Ex Parte Anderson et al

Patent Trial and Appeal Board

Apr 5, 2017

13680380 (P.T.A.B. Apr. 5, 2017)

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.
42552/09386/PAT-0112-US 5661
EXAMINER
WOLLSCHLAGER, JEFFREY MICHAEL
ART UNIT PAPER NUMBER
1742
NOTIFICATION DATE DELIVERY MODE
13/680,380 11/19/2012
27530 7590 04/07/2017
Nelson Mullins Riley & Scarborough LLP
IP Department
100 North Tryon Street
42nd Floor
Charlotte, NC 28202-4000
Gary W. Anderson
04/07/2017 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):
ip@nelsonmullins.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEALS BOARD
Ex parte GARY W. ANDERSON
and SUSANNAH D. GELOTTE
Appeal 2016-002879
Application 13/680,3801
Technology Center 1700
Before JAMES C. HOUSEL, GEORGE C. BEST, and
DONNA M. PRAISS, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 12, 14—16, 19, and 21—23. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as Fiberweb, Inc. Br. 3.
2 Our decision makes reference to the Specification filed Nov. 19, 2012
(“Spec.”), the Non-Final Office Action dated Jan. 29, 2015 (“Act.”), the
Appeal Brief filed June 26, 2015 (“Br.”), and the Examiner’s Answer dated
Nov. 4, 2015 (“Ans.”).
Appeal 2016-002879
Application 13/680,380
The claimed invention is related to a microporous composite sheet
material “which is permeable to moisture vapor but which forms a barrier to
the passage of water” and “has strength and barrier properties which make it
suitable for use as a housewrap.” Spec. 2. Claim 12 is illustrative and reads
as follows (disputed limitations are italicized):
12. A method of preparing a composite sheet material
having strength and barrier properties suitable for use as a
housewrap, the method comprising:
cold-drawing substantially continuous filaments having a
fiber birefringence of at least 0.022;
forming a spunbond nonwoven substrate comprising the
substantially continuous filaments, the spunbond nonwoven
substrate is area bonded with the substantially continuous
filaments being bonded to one another at their crossover points;
extrusion coating a polyolefin film layer onto a surface of
the spun bond nonwoven substrate to form a composite sheet
material, the composite sheet material having a grab tensile
strength of at least 178 Newtons in at least one of the machine
direction (MD) or the crossmachine direction (CD); and
stretching the composite sheet.
App. Br. 17, Claims Appendix (emphasis added).
The Examiner rejects claims 12, 14—16, 19, and 21—23 under 35
U.S.C. § 103(a) as unpatentable over the combination of McAmish,3
Lou ’568,4 Lou ’750,5 Henderson,6 Typar Geotextiles Overview
3 McAmish et al., US 5,910,225, iss. June 8, 1999 (“McAmish”).
4 Lou, US 4,684,568, iss. Aug. 4, 1987 (“Lou ’568”).
5 Lou, US 4,582,750, iss. Apr. 15, 1986 (“Lou ’750”).
6 Henderson, US 3,821,062, iss. June 28, 1974 (“Henderson”).
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Application 13/680,380
Product Guide,7 and additional references including Appellants’
disclosure in the Specification. Act. 3—16.
Appellants do not separately argue the patentability of dependent
claims 14—16, 19, and 21—23 (Br. 6—16). See In reLovin, 652 F.3d 1349,
1357 (Fed. Cir. 2011) (holding that the Board reasonably interpreted 37
C.F.R. § 41.37(c)(1) as requiring “more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art”).
The Examiner finds that claim 12 would have been obvious to one of
ordinary skill in the art at the time of the invention for the reasons stated on
pages 3—10 of the Action and 2—13 of the Answer.
Appellants argue that the Examiner erred because the cited prior art
does not expressly disclose (1) “area bonding” or (2) “a birefringence of at
least 0.022” as recited in claim 12. App. Br. 7, 13. According to
Appellants, McAmish “teaches away from the area bonded nonwoven
substrate of claim 12” because “McAmish teaches a low degree of bonding.”
Id. at 8. Appellants also assert that McAmish’s teaching that its nonwoven
fabric must be capable of elongation of up to at least 50% is contrary to the
Specification’s description that “[i]t is important for the [nonwoven]
substrate to have high tenacity and relatively low elongation in order to
provide the strength and other physical properties required for a barrier
material such as a housewrap.” Id. at 8—9 (quoting Spec. 119) (emphasis
7 Geotextiles: Typar, Fiberweb, pages 1—12 (“Typar Geotextiles Overview
Product Guide”). Although the document does not include a publication
date, Appellants do not dispute that Typar Geotextiles Overview Product
Guide is prior art to the claims on appeal.
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Application 13/680,380
omitted). Appellants also point out that McAmish’s disclosure of a 30%
elongation is with respect to the film-fabric laminate, not the nonwoven
substrate. Id. at 9 (citing McAmish 3:62-4:5). Appellants further contend
that Lou ’568 and Lou ’750 do not disclose that the spunbond nonwoven
substrate is area bonded and that Lou ’750 teaches that a low amount of
bonding is required, which is alleged to be contrary to the area bonding
required in claim 12. Id. at 10—12. Regarding the exemplification of Typar®
3301 in Lou ’568 and its properties relative to Typar® 3201 exemplified in
the Appellants’ Specification, Appellants contend that they “are not identical
products merely because they share the TYPAR® trademark.” Id. at 12.
Appellants also contend that the description of properties in 122 of the
Specification, including being area bonded and having a fiber birefringence
of at least 0.022, “may or may not be present in various members of the
Typar® product line.” Id. Appellants further argue that example 1 in Lou
’568 discloses grab tensile strength decreased for polyolefin coated
nonwoven sample 1 compared to nonwoven fabric alone. Id. at 13.
The Examiner responds that the amount of stretching in McAmish is
within the scope of the claimed and disclosed “stretching.” Ans. 8. The
Examiner also responds that the Typar® 3301 used in Lou ’568 and Lou ’750
have grab tensile strengths of 534 Newtons in the machine direction and 490
Newtons in the cross machine direction (Lou ’568, Table 1) which is within
the scope of claim 12, namely at least 178 Newtons in at least one of the
machine direction or the cross machine direction. Id. at 9. In addition, the
Examiner notes that Henderson, to which the Lou ’750 patent directs,
describes a cold-drawing method as it is known in the art as well as stem
bonding (i.e. area bonding) to form a spunbond nonwoven sheet. Id. (citing
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Appeal 2016-002879
Application 13/680,380
Henderson 3:44^4:16, 8:66—9:53). Regarding 122 of the Specification, the
Examiner notes that the real party in interest is the owner and manufacturer
of the relied upon Typar® materials, therefore Appellants’ statement that the
Typar Geotextiles Overview Product Guide does not indicate that the
products are necessarily area bonded is not persuasive. Id. at 10. The
Examiner further finds that the Specification indicates that Typar® fabrics
are highly pertinent and preferred because the Specification contrasts them
to commercially available spunbond nonwoven fabrics. Id. at 11 (citing
Spec. 51—56). Regarding Typar® 3301 and 3201 not being identical
products based on their trademark, the Examiner notes that the combination
rejection suggests utilizing Typar® 3201 as the nonwoven. Id. at 11—12.
The Examiner further responds that claim 12 recites grab tensile strengths of
the composite before stretching. Id. at 12. The Examiner also finds that
Table 5 in the Specification provides sufficient evidence that the Typar®
materials have a fiber birefringence within the claimed range (at least 0.022)
because Typar® 3201 has a birefringence of 0.026. Id. at 13. The Examiner
notes that recognizing a latent property, such as birefringence, is not a basis
for patentability in itself. Id.
We have evaluated Appellants’ arguments and find them
unpersuasive. The Examiner has provided the record with a preponderance
of evidence in support of the rejection including commonalities shared by
example 1 of Lou ’568 and the examples of the Specification which justifies
requiring Appellants to prove that Lou ’568’s example 1 does not
necessarily or inherently produce the claimed characteristics of
“substantially continuous filaments having a fiber birefringence of at least
0.022” and a “spunbond nonwoven substrate [that] is area bonded with the
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Application 13/680,380
substantially continuous filaments being bonded to one another at their
crossover points” as recited in claim 12. See In re Best, 562 F.2d 1252, 1255
(CCPA 1977) (“[T]he PTO can require an applicant to prove that the prior
art products do not necessarily or inherently possess the characteristics of his
claimed product. . . . Whether the rejection is based on ‘inherency’ under 35
U.S.C. § 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or
alternatively, the burden of proof is the same, and its fairness is evidenced
by the PTO's inability to manufacture products or to obtain and compare
prior art products.” (footnote omitted)). Appellants have not provided such
proof.
We affirm the Examiner’s decision to reject claim 12 for the reasons
aptly stated on pages 3—10 of the Action and 2—13 of the Answer.
CONCLUSION
The Examiner’s decision rejecting claims 12, 14—16, 19, and 21—23 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. §1.136(a)(1).
AFFIRMED
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