Ex Parte Arnold

Board of Patent Appeals and Interferences

Aug 20, 2003

09577427 (B.P.A.I. Aug. 20, 2003)

The opinion in support of the decision being entered today was
not written for publication and is not precedent of the Board.

Paper No. 27

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte BILLY DEAN ARNOLD

____________

Appeal No. 2003-1381
Application No. 09/577,427
____________

ON BRIEF
____________

Before KIMLIM, TIMM and PAWLIKOWSKI, Administrative Patent
Judges.
PAWLIKOWSKI, Administrative Patent Judge.

DECISION ON APPEAL

This is a decision on appeal under 35 U.S.C. § 134 from the
examiner’s final rejection of claims 23-50. Claims 1-22 have
been cancelled.
Claim 23 is illustrative of the subject matter on appeal
and is set forth below:
23. A nonwoven web composite, comprising:
a plurality of side-by-side bicomponent multilobal
fibers including a higher melting component on a first
side, a lower melting component on a second side, and an
interface between the higher and lower melting components;
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Application No. 09/577,427

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each of the multilobal fibers including a multilobal
region on the first side and an opposing rounded region on
the second side, the multilobal region including at least
one pair of raised lobal regions and a depressed region
between each pair of raised lobal regions; and
a plurality of monolobal fibers.

On page 5 of the brief, appellant requests that claims 23-
50 be considered together. Hence, we consider claim 23 in this
decision. 37 CFR § 1.192(c)(7)(8)(2000).

Claims 23-40 and 42-50 stand rejected under 35 U.S.C. § 103
as being unpatentable over Midkiff in view of Powers.
Claim 41 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Midkiff in view of Powers and further in view
of Largman.
The examiner relies upon the following references as
evidence of unpatentability:

Largman 5,069,970 Dec. 3, 1991
Powers 5,580,459 Dec. 3, 1996
Midkiff 5,707,735 Jan. 13, 1998

OPINION
Critical to the determinations made in this decision, is
the issue of whether its would have been obvious to make a
nonwoven web composite comprising a mixture of (1) bicomponent
multilobal fibers and (2) monolobal fibers. It is not disputed
that Midkiff teaches a filter matrix of bicomponent multilobal
fibers. (Brief, page 5). Our focus, therefore, is on the
teachings of Powers. We do not comment on Largman as Largman is
not pertinent to the resolution of this particular issue.
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On pages 5-6 of the Brief, appellant argues that Midkiff
does not teach to add monolobal fibers to bicomponent multilobal
fibers and that Powers also does not teach to add monolobal
fibers to bicomponent multilobal fibers. See also pages 1-4 of
the Reply Brief. On page 7 of the Brief, appellant states that
he has recognized that increased levels of monolobal fibers
result in decreased filter efficiency when added to multilobal
fibers.
In response, on page 5 of the Answer, the examiner states
that Powers teaches that adding monolobal fibers controls the
pore size of the web, which in turns customizes the filter
efficiency. The examiner states this would be true whether the
filter efficiency is increased or decreased by adding the
monolobal fibers, since these are methods of customizing the
filter efficiency, which is related to the overall pore size of
the web.
Upon our review of Powers, we find that Powers teaches that
“ . . . it has been found that the microfiber may be used to
customize the porosity of the bicomponent fiber matrix. Average
pore size may be adjusted by varying the level or diameter of
the microfiber.” See column 4, lines 15-18. Powers also
teaches that “[a]ccording to the present invention, filtration
structures may be customized to a desired filter efficiency by
using microfiber to control pore size of the bicomponent fiber
matrix”. See column 2, lines 19-22. Hence, Powers teaches that
the porosity can be customized depending upon factors such as
the amount of microfibers and size of the microfiber, and that
filter efficiency can be adjusted according to porosity. Hence,
we agree with the examiner that Powers teaches that the use of
monolobal fibers is a factor in customizing filter efficiency.
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Powers also teaches that the bicomponent fiber that can be
used in the matrix can be a “multi-segmented” bicomponent fiber.
See column 3, lines 55-58. Appellant has not argued or shown
that this multi-segmented bicomponent fiber disclosed in Powers
is not a multilobal fiber. Absent evidence to the contrary, we
find that Powers’ teaching of a multi-segmented bicomponent
fiber encompasses appellant’s claimed multilobal fiber.
Therefore, contrary to appellant’s position that the applied art
does not teach a mixture of a multilobal fibers and monolobal
fibers, we find that Powers suggests such a mixture.
We have carefully considered appellant’s argument that he
has recognized an advantage which is the complete opposite of
teachings of Powers, i.e., that increased levels of monolobal
fibers will result in decreased filter efficiency when added to
multilobal fibers. (Brief, page 7.)
We do not find that Powers teaches that increased levels of
monolobal fibers to multilobal fibers will only increase filter
efficiency. As stated above, Powers states that “filtration
structures may be customized to a desired filter efficiency by
using microfiber to control pore size of the bicomponent fiber
matrix”. See column 2, lines 19-22. Also, Powers teaches that
“[a]verage pore size may be adjusted by varying the level or
diameter of the microfiber.” See column 4, lines 15-18.
Appellant’s statement that Powers teaches that increased levels
of monolobal fibers to multilobal fibers will only increase
filter efficiency does not take into consideration other
factors, such as fiber size, which can effect filter efficiency.
Furthermore, we note that where general conditions of the
appealed claim are disclosed in the prior art, it is not
inventive to discover optimum or workable ranges by routine
experimentation, and appellants have the burden of proving any
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criticality. In re Boesch, 617 F.2d 272, 276, 205 USPQ 215,
218-19 (CCPA 1980); In re Aller, 220 F.2d 454, 456, 105 USPQ
233, 235 (CCPA 1955). Here, appellant’s have not met this
burden.
In view of the above, we affirm each of the art rejections.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)

AFFIRMED

EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
)BOARD OF PATENT
) APPEALS AND
CATHERINE TIMM ) INTERFERENCES
Administrative Patent Judge )
)
)
)
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )

BAP/sld
Appeal No. 2003-1381
Application No. 09/577,427

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