COMMISSIONER'S DECISION
UNOBVIOUS: Combination of Known Elements.
The useful advantage of increasing wear-life without loss of
color sharpness, by providing color depth in the flooring
using a transparent binder as well as a color coated trans-
parent filler particles, is not suggested by the binders and
fillers as used in the prior art. An essential step required
by the prior art was eliminated, and binder transparency was
not an essential element in the prior art.
FINAL ACTION: Reversed.
*********************
This decision deals with a request for review by the Commissioner
of Patents of the Examiner's Final Action dated March 2, 1973 on
application 013,797. This application was filed on March 1, 1968
in the name of Charles R. Lea and refers to a "Flooring With
Decorative Filler."
This application relates to polymeric resin flooring containing
colored decorative granules. Claim 1 refers to translucent
granules coated with a pigmented insoluable ceramic composition,
and the granules are homogeneously distributed throughout a
transparent synthetic binder.
In the prosecution terminated by the Final Action the examiner
rejected the application in that the subject matter is obvious
in view of the prior art.
References Applied:
British Patent
934,628 Aug. 21, 1963 Monaghan
United States Patent
1,486,208 Mar. 11, 1924 Weber
In the Final Action the Examiner stated in part:
The Monaghan et al patent discloses compositions suitable
for use as surfacings for floors and other surfaces
comprising a liquid resin binder, mixed with a suitable
filler such as quartz, said filler having a surface coating
derived from an organic silicate or the like; said patent
further discloses the appropriate particle sizes of the
filler as being between 10 mesh and 240 mesh according
to British Standard Specification Number 410, 1943,
corresponding to 1.676 and 0.066 mm. respectively.
The Weber patent discloses a method of colouring terrazzo
flooring, surfacing or the like, and the article produced
thereby. The flooring composition according to Weber
comprises a mouldable cement or other base, having embedded
therein any natural transparent or semitransparent chips
of material such as quartz, marble, mica spar or the
like, said chips being coated with a suitable paint or
pigment mixture. Weber's stated objective is to preserve
the appearance of transparency of depth of the terrazzo
floor or surfacing thus produced.
...
The use of colour coated translucent mineral granules
in a fluid binder for a continuous, seamless decorative
floor is known, and has been taught by Monaghan et al,
and Weber.
. The colour coating of mineral granules or the like is
not new. Both the Monaghan et al, and the Weber patents
disclose colour coating of mineral granules with an
adherent siliceous surface coating derived from an
organic silicate or an incompletely polymerized polymer
thereof, or the like. The applicant points out on page
4, lines 19-23 of the disclosure, that "the base mineral
granules are prepared and coated in accordance with the
conventional techniques...".
The use of transparent synthetic organic polymers as a
binder in floor compositions has been known. Monaghan
et al discloses a liquid cross-linkable resin binder
such as unsaturated polyester resins, polyurethane
intermediates, and epoxy resins. Applicant points out
on page 1, last paragraph of the disclosure: "resin
flooring, particularly cured-in-situ seamless flooring
formed from polymeric resins, has recently come into
wide usage". Further, on page 3, lines 8-11, the
disclosure states: "the preparation and formulation
of resins, as well as the application to flooring, is
well known to those skilled in the art".
Translucent mineral granules have been used in flooring.
Monaghan et al discloses typical fillers such as quartz,
sand, diatomite, etc. Some of these fillers are translucent.
Weber specifies that "any natural transparent or semi-
transparent material may be used, as marble, quartz, mica
spar, or the like."
The choice of particle size of the fillers depends on the
thickness of the floor to be made, and is usually left to
the discretion of the person skilled in the art. Moreover,
Monaghan et al disclose particle sizes in their patent,
which particle sizes encompass the range claimed and
disclosed by the applicant, i.e. between 0.066-1.676 mm
compared with applicant's sizes between 0.4-1.7 mm, as
detailed above.
The applicant in his response dated June 4, 1973 to the Final
Action stated in part:
It is further submitted that the cited British Patent
934,628 Monaghan et al does not disclose or render
obvious the applicant's decorative flooring composition.
Firstly, in its broader aspect, this reference does not
require the use of a pigment, see page 2, lines 34 - 54.
In the examples described in this reference, a pigment
is added to the filler component which is mixed with the
organic silicate. However, the exemplified fillers are
very finely divided (e.g. 200 mesh silica in Example I,
or 200 mesh barytes in Example II); thus, the filler is
too fine to be provided with a colored (i.e. pigmented)
silicate coating. Furthermore it would seem clear that
the sand, silica, emery grit, barytes, etc. disclosed
in the Examples serve no decorative function and are
probably added simply to provide wear resistance.
The mixing and compounding procedure described in the
British reference will not localize the pigment in the
organic silicate coating on the filler particles.
Unlike the applicant's invention, a pigmented silicate
composition is not tumbled with rock granules. The
filler particles of the British reference, even if
provided with discrete silicate coatings, are not dried
and/or fired to fix the pigment in the silicate. It
must be assumed that the chrome green (Example I) or iron
oxide (Example II) pigment migrates to or becomes admixed
with the resin binder. This reasoning is borne out by the
fact that the broad description and Examples of the British
reference do not explicitly mention a granule with a color
coating consisting of a pigmented ceramic composition. The
ultimate destination of the pigment phase (in the silicate
only? in the binder? in both?) is not specified. In the
applicant's invention, the resin binder is transparent and
substantially colorless. In the flooring of Example I of
the reference, both the filler and the binder probably
would appear to be green, while in reference Example II,
both would be more or less reddish, the red colors being
modified slightly by titanium dioxide.
...
In the applicant's submission therefore, neither of the
cited references approaches the subject matter of the
claimed invention. Nor is it proper to reject the
applicant's claims on a combination of these references,
since the suggestion to combine the teachings of the
two references does not arise from the references them-
selves, but only becomes obvious in view of the applicant's
own disclosure. Nowhere in the references is there any
appreciation that the applicant's unique and novel flooring
composition can be produced by utilizing a transparent
synthetic organic polymer having embedded therein trans-
lucent mineral granules coated in a pigmented insoluble
ceramic coloring composition.
The question to be decided is whether the applicant has made a
patentable advance in the art over the prior art. Claim 1 reads:
A durable decorative floor comprising a flooring substrate
having adhered thereto a continuous, seamless, layer of a
transparent synthetic organic polymer having homogeneously
distributed therethrough, translucent mineral granules less
than 2 mm. in size having a color coating thereon, said color
coating comprising a pigmented insoluble ceramic composition.
The Weber patent relates to methods of coloring white transparent
crushed marble, silica, or the like, for making colored art marble,
terraza, or the like.
An object of Weber's invention is that, "...the appearance of
transparency of depth be preserved...," but it is a prerequisite
that this is accomplished by cutting down the top surface of the
floor to remove the colored surface of the top portion of the chips.
The elimination of the surface coloring on the top portion of the
chips gives the "depth" perspective to the floor. There is no result
as promised unless the chips are cut to expose their transparency.
The colored chips, which may be transparent or semitransparent, are
set in an opaque cement base, and if desired this cement may be
colored. Claim 1 of the Weber patent reads:
The herein described method consisting in moulding independent
and artifically colored chips into an article form, and then
finishing the surface of the article by removing the coloring
from those portions of the chips at such surface.
The Monaghan invention relating to, "...improved filler materials
and to compositions containing such material," is addressed to the
problem of maximum chip filler for maximum wear. The disclosure on
page 1, beginning line 60 column 2, reads: "Generally speaking any
filler can be treated so as to have an adherent siliceous coating.
Typical fillers are sand, quartz, tripoli, diatomite and asbestos,
though carbon in the form of carbon black, coke or charcoal and
other fillers such as wood flour, cork and ground coconut shell
may also be treated". While it is true that some forms of quartz
may be translucent, the transparency of the filler is of no concern
in the Monaghan invention.
Also in the Monaghan reference the siliceous coating of the
chips was essential to absorb water from the chips and for
maximum wear.Furthermore, there is no mention of the chips
having a color coating consisting of an insoluble pigmented
ceramic composition, and it is immaterial whether the cross
linked binder is clear or opaque. In any case the transparency
of the binder is not revelent to the object of Monaghan's
invention. It is also probable that the chrome green (Example
I), or iron oxide (Example II) pigments migrate to, or become
admixed with, the resin binder. Claim 1 of this patent reads:
A composition suitable for covering floors, decks, and
the like surfaces which comprises a liquid cross-linkable
resin binder mixed with particles of filler having an
adherent siliceous surface coating derived from an
organic silicate or an incompletely polymerised polymer
thereof.
The applicant states that he has overcome a defect in previous
flooring of the same general type. The disclosure, page 1
beginning at line 25 reads: "When these granules are used as
a flooring aggregate however, the color coating may be abraded or
worn off in heavy traffic areas, exposing the dark base rock.
This results in a dark mottled-appearing floor in areas of
heavy traffic."
In line with this, the object of the present application is
stated on page 2, beginning at line 7, in the following terms:
As the floors of this invention are abraded or worn out
to expose the base rock on the granules, the flooring
not only does not darken, but there is a beneficial
tendency of the floors to retain the original
coloring by virtue of transmission of the color
characteristics from the embedded side of the granules
through the transparent or translucent rock. Thus the
wear life of the floors, without the sacrifice of the
color sharpness, is greatly increased. The dimensional
stability, chemical resistance, and color stability of
the floors are greatly improved by the use of such
granules as compared to, for example, plastic chips
used as inserts. The decorative effects provided by
the granules of this invention are the most substantial
when the granules are used in flooring formed from
transparent resins, and such resins are thus preferred.
For convenience Claim 1 will be repeated here:
"A durable decorative floor comprising a flooring
substrate having adhered thereto a continuous,
seamless, layer of a transparent synthetic organic
polymer having homogeneously distributed therethrough,
translucent mineral granules less than 2 mm. in size
having a color coating thereon, said color coating
comprising a pigmented insoluble ceramic composition."
This claim is specific to: a transparent synthetic organic
polymer binder, having homogeneously distributed therethrough
translucent mineral granules of a specific size and having a
color coating thereon comprising a pigmented insoluble ceramic
composition.
In the present application there is no requirement, or indeed
any need, for the step of cutting or grinding the floor, which
is a necessary step in the Weber invention to make it operative.
In Weber, as previously mentioned, it is the "cut chips or
granules" that produce the "appearance of depth" to the floor.
In the present application the "appearance of depth" is
instantaneous upon manufacture, and is produced by the colored
granules which reflect through the transparent binder. Further-
more, the granules are coated with a color coating of a pigmented
insoluble ceramic composition. As the floor of the present
application wears, the top of some of the granules is worn off,
and it is only then that it is in anyway similar to the Weber
flooring. But, nevertheless, it is still distinguishable from
Weber, since the color transmission takes place at the same
time both through the transparent binder itself, as well as
through the worn granules.
The Monaghan patent discloses little if anything to overcome
the problem of "a dark mottled-appearing floor," which the
applicant has solved.
An objective described in the Monaghan reference was to use
maximum filler in his flooring to produce maximum wear. One
of the many fillers mentioned was quartz and it is agreed that
some forms of quartz are translucent. It is also known that
quartz varies in color from white to black, see "Lange's
Handbook of Chemistry", Ninth Edition (1956) at page 186.
If Monaghan has selected quartz as his filler, it would no
doubt contain some translucent granules, however it would be
mixed with and masked by non-translucent granules of quartz.
He would not obtain the result claimed by the applicant,
because the inclusion of quartz outside the translucent range
would not give the promised result. The applicant, on the
other hand, has purposefully selected and claimed translucent
and only translucent filler granules, including quartzite or
other varities of translucent quartz.
The Monaghan flooring, may or may not utilize a transparent
binder in the finished product (this point was previously
discussed), but the reference neither indicates nor recognizes
the need for a transparent binder, and it was immaterial
whether the granules were opaque or translucent.
In the present application the applicant has specifically
selected a particular binder and a particular selection of
filler granules. That the fillers and binder used by the
applicant appear separately, and may in some instances be
partially combined in the cited patents is not denied, but
the practical utility produced by the particular combination
in the applicants' floor covering is not suggested in either
of the patents.
The applicant claims that he has increased the "wear life of
floors without the sacrifice of color sharpness." The evidence
before the Board provided in the application, the affidavit
from the inventor, and the color photographic exhibit forming
part of his response indicate that this in fact has been
accomplished. That is, discoloration with wear is reduced,
thus increasing.the usable life of the flooring. This is
clearly shown in the photographic exhibit submitted by the
applicant. In the exhibit four samples were made identical
except for the filler granules. In Sample A, which represents
the subject matter of this application, translucent quartzite
granules and a transparent binder were used. It shows that
wear life will be extended with much less sacrifice in color
sharpness than that shown in the other exhibits.
The Board is satisfied that the subject matter of claim 1
represents a patentable advance over the disclosure and
teachings of the patents cited, whether taken separately or
combined. Claims 2 to 11, which are dependent on claim 1, are
allowable for the same reasons as that given for claim 1.
The Board therefore recommends that the Final Action refusing
the application for want of subject matter be withdrawn.
J.F. Hughes
Assistant Chairman
Patent Appeal Board
I concur with the findings of the Patent Appeal Board.
Accordingly, I withdraw the Final Action and return the
application to the examiner for resumption of prosecution.
Decision accordingly,
A.M. Laidlaw
Commissioner of Patents
Signed and dated in
Hull, Quebec this
28th day of January, 1974
Agent for Applicant
Smart & Biggar,
Ottawa, Ontario.