Ex Parte Axelrod

Patent Trial and Appeal Board

Sep 27, 2012

12339973 (P.T.A.B. Sep. 27, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
12/339,973 12/19/2008 Glen S. Axelrod TFH079CON 8184
32047 7590 09/27/2012
GROSSMAN, TUCKER, PERREAULT & PFLEGER, PLLC
55 SOUTH COMMERICAL STREET
MANCHESTER, NH 03101
EXAMINER
NGUYEN, SON T
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
09/27/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte GLEN S. AXELROD
__________

Appeal 2011-012694
Application 12/339,973
Technology Center 3600
__________

Before LORA M. GREEN, MELANIE L. McCOLLUM, and
ULRIKE W. JENKS, Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims directed to an animal chew toy. We have
jurisdiction under 35 U.S.C. § 6(b). We reverse.

Appeal 2011-012694
Application 12/339,973

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STATEMENT OF THE CASE
Claims 1, 2, and 4-8 are on appeal, and can be found in the Claims
Appendix of the Appeal Brief (App. Br. 15-16). Claims 1 and 7 are
independent claims. Claim 1 is representative of the claims on appeal, and
reads as follows (emphasis added):
1. An animal chew toy comprising:
a woven or non-woven fabric shaft having a plurality of fibers,
said fabric shaft having a length and end portions, wherein one or a
plurality of void spaces are located between said plurality of fibers;
and
an over-molded polymer material portion, wherein said over-
molded polymer material portion comprises a polymer resin and said
over-molded polymer material portion is located only at the end
portion of said length of said fabric shaft and within said one or a
plurality of fiber void spaces and is mechanically engaged to said
fibers,
further characterized in that said over-molded polymer
surrounds one or more of said fibers at said end portions,
wherein said fabric shaft is selected from the group consisting
of oriented polyethylene fiber and poly-paraphenylene
terephthalamide fiber having an ultimate tensile strength of 2.1 GPa
and higher.

The following grounds of rejection are before us for review:
The Examiner has rejected claims 1, 2, and 4-8 under 35 U.S.C.
§ 103(a) as unpatentable over Levin1 and Ward.2

1 Levin et al., US 6,672,252 B2, issued Jan. 6, 2004
2 Ward et al., US 6,277,773 B1, issued Aug. 21, 2001
Appeal 2011-012694
Application 12/339,973

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ISSUE
The Examiner takes the position that Levin disclosed

a woven or non-woven fabric shaft (col. 5, lines 40-42, the toy can be
bone shaped, thus, a bone shaped toy would have a shaft in the middle
with knuckles at the ends for end portions) . . . [having] an over-
molded polymer material portion (col. 4, lines 5-38), wherein said
overmolded polymer material portion comprises a polymer resin . . .
and said fibers are embedded within said over-molded polymer along
said portion of said length of said fabric shaft.

(Ans. 3-4.) The Examiner further asserts that it would have been obvious to
“have the polymeric resin of Levin et al. be located only at the end portions
of the shaft of Levin et al., depending on the user's preference to do so.”
(Ans. 4-5.)
Appellant contends that the fibers disclosed in Levin are not in woven
or non-woven fabric form. (App. B. 5.) According to Appellant, “Levin
does not teach or disclose a fabric shaft but instead teaches that fibers are
free ‘inclusions’ which Levin identifies as loose fibers having a length of
1800 microns to 2500 microns, preferably at 4-8% by weight of the
polymeric material.” (App. Br. 11.) Appellant asserts that “[a]s set forth in
the Examiner's response, ‘[t]he polyester or desired material fibers of Levin
et al. are assumingly dispersed throughout the whole bone toy.’” (Reply Br.
9.) That is, Appellant “submits that fibers of Levin are dispersed in a resin
throughout the whole bone toy.” (Reply Br. 9-10.)
The issue presented is: Does the evidence of record support the
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Examiner’s conclusion that the combination of Levin in view of Ward3
disclosed a non-woven fabric shaft with an “overmolded polymer material
portion that is located at the end of said shaft?”

FINDINGS OF FACT
FF1. “Upon the introduction of the polymeric material to the fabric, which
is defined herein as ‘overmolding,’ the polymeric material may locate within
the void spaces. In another embodiment, the polymeric material may
mechanically engage with the fibers.” (Spec. 7, ll. 16-19.)
FF2. “[I]t can be appreciated that the polymeric resin need not be limited
to over-molded at the end portions 30, and may be over-molded anywhere
along the length of fabric 20 as may be desired.” (Spec. 5, ll 18-20.)
FF3. “[I]ncluded in the polymeric composition will be inclusion members.
Preferably, the inclusions are either hard components or fibers. The
inclusions are preferred for use in cleaning the animal's teeth. Any of a
variety of different types of fibrous materials may be used, including
synthetic and natural fibers.” (Levin col. 2, ll. 29-34.)
FF4. Levin provides that fibrous materials can include “cellulose, sisal,
cotton, and any of a variety of synthetic fibers. The synthetic fibers include
polyester, nylon, olefin, and any other synthetic fiber.” (Levin col. 4, ll. 63-
65.)
FF5. “All fiber types used for these tests were longer than 1 mm in length
on average and as long as 2.5 mm on average. The fiber and grain additions

3 Ward was relied upon for its disclosure of materials with a tensile strength
exceeding 2.1 GPa.
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Application 12/339,973

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were added for dental benefits and rigidness. The fiber also will add sheer
strength to the piece as an additional benefit.” (Levin col. 10, ll. 59-64.)

PRINCIPLES OF LAW
“[T]he words of a claim ‘are generally given their ordinary and
customary meaning.’ . . . [T]he ordinary and customary meaning of a claim
term is the meaning that the term would have to a person of ordinary skill in
the art in question at the time of the invention.” Phillips v. AWH Corp., 415
F.3d 1303, 1312-13 (Fed. Cir. 2005).
Each element in a claim is material to defining the scope of the
invention. Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S.
17, 29 (1997). “[C]laims are interpreted with an eye toward giving effect to
all terms in the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950
(Fed. Cir. 2006).

ANALYSIS
Appellant asserts that Levin does not disclose woven or non-woven
fabrics. Appellant asserts that “in the context of Levin [] the fibers are not in
fabric form. The fibers are unambiguously defined as ‘inclusions’, . . . they
are added to polymer material as free fibers, as Levin ultimately relies on
such free fibers to reach his objective of positioning such inclusions within
an animal's teeth.” (App. Br. 8.) “Appellant … submits that the term
‘fibrous materials’ as used by Levin is not used to describe a woven or non-
woven fabric, or any other ‘fabric type’ . . . Appellant . . . submits that Levin
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uses the term ‘fibrous materials’ to describe the material composition of
various fibers.” (Reply Br. 6.)
The Specification does not provide a separate definition of what is
encompassed by a woven or non-woven fabric shaft. (FFs 1, 2.) The
Examiner takes the position that if “the fibers are loose [in Levin], then
those fibers can be considered non-woven.” (Ans. 7.) The industry
definition of nonwoven fabric provided by the Appellant in the Reply Brief
is “[a]n assembly of textile fibers held together by mechanical interlocking
in a random web or mat, by fusing of the fibers (in the case of thermoplastic
fibers), or by bonding with a cementing medium such as starch, glue, casein,
rubber, latex, or one of the cellulose derivatives or synthetic resins.” (Reply
Br. 8.) The industry definition agrees with the Examiner’s position that the
entire dog chew disclosed by Levin encompasses non-woven fabric material,
because the fibers are dispersed in a cementing medium.
The Examiner asserts that it would have been obvious to have
polymeric resin located only at the end of the fabric shaft based on “user's
preference to do so since Applicant has [shown] no criticality as to why it is
important to have the resin only at the end portions and it appears that
Applicant states that it is not limited to only at the end portions and that it
can be anywhere else.” (Ans. 4-5.) The Examiner takes the position that the
location of the over-molded material is dependent on preference and “based
on where the animal bite[s] mostly on the toy.” (Ans. 5.) If the placement
of the over-molded polymer is a mere design choice as suggested by the
Examiner, then removal of the polymer from the center of Levin’s chew toy
should leave a fabric shaft with over-molded polymer ends. Here, the
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removal of the polymer from the center of Levin’s chew toy would result in
two over-molded end portions that are not held together by any kind of
fabric shaft because the cementing material (polymer) is required to form the
shaft.
Appellant asserts that the placement of the over-molded polymer at
the ends of the fabric shaft is a preferred embodiment of the invention, and a
feature not present in the cited art. (App. Br. 9.) Appellant asserts that the
Examiner has not established a prima facie case. (App. Br. 9.) “[C]laims are
interpreted with an eye toward giving effect to all terms in the claim.”
Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) The
industry definition of a non-woven fabric includes a fabric material
embedded in a cementing medium. By the industry definition, Levin’s
entire chew toy comprises a non-woven fabric shaft, there is no disclosure in
Levin of adding additional polymer material to the end of the fabric shaft.
We find that the Examiner has not provided a sound rational for adding
additional over-molded polymer to the ends of the fabric shaft of Levin to
arrive at the claimed chew toy construction.

CONCLUSION OF LAW
The preponderance of evidence on this record fails to support
Examiner's finding that Levin in view of Ward teaches Appellant’s claimed
invention. The rejection of claim 1 under 35 U.S.C. § 103(a) as being
obvious over Levin in view of Ward is reversed. Independent claim 7 also

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recites the limitation that the “over-molded polymer material is located only
at the end portions of said length of said fabric shaft.” We thus reverse the
rejection of claims 1, 2, and 4-8 under 35 U.S.C. § 103(a) as unpatentable
over Levin and Ward.

REVERSED

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