Continuation Sheet (PT0-467) Reexam Control No. 90/013,565

As to arguments (1) and (5), this evidence is found unpersuasive because Exhibit I at section 2.2(E) for compression seals shows acceptance of any elastomeric extrusion that meet ASTM E 1816. which is not claimed. The portion that cites to the EMSEAL products (top portion of page) states that use can be of "named poducts or comparable products." Thus, nexus appears lacking and "basis of design " is not for the UL 2079 standard. Relative speed of acceptance may be due to other factors such as general market conditions and general economic, or building, growth rates. As to argument ( 2), this evidence is found unpersuasive because the other products appear to be for more specific environments (such as Submerseal for "joints where continuous or intermittent immersion or contact with chlorinated water ... is planned." Exhibit E. Lower sale percentages would be expected for products with few environments to which the product applies. As to argument (3), this evidence is not persuasive because the other products appear to be for more specific environments (such as Submerseal for "joints where continuous or intermittent immersion or contact with chlorinated water ... is planned." Exhibit E. Lower sale percentages would be expected for products with few environments to which the product applies. Also, the difference in sales growth (Exhibit D) may be influenced by other factors such as the economic growth in the year of introduction. Finally, the percent of total architectural revenues for all listed products in Exhibit D for 2015 is 38%. Thus, the majority of sales revenues is from non-listed products. As to argument (4), this evidence is not persuasive because it is not explained how the percentage growth in sales was calculated. That is, was the yearly percentage valus based on the previous year's sales? Further, the greater average for "FR-Growth " is affected by the 157% increase in 2011 which seems to be an outlier. As to argument (6), this evidence is not persuasive because it is not clear from Exxhibit O if the selling price is based on the same unit, for example, the selling price is per running foot of material, and whether this is total cost for installation or cost of materials only. As to argument (7), this evidence is unpersuasive because to show alleged copying by others evidence must be provided showing an identical products (usually by side-by-side comparision) and efforts to replicate a specific product. See MPEP 716.06. Similar language in UL listings does not show alleged copying of a specifc product or method. As to argument (8), this evidence is unpersuasive for the reasoning given for the other sections. As to argument (9), the evidence of Exhibit M appears to show a constant amount of revenue dedicated to sales or marketing. However, without a breakdown comparing fire retardent to the values of appromiately 20% may be high in the industry, and the data (table) lacks probity without the specific amount (or pereentage) dedicated to fire retardant systems.

After review, taken as whole, the evidence of non-obviousness including secondary considerations fails ot overcome the strong prima facie evidence of obviousness of the claimed invention as shown in the rejections.

Claims 1-60 stand rejected.

signed IDSs included: 2 of 4/5/16; 1 of 4/15/16; 1 of 7/7/16

3

UNITED STA TES p A TENT AND TRADEMARK OFFICE

APPLICATION NO. FILING DATE

90/013,565 08/14/2015

128258 7590 07/19/2016

MKG,LLC

306 Industrial Park Road, Suite 206

Middletown, CT 06457

FIRST NAMED INVENTOR

8365495

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

ATTORNEY DOCKET NO. CONFIRMATION NO.

15-084-SR 1706

EXAMINER

GELLNER, JEFFREY L

ART UNIT PAPER NUMBER

3993

MAIL DATE DELIVERY MODE

07/19/2016 PAPER

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.

PTOL-90A (Rev. 04/07)