Ex Parte Bansal et al

Board of Patent Appeals and Interferences

Nov 28, 2008

11230008 (B.P.A.I. Nov. 28, 2008)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte VISHAL BANSAL, HYUN SUNG LIM,
HARRY VAUGHN SAMUELSON, and
MICHAEL ROBERT SAMUELS
__________

Appeal 2008-4309
Application 11/230,008
Technology Center 1700
___________

Decided: November 28, 2008
___________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
CAROL A. SPIEGEL, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s final
rejection of claims 25-48, all of the claims pending in the application. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.

Appeal 2008-4309
Application 11/230,008

The Examiner finally rejected claims 39, 40, and 43 under 35 U.S.C.
§ 102(b) as anticipated by Linstid.1 Final 2.2
The Examiner finally rejected claims 25-38, 41, and 42 under
35 U.S.C. § 103(a) as unpatentable over the combination of Linstid and
Coffy.3 Final 3.
The Examiner finally rejected claims 25-38, 41, 42, and 44-48 under
35 U.S.C. § 103(a) as unpatentable over the combination of Linstid,
Kurihara,4 and Land.5 Final 3.
B. ISSUES
Issue 1: Have the Appellants have shown that the Examiner
reversibly erred in finding that the amorphous liquid crystalline polymers
disclosed in Linstid have a melting point within the range recited in claims
25 and 39?
Issue 2: Have the Appellants have shown that the Examiner
reversibly erred in concluding that it would have been obvious to one of
ordinary skill in the art to form the Linstid fibers into a fabric in view of the
teachings of Coffy?
Issue 3: Have the Appellants have shown that the Examiner
reversibly erred in rejecting claims 25-38, 41, 42, and 44-48 under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Linstid, Kurihara, and
Land?

1 US 6,294,640 B1 to Linstid, III et al. issued on September 25, 2001
(“Linstid”).
2 Final Office Action mailed December 14, 2006.
3 US 5,360,503 to Coffy issued on November 1, 1994 (“Coffy”).
4 US 6,207,273 B1 to Kurihara et al. issued on March 27, 2001 (“Kurihara”).
5 US Patent Application Publication 2002/0124544 A1 to Land et al.
published on September 12, 2002 (“Land”).
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Application 11/230,008

C. FINDINGS OF FACT
The following findings of fact are supported by a preponderance of
the evidence. Additional findings of fact as necessary appear in the Analysis
portion of the opinion.
1. Appellants’ Specification
The Appellants disclose a flame retardant fabric comprising
bicomponent fibers having a sheath and a core wherein the sheath comprises
a fully aromatic thermoplastic polymer with a Limited Oxygen Index (LOI)
of at least 26. Spec. 1:22-25.
According to the Appellants, fully aromatic thermoplastic polymers
which resist flame propagation consist essentially of repeating units of
unsaturated cyclic hydrocarbons containing one or more rings connected
with ester, amide, or ether linkages. Examples of these types of polymers
include fully aromatic: polyester polymers, polyester-amide polymers,
polyamide-imide polymers, liquid crystalline polymers (LCP), and liquid
crystalline polyester polymers. Spec. 2:3-9.
2. Claimed subject matter
Claims 25 and 39 are the only independent claims on appeal. They
read as follows:
25. A flame retardant fabric comprising bicomponent fibers
having a sheath and a core wherein the sheath comprises a fully
aromatic thermoplastic polymer with an LOI of at least 26
having a melting point (Tm) between about 200ºC and about
325ºC, and the core comprises a thermoplastic polymer.

39. A flame retardant bicomponent fiber comprising a core
of thermoplastic polymer and a sheath of a fully aromatic
thermoplastic polymer with an LOI of at least 26 having a
melting point (Tm) between about 200ºC and about 325ºC.

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Br. 14-15,6 Claims Appendix.
3. Linstid
Linstid discloses amorphous anisotropic melt-forming polymers.
Linstid 1:12-16.
Anisotropic melt-forming polymers are also known as liquid
crystalline polymers or “LCPs.” Linstid 1:21-22.
The polymers disclosed in Linstid are considered to be amorphous in
that they lack a well-defined melting point or Tm. Linstid 5:65-6:1.
The disclosed polymers are suitable for producing fibers, such as
monofilaments, multifilaments, and bicomponent fibers, using conventional
fiber forming equipment. Linstid 18:3-6.
Bicomponent fibers include core and sheath fiber structures. Linstid
18:14-18.
4. Coffy
Coffy discloses that liquid crystal polymers (LCP) have a good
resistance to flames and high temperatures. Coffy 3:15-20.
Coffy discloses that LCP fibers may be arranged to form a fabric.
Coffy 4:9-10.
Coffy discloses that the fabric can be produced in a conventional
manner. Coffy 4:15-17.
5. Kurihara
Kurihara discloses a process for producing a heat-resistant filament
and filament assembly composed of a thermotropic liquid crystal polymer
(LCP). Kurihara 1:10-13.

6 Appeal Brief dated May 25, 2007 (“Br.”).
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The thermotropic LCP filament is also incombustible and flame
retardant. Kurihara 31:60-65.
Kurihara discloses that the filament assembly may be in the form of a
cloth. Kurihara 18:35-39.
Examples of thermotropic LCPs include liquid crystalline polyesters,
polycarbonates, and polyester-imides. Specifically, (wholly) aromatic
polyesters, polyester-amides, polyamide-imides, polyester-carbonates, and
polyazomethines are mentioned. Kurihara 5:35-39.
6. Land
The invention disclosed in Land relates to a fire resistant yarn and a
fabric that includes the fire resistant yarn. Land, para. [0003].
Land discloses that the invention has particular applicability in the
formation of fire resistant fabrics for applications such as upholstery,
mattress and pillow ticking, bed spreads, pillow covers, draperies or cubicle
curtains, wallcoverings, window treatments, awning covers, and baby
clothing. Land, para. [0003].
D. PRINCIPLES OF LAW
During patent examination, the pending claims must be interpreted as
broadly as their terms reasonably allow. The reason is simply that during
patent prosecution when claims can be amended, ambiguities should be
recognized, scope and breadth of language explored, and clarification
imposed. In re Zletz, 893 F.2d 319, 321 (Fed. Cir. 1989).
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
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Where the claimed and prior art products are identical or substantially
identical, the PTO can require an applicant to prove that the prior art
products do not inherently possess the characteristics of the claimed product.
In re Best, 562 F.2d 1252, 1255 (CCPA 1977).
A compound and all of its properties are inseparable. In re Papesch,
315 F.2d 381, 391 (CCPA 1963).
A claimed invention is not patentable if the subject matter of the
invention would have been obvious to a person having ordinary skill in the
art at the time the invention was made. 35 U.S.C. § 103(a); KSR Int’l Co. v.
Teleflex Inc., 127 S. Ct. 1727, 1734 (2007); Graham v. John Deere Co. of
Kansas City, 383 U.S. 1, 13 (1966).
Facts relevant to a determination of obviousness include (1) the scope
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of skill in the art, and (4) any
relevant objective evidence of obviousness or non-obviousness. KSR, 127 S.
Ct. at 1734; Graham, 383 U.S. at 17-18.
A person of ordinary skill is not an automaton but is a person of
ordinary creativity. KSR, 127 S. Ct. at 1742. One of ordinary skill in the art
is presumed to have skills apart from what the prior art references expressly
disclose. In re Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985).
Where a rejection is based on a combination of references, one cannot
show non-obviousness by attacking the references individually. In re Keller,
642 F.2d 413, 426 (CCPA 1981).

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E. ANALYSIS
Issue 1
The Examiner found that Linstid discloses a bicomponent fiber
comprising a sheath of an aromatic thermoplastic polymer that has a melting
point within the range recited in claims 25 and 39. Ans. 37; Linstid 6:4-8.
In particular, referring to the “EXAMPLES” disclosed in Linstid, the
Examiner found that the polymers were melt spun into tapes and the melt
temperatures of the polymers varied between about 250ºC to 300ºC
depending upon the melt characteristics of the sample. Ans. 6; Linstid
23:16-20.
The Appellants have failed to point to any error in the Examiner’s
findings with respect to the “EXAMPLES” disclosed in Linstid. Rather, the
Appellants argue that the polymers described in Linstid are amorphous
polymers which are said to “lack a well-defined melting point or Tm.” Br. 3.
The Appellants also rely on Roberts8 to establish that an “amorphous
polymer” has no crystallites and therefore, no melting point. Br. 5. For
these reasons, the Appellants contend that the sheath polymers disclosed in
Linstid do not anticipate the Appellants’ claimed sheath polymers which
have “a melting point (Tm) between about 200ºC and about 325ºC.” Br. 4.
The Appellants’ arguments are not persuasive of reversible error.
Roberts does not discuss amorphous LCPs of the type disclosed in Linstid.
According to the “EXAMPLES” disclosed in Linstid, the melt temperatures
of the polymers varied between about 250ºC to 300ºC. Linstid 23:16-20.

7 Examiner’s Answer dated October 19, 2007 (“Ans.”).
8 John D. Roberts et al., Organic Chemistry: Methane to Macromolecules
739-41 (W. A. Benjamin, Inc. 1971) (“Roberts”). Evidence Appendix A.
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Thus, it would appear that the LCPs disclosed in Linstid are sufficiently
crystalline to melt within the range recited in claims 25 and 39.
We recognize that Linstid discloses that the amorphous LCPs “lack a
well-defined melting point or Tm.” However, the Appellants have failed to
explain why the claims on appeal require a sheath polymer that has a sharp
or well-defined melting point. See Final 2 (“it is the examiner’s position that
the present claims do not necessarily exclude polymers that do not have
‘well-defined’ melting points”); Br. 5 (“the Examiner’s statement has no
bearing as to whether the amorphous LCPs of Linstid anticipate the present
claims”). To this end, we note that the Appellants have failed to direct us to
any definition of “melting point” in the Specification that excludes the LCPs
disclosed in Linstid. Zletz, 893 F.2d at 321.
For the reasons set forth above, the Appellants have not shown that
the Examiner reversibly erred in finding that the amorphous LCPs disclosed
in Linstid have a melting point within the range recited in claims 25 and 39.
Issue 2
The Examiner found that Linstid does not teach that the disclosed
fibers may be formed into fabric. The Examiner, however, found that the
teachings of Coffy establish that forming LCP fibers into fabric was known
in the art. The Examiner concluded that it would have been within the skill
of the ordinary artisan to form the fibers of Linstid into fabric as disclosed in
Coffy. Ans. 4.
The Appellants do not point to any error in the Examiner’s findings.
Rather, the Appellants argue:
[T]hose skilled in the art would not have been motivated to
form the Linstid amorphous polymer fibers into fabrics
according to Coffy, since (1) Coffy clearly desires fibers of
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only highly crystalline LCPs, in contrast to the amorphous
fibers of Linstid, and (2) Coffy desires fabrics having relatively
low elasticity, comparable to a glass/epoxy laminate, in contrast
to the highly stretchable fibers desired by Linstid.

Br. 6.
Significantly, the Appellants have failed to explain in any detail why
the alleged differences between the LCP fibers of Linstid and the LCP fibers
of Coffy render the fibers of Linstid unsuitable as a fabric.
For this reason, the Appellants have failed to show that the Examiner
reversibly erred in concluding that it would have been obvious to one of
ordinary skill in the art to form the Linstid fibers into a fabric in view of the
teachings of Coffy.
Issue 3
The Examiner found that Linstid does not teach that the disclosed
LCP fibers may be formed into fabric. Nonetheless, the Examiner found
that the teachings of Kurihara establish that forming LCP fibers into fabric
was known in the art. The Examiner also found that Land teaches that it was
known in the art to produce articles, such as the articles recited in claims 44-
48, from a fire resistant material having a LOI greater than 22. The
Examiner concluded that the combined teachings of Linstid, Kurihara, and
Land would have rendered obvious the subject matter on appeal. Ans. 5.
The Appellants do not point to any error in the Examiner’s findings.
Rather, the Appellants argue that fabric formed of the LCP fibers disclosed
in Linstid would not meet the limitations of the claims on appeal. In
particular, the Appellants argue that “it is not certain that the Linstid fibers
would exhibit LOIs of at least 26, required by the rejected claims.” Br. 12.
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The Examiner found that the aromatic thermoplastic sheath polymers
disclosed in Linstid are the same as the sheath polymers recited in claim 25.
Ans. 3, 4. Therefore, the Examiner found that the sheath polymers disclosed
in Linstid inherently have a LOI within the claimed range. Ans. 3, 5. The
Appellants have failed to point to any error in the Examiner’s findings.
Next, the Appellants argue that Kurihara discloses making
bicomponent fibers wherein the core, not the sheath, is a thermotropic LCP.
Br. 8-9. The Appellants also argue that Land is completely silent with
respect to forming bicomponent sheath/core fibers. Br. 10.
The Examiner relied on the teachings of Linstid, not the teachings of
Kurihara or Land, to establish that a bicomponent fiber comprising a LCP
sheath was known in the art. See Ans. 3, 9. Therefore, it is of no moment
that the fire resistant filaments disclosed in Kurihara or Land do not
comprise a LCP sheath. Keller, 642 F.2d at 426.
As for dependent claims 28-30 and 43, and more particularly claims
29 and 30, the Appellants argue that the polyester-amide and polyamide-
imide disclosed in Kurihara do not have a LOI within the claimed range. Br.
9-11.
Claim 29 recites a bicomponent fiber sheath comprising a fully
aromatic polyester-amide polymer, and claim 30 recites a bicomponent fiber
sheath comprising a fully aromatic polyamide-imide polymer. Br. 14,
Claims Appendix; see also Spec. 2:3-9.
As pointed out by the Examiner, Kurihara discloses heat resistant
filaments composed of LCPs, such as wholly aromatic polyester-amides and
polyamide-imides. Kurihara 5:35-39. Based on the record before us, it is
reasonable to find that the wholly aromatic polyester-amides and polyamide-
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imides disclosed in Kurihara are the same or substantially the same as the
Appellants’ claimed fully aromatic polyester-amide and polyamide-imide
polymers. Best, 562 F.2d at 1255. Therefore, it is reasonable to find that the
wholly aromatic polyester-amides and polyamide-imides disclosed in
Kurihara have a LOI within the claimed range. Papesch, 315 F.2d at 391.
The Appellants also argue that the various repeating units I-V
described in Linstid cannot be formulated to make a polyamide-imide. Br.
12.
This argument is not persuasive of reversible error. The Examiner is
not proposing to reformulate repeating units I-V described in Linstid.
Rather, the Examiner is proposing to substitute the polyester-amides or
polyamide-imides disclosed in Kurihara for the LCPs disclosed in Linstid.
Keller, 642 F.2d at 426.
For the reasons set forth above, the Appellants have failed to show
that the Examiner reversibly erred in rejecting claims 25-38, 41, 42, and 44-
48 under 35 U.S.C. § 103(a) as unpatentable over the combination of
Linstid, Kurihara, and Land.
F. DECISION
The rejection of claims 39, 40, and 43 under 35 U.S.C. § 102(b) as
anticipated by Linstid is affirmed.
The rejection of claims 25-38, 41, and 42 under 35 U.S.C. § 103(a) as
unpatentable over the combination of Linstid and Coffy is affirmed.
The rejection of claims 25-38, 41, 42, and 44-48 under 35 U.S.C. §
103(a) as unpatentable over the combination of Linstid, Kurihara, and Land
is affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 35 U.S.C. § 1.136(a) (2008).

AFFIRMED

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