Ex parte Srinivasan

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________________
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The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KRISHNA SRINIVASAN
and BRIAN E. DUFFY
Appeal 2007-0512
Application 10/310,7441
Technology Center 1700
Decided: May 1, 2007
On Brief
Before: FRED E. McKELVEY, Senior Administrative Patent Judge,
JAMES T. MOORE, and MARK NAGUMO, Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
1 Application for patent filed 5 December 2002 as a division of application
09/190,373, which was filed 12 November 1998, now issued as U.S. Patent
6,536,498. Appellants identify the real party in interest as Building
Materials Corporation of America. (Corrected Appeal Br. filed 13 February
2006 (“Appeal Br”.).

Appeal 2007-0512
Application 10/310,744
A. 	Statement of the Case
Appellants appeal under 35 U.S.C. § 134 from the final rejection of
claims 26, 27, 29, 30, 33, 34, 36, and 38–44.2 A subset of the appealed
claims has been rejected for lack of an adequate written description under
35 U.S.C. § 112, first paragraph. The complementary subset of claims has
been rejected as anticipated under 35 U.S.C. § 102(e). We have jurisdiction
under 35 U.S.C. § 6(b). For the reasons that follow, we affirm.
BACKGROUND
The claims on appeal cover an apparatus for welding sheets of
thermoplastic roofing material together. The record indicates that a strip of
such material is laid down at one side of the roof. The strip is secured to the
roof by placing a batten bar or a line of stress plates on the strip near the
inner edge. The bar or plates are then nailed or screwed to the roof. A
second strip of material is then laid down parallel to the first and overlapping
the secured line. Heat and pressure are applied to the material in the
overlapping region to weld the two strips together. According to Appellants,
the prior art only provided welds on either side of the secured line, which led
to undesirable bubbles or air pockets over the fastening means.
(Specification at 5.) Appellants seek patent protection for an apparatus that
provides a substantially continuous weld seam from one side of the secured
line across to the other side of the secured line.
The disputed issues involve (1) whether the subject matter of certain
claims on appeal is anticipated by the prior art; and (2) the meaning of the
term "channel" as it appears in the remainder of Appellants' amended claims.
2 Claims 12–25 are subject to a restriction requirement and have been
withdrawn from consideration.
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Some of the procedural history of the prosecution of the application
provides helpful context for the issues in this appeal. The application on
appeal was filed on 5 December 2002, as a division of original application
09/190,373, which was filed on 12 November 1998, and which had been
allowed. On 26 August 2003, U.S. Patent 6,610,159 B2 ("Henegar") was
issued to Jeffrey W. Henegar and assigned to BFS Diversified Products,
LLC, based on an application filed 27 July 2001. On 17 September 1993,
Appellants filed a preliminary amendment adding claims 25-37, drawn to
apparatuses; Appellants also filed a petition to make the application special,
for rapid processing, alleging commercial sales of devices that would
infringe the apparatus claims. In due course, the Examiner issued an action
on the merits (20 November 2003, "FAOM"), in which, inter alia, the
potential of an interference with Henegar was noted, due to apparently
copied claims (FAOM at 3 and 9); and rejections for lack of written
description and for anticipation under 35 U.S.C. § 102(e) over U.S. Patent
5,935,357 to Michael J. Hubbard and John Jordan ("Hubbard") were entered.
Although the claims have been amended since, the basic issues on appeal
were joined at that time. Further prosecution eventually led to the present
appeal.
B. 	FINDINGS OF FACT
The following findings of fact3 and any set out in the
Discussion are supported by a preponderance of the evidence of record.
3 Any conclusions of law should be treated as such.
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The claimed subject matter
1. 	Claims 26 and 27 are representative of the issues involved in this
appeal.
2. 	Claim 26 reads (emphasis added):
An apparatus for seaming roofing membranes, wherein one of
the membranes is secured to an underlying support structure by
at least one protruding fastener, the apparatus comprising:
a carriage;
a heating assembly carried by said carriage, said heating
assembly generating heat capable of bonding the membranes to
one another; and
a seaming assembly carried by said carriage, said
seaming assembly directing the generated heat to the
membranes while also applying pressure to the membranes so
as to form a substantially continuous width seam.
3. 	Claim 27 reads (emphasis added):
The apparatus according to claim 26, wherein said seaming
assembly comprises:
a nozzle for directing heated air between the membranes,
said nozzle having at least two channels, wherein one of said
channels is slightly elevated so as to forms a gap sized to pass
over the at least one protruding fastener.
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4. 	Appellants describe the seaming assembly with respect to Figure 7,
shown here:
Pressure roller 10 [not labeled: 10 comprises 12, 14–16, and 18]
having distal end 16 and proximal end 18 travels on both sides
of fastening means 26 exerting sufficient pressure onto the
overlapped portion of the overlapping thermoplastic sheets [22
and 24] to produce a weld therebetween. * * * Portions of the
rubber cushion [15] directly over the fastening means are
compressed, while portions of the rubber cushion adjacent to
the fastening means conform to the underlying second
thermoplastic sheet and in sufficiently tight contact therewith to
expel air from between the overlapping portions of the
thermoplastic sheets so as to allow formation of air pockets or
bubbles.
(Specification at 9, bracketed labels added for clarity.)
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5. 	Appellants describe the hot air nozzle in terms of Figure 6, shown
here:
opening 34 comprises large openings 36a and 36b and a
restricted opening portion 38 between 36a and 36b. It was
found that the restricted opening portion 38 still allows
sufficient outflow of heated air to sufficiently soften the
overlapping portion of the thermoplastic sheets over and under
the fastening means in order to weld the thermoplastic sheets
together over the interposed fastening means.
(Specification at 9, emphasis added.)
Hubbard
6. 	U.S. Patent 5,935,357 issued to Michael J. Hubbard and John Jordon
on 10 August 1999, based on original application 08/803,356, filed
20 February 1997.
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7. 	Hubbard Figure 7 is reproduced here:
8. 	Hubbard describes the apparatus as follows: "[a]ttached to the chassis
22 is the hot air welder 200 [sic: 20] The hot air welder 20 includes a
heating element for heating air and a blower for blowing the heated air to a
nozzle 40 for selective distribution . . . ." (Hubbard at col. 5, ll. 53–66.)
9. 	Hubbard describes two distinct embodiments of weld wheels, one of
which is shown in Figure 7, and a second, in which the middle, stipled
portion, is absent:
The roof membrane welding apparatus 10 may also include at
least two weld wheels 62 and 64 or a weld wheel 63 made of a
duo-durometer material having a soft middle material and a
hard outer material. The duo-durom[e]ter material may be a
urethane, silicone or a foam material and the like, having a
Shore A hardness of about 50 or more for hard outer material
and of about 40 or less for the soft middle material. It will be
appreciated that the weld wheels 62 and 64 or weld wheel 63
must allow the roof membrane fasteners to pass between the
weld wheels or underneath the weld wheel and allow the weld
wheels to simultaneously press the first membrane 12 and the
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second membrane 14 against the roof deck 16 on both sides of
the roof membrane fasteners.
(Hubbard at col. 7, ll. 29-42 (emphasis added) (items 12, 14, 16, 62, and 64
are illustrated in, e.g., Figure 19, which is not reproduced in this decision.)
10. 	Hubbard also states, with respect to the nozzle 40:
[r]eferring to FIGS. 1-9, 10, 13 and 14, the flow of heated air
from the outlet id [inner diameter] may be from a single
opening 50 and span across the entire width of the roof
membrane fastener 18 to form a heat sealing weld on each side
of the fastener . . . .
(Hubbard at col. 6, ll. 32–35; emphasis added.)
Henegar
11. 	Henegar Figures 2 and 3 are reproduced here:
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12. 	Henegar describes the nozzle of its invention in terms of "channels" at
column 3, l. 40, through column 4, l. 33, with reference to Figures 1-4.
13. 	Henegar states,
The nozzle [52] includes a plurality of channels, and, in
particular, a proximal channel 72 which is closest to the elbow
68. . . . The proximal channel 72 includes a side 78 that is
substantially perpendicular with a bottom plate 80 that is
positioned adjacent the top surface of the bottom membrane 56.
Extending substantially perpendicularly upward from the
bottom plate 80 is an inner side 82 which is substantially
parallel with the outer side 78.
(Henegar at col. 3, ll. 49–60.)
14. 	Henegar describes center channel 74 and distal channel 76 in similar
terms. (Henegar at col. 3, l. 60, through col. 4, l. 9.)
15. 	Henegar also describes the interior of the nozzle in the following
words:
Extending from the inner sides 82 and 90 are vanes 104 which
are internal to the nozzle 52. The vanes extend from the inner
sides and are proportionally positioned within the nozzle and
heat duct so as to direct the heated airflow equally along the
entire width of the nozzle 52. This provides a uniform heat
gradient so as to ensure uniform bonding between the
membranes in the seaming area.
(Henegar at col. 4, ll. 27–33.)
The Rejections
Rejection over Hubbard
16. 	The Examiner rejects claims 26, 30, and 38–42 as anticipated under
35 U.S.C. § 102(e) over Hubbard.
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17. 	The Examiner finds that Hubbard describes, in Figure 7 and in the text
at column 5, ll. 63–66, and column 7, ll. 29-42, an apparatus that meets all
the limitations of the cited claims. (Answer at 5–6.)
18. 	In the Examiner's words, "[t]he pressure is applied by a variable
pressure assembly comprising a pressure roller (weld wheel) [63] made of
duo-durometer material having a soft elastomeric middle material and a
harder outer material on either side such that the harder outer material on
either side of the soft middle material provides a constant pressure source
and the soft elastomeric middle material provides a variable pressure source
in that it is compressed by protruding fastening means and conforms to the
shape of the protruding fastening means as it passes over the fastening
means (Figure 7; column 7, lines 29-42)." (Answer at 6.)
19. 	Appellants deny that Hubbard anticipates the claimed subject matter,
arguing that, "[a]t Column 7, lines 36-41, Hubbard teaches 'weld wheel 63
(the duo-durometer embodiment) must allow the roof membrane fasteners to
pass between the weld wheels or underneath the weld wheel and allow the
weld wheels to simultaneously press the first membrane 12 and the second
membrane 14 against the roof deck 16 on both sides of the roof membrane
fasteners.'" (Appeal Br. at 12; emphasis original.)
20. 	Appellants conclude that "Hubbard cannot form a substantially
continuous width seam since its center portion is provided to run over a
batten bar. Hubbard makes a dual weld on either side of the batten bar and
never a single continuous weld across the entire width of the weld wheel as
in the present invention." (Appeal Br. at 12.)
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21. 	The Examiner's response to that argument was that "[t]he provision of
the softer rubber material between the harder rubber components on wither
[sic: either] side of the pressing roller mechanism in Hubbard et al was
clearly able to form a continuous width seam along the roof membrane as
the soft component to the roller allowed one to more easily apply pressure in
those regions where the fasteners protruded from the surface by virtue of the
soft elastic material in the central region of the roller." (Answer at 9.)
22. 	Appellants maintain their position in the Reply Brief, urging that
"[w]hat is different about the present invention is that the weld wheel is
constructed to form a weld across its entire width. The weld wheel is
structurally different than that found in Hubbard." (Reply Br. at 4.)
23. 	Appellants cite no authority, whether testimony by a knowledgeable
person, technical reviews, or other technical publications, in support of their
arguments.
Rejections for lack of written description
24. 	The Examiner rejects claims 27, 29, 30, 33, 34, 36, 43, and 44 as
lacking an adequate written description in the specification as filed for the
term "channel." (Final Rejection mailed 13 June 2005 ("Final Rejection")
at 2–4; and Examiner's Answer mailed 6 July 2005 ("Answer") at 3-5.)
25. 	With regard to claims 27, 33, and 43, the Examiner finds that there is
no basis in the originally filed specification for the limitation "said nozzle
having at least two channels . . ." (emphasis added.) (Answer at 3-4.)
26. 	More particularly, the Examiner finds, "[o]ne skilled in the art would
have recognized that that nozzle taught in the disclosure has a single channel
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(opening) and that separate channels would have clear demarcations such as
sidewalls and there is no suggestion of having at least two channels in the
nozzle described in the disclosure." (Answer at 4.)
27. 	The Examiner also finds that "[t]he appellant has presented these
claims in a effort to provoke interference with U.S. Patent 6,610,159, where
the reference to U.S. patent '159 clearly disclosed separate channels as
depicted in figure 2 therein where vanes 104 separated the individual
channels." (Answer at 4.)
28. 	With regard to claims 29 and 44, the Examiner finds that there is no
description of a nozzle having three channels. (Answer at 5.)
29. 	With regard to claim 36, the Examiner finds that there is no
description of a nozzle having a plurality of channels.
30. 	Throughout prosecution, the Examiner has found that the term
"channel" applies to structures such as those disclosed by Heneger as having
including walls and an opening that separate one channel from an adjacent
channel, as opposed to structures such as the nozzle shown in Appellants'
Figure 6.
Appellants’ argument
31. 	Appellants urge that "[t]he channels are recognized by one skilled in
the art due to the different flow paths and dynamics of the fluid not due to
any demarcated sidewalls." (Brief at 10.)
32. 	Before the Board, Appellants cite no testimony from one
knowledgeable in the art, nor any other evidence of the use of that term by
the prior art, such as review articles, technical encyclopedias or dictionaries,
or examples of use of the term "channel" in the prior art.
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C. 	Discussion
Anticipation by Hubbard
The only error raised by Appellants with respect to the rejection over
Hubbard is whether the apparatus shown in Hubbard Figure 7 can produce a
substantially continuous width welded seam. We hold that all other
arguments previously made before the Examiner and not repeated in the
appeal brief have been waived.
The critical part of Figure 7 is reproduced here:
Part 40 is a nozzle that delivers hot air through the flattened opening facing
weld roller 63. In Appellants' words, "Hubbard cannot form a substantially
continuous width seam since its center portion is provided to run over a
batten bar. Hubbard makes a dual weld on either side of the batten bar and
never a singe continuous weld across the entire width of the weld wheel as
in the present invention." (Appeal Br. at 12.) Appellants do not rely on any
evidence, other than Hubbard itself, in support of their arguments. In
response, the Examiner answers: "[t]he provision of the softer rubber
material between the harder rubber components on wither [sic: either] side
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of the pressing roller mechanism in Hubbard et al. was clearly able to form a
continuous width seam along the roof membrane as the soft component to
the roller allowed one to more easily apply pressure in those regions where
the fasteners protruded from the surface by virtue of the soft elastic material
in the central region of the roller." (Answer at 9.)
We find that weld wheel 63, as depicted, has a level surface — i.e.,
the hard outer portions are level with the softer inner (stippled) portion.
Moreover, we observe that Hubbard teaches that the hard outer material has
a Shore A hardness of about 50 or more, while the soft middle material has a
hardness of about 40 or less. (Hubbard at col. 7, ll. 30-36.)
Appellants describe the way their roller works in the following words
(bold labels added for reference to Figure 1, shown here):
Portions of the rubber cushion [15] directly over the fastening
means [26] are compressed, while portions of the rubber
cushion [24] adjacent to the fastening means conform to the
underlying second thermoplastic sheet [22] and in sufficiently
tight contact therewith to expel air from between the
overlapping portions of the thermoplastic sheets so as not to
allow formation of air pockets or bubbles.
(Specification at 10.) Appellants disclose a number of suitable elastomeric
materials, and teach, "[t]he durometer of the various elastomeric materials
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should preferably be in the range of from about 25 to 80 Shore A."
(Specification at 8.)
We conclude that the Examiner has set out an insightful and accurate
analysis of the function of weld wheel 63. The similar structures of
Hubbard's weld wheel 63 and Appellants roller 10, together with the overlap
in hardness taught by both for the soft middle material leave us in no doubt
that, in similar circumstances, they would perform similar functions. The
appearance of the nozzle opening in Figure 7, spanning the entire width of
the fastener region, is no accident. Hubbard states, with respect to nozzle 40,
"[r]eferring to FIGS. 1–9, 10, 13 and 14, the flow of heated air from the
outlet id [inner diameter] may be from a single opening 50 and span across
the entire width of the roof membrane fastener 18 to form a heat sealing
weld on each side of the fastener . . . ". (Hubbard at col. 6, ll. 32–35;
emphasis added.) We find that Hubbard teaches that the nozzle assembly
shown in Figure 7 and the other figures listed, heats up the roof membrane
material on both sides and on top of the fasteners. On the present record, the
weight of the evidence strongly supports the finding that the "soft" center
portion of weld wheel 63 in Figure 7 would press down on the heated
membrane covering the roof membrane fastener at least as firmly as—if not
more firmly than—the elastomeric center portion of Appellants' roller 10.
Indeed, in the absence of a recessed section, the contact between the center
of the roller and the roof membrane would be expected, reasonably, to be
even firmer in the apparatus shown in Hubbard Figure 7. Just as Appellants'
roller 10 creates a continuous weld across the faster line, so would
Hubbard's roller 63 in combination with the wide blower shown in Figure 7.
Cf. In re Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990)
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(“[W]hen the PTO shows sound basis for believing that the products of the
applicant and the prior art are the same, the applicant has the burden of
showing that they are not.”)
Although, as Appellants point out, the center region of roller 63 is
"provided to run over a batten bar" (Appeal Br. at 12), Appellants have not
directed out attention to any evidentiary support for their finding that the
apparatus shown in Hubbard Figure 7 would only make a weld
simultaneously on both sides of the roof membrane fastener. Thus, the
weight of the evidence supports the Examiner's finding.
Appellants have argued no other error in the Examiner's rejection.
Accordingly, the Examiner's rejection for anticipation by Hubbard is
AFFIRMED.
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Written Description
Whether the written description requirement has been met is a
question of fact. Purdue Pharma L.P. v. Faulding Inc., 230 F.3d 1320, 1323,
56 USPQ 2d 1481, 1483 (Fed. Cir. 2000) ("[the inquiry into whether the
written description requirement has been met] is a factual one and must be
assessed on a case-by-case basis." (citation omitted)). Appellants do not
dispute that their specification, as filed, did not contain the term "channel,"
which now occurs in claims 27, 29, 30, 33, 34, 36, 42, and 44. The record
shows that Appellants introduced these claims in order to provoke an
interference with Henegar. Appellants also do not dispute the Examiner's
finding that Henegar "clearly disclosed separate channels as depicted in
figure 2 therein where vanes 104 separated the individual channels."
(Answer at 4.)
Appellants argue that "channels are recognized by one skilled in the
art due to the different flow paths and dynamics of the fluid not due to any
demarcated sidewalls." (Appeal Br. at 10.) According to Appellants, the
original disclosure, e.g., of the nozzle in Figure 6, showing wide and narrow
regions, would have been recognized as producing multiple channels.
(Appeal Br. at 10–11.) Appellants do not cite any evidence, whether
testimony from one knowledgeable in the art, review articles or treatises, or
instances in the prior art, in support of their argument as to how the term
"channel" would have been understood by those skilled in this art.
On the present record in this appeal, Henegar stands as the only
evidence of how this art has used and understands the term "channel."
Henegar discusses channels in some detail at column 3, l. 40, through
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column 4, l. 33; and in all of that discussion, channels are defined by interior
walls in the nozzle in addition to the exterior walls of the nozzle. We
observe that during prosecution the Examiner and the Appellants traded
dictionary definitions of the word "channel." See, e.g., arguments filed with
the amendment filed 18 May 2004, at 13 (citing Webster's New Universal
Unabridged Dictionary, 2d ed. (1983); Answer at 7, evidently quoting (but
not citing) Webster's 3d Int'l Dictionary. Although claim terms are to be
given their broadest reasonable interpretation consistent with the original
disclosure, the introduction of a term not previously used raises other issues,
particularly when that term is introduced to provoke an interference with an
issued patent.
In the present case, it would seem, Appellants believe they should be
the senior party in an interference with Henegar, and they introduced
claims 26–42 for that purpose. (Request by Applicant for Interference with
Patent Under 37 C.F.R. § 1.607, filed 24 April 2004, at 18.) Appellants
have declined the Examiner's invitation to use their own terminology and to
argue that such claims interfered with the claims of Henegar. (See, e.g.,
Final Rejection mailed 13 June 2005, paragraph bridging 3-4; Answer
at 7-8.) The difficulty for Appellants, however, is that obviousness does not
serve as a proxy for written description. Lockwood v. American Airlines,
107 F.3d 1565, 1572, 41 USPQ2d 1961, 1966 (Fed. Cir. 1997) (“Entitlement
to a filing date does not extend to subject matter which is not disclosed but
would be obvious over what is expressly disclosed. It extends only to that
which is disclosed . . . The question is not whether a claimed invention is an
obvious variant of that which is disclosed in the specification. Rather, a
prior application itself must describe an invention, and do so in sufficient
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detail that one skilled in the art can clearly conclude that the inventor
invented the claimed invention as of the filing date sought.”)
In the present case, the preponderance of the evidence, namely,
Henegar, indicates that the term "channel" is used in this art (controlling the
flow of gases) to denote the use of enclosed structures, such as tubes.
Appellants have not offered credible evidence to the contrary. We accord
definitions taken from general, non-technical dictionaries, little weight as to
how those skilled in this art would have understood this term because it is
from the vantage of those skilled in the art that we must strive to understand
the claimed subject matter. Multiform Desiccants, Ind. v. Medzam, Ltd., 133
F.3d 1473, 1477, 45 USPQ2d 1429, 1432 (Fed. Cir. 1998) (“It is the person
of ordinary skill in the field of the invention through whose eyes the claims
are construed. Such person is deemed to read the words used in the patent
documents with an understanding of their meaning in the field, and to have
knowledge of any special meaning and usage in the field.”) Accordingly,
the Examiner's rejection for lack of written description supporting the term
"channel" and its variants is AFFIRMED.
Remarks on provoking interferences
We take this opportunity to reinforce what has been said on many
other occasions and circumstances, including other decisions on appeal:
applicants seeking to provoke an interference with a patentee having claims
that use a different terminology are strongly advised to present claims that
they regard as interfering with the patentee's claims in the terminology of
their own application's disclosure, rather than copying the terminology and
claims of their would-be opponent. They must, of course, argue that their
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claimed subject matter is patentably indistinct over the patentee's claimed
subject matter, and vice-versa, under 37 C.F.R. § 41.203(a) (commonly
known as the "two-way test"); but they do not have to fight the additional
battle of showing that their originally filed specification supports their novel
use of the patentee's term. In cases such as this, where, perhaps, a broad
construction of the term "three channels" might encompass their disclosed
nozzle having a narrow section adjacent to wide sections on either side, the
applicants, even if successful in surmounting the written description
threshold, would still have to show that the "two-way test" is satisfied. That
is, that the provision of multiple openings of adjacent pipes taught by
patentees would have been recognized by those of ordinary skill in the art as
obvious over a single opening with variations in flow across the opening
taught by applicants, and vice-versa. Such a showing requires evidence, not
mere attorney argument.
The Examiner's approach has been commendable. Rather than
permitting patentability decisions to be shifted into an interference, the
Examiner has dealt with them during ex parte prosecution. Moreover, he
has supported both of his rejections with evidence and sound reasoning.
And, while tackling the often patent-law technical issues surrounding written
description, he endeavored not to let procedural technicalities slow down the
appeal process. (See the Answer at 9-10, providing Appellants the
opportunity to complete the record while responding to their substantive
arguments, rather than delaying matters by insisting on an amended Appeal
Brief.) Even had we reversed and proceeded to declare an interference, the
Examiner's approach, namely, to resolve issues of patentability during ex
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parte prosecution prior to forwarding the application to the Board with a
suggestion for an interference, would have been proper and correct.
D. 	Decision
Upon consideration of the record and for the reasons given, the
Examiner's rejections are AFFIRMED.
The Examiner rejection of claims 26, 30, and 38–42 as anticipated
under 35 U.S.C. § 102(e) over Hubbard is AFFIRMED.
The Examiner's rejection of claims 27, 29, 30, 33, 34, 36, 43, and 44
as lacking an adequate written description under 35 U.S.C. § 112, ¶ 1, 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).
AFFIRMED
lp
William J. Davis, Esq..
GAF MATERIALS CORPORATION
Legal Dept. Bldg.10
1361 Alps Road
Wayne NJ 07470
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