Coroplast Fritz Müller GmbH & Co. KG

Patent Trials and Appeals Board

May 22, 2020

2019004807 (P.T.A.B. May. 22, 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.
14/509,824 10/08/2014 Christoph Lodde 92046-012 (13664-1 US) 5011
168384 7590 05/22/2020
Dickinson Wright PLLC - Ann Arbor
350 S. Main Street
Suite 300
Ann Arbor, MI 48104
EXAMINER
TATESURE, VINCENT
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
05/22/2020 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):
DWPatents@dickinson-wright.com
tgarrett@dickinsonwright.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte GÜLAY WITTIG and CHRISTOPHE LODDE
____________

Appeal 2019-004807
Application 14/509,824
Technology Center 1700
____________

Before MONTÉ T. SQUIRE, BRIAN D. RANGE, and JANE E. INGLESE,
Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1, 10, 11, and 14.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Coroplast Fritz Müller GmbH & Co. KG
as the real party in interest. Appeal Brief filed October 10, 2018 (“Appeal
Br.”) at 2.
2 Final Office Action entered May 14, 2018 (“Final Act.”) at 1.
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Application 14/509,824

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CLAIMED SUBJECT MATTER
Appellant claims a cable wrapping tape. Appeal Br. 3. Claim 1, the
sole pending independent claim, illustrates the subject matter on appeal, and
reads as follows:
1. A cable wrapping tape, comprising
a support (1) made of a textile fabric consisting of warp
threads (2) and weft threads (3), the warp and weft threads
(2, 3) being made of filament yarns made of PET plastic, the
weft threads (3) being larger than the size of the warp threads
(2), and
an adhesive layer (4) applied to the support (1),
wherein the size of the warp threads (2) is at least 20
dtex and at most 40 dtex,
wherein the size of the weft threads (3) is between 155
dtex and 200 dtex,
wherein the warp threads (2) have a thread count of at
least 20 per cm and at most 30 per cm and a filament count in a
range from 23 through 96 per warp thread (2),
wherein the weft threads (3) have a thread count of at
least 28 per cm and at most 40 per cm and a filament count in a
range from 34 through 36 filaments per weft thread (3),
wherein the grammage of the support (1) is at least 40
g/m2 and at most 100 g/m2,
wherein the coated adhesion tape has a thickness of at
least 0,08 mm and at most 0,12 mm,
wherein the warp and weft thread are spun dyed, and
wherein the support has a tear resistance in a range of
2500 mN through 8000 mN, measured according to DIN EN
ISO 1974:2012-09.

Appeal Br. 12 (Claims Appendix) (emphases and spacing added).
REJECTION
The Examiner maintains the rejection of claims 1, 10, 11, and 14
under 35 U.S.C. § 103 as unpatentable over Wittig et al. ( US 2011/0226529
Al, published September 22, 2011) in view of Hohmann (EP 2050802 A1,
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Application 14/509,824

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published October 15, 2007) and Lodde (EP 1990393 A1, published March
4, 2008) in the Examiner’s Answer entered April 02, 2019 (“Ans.”).3
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we reverse the Examiner’s rejection of
claims 1, 10, 11, and 14 under 35 U.S.C. § 103, for reasons set forth in the
Appeal and Reply Briefs, and below.
Claim 1 recites a cable wrapping tape comprising, in part, a support
made of a textile fabric consisting of warp and weft threads formed of
filament yarns made of PET plastic. Claim 1 requires the warp threads to
have a size (linear density or fineness) of 20 to 40 dtex and a thread count
(weaving density) of 20 to 30 per cm, and requires the weft threads to have a
size (linear density or fineness) of between 155 and 200 dex and a thread
count (weaving density) of 28 to 40 per cm.
The Examiner finds that “Wittig teaches a cable wrapping tape
comprising a band shaped support made of a textile fabric consisting of warp
threads and weft threads made of PET plastic, the warp and weft threads
being made of filament yarns.” Final Act. 2 (citing Wittig Abst.; ¶¶ 5, 18,
24, 36; Fig. 1). The Examiner finds that Wittig does not disclose the size
(linear density or fineness) of the warp or weft threads, or the number of
filaments per the warp and weft threads (weaving densities). Final Act. 2.
The Examiner concludes, however, that “it would have been necessary and
obvious for one of ordinary skill in the art at the time the invention was

3 Appellant does not contest the Examiner’s reliance on machine translations
of Hohmann and Lodde; consequently, citations to these documents in this
Decision refer to the machine translations.
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made to look to the prior art for exemplary sizes and counts used in
industrial tapes,” and the Examiner finds that “Hohmann provides this
conventional teaching.” Final Act. 3.
The Examiner finds that Hohmann discloses an adhesive tape used for
wrapping cable bundles that comprises a substrate made of warp and weft
threads. Final Act. 3 (citing Hohmann Abst.; ¶ 1). The Examiner finds that
Hohmann discloses that the warp threads have a fineness (linear density) of
between 30 and 200 dtex and a thread count (weaving density) of between
20 and 50 threads, and the weft threads have a fineness (linear density) of
between 50 and 300 dtex and a thread count (weaving density) of between
20 and 50 threads per centimeter. Final Act. 3 (citing Hohmann ¶ 24; claims
4 and 5). In view of these disclosures in Hohmann, the Examiner concludes
that “it would have been obvious to one of ordinary skill in the art to use the
specific fineness and weaving density values, such as within the claimed
ranges, as taught by Hohmann, motivated by the desire to form a
conventional cable wrapping tape comprising . . . linear densities and
fineness values which are known in the art to be predictably suitable for use
in cable wrapping tape applications.” Final Act. 3.4
On the record before us, however, the Examiner does not provide a
sufficient factual basis to support the Examiner’s conclusion of obviousness,
for reasons expressed by Appellant (Appeal Br. 4–11) and discussed below.
Wittig discloses that conventional adhesive tapes used in the cable
wrapping sector utilize backing materials composed of viscose rayon staple
wovens, polyester wovens, or nonwovens. Wittig ¶ 5. Wittig discloses that

4 We need not address the Examiner’s reliance on Lodde for disposition of
this appeal.
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viscose rayon staple woven adhesive tapes “have the disadvantage of being
rottable and of a limited thermal stability up to about 100ºC,” while
“[p]olyester, in particular PET, woven adhesive tapes are unrottable and
have a significantly higher breaking strength and a higher thermal stability
than viscose rayon staple woven adhesive tapes.” Wittig ¶¶ 6, 7. Wittig
discloses an inventive industrial adhesive tape for use in high thermal load
applications that comprises a dyed textile backing and exhibits significantly
reduced intrinsic discoloration or decolorization of wrapped cablesets at
elevated thermal loads. Wittig ¶¶ 3, 18, 19, 21. Wittig discloses that the
textile backing consists of synthetic spun dyed threads or fibers formed from
polyester, such as PET, a polyamide, or a PET/polyamide blend. Wittig
¶¶ 20, 23, 36, 40; claims 2, 3, 4, and 5.
Hohmann discloses that conventional adhesive tapes used for
bandaging automobile cable bundles often cannot be torn by hand and are
very difficult to recycle. Hohmann ¶¶ 2–5. Hohmann discloses that its
invention addresses these shortcomings of the prior art, and is directed to an
adhesive tape for bandaging automobile cable bundles that can be torn by
hand and “recycled easily” due to the composition and structure of the tape’s
fabric carrier, which comprises synthetic warp threads formed from
polyester filaments and natural weft threads formed from viscose or cotton
filaments. Hohmann ¶¶ 10, 11, 14, 15, 17, 18, 20, 30, 31, claim 1.
Hohmann discloses that use of weft threads formed of natural material
guarantees that Hohmann’s adhesive tape can be hand torn in the transverse
direction of the carrier, despite the use of tear-resistant synthetic warp
threads, and additionally makes it particularly easy to reuse and dispose of
the tape as a whole. Hohmann ¶¶ 18, 19. Hohmann discloses that the warp
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threads have a thread count (weaving density) of 30 to 35 threads/cm and a
fineness (linear density) of 30 to 200 dtex, and the weft threads have a thread
count (weaving density) of 20 to 50 threads/cm and a fineness (linear
density) of 50 to 300 dex. Hohmann ¶¶ 23, 24.
Wittig thus discloses an adhesive tape for use in high thermal load
applications that advantageously does not discolor or decolor wrapped
cablesets at elevated temperatures due to a textile backing that consists of
synthetic spun dyed threads or fibers formed from polyester, such as PET, a
polyamide, or a PET/polyamide blend. Wittig teaches that viscose woven
adhesive tapes have limited thermal stability at the elevated temperatures at
which Wittig’s tape is designed to be used. Hohmann, in contrast, discloses
an adhesive tape that is readily hand torn and easily recyclable by virtue of a
woven fabric carrier that comprises natural weft threads formed from
viscose or cotton filaments and synthetic warp threads formed from
polyester filaments.
On the record before us, the Examiner does not articulate reasoning
having rational underpinning that explains why one of ordinary skill in the
art reasonably would have looked to the thread count (weaving density) and
fineness (linear density) of Hohmann’s weft threads formed from natural
viscose or cotton filaments when seeking guidance for forming Wittig’s
synthetic spun dyed threads or fibers, in view of the fact that Wittig’s
threads are entirely synthetic and are formed from polyester and/or
polyamide rather than from natural viscose or cotton, and considering
Wittig’s explicit disclosure of the unsuitability of viscose filaments for use
in Wittig’s high thermal application adhesive tape. The Examiner does not
provide an explanation grounded in sound technical reasoning, or provide
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any objective evidence to show, that one of ordinary skill in the art
reasonably would have expected that the thread count (weaving density) and
fineness (linear density) of Hohmann’s natural viscose or cotton filaments
would be useful, or even suitable, for Wittig’s synthetic spun dyed threads
that form the textile backing of an adhesive tape used for high thermal load
applications.
Simply because the ordinarily skilled artisan could have combined the
relied-upon disclosures of Wittig and Hohmann as proposed by the
Examiner, in the absence of a reason to actually have made the combination,
the proposed combination would not have been legally obvious, because
“obviousness concerns whether a skilled artisan not only could have made
but would have been motivated to make the combinations or modifications of
the prior art to arrive at the claimed invention.” Belden Inc. v. Berk-Tek
LLC, 805 F.3d 1064, 1073 (Fed. Cir. 2015); KSR Int’l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007) (It is well settled that “a patent composed of
several elements is not proved obvious merely by demonstrating that each of
its elements was, independently, known in the prior art.”).
In response to Appellant’s argument that “the Examiner has not
identified any clear reason why a person of ordinary skill in the art would
look to Hohmann, which requires natural fibers for the desired properties,
for parameters to make a PET-based tape” (Appeal Br. 6), the Examiner
asserts in the Answer that “Hohmann teaches a generic tape wherein 20% or
more of the threads are natural fibers, which means that the . . . size of the
fibers and thread count applies to the synthetic fibers as well as the natural
fibers.” Ans. 3 (citing Hohmann, ¶¶ 13, 18; claim 2).
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The Examiner, however, focuses—in isolation—on a select passage in
paragraph 13 of Hohmann, without considering the passage’s teaching in the
context of Hohmann’s disclosures as a whole. Although Hohmann does
disclose in paragraph 13 that “for the preparation of the warp and/or weft
natural or synthetic yarns have been used,” Hohmann goes on to explain in
the following paragraphs, including paragraph 18 cited by the Examiner, that
to ensure hand tearability of the fabric carrier and to toughen the tape for
wrapping automobile cable bundles, the fabric carrier of Hohmann’s
invention is made of warp threads formed of tear-resistant synthetic fibers
and weft threads formed of natural fibers. Hohmann ¶¶ 14–18. Hohmann
further explicitly discloses that materials suitable for forming the warp and
weft threads are, respectively, polyester and viscose or cotton. Hohmann
¶¶ 30, 31. And Hohmann’s claim 2, also cited by the Examiner, depends
from claim 1, which explicitly recites “warp threads made of tear-resistant
synthetic yarn based on purely synthetic raw materials and weft threads
made of natural yarn based on natural raw materials.”
Thus, rather than disclosing a “generic tape” as the Examiner asserts,
Hohmann discloses an adhesive tape that includes a fabric carrier formed of
threads having a particular structure and composition—synthetic polyester
warp threads and natural viscose or cotton weft threads—to achieve the
specific objectives of hand tearability and recyclability.
The Examiner also asserts in the Answer that “[s]ince cable wrapping
tapes are well known in the art and are demonstrated to be formed of various
materials such as rayon and polyester fibers, the sizes and counts of the tape
of Hohmann are applicable to the tape of Hohmann [sic: Wittig]. Appellant
has not provided evidence to the contrary.” Ans. 5–6.
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The Examiner, however, does not provide any objective evidence that
provides a reasonable basis for establishing that the thread count (weaving
density) and fineness (linear density) of Hohmann’s natural viscose or cotton
filaments “are applicable” to Wittig’s synthetic spun dyed threads for
forming the textile backing of an adhesive tape used for high thermal load
applications. The fact that cable wrapping tapes are well known in the art,
and are known to be formed of various materials, such as rayon and
polyester fibers, does not constitute such evidence. The Examiner,
therefore, improperly shifts the burden to Appellant to provide evidence
contrary to the Examiner’s assertion.
We, accordingly, do not sustain the Examiner’s rejection of claims 1,
10, 11, and 14 under 35 U.S.C. § 103.
CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 10, 11, 14 103 Wittig,
Hohmann,
Lodde
1, 10, 11, 14

REVERSED