Ex Parte Abayasinghe et al

Patent Trials and Appeals Board

Jun 4, 2019

13991293 - (D) (P.T.A.B. Jun. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/991,293 07/22/2014
130532 7590 06/06/2019
Dority & Manning, P.A. and Hunter Douglas Inc
Post Office Box 1449
Greenville, SC 29602-1449
FIRST NAMED INVENTOR
Nilmini K. Abayasinghe
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.
HUD-16-PCT-US 5918
EXAMINER
GUGLIOTTA, NICOLET
ART UNIT PAPER NUMBER
1781
NOTIFICATION DATE DELIVERY MODE
06/06/2019 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):
usdocketing@dority-manning.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NILMINI K. ABA Y ASINGHE and
PHILIPPE E. P AUGOIS
Appeal 2018-005486
Application 13/991,293
Technology Center 1700
Before JENNIFER R. GUPTA, LILAN REN, and
MICHAEL G. McMANUS, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1, 7-10, 27, 28, 30, 31, 33-35, 38, 40-43, and
45-50. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 In this Decision, we refer to the Specification filed June 3, 2013 ("Spec."),
the Final Office Action dated May 3, 2017 ("Final Act."), the Appeal Brief
filed October 31, 2017 ("Appeal Br."), the Examiner's Answer dated
March 7, 2018 ("Ans."), and the Reply Brief filed May 7, 2018 ("Reply
Br.").
2 Appellants identify the real party in interest as 3G Mermet Corporation.
Appeal Br. 3.
Appeal2018-005486
Application 13/991,293
The subject matter on appeal relates to a near infrared reflecting
composition and coverings for architectural openings, for example, window
coverings incorporating such composition. Spec. ,r,r 8-9. Claims 1 and 30,
reproduced below from the Claims Appendix of the Appeal Brief, are
illustrative of the claims on appeal.
1. A covering for an architectural opening comprising:
a textile substrate;
a first layer on the textile substrate, the first layer
including a first cured polymeric composition comprising a first
polymeric resin, a first non-white infrared transparent pigment,
and a first white infrared reflective pigment; and
a second layer on the textile substrate, the first layer
being between the substrate and the second layer, the second
layer including a second cured polymeric composition
comprising a second polymeric resin and a second non-white
infrared transparent pigment;
wherein:
the first cured polymeric composition differs from the
second cured polymeric composition; and
the textile substrate comprising the first and second
layers has a CIELAB L * value of less than about 30 measured
at an observation angle of 25° and reflects greater than about
15% of impinging radiation having a wavelength of between
about 700 nanometers and about 2500 nanometers.
30. A covering for an architectural opening comprising:
a fibrous substrate in the form of a filament, fiber, yam or
thread;
a first layer coating and surrounding the periphery of the
fibrous substrate such that the fibrous substrate is a core of a
composite filament, fiber, yam or thread, the first layer including a
first cured polymeric composition comprising a first polymeric resin,
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a first non-white infrared transparent pigment, and a first white
infrared reflective pigment; and
a second layer coating and surrounding the periphery of the
fibrous substrate, the first layer being between the fibrous substrate
and the second layer, the second layer including a second cured
polymeric composition comprising a second polymeric resin and a
second non-white infrared transparent pigment;
wherein:
the first cured polymeric composition differs from the second
cured polymeric composition.
Appeal Br. 31, 32 (Claims App.).
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1: Claims 1, 7-10, 27, 34, 35, 38, 40, 41, and 45 under pre-
AIA 35 U.S.C. § 103(a) as unpatentable over Kuvshinnikova et al.
(US 2007/0129482 A 1, published June 7, 2007) ("Kuvshinnikova") and
Woolnough et al. (US 4,418,739, issued December 6, 1983) ("Woolnough");
Rejection 2: Claim 28 under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Kuvshinnikova, Woolnough, and Abrams et al.
(US 2,348,687, issued May 9, 1944); and
Rejection 3: Claims 30, 31, 33, 42, 43, and 46-50 under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Kuvshinnikova and Brooks
(US 4,587,997, issued May 13, 1986). 3
3 We note that the Examiner omitted claim 33 from the caption of the
rejection, but included claim 33 in the body of the rejection. Final Act. 6.
We treat the omission as an inadvertent and harmless error for purposes of
the present appeal and we refer to the rejection herein as including claim 33.
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Application 13/991,293
DISCUSSION
After review of the cited evidence in light of the Appellants' and the
Examiner's opposing positions, we determine that Appellants have not
identified reversible error in the Examiner's rejections. Accordingly, we
affirm the rejections for the reasons set forth in the Final Office Action, in
the Examiner's Answer, and below.
Rejections 1 and 2
Appellants' arguments regarding Rejection 1 focus on limitations that
appear in claim 1. Appeal Br. 8-20. Although Appellants separately set
forth some dependent claims, for example, claim 45, under individual
headings, Appellants do not present additional substantive arguments for the
patentability of the dependent claims. Appeal Br. 25-26. Thus, we choose
independent claim 1 as representative of the claims subject to Rejections 1
and 2, and claims 7-10, 27, 34, 35, 38, 40, 41, and 45, will stand or fall with
claim 1. See 37 C.F.R. §4I.37(c)(l)(iv).
Appellants do not present any arguments for separately rejected
claim 28. Appeal Br. 7-30. Accordingly, claim 28 will stand or fall with
claim 1, the independent claim from which it ultimately depends.
The Examiner finds that Kuvshinnikova teaches a multilayered
structure for decorative window furnishings or treatment. Final Act. 3
(citing Kuvshinnikova ,r 37). The Examiner finds that Kuvshinnikova
teaches that the multilayer structure comprises at least one layer that
includes a composition comprising at least one inorganic infrared reflecting
pigment, such as a mica powder covered with titanium oxide or metal
sulfides (a white infrared reflective pigment) or a non-white infrared
reflecting pigment, and at least one organic colorant (a "non-white IR
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transparent pigment"), such as antraquinone, phthalocyanine, dioxazine,
quinacridone, isoindoline, or black IR transparent pigments, resulting in a
molded part having a CIELAB L * value of less than 30. Final Act. 3 ( citing
Kuvshinnikova ,r,r 32-34, 37).
With regard to claim 1 's functional recitation that the substrate
"reflects greater than 15% of impinging radiation having a wavelength range
of between about 700 nanometers and about 2500 nanometers," the
Examiner finds that Kuvshinnikova teaches using the same type and
overlapping amounts of infrared reflective particles in the coating
composition as recited in Appellants' claim 1 (up to about 5 parts IR
reflective pigment per hundred parts polymer resin (compare Kuvshinnikova
,r 34, with Spec. ,r 42)), and the same type and overlapping amounts of
infrared transparent pigments (up to about 4 parts IR transparent pigment per
hundred parts polymer resin ( compare Kuvshinnikova ,r 34, with Spec. ,r
64)). Final Act. 4. The Examiner, therefore, concludes that
Kuvshinnikova's multilayer structure inherently reflects the same amount of
radiation recited in claim 1. Final Act. 4.
The Examiner acknowledges that Kuvshinnikova fails to teach using
its multilayered structure with decorative window treatment or furnishing
made of a textile material. Final Act. 5. The Examiner finds, however, that
Woolnough teaches an insulation window covering, such as window shades,
comprising an infrared transparent coating deposited on a fabric (textile)
substrate comprising woven polyester or fiberglass. Id. (citing Woolnough
5: 1-12 ). The Examiner determines that it would have been obvious to one
of ordinary skill in the art to apply Kuvshinnikova's multilayered coating to
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Woolnough's textile window coverings, such as Roman shades or curtains
composed of fibrous material "to prevent build-up of excessive heat." Id.
Appellants argue that neither Kuvshinnikova nor W oolnough teach or
suggest a layer including a polymeric resin, a white infrared reflective
pigment, and a non-white infrared transparent pigment, as recited in claim 1.
Appeal Br. 9. Specifically, Appellants argue that Kuvshinnikova does not
teach or suggest that any of the infrared reflecting pigments for use in its
compositions are white, but rather teaches using pigments, such as
chromium iron oxide, black spinel, and chrome iron nickel black spinel, all
of which are black or brown-black. Id. at 10.
Appellants' arguments are not persuasive of reversible error. As the
Examiner finds, Kuvshinnikova teaches the titanium oxide pigment is an
infrared reflective particle. According to the Examiner, one of ordinary skill
in the art at the time of the invention would readily understand that the only
type of titanium oxide which has infrared reflective properties is white Ti 0 2,
as evidenced by 6,174,360, 6,521,038, and 7,416,501, which Appellants
have incorporated by reference in their Specification (Spec. ,r 6). Ans. 10.
Because Appellants do not challenge the Examiner's findings in their Reply
Brief (see generally Reply Br.), we accept the findings as fact. In re
Kunzmann, 326 F.2d 424,425 n.3 (CCPA 1964).
Appellants argue that neither Kuvshinnikova nor Woolnough teach or
suggest a multilayered textile structure that has "a CIELAB L * value of less
than about 30 measured at an observation angle of 25° and reflects greater
than about 15% of impinging radiation having a wavelength of between
about 700 nanometers and about 2500 nanometers," as recited in claim 1.
Appeal Br. 12-14.
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Appellants' argument is not persuasive of reversible error. In general,
Appellants contend that the combination does not teach or suggest the
properties of the textile substrate recited in claim 1 because "the
compositional make-up of the Kuvshinnikova ... composition and that of
the claimed coverings differ." Appeal Br. 13 (emphasis omitted). However,
Appellants' contention is not supported by the evidence of record. As
discussed above, as the Examiner finds, Kuvshinnikova teaches using
similar amounts of infrared reflective and infrared transparent particles in its
multilayered coating composition as disclosed in Appellants' Specification.
Final Act. 4; compare Kuvshinnikova ,r 34, with Spec. ,r,r 42, 64. On this
record, Appellants have not argued or directed us to sufficient evidence to
convincingly show that the Examiner erred in finding that because of the
structural similarity between Kuvshinnikova's multilayered coating
composition and claim 1 's first and second layers, Kuvshinnikova's
composition would function in the same manner as claim 1 's first and
second layers-have a CIELAB L * value of less than about 30 measured at
an observation angle of 25° and reflect greater than about 15% of impinging
radiation having a wavelength of between about 700 nanometers and about
2500 nanometers. See In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997)
("[W]here the Patent Office has reason to believe that a functional limitation
asserted to be critical for establishing novelty in the claimed subject matter
may, in fact, be an inherent characteristic of the prior art, it possesses the
authority to require the applicant to prove that the subject matter shown to be
in the prior art does not possess the characteristic relied on." (quoting In re
Swinehart, 439 F.2d 210,213 (CCPA 1971))).
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Appellants argue that applying Kuvshinnikova's rigid polymer-based
composition to Woolnough's window shade, as proposed by the Examiner,
would destroy the intended function ofWoolnough's window shade and
render the resulting shade unsatisfactory for its intended purpose because
"the resulting rigid multi-layer formation would not provide a pliable
window shade capable of being wound around and unwound from the
rollers, as required by Woolnough." Appeal Br. 14--16 (emphasis omitted).
Similarly, Appellants argue that when the references are considered in their
entirety, there is no logical reason why one of ordinary skill in the art would
look to use Kuvshinnikova's rigid polymeric compositions with
Woolnough's pliable, rollable laminate shade structure. Id. at 19.
Appellants' arguments are not persuasive of reversible error. As the
Examiner finds, Kuvshinnikova teaches its composition is a combination of
a rigid thermoplastic phase and an elastomeric (rubber) phase, which is
flexible by nature. Ans. 13. Kuvshinnikova further teaches the amount of
the rigid thermoplastic phase used in the combination ranges from about
5 wt. % to about 90 wt. %, and when the composition contains less than half
of a rigid thermoplastic phase, the composition would not have an overall
rigid structure. Id. ( citing Kuvshinnikova ,r,r 22, 27). Moreover, the
Examiner finds that Kuvshinnikova teaches that its coating is applied to
flexible substrates, such as window treatments, siding, and rubber. Id.
(citing Kuvshinnikova ,r,r 20, 25, 27). Accordingly, a preponderance of
evidence supports the Examiner's finding that Kuvshinnikova does not
require that its composition be rigid or be used with rigid substrates. Id.
Appellants contend in the Reply Brief that Kuvshinnikova's
composition, which is based on a rigid thermoplastic continuous phase filled
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with a discontinuous elastomeric phase, will retain the bulk characteristics of
the rigid continuous phase. Reply Br. 5. Appellants, however, do not
present sufficient factual evidence to support their contentions. In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974) ("Attorney's argument in a
brief cannot take the place of evidence.").
Appellants argue that Kuvshinnikova teaches away from using a white
pigment in a lower layer of a coating arrangement when attempting to form a
dark plastic article that has a higher reflection of sunlight in the infrared
range. Appeal Br. 16 ( citing Kuvshinnikova ,r 4 ).
Appellants' argument is not persuasive of reversible error because
Appellants are arguing features not recited in the claim 1. As the Examiner
finds claim 1 's covering does not require a particular layer to be dark or light
in color. Ans. 15; In re Self, 671 F.2d 1344, 1348 (CCPA 1982) (limitations
not appearing in the claims cannot be relied upon for patentability).
In sum, on this record, a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claims 1, 7-10, 27, 34, 35,
3 8, 40, 41, and 45 would have been obvious over Kuvshinnikova and
Woolnough. Likewise, a preponderance of the evidence supports the
Examiner's conclusion that the subject matter of claim 28 would have been
obvious over Kuvshinnikova, Woolnough, and Abrams.
Rejection 3
Appellants' arguments regarding Rejection 3 focus on limitations that
appear in claim 30. Appeal Br. 20-25. Although Appellants separately set
forth some dependent claims, for example, claims 4 7 and 48, under
individual headings, Appellants do not present additional substantive
arguments for the patentability of the dependent claims. Appeal Br. 27-29.
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Thus, we choose independent claim 30 as representative of this group, and
claims 31, 33, 42, 43, and 46-50, will stand or fall with claim 30. See
37 C.F.R. §41.37( c)(l )(iv).
Unlike claim 1, claim 30 is rejected as obvious over Kuvshinnikova in
combination with Brooks, not Woolnough (relied upon in rejecting claim 1).
Appellants, however, essentially present the same arguments as previously
discussed above with respect to claim 1. That is, Appellants argue that
neither Kuvshinnikova nor Brooks teach or suggest a layer including a
polymeric resin, a white infrared reflective pigment, and a non-white
infrared transparent pigment, as recited in claim 1. Appeal Br. 21-22.
Additionally, Appellants argue that if one of ordinary skill in the art were to
apply Kuvshinnikova' s rigid infrared reflective composition as a coating on
Brooks' fibers, the resulting rigid fibers would not be capable of being
woven to provide a pliable window shade, and argue that Kuvshinnikova's
paragraph 4 teaches away from the claimed invention. Id. at 22-25.
We have considered Appellants' arguments, but do not find them
persuasive for the reasons discussed above with regard to Rejections 1 and 2.
Accordingly, we sustain the rejection of claims 30, 31, 33, 42, 43, and 46-50
as obvious over Kuvshinnikova and Brooks.
DECISION
The rejection of claims 1, 7-10, 27, 34, 35, 38, 40, 41, and 45 under
pre-AIA 35 U.S.C. § 103(a) as unpatentable over Kuvshinnikova and
Woolnough is affirmed.
The rejection of claim 28 under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Kuvshinnikova, Woolnough, and Abrams is affirmed.
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The rejection of claims 30, 31, 33, 42, 43, and 46-50 under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Kuvshinnikova and Brooks is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 )(iv).
AFFIRMED
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