DIMENSION-POLYANT GMBH

Patent Trials and Appeals Board

Aug 4, 2021

2021000832 (P.T.A.B. Aug. 4, 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.
15/024,224 03/23/2016 Heiner Schillings 05257-P0012A 5806
131672 7590 08/04/2021
Whitmyer IP Group LLC
600 Summer Street
3rd Floor
Stamford, CT 06901
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
08/04/2021 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):
USPTO@dockettrak.com
uspto@whipgroup.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HEINER SCHILLINGS and LUC LAURENZATTO
Appeal 2021-000832
Application 15/024,224
Technology Center 1700
Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5–10, 12–19 and 21–26. See Final
Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). A telephonic hearing
was held on July 19, 2021.2
We AFFIRM.

1 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Dimension-Polyant
GmbH. Appeal Br. 2.
2 The record will include a transcript of the hearing when it becomes
available.
Appeal 2021-000832
Application 15/024,224

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CLAIMED SUBJECT MATTER
The claims are directed to a sailcloth of nonwoven fabric material.
Claim 1, reproduced below, is illustrative of the claimed subject matter:
1. A sailcloth comprising:
a first outer layer having a first nonwoven fabric material with
bidirectionally aligned filaments;
a second outer layer having a second nonwoven fabric
material with bidirectionally aligned filaments; and
at least one inner layer having reinforcing filaments or yarns.

19. A sail manufactured from sailcloth comprising;
two outer layers each having nonwoven fabric material, the
nonwoven fabric material including a carrier matrix and
bidirectionally aligned fibers such that the bidirectionally aligned
fibers form an outer surface, and
at least one inner layer having reinforcement filaments or
yarn.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Doyle US 4,444,822 Apr. 24, 1984
Stein US 2010/0275828 A1 Nov. 4, 2010

REJECTION
Claims 1, 5–10, 12–19, and 21–26 are rejected under 35 U.S.C. § 103
as being unpatentable over Doyle in view of Stein. Final Act. 2.

OPINION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions as set forth in the Appeal Brief and the
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Application 15/024,224

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Reply Brief, we determine that Appellant has not identified reversible error
in the Examiner’s rejections (see generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejection for the reasons expressed by the
Examiner in the Final Office Action and the Answer.
We add the following primarily for emphasis.
Appellant argues the claims as a group except for claim 17 (Appeal
Br. 8). Thus, we select claim 1 as representative and all the claims stand or
fall with claim 1 except for dependent claim 17.
Appellant’s arguments focus on claim interpretation of the term
“nonwoven” (Appeal Br. 4). Appellant urges that nonwoven excludes knit
materials (Appeal Br. 4–5). Appellant contends that the Examiner has not
established that the nonwoven knit scrim of Doyle is encompassed by
“nonwoven fabric material” recited in the claims. These arguments are
reiterated in the Reply Brief (Reply Br. 2–6). These arguments are not
persuasive of reversible error in the Examiner’s rejection for reasons given
by the Examiner (Ans. 8–14).
Notably, it is well established that “the PTO must give claims their
broadest reasonable construction consistent with the specification. . . .
Therefore, we look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation.” In re ICON Health
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[A]s applicants may
amend claims to narrow their scope, a broad construction during prosecution
creates no unfairness to the applicant or patentee.”).
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Here, as the Examiner aptly points out, Appellant’s Specification
lacks any limiting definitions (e.g., Ans. 8). While Appellant urges that the
broadest reasonable interpretation of nonwoven would exclude any knit
material such as Doyle’s, Appellant has not directed us to any limiting
definition of “nonwoven fabric material.” Indeed, Appellant’s Specification
indicates that nonwoven fabric material are known and “have been described
in EP 2 578 734 A1, for example” (Spec. 11; emphasis added).3 The
definitions proffered by the Appellant in the Appeal Brief are inconsistent,
in that the Merriam Webster states in part that a nonwoven is not felted,
whereas the Wikipedia description states that nonwovens denote fabrics such
as “felt.” The Examiner also points out that Appellant previously argued that
the definition of nonwoven includes fiber mats or fleece (also known as felt),
and these types of materials were never discussed in Appellant’s
Specification (Ans. 8–9); see also Appeal Br. 6 (Appellant reaffirms this

3 Thus, Appellant admits nonwoven materials as used by Appellant in the
claimed sailcloth are known. The use of a known fabric material as part of
any known sailcloth which has numerous multiple layers of fabric would
have been prima facie obvious, requiring the use of no more than ordinary
creativity. An applicant cannot defeat an obviousness rejection by asserting
that the cited references fail to teach or suggest elements which the applicant
has acknowledged are taught by the prior art. Constant v. Advanced Micro-
Devices, Inc., 848 F.2d 1560, 1570 (Fed. Cir. 1988) (“A statement in a
patent that something is in the prior art is binding on the applicant and
patentee for determinations of anticipation and obviousness.”); In re
Nomiya, 509 F.2d 566, 571 n.5 (CCPA 1975) (a statement by an applicant
that certain matter is prior art is an admission that the matter is prior art for
all purposes). Stein also appears to have nonwoven layers as part of a
sailcloth since Stein describes nonwoven yarn layers bonded by a layer of
adhesive or glue (Stein ¶ 29; Ans. 5).

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argument)). Indeed, Doyle specifies that the material contains no deviations
or sinuosities characteristic of a woven fabric (Doyle, col. 2, ll. 5–7).
Doyle’s material inclusive of a bonding layer of synthetic resin (Doyle,
col. 3, ll. 54–56) appears to be more like Appellant’s Specification example
described at paragraph 11 of a nonwoven (EP 2,578,734 A1) than any
nonwoven felt, fiber mat, or fleece would be.
In light of these circumstances, we find that Doyle’s repeated explicit
description of the material for sailcloth as an “unwoven” (Doyle Abstract,
col. 2, ll. 13–15) and a “non-woven” (Doyle col. 1, ll. 47–50) (albeit a non-
woven knit scrim) is compelling evidence that one of ordinary skill would
have reasonably found that the term “nonwoven” in the instant claims to
encompass such a material. Thus, the Examiner reasonably determined that
the disputed claim recitation encompasses the explicitly described nonwoven
fabric material of Doyle (Doyle, e.g., col. 1, ll. 47–50; Ans. 9–10).
Finally, Appellant’s argument that Doyle’s strands are not an outer
layer (Reply Br. 5)4,5 does not take into account the applied prior art as a
whole and the inferences one of ordinary skill in the art would have made
therefrom. These arguments are not sufficient to overcome the Examiner’s

4 Note every page of the Reply Br. is labeled page 2.

5 This argument was not presented in the Appeal Brief. Any argument not
presented in the Appeal Brief will not be considered when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
not have been presented in the Appeal Brief. 37 C.F.R. § 41.41(b)(2) (2013).
Appellant has not shown good cause why the new argument could not have
been presented in the Appeal Brief. Accordingly, although we have
addressed the argument — since the Examiner previously addressed such an
argument in the Final Action — we did not need to consider this argument.
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position that one of ordinary skill, using no more than ordinary creativity,
would have used the known feature exemplified in Doyle as an outer layer to
enhance the strength and durability of a sailcloth (see, e.g., Final Act. 6,
“Response to Arguments” section). KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007) (As the Supreme Court has noted, “[t]he combination of
familiar elements [or steps] according to known methods is likely to be
obvious when it does no more than yield predictable results.”). Appellant has
not come forward with adequate evidence that the Examiner erred in
characterizing the references or in concluding that the claimed combination
of familiar elements for known purposes would have been obvious. Ball
Aerosol & Specialty Container, Inc. v. Ltd. Brands, Inc., 555 F.3d 984, 993
(Fed. Cir. 2009) (under the flexible inquiry set forth by the Supreme Court,
the PTO must take account of the “inferences and creative steps,” or even
routine steps, that an ordinary artisan would employ).
With respect to dependent claim 17 which recites “the inner layer
forms a warp sheet,” a preponderance of the evidence supports the
Examiner’s obviousness determination. Appellant has not shown reversible
error in the Examiner’s determination that at least one of Stein’s yarn layers
would be encompassed by the term “warp sheet,” as Appellant does not
point us to any limiting definition of that term (Appeal Br. 8; Reply Br.
penultimate page). In any event, Appellant also appears to admit such warp
sheets are known (Spec. ¶¶ 5, 16).
Accordingly, the Examiner’s § 103 rejection is affirmed with respect
to all of the claims on appeal.

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CONCLUSION
The Examiner’s rejection is AFFIRMED.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 5–10, 12–
19, 21–26
103 Doyle, Stein 1, 5–10, 12–
19, 21–26

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED