7, 15–19

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