Szukat, Klaus

Patent Trials and Appeals Board

Oct 24, 2019

14123528 - (D) (P.T.A.B. Oct. 24, 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.
14/123,528 12/03/2013 Klaus Szukat 13-192 6705
83657 7590 10/24/2019
Michael Soderman
Tauentzienstr 9-12
Berlin, 10789
GERMANY
EXAMINER
IMANI, ELIZABETH MARY COLE
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
10/24/2019 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):
ip@soderman.us
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte KLAUS SZUKAT

Appeal 2019-000576
Application 14/123,528
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MARK NAGUMO, and
JAMES C. HOUSEL, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the
Primary Examiner’s final decision to reject claims 1, 3–8, 10–14, and 16.2
We have jurisdiction under 35 U.S.C. § 6(b).
We affirm in part.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42 and as listed in the Application Data Sheet filed December
3, 2013—namely, Klaus Szukat, who is the Inventor. Two individual
persons—Klaus Szukat and Fritz Sholten—are identified as the real parties
in interest (Appeal Brief filed May 5, 2018 (“Appeal Br.”) at 3).
2 See Appeal Br. 4–13; Examiner’s Answer entered July 27, 2018 (“Ans.”)
at 3–11; Final Office Action entered September 7, 2017 (“Final Act.”) at 2–
6.
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I. BACKGROUND
The subject matter on appeal relates to a multilayer laid scrim for
sheet-like or 3-dimensional high-strength components (Substitute
Specification filed December 3, 2013 (“Spec.”) at 1, ll. 10–12). The
Specification states that the claimed scrim includes structural reinforcement
elements embedded in at least certain areas (i.e., areas subject to stress) in at
least one layer or between layers to avoid certain known drawbacks of the
prior art (e.g., the laid structure having a tendency to be ripped open
depending on thickness) and to prevent fanning of the laid fibers (Spec. 4, ll.
8–17; 6, ll. 18–22).
Figure 5 (annotated) is illustrative and is reproduced from the
Drawings filed December 3, 2013, as follows:

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Figure 5 above depicts a boat 20’s bottom made of unidirectional (UD) and
multiaxial (MD) scrims with structural reinforcement elements 23 provided
in edge areas 21 (Spec. 1, ll. 16–17; 10, l. 10; 11, l. 24–12, l. 3).3
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. Multilayer laid scrim comprising a structure made of
several layers of glass fibers, synthetic fibers, aramid
fibers and/or carbon fibers,
characterized in that
sprayed-on self-adhesive structural reinforcement
elements (2, 6, 11, 16, 23) without orientation exist
between at least two layers, wherein there is selective
control of the percentage share of fibers in a coating
volume so that stressed areas of the multilayer laid scrim
have a higher percentage of fiber content.
(Appeal Br. 14 (emphases added)).
II. REJECTION ON APPEAL
Claims stand rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Tsotsis,4 Beraud et al.5 (“Beraud”), Mathieu,6 and
Gabrisch7 (Ans. 3–11; Final Act. 2–6).

3 The occurrences of “boot” in describing the boat shown in Figure 5 appear
to be translation errors. These errors should be corrected in the event of
further prosecution.
4 US 2005/0257887 A1, published November 24, 2005.
5 US 2012/0237707 A1, published September 20, 2012.
6 US 6,187,409 B1, issued February 13, 2001.
7 US 5,972,810, issued October 26, 1999.
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III. DISCUSSION
The Appellant provides substantive arguments under separate sub-
headings for claims 1 and 5 only (Appeal Br. 4–13). As for claims 3, 4, 6–8,
10–14, and 16, the Appellant relies on the arguments presented in support of
claim 1 (id. at 12–13). Therefore, we decide this appeal on the basis of
claims 1 and 5, with dependent claims 3, 4, 6–8, 10–14, and 16 standing or
falling with either claim 1 or 5. See 37 C.F.R. § 41.37(c)(1)(iv).
Claim 1
1. The Examiner’s Position
With respect to claim 1, the Examiner finds that Tsotsis describes a
multi-layered structure comprising a plurality of fibrous layers and veils of
structural reinforcement elements provided between the fibrous layers (Ans.
3). The Examiner finds that “[t]he structure is stable and the amount of the
reinforcements can be selected to provide stability and strength to the
structure, which equates to the percentage share of fibers being controlled”
(id. at 4).
Regarding the “sprayed-on” limitation, the Examiner explains that
although Tsotsis does not explicitly teach that the structural reinforcement
elements are formed by spraying, the patentability of the claimed product
depends on the product itself—not on its method of production—and,
therefore, the burden of production was shifted to the Appellant to come
forward with evidence establishing an unobvious difference between the
claimed product and the prior art product (id. (relying on In re Thorpe, 777
F.2d 695, 697 (Fed. Cir. 1985)).
Regarding the requirement that the structural reinforcement elements
are sprayed on “without orientation” as recited in claim 1, the Examiner
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finds that Tsotsis does not explicitly teach that the veils are random but
relies on Beraud to explain Tsotsis’s teachings (Ans. 5). Specifically, the
Examiner finds that Beraud teaches that the term “veil” is a term of art that
defines a nonwoven random structure for the fibers (id.).
Regarding the requirement that “stressed areas of the multilayer laid
scrim have a higher percentage of fiber content” as recited in claim 1, the
Examiner finds that Mathieu teaches that scrims can be reinforced by
providing additional random nonwoven fibers in certain areas such as edges
to provide reinforced edges (id.). The Examiner concludes that, therefore,
“it would have been obvious to have provided the veils at those discrete
locations of Tsotsis where additional reinforcement was desired” (id.).
Regarding the “self-adhesive” limitation, the Examiner finds that
Gabrisch teaches using self-adhesive auxiliary fibrous reinforcing layers to
reinforce composite materials (id. at 5–6). The Examiner concludes that,
“[t]herefore, it would have been obvious to one of ordinary skill in the art . .
. to have employed a self-adhesive veil or reinforcing fibrous elements as
taught by Gabrisch in order to eliminate the need for additional adhesives”
(id. at 6).
2. The Appellant’s Contentions
The Appellant contends that Tsotsis discloses multiple fiber layers
and veils but not the limitations highlighted above in reproduced claim 1
(Appeal Br. 5). The Appellant urges that the claimed product is
“substantially different” from the product disclosed in Tsotsis in that the
stressed areas will have greater amounts of fiber content, resulting in a
superior product, and “[t]here is also selective control of the fiber content
throughout the entire product (and not just at edges)” (id. at 6). The
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Appellant argues that “the spraying process enables more precise stress
protection” and that the “reinforcement is more economically and effectively
distributed in the product” (id.). Regarding the “secondary” references, the
Appellant argues that the reasons in support of their combination with
Tsotsis are merely conclusory and do not address the differences urged by
the Appellant (id. at 7–9). In the Appellant’s view, the Examiner’s rejection
is based on hindsight (id. at 9–10). Furthermore, the Appellant alleges that
surprising and unexpected results are achieved (id. at 5, 10).
3. Opinion
The Appellant’s arguments fail to identify reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Tsotsis describes a fiber preform having a nonwoven, thermoplastic
interlayer or veil between at least a pair of fibrous layers (Tsotsis ¶ 4).
Tsotsis’s Figure 1 (annotated) is illustrative and is reproduced as follows:

Tsotsis’s Figure 1 above depicts a highly enlarged, cross-sectional view of a
portion of a preform comprising a plurality of fibrous layers 12a, 12b, and
12c and thermoplastic veils 14a and 14b disposed between the fibrous layers
(id. ¶¶ 13–14).
Tsotsis teaches that the thermoplastic veils 14 are integrated into the
fibrous layers 12 during production of the preform by melt-bonding, knitting
(i.e., stitching), or other mechanical means (id. ¶ 13). Tsotsis further teaches
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that the nonwoven thermoplastic veils 14 become tacky when heated, which
is consistent with the Appellant’s written description for self-adhesivity
(Spec. 9, ll. 7–9), and adhere adjacent fibrous layers 12 to one another to
prevent their movement (id. ¶¶ 4, 14). In addition, Tsotsis teaches that the
thermoplastic veils 14 act as toughening layers to impart significant
additional impact damage resistance to composite structures using the multi-
layered fibrous preform and that the thickness (i.e., weight) of the veils may
be varied to provide a greater or lesser degree of impact damage tolerance to
better suit the needs of specific applications and parts (id. ¶¶ 5, 15).
Although Tsotsis does not say that Tsotsis’s veils 14 are made up of
“sprayed-on self-adhesive structural reinforcement elements . . . without
orientation” as required by claim 1, we do not agree with the Appellant that
these limitations serve to patentably distinguish the claimed product over
Tsotsis’s product. As the Examiner explains (Ans. 4, 6), the patentability of
a product depends on the product itself—not by its method of production.
Tsotsis does not mention spraying, but Tsotsis’s final product appears to be
the same or substantially as the claimed product after the veils 14 are
integrated into the preform such as by melt-bonding (Tsotsis ¶¶ 13–15). In
this regard, the current Specification states that the structural reinforcement
elements (random fibers) may be sprayed with a selected liquid or powder-
type material or, alternatively, “designed in such a way that they undergo a
heating process, e.g.[,] during the pressing with a heatable stamp, and
dissolve in the resinification” (Spec. 7, l. 20–8, l. 3). Thus, it would
reasonably appear that the claimed product would be indistinguishable from
Tsotsis’s product. Other than attorney argument, the Appellant does not
direct us to any persuasive evidence that would reasonably establish that
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spraying would result in a structurally and patentably different product as
compared to a different technique of integration (e.g., melt-bonding) as
disclosed in Tsotsis or the current Specification. Thorpe, 777 F.2d at 697.
As for the “without orientation” (random) limitation, Beraud teaches
that “[t]he term ‘nonwoven’, also known as a ‘veil’, conventionally means
an assembly of continuous or short fibers disposed in a random manner” and
that the veils may be heated to exploit their hot tack nature (Beraud ¶ 35).
Tsotsis’s disclosure regarding nonwoven thermoplastic veils is consistent
with the art-accepted definition for “nonwoven” or “veil” as disclosed in
Beraud, and, therefore, Tsotsis’s fibers making up the veils would
reasonably appear to be made of an assembly of continuous or short fibers
disposed in a random manner or “without orientation,” as required by
claim 1. The Appellant does not direct us to contrary evidence.
Regarding “selective control of the percentage share of fibers in a
coating volume so that stressed areas of the multilayer laid scrim have a
higher percentage of fiber content” as recited in claim 1, we observe that
claim 1 fails to recite any specific structural dimensional limitations for the
claimed scrim, let alone specific areas of the scrim on which the structural
reinforcement elements are sprayed. Nor does claim 1 recite any composite
structure that incorporates the claimed scrim. Thus, contrary to the
Appellant’s belief and consistent with the Examiner’s position (Ans. 8),
providing structural reinforcement elements on any part of a composite
material, including the edges, would meet claim 1. As we found above,
Tsotsis teaches that the thicknesses of the thermoplastic veils may be varied
to provide a greater or lesser degree of impact damage tolerance to better
suit the needs of specific applications and parts (Tsotsis ¶ 4). This teaching
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would have suggested to a person having ordinary skill in the art to provide
thermoplastic veils in certain areas of the preform (scrim) as needed or
suited for the final composite part that is to be fabricated.
As for the Appellant’s arguments pertaining to surprising or
unexpected results, these arguments are without merit. As the Examiner
points out (Ans. 10), the Appellant does not offer any objective evidence
(e.g., comparative experimental data) to support the allegation, much less
establish that the evidence of unexpected results is commensurate with the
broad scope of claim 1. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
For these reasons, we uphold the Examiner’s rejection of claim 1.
Claim 5
We reach a different result for claim 5. Claim 5, which depends from
claim 1, recites that “the individual layers having draping zones, said
draping zones being created at the ends of the individual layers via pressing
in an appropriate mold, with structural reinforcement elements arranged in
the area of the draping zones” (Appeal Br. 14).
The Appellant argues that “draping zones” as recited in claim 5
include “a back and forth arrangement of the layers not unlike that of well-
known drapes in a house” and that such “draping zones” are not shown in
the applied prior art references (id. at 11). We agree.
The current Specification defines “draping” in the context of the
invention “to mean that the individual scrims are pressed into an appropriate
mold to manufacture multi-edge components, for instance” (Spec. 5, ll. 11–
13 (emphases added)). Hence, the Examiner’s findings that the “Appellant
does not define the draping zones other than that they are the ends of the
individual layers, which the action equates with the edges” and that “[t]he
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end of a layer is per se the edge of that layer” lack support and, therefore,
constitute reversible errors (Ans. 10).
For these reasons, we do not sustain the rejection of claim 5 and
claims dependent therefrom.

IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. §  Evidentiary
Basis
Affirmed Reversed
1, 3–8, 10–14,
and 16
103(a)  Tsotsis,
Beraud,
Mathieu, and
Gabrisch
1, 3, 4, 6–8,
10, 13, 14,
and 16
5, 11, and 12

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 IN PART