2019003226 (P.T.A.B. May. 27, 2020)

VASYLYEV, SERGIY

Patent Trials and Appeals BoardMay 27, 2020

2019003226 (P.T.A.B. May. 27, 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. 14/922,137 10/24/2015 SERGIY VASYLYEV 7241 25945 7590 05/27/2020 SERGIY VASYLYEV 3204 East Pintail Way ELK GROVE, CA 95757 EXAMINER CHOUDHURY, MUSTAK ART UNIT PAPER NUMBER 2872 NOTIFICATION DATE DELIVERY MODE 05/27/2020 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): svasilyev@yahoo.com svasylyev@svvti.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SERGIY VASYLYEV ____________________ Appeal 2019-003226 Application 14/922,137 Technology Center 2800 ____________________ Before KAREN M. HASTINGS, N.WHITNEY WILSON, and JANE E. INGLESE, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s June 14, 2018 decision finally rejecting claims 1–20 (“Final Act.”).1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We affirm. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant does not identify the real party in interest as required by 37 C.F.R. § 41.37(c)(i). As there is no assignee of record, and the inventor appears to have filed the Appeal Brief and the Reply Brief pro se, the Board assume the real party in interest is the inventor Sergiy Vasylyev. Appeal 2019-003226 Application 14/922,137 2 CLAIMED SUBJECT MATTER Appellant’s disclosure relates to an angular selective light control sheeting which includes a layer of an optically clear elastic material having a series of parallel slits, where each slit is filled with an opaque material which prevents light transmission through the slit walls (Abstract). Details of the claimed invention are set forth in representative claim 1, which is reproduced below from the Claims Appendix to the Appeal Brief: 1. An angular selective light control sheet material, comprising: a layer of an optically transmissive elastic material; and a plurality of deep and narrow slits formed in a surface of said layer; wherein at least one of said slits comprises a layer of an opaque material. REJECTIONS 1. Claims 1–5, 10, and 12–19 are rejected under 35 U.S.C. § 103 as unpatentable over Koike2 in view of Joo.3 2. Claims 6–9 are rejected under 35 U.S.C. § 103 as unpatentable over Koike, Joo, and further in view of Gaides.4 3. Claim 11 is rejected under 35 U.S.C. § 103 as unpatentable over Koike, Joo, and further in view of Mimura.5 4. Claim 20 is rejected under 35 U.S.C. § 103 as unpatentable over Koike, Joo, and further in view of Cohen.6 2 Koike et al., US 6,239,911 B1, issued May 29, 2001. 3 Joo et al., US 2007/0037929 A1, published February 15, 2007. 4 Gaides et al., US 2007/0160811 A1, published July 12, 2007. 5 Mimura et al., US 2008/0144179 A1, published June 19, 2008. 6 Cohen, US 4,621,898, issued November 11, 1986. Appeal 2019-003226 Application 14/922,137 3 DISCUSSION Appellant does not make separate arguments regarding any of the claims (see Appeal Br. 3–5). Accordingly, we focus our analysis on the rejection of claim 1. The remaining rejections and claims will stand or fall with claim 1. 37 C.F.R. §41.37(c)(iv). The Examiner’s findings underlying the rejection are set forth at pages 9–10 of the Final Action. The Examiner finds that Koike discloses each element of the claimed material, except that Koike does not specifically disclose an optically transmissive material (Final Act. 9, citing Koike, 2:19– 22, 2:34–39, 3:17–23, 4:13–16, 4:38–41, 5:35–38 and Figs. 1–7). The Examiner does find, however, that Koike teaches that its product may be made of polyvinyl chloride (Final Act. 9, Koike 3:65–4:7). The Examiner further finds that Joo discloses a highly elastic polyvinyl chloride composition that has high elongation, large tensile strength, and high processability (Final Act. 9, citing Joo, ¶ 11). The Examiner determines that it would have been obvious to use Joo’s polyvinyl chloride composition in Koike’s product — which already is said to possibly include polyvinyl chloride — in order to take advantage of the properties of Joo’s polyvinyl chloride (Final Act. 9–10). Appellant makes several arguments urging reversal of the rejection. We have reviewed the arguments as set forth in the Appeal Brief and the Reply Brief and determine that Appellant has not demonstrated reversible error in the rejection. First, Appellant argues that the combination of Koike and Joo is improper because Joo is non-analogous art and, therefore, not property combinable with Koike (Appeal Br. 3). In particular, Appellant contends Appeal 2019-003226 Application 14/922,137 4 that Joo is directed to solving a problem of increasing the viscosity in polyvinyl chloride, and has nothing to with selective angular light control (Appeal Br. 3). Therefore, according to Appellant, because “the disclosure of Joo is not reasonably pertinent to the problem faced by the instant invention, or skilled in the art would not have been motivated to combine” the teachings of Koike and Joo (id.). In order for a reference to be used in a prior art rejection, it must be analogous art, which means that it is either (a) in the field of the applicant's endeavor; or (b) is reasonably pertinent to the problem with which the inventor was concerned. In re Kahn, 441 F.3d 977, 986-87 (Fed. Cir. 2006) (citing In re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992)). In this instance, although there has been no argument that Joo is in the same field of endeavor as Appellant’s invention or Koike’s invention, we determine that Joo is reasonably pertinent to Appellant’s invention. In particular, Koike (which is plainly in Appellant’s field of endeavor) specifically describes the use of polyvinyl chloride (Koike 3:65–4:7). However, Koike does not provide further details about the polyvinyl chloride. Thus a person of skill in the art would find Joo’s detailed description of a polyvinyl chloride to be pertinent if deciding what type of polyvinyl chloride to use in Koike’s product, as it (Joo) could provide information on polyvinyl chloride properties and methods of production. Accordingly, we do not find Appellant’s argument that Joo is non- analogous art to be persuasive. Appellant also argues that the cited art does not disclose “a layer of an opaque material within a slit” (Appeal Br. 4). This is not argument is not supported by a preponderance of the evidence of record. As well explained Appeal 2019-003226 Application 14/922,137 5 and illustrated by the Examiner (Ans. 6–7), Koike discloses that the cracks in its material may be filled with a light-scattering or light absorbing (i.e. opaque) material (Koike 2:34–39). This material forms a layer in the crack, in the same manner as occurs in claim 1. That is, Appellant has not proffered a construction of “layer” that would exclude the material described by Koike as filling its cracks. In particular, the Specification, with reference to FIG. 1 below, describes the interior of each slit 6 (crack) as “filled with an opaque material so as to form an opaque layer 14 between walls 7 and 8:” FIG. 1 is a schematic cross section view and ray tracing of an angular selective light control sheet material as described in the application on appeal. (Spec. ¶ 53.) There is nothing to distinguish the layer 14 shown in FIG. 1 above from what Koike discloses. Accordingly, we agree with the Examiner that this particular limitation is disclosed by Koike. For the foregoing reasons, we sustain the rejections. Appeal 2019-003226 Application 14/922,137 6 CONCLUSION In summary: Claims Rejected 35 U.S.C. § References(s)/Basis Affirmed Reversed 1–5, 10, 12–19 103 Koike, Joo 1–5, 10, 12– 19 6–9 103 Koike, Joo, Gaides 6–9 11 103 Koike, Joo, Mimura 11 20 103 Koike, Joo, Cohen 20 Overall Outcome 1–20 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