Cassie Malloy

Patent Trials and Appeals Board

Nov 22, 2021

2021000375 (P.T.A.B. Nov. 22, 2021)

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.
13/210,638 08/16/2011 Cassie Malloy 710240-5712 2538
59582 7590 11/22/2021
Dickinson Wright PLLC - Troy
2600 West Big Beaver Rd.
Suite 300
Troy, MI 48084-3312
EXAMINER
MCKINNON, LASHAWNDA T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
11/22/2021 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):
DWPatents@dickinson-wright.com
tgood@dickinsonwright.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CASSIE MALLOY
____________

Appeal 2021-000375
Application 13/210,638
Technology Center 1700
____________

Before CHRISTOPHER C. KENNEDY, LILAN REN, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 requests review under 35 U.S.C. § 134(a) of the
Examiner’s final rejection of claims 1–6, 10–13, 15, 16, and 20–26.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 “Appellant” refers to the “applicant” as defined in 37 C.F.R. § 1.42. The
Appellant identifies Federal-Mogul Powertrain, Inc. as the real party in
interest. Appeal Brief filed May 11, 2020 (“Appeal Br.”), 1.
2 Final Office Action entered January 15, 2020 (“Final Act.”), 1.
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CLAIMED SUBJECT MATTER
The Appellant claims a wrappable textile sleeve (independent claims
1 and 21) and a method of constructing a wrappable textile sleeve
(independent claim 11). Appeal Br. 2–5. Claims 1 and 21 illustrate the
subject matter on appeal, and read as follows:
1. A wrappable textile sleeve, comprising:
an elongate, generally circular cylindrical wall extending
along a longitudinal axis between opposite ends with
lengthwise extending edges extending along said longitudinal
axis between said opposite ends,
said wall being woven from lengthwise extending warp
yams and circumferentially extending weft yarns with at least
some of said weft yarns being heat-set to impart a self curling
bias on said wall to bring said edges into overlapping relation
with one another; and
said weft yarns forming a plurality of discrete annular
bands including a plurality of first bands and a plurality of
second bands,
said first and second bands extending circumferentially
about said longitudinal axis in alternating generally circular
cylindrical relation with one another,
each of said discrete bands including a plurality of said
weft yarns with adjacent bands having different picks-per-inch
from one another,
said first bands having a plurality of said weft yarns
spaced axially from one another to define a first pick density
extending axially along said longitudinal axis a first distance
extending the full length of said first bands and having a first
picks-per-inch and
said second bands having a plurality of said weft yarns
spaced axially from one another to define a second pick density,
different from said first pick density of said first bands,
extending axially along said longitudinal axis a second distance
extending the full length of said second bands and having a
second picks-per-inch,
said first picks-per-inch being less than said second
picks-per-inch to provide said first bands with an increased
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axial flexibility relative to said second bands to facilitate
bending said elongate wall around corners.

21. A wrappable textile sleeve, comprising:
an elongate, generally circular cylindrical wall extending
along a longitudinal axis between opposite ends with
lengthwise extending edges extending along said longitudinal
axis between said opposite ends,
said wall being woven from lengthwise extending warp
yarns and circumferentially extending weft yarns with at least
some of said weft yams being heat-set to impart a self curling
bias on said wall to bring said edges into overlapping relation
with one another; and
said weft yarns forming a plurality of discrete annular
bands including a plurality of first bands and a plurality of
second bands,
said first and second bands extending circumferentially
about said longitudinal axis in alternating, generally circular
cylindrical relation with one another,
each of said discrete bands including a plurality of said
weft yarns with adjacent bands having different picks-per-inch
from one another defined by said weft yarns in each of said
discrete annular bands being woven in side-by-side, axially
spaced relation from one another.

Appeal Br. Claims Appendix 1, 3–4 (emphasis and spacing added).
Independent claim 11 recites, in part, a method of constructing
a wrappable textile sleeve having weft yarns that form a plurality of
discrete annular bands including a plurality of first bands that alternate
with a plurality of second bands, where each band includes a plurality
of weft yarns spaced axially from one another, and the first bands
have a pick density that differs from the pick density of the second
bands, and have a picks-per-inch less than the picks-per-inch of the
second bands, to provide the first bands with increased axial
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flexibility relative to the second bands. Appeal Br. Claims Appendix
2.
REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered August 19, 2020 (“Ans.”), 3:
I. claims 1–6, 10–13, 15, 16, and 20–26 under 35 U.S.C. § 103(a)
as unpatentable over Harris3 in view of Brushafer;4
II. claims 1–6, 10, 21–24, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Brushafer in view of Harris and Akers;5 and
III. claims 1–6, 10, 21–24, and 26 under 35 U.S.C. § 103(a) as
unpatentable over Baer6 in view of Brushafer and Akers.
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of the Appellant’s contentions, we reverse the Examiner’s rejections
under 35 U.S.C. § 103(a) for reasons set forth in the Appeal and Reply
Briefs, and below.
Claims 1–6, 10–13, 15, 16, and 20, and 24–26
We need address only independent claims 1 and 11, which both recite,
in part, a wrappable textile sleeve including weft yarns that form a plurality
of discrete annular bands including a plurality of first bands that alternate
with a plurality of second bands, where each band includes a plurality of
weft yarns spaced axially from one another, and the first bands have a pick

3 Harris et al., US 2009/0226653 A1, published September 10, 2009.
4 Brushafer et al., US 5,843,542 issued December 1, 1998.
5 Akers et al., US 2003/0089971 A1, published May 15, 2003.
6 Baer, US 7,216,678 B2, issued May 15, 2007.
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density that differs from the pick density of the second bands, and have a
picks-per-inch less than the picks-per-inch of the second bands, to provide
the first bands with increased axial flexibility relative to the second bands.
In each of the three separate rejections of claim 1, and in the rejection
of claim 11, the Examiner finds that Brushafer discloses a woven fabric
sleeve comprising circumferentially extending alternating areas (bands) of
relative flexibility separating bands of inflexibility “to improve flexibility
and conformability of the sleeve.” Final Act. 3–4, 9, 15 (citing Brushafer
Abstr., col. 7, ll. 8–10). The Examiner provides the following annotated
versions of Brushafer’s Figure 2, which the Examiner indicates illustrate
discrete areas (bands) the Examiner designates as 1, 2 and A, B, which each
include bundled weft monofilaments 26a adjacent to, and alternating with,
weft monofilaments 26b:

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Final Act. 3–6, 9–11, 15–17. The above figures show annotated versions of
Brushafer’s Figure 2, which depicts a cross-sectional side view of a woven
fabric sleeve.
The Examiner finds that the annotated Figures show adjacent areas
(bands) having different picks-per-inch, and show that “the pick density in
any area (or band) designated as A or 1 differs from any area (or band)
designated as B or 2.” Final Act. 4, 9, 16.
The Examiner, however, does not explain how and why Brushafer
discloses or would have suggested a textile sleeve including weft yarns
forming a plurality of first bands alternating with a plurality of second
bands, where each band includes a plurality of weft yarns spaced axially
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from one another, and the first bands have a picks-per-inch less than the
picks-per-inch of the second bands to provide the first bands with increased
axial flexibility relative to the second bands, as required by claims 1 and 11.
Brushafer discloses a woven fabric sleeve including alternating small
and large diameter weft filamentary members. Brushafer col. 2, ll. 12–15.
Brushafer discloses that empty spaces exist at the locations of the small
diameter filamentary members, creating regions of increased flexibility at
these locations relative to the flexibility of the regions including the large
diameter filamentary members, resulting in “alternating adjacent regions of
greater and lesser relative flexibility.” Brushafer col. 2, ll. 12–16, 55–58.
Brushafer explains that the relatively flexible zones including the small
diameter filamentary members serve as pivot points about which the
relatively inflexible zones including the large diameter filamentary members
pivot, resulting in “substantial increases in flexibility and conformability of
the fabric in the sleeve.” Brushafer col. 2, ll. 12–21. Brushafer thus
discloses a woven fabric sleeve in which small diameter weft filamentary
members create relatively flexible zones disposed adjacent to, and
alternating with, relatively inflexible zones containing large diameter
filamentary weft members, which imparts overall flexibility and
conformability to the woven fabric of the sleeve.
The Examiner does not explain how and why the seemingly arbitrary
areas (bands) 1, A shown in the Examiner’s various annotated drawings of
Brushafer’s Figure 2 would exhibit increased axial flexibility relative to
areas (bands) 2, B—or vice versa. As the Appellant argues, the Examiner’s
areas (bands) combine “zones of relative flexibility and zones of relative
stiffness with one another” to create areas (bands) having “unknown
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flexibility and stiffness.” Reply Br. 4 (citations and emphasis omitted). The
Examiner does not provide sound technical reasoning supported by objective
evidence establishing that one of ordinary skill in the art reasonably would
have understood the Examiner’s designated areas (bands) 1, A to have
increased axial flexibility relative to areas (bands) 2, B, or vice versa.
On the record before us, the Examiner, therefore, does not establish
that Brushafer discloses or would have suggested a wrappable textile sleeve
including weft yarns that form a plurality of discrete annular bands in which
a plurality of first bands alternate with a plurality of second bands, where
each band includes a plurality of weft yarns spaced axially from one another,
and the first bands have increased axial flexibility relative to the second
bands, as required by claims 1 and 11. We, accordingly, do not sustain the
Examiner’s rejections of claims 1 and 11 under 35 U.S.C. § 103(a). Nor do
we sustain the Examiner’s rejections under 35 U.S.C. § 103(a) of claims 2–
6, 10, 12, 13, 15, 16, and 20, and 24–26, which each depend from either
claim 1 or claim 11, because the Examiner does not rely on the additional
prior art references applied in the rejections of these claims for any
disclosure that remedies the deficiencies of the Examiner’s reliance on
Brushafer. Final Act. 2–19.
Claims 21–23
We need address independent claim 21 only, which recites, in part, a
wrappable textile sleeve including weft yarns that form a plurality of discrete
annular bands, where each band includes a plurality of weft yarns, and
adjacent bands have different picks-per-inch from one another defined by
the weft yarns in each of the discrete annular bands being woven in side-by-
side, axially spaced relation from one another.
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In each of the Examiner’s three separate rejections of claim 21, the
Examiner addresses claims 1 and 21 together. Final Act. 3–6, 8–12, 14–18.
The Examiner thus makes the same findings of fact related to Brushafer, and
relies on the same annotated versions of Brushafer’s Figure 2, when
rejecting claim 21 that we discuss above in connection with the Examiner’s
rejection of claim 1. The Examiner further finds that Figure 2 of Brushafer
shows a plurality of weft yarns spaced axially from one another, reasoning
that “even if all aren’t some are spaced axially and therefore meets the
present claims limitations.” Final Act. 4.
The Appellant argues that Brushafer does not disclose, and would not
have suggested, adjacent annular bands that each include weft yarns woven
in side-by-side axially spaced relation from one another. Appeal Br. 10.
The Appellant argues that instead, Figure 2 of Brushafer illustrates bundles
of weft filamentary members 26a adjacent to, and alternating with, single
weft monofilaments 26b. Id.
The Examiner does not respond to these arguments in the Answer.
Ans. 25.
As discussed above, Brushafer discloses a woven fabric sleeve that
includes alternating large and small diameter weft filamentary members.
Brushafer col. 2, ll. 12–15. Brushafer’s Figure 2 illustrates large diameter
weft filamentary members 26a formed from a plurality of individual weft
monofilaments shaped into a bundle, which bundles are adjacent to, and
alternate with, small diameter weft monofilaments 26b. Brushafer col. 5, ll.
55–61. Because the weft monofilaments (weft yarns) of Brushafer’s large
diameter weft filamentary members 26a are formed into bundles they are not
woven in side-by-side, axially spaced relation from one another as recited in
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claim 21. On the record before us, the Examiner does not explain how and
why Brushafer discloses or would have suggested a textile sleeve including
weft yarns that form a plurality of discrete annular bands in which each band
includes a plurality of weft yarns, and adjacent bands have different picks-
per-inch from one another defined by the weft yarns in each of the discrete
annular bands being woven in side-by-side, axially spaced relation from one
another.
We, accordingly, do not sustain the Examiner’s rejections of claim 21,
and rejections of claims 22 and 23, which each depend from claim 21, under
35 U.S.C. § 103(a).

DECISION SUMMARY

Claims
Rejected

35 U.S.C. § Reference(s)/
Basis
Affirmed Reversed
1–6, 10–13,
15, 16, 20–26
103(a) Harris,
Brushafer
1–6, 10–13,
15, 16, 20–26
1–6, 10, 21–
24, 26
103(a) Brushafer,
Harris, Akers
1–6, 10, 21–
24, 26
1–6, 10, 21–
24, 26
103(a) Baer,
Brushafer,
Akers
1–6, 10, 21–
24, 26
Overall
Outcome
1–6, 10–13,
15–16, 20–26

REVERSED