Ex Parte Brunson et al

Board of Patent Appeals and Interferences

May 27, 2010

11027701 (B.P.A.I. May. 27, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte KEVIN K. BRUNSON and DARELL S. CALDWELL
____________

Appeal 2009-003853
Application 11/027,701
Technology Center 1700
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Decided: May 27, 2010
____________

Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and
KAREN M. HASTINGS, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1-78. We have jurisdiction under 35 U.S.C. § 6(b). An
oral hearing was held on May 6, 2010.

STATEMENT OF THE CASE
Claims 1, 12, 38, 47, 57, 71, and 75 are representative of the subject
matter on appeal and are set forth below:
Appeal 2009-003853
Application 11/027,701

1. A nonwoven product formed with at least two layers of nonwoven
material comprising:

said nonwoven material having a color scheme formed by varying the
concentration of pigments in associated fibers or filaments;

at least one of the layers of nonwoven material having a color scheme
different from the color scheme of one other layer of nonwoven material;
and

a color scheme having a random appearance and being visible from at
least a portion of the product and being different from the respective color
scheme of each layer.

12. A nonwoven product formed with at least two layers of nonwoven
material comprising:

said nonwoven material having a color scheme formed by
differentially pigmenting associated fibers or filaments;

at least one of the layers of nonwoven material having at least two
colors formed by differentially pigmenting associated-fibers or filaments;

at least one of the layers of nonwoven material having a color scheme
different from the color scheme of one of the other layers of nonwoven
material; and

the color scheme visible from at least a portion of the product.

38. A nonwoven product comprising:

a first layer and a second layer;

said first layer being adjacent to said second layer;

said second layer forming an outer visible surface of said product;

at least a portion of said first layer having a first color scheme;

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at least a portion of said second layer having a second color scheme;
said first color scheme being different from said second color scheme;

said second layer being constructed wherein said first color scheme is
at least partially visible through at least a portion of said second layer; and
said first color scheme cooperating with said second color scheme to
produce a third color scheme which is different from said first and second
color schemes.

47. A nonwoven product comprising:

an inner layer and an adjacent outer layer;

said inner layer includes a first color scheme;

said outer layer includes a second color scheme; said first color
scheme being different from said second color scheme;

at least a portion of said outer layer being translucent so that said first
color scheme and said second color scheme cooperate to form a third color
scheme and whereby the first color scheme of said inner layer is visible
through at least a portion of said outer layer.

57. The method of Claim 56 wherein at least portions of said
second material are deposited on said first layer non-uniformly, thereby
forming substantially translucent regions in said second layer.

71. A nonwoven product comprising:

first, second and third layers each made of nonwoven material;

said second layer sandwiched between said first and third layers;

said first layer having a first color scheme; said second layer having a
second color scheme; said third layer having a third color scheme; said first,
second and third colors being different colors; and

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at least a portion of said first layer being translucent and at least a
portion of said second layer being translucent whereby said second and third
colors are visible through said first layer to produce an appearance of depth.

75. A nonwoven product comprising:

first, second and third layers each made of nonwoven materials;

said second layer sandwiched between said first and third layers;

said first layer having a varying concentration of pigments for a first
color; said second layer having a varying concentration of pigments for a
second color; said third layer having a varying concentration of pigments for
a third color; said first and third varying concentration of pigments for colors
being substantially the same; said second color varying concentration of
pigments being different from said first and third colors; and

at least a portion of said first layer being translucent and at least a
portion of said third layer being translucent whereby said second color is
visible through said first layer and said third layer to produce an appearance
of thickness.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Yeo 5,503,076 Apr. 02, 1996
Brunson 5,765,556 Jun. 16, 1998
Okazaki JP 3033217 Feb. 13, 1991
Uttenbroek WO 96/10380 Apr. 11, 1996

THE REJECTION(S)
1. Claims 12-14, 18-20, 27, 38, 42-42, 47-50 stand rejected under 35
U.S.C. § 102(b) as being anticipated by Uttenbroek (WO 96/10380).

2. Claims 1, 2, 5-14, 17-20, 38-78 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over Uttenbroek.
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3. Claims 21-37 stand rejected under 35 U.S.C. § 103(a) as being
obvious over Uttenbroek in view of Yeo1 and Brunson.

4. Claims 3, 4, and 15-16 stand rejected under 35 U.S.C. § 103(a) is
being obvious over Uttenbroek in view of Okazaki.

FINDINGS OF FACT
We adopt the Examiner’s findings as set forth on pages 3-14 of the
Answer.
PRINCIPLES OF LAW
Where printed matter is not functionally related to the substrate, the
printed matter will not distinguish the invention from the prior art in terms of
patentability. See In re Gulack, 703 F.2d 1381, 1386 (Fed. Cir. 1983) and In
re Miller, 418 F.2d 1392, 1396 (CCPA 1969).
A particular parameter must first be recognized as a result-effective
variable, i.e., a variable which achieves a recognized result, before the
determination of the optimum or workable ranges of said variable might be
characterized as routine experimentation. In re Antonie, 559 F.2d 618, 620
(CCPA 1977); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery
of an optimum value of a result effective variable . . . is ordinarily within the
skill of the art.”); In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)
(“The normal desire of scientists or artisans to improve upon what is already

1 On page 2 of the Answer, the Examiner indicates that this reference
was incorrectly referred to as “Bradley” in the Final Office Action.
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generally known provides the motivation to determine where in a disclosed
set of percentage ranges is the optimum combination of percentages.”).

ANALYSIS
As an initial matter, we confine our consideration to certain claims
that contain claim limitations representative of the arguments made by
Appellants, pursuant to 37 C.F.R. § 41.37(c)(1)(vii).

1. The § 102 Rejection

Claim 12

On page 16 of the Brief, Appellants argue that claim 12 requires a
nonwoven product formed of at least two layers, at least one of the layers
having at least two colors formed by differentially pigmenting associated
fibers and filaments. Appellants point out that at least one of the layers has a
color scheme different from the color scheme of the other layer with the
color scheme visible from at least a portion of the product.
Appellants argue that Uttenbroek does not disclose that a second layer
has at least two colors formed by differentially pigmenting associated fibers
and filaments. Br. 16.
We adopt the Examiner’s response made on page 12 of the Answer,
wherein the Examiner explains that because Uttenbroek teaches that the
color of a layer is provided by pigments, that more than one color is present
in a layer, and that the other layer has a different color, Uttenbroek
anticipates claim 12.

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Claim 38

On pages 16-17 of the Brief, Appellants argue that Uttenbroek does not
disclose that a first color scheme cooperates with a second color scheme to
produce a third color scheme which is different from the first and second
color schemes.
On pages 12-13 of the Answer, the Examiner explains that since
Uttenbroek teaches that light passes through at least the transparent regions
and sometimes the opaque regions, and since the light will pass through the
material which makes up either the transparent or opaque region, the light
would necessarily be passing through the regions diffusely. The Examiner
correctly states that since the second color is viewed through the first layer,
the resulting color is a third color which is different than either the color of
the first layer or the color of the second layer by virtue of the fact that the
second layer is viewed through the first layer through which the light will
pass diffusely.
Hence, we are in agreement with the Examiner’s position that
Uttenbroek anticipates claim 38.
Claim 472
On page 17 of the Brief, Appellants argue that Uttenbroek does not
disclose the claimed feature of a portion of an outer layer being translucent
so that a first color scheme and a second color scheme cooperate to form a

2 On page 17 of the Brief, Appellants first refer to claim 37, but their
discussion of the claim reflects the subject matter of claim 47, and then, at
the end of the paragraph, Appellants refer to claim 47. Hence, we indicate
claim 47 here.
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third color scheme. Appellants argue that a third color scheme is not
mentioned in Uttenbroek.
On page 13 of the Answer, the Examiner properly addresses the
aspect of the claim of “being translucent” in connection with the formation
of a third color scheme. The Examiner explains that Uttenbroek does teach
the claimed structure of the first and second layer, wherein the first and
second layers are different colors and the first layer comprises translucent
regions wherein the second layer is viewable through the translucent regions
in the first layer. The Examiner correctly states that the third color would
necessarily result when the different colored second layer is viewed through
the translucent regions of the first layer.3 Hence, we agree with the
rejection of claim 47.
2. The Rejection of claims 1, 2, 5-14, 17-20, and 38-78 under 35 U.S.C.
§ 103 as being obvious over Uttenbroek

Claims 43, 51, 56, 61, and 66
On pages 9-10 of the Brief, Appellants argue that Uttenbroek is
directed to non-random regular pattern, whereas their claimed invention is
directed to a random appearance (e.g., as in claims 1, 43, 51, 56, 61, 66 as
discussed on pages 11-13 of the Brief).
It is the Examiner’s position that it would have been obvious to have
selected appropriate pigments and colors for the layers to achieve a desired
appearance. Ans. 4-5.

3 On page 11 of the Answer, the Examiner also addresses Appellants’
argument that Uttenbroek teaches a transparent layer, not a translucent layer.
We agree and adopt the Examiner’s position therein.
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We agree with the conclusion of unpatentability of these claims
because where printed matter is not functionally related to the substrate, the
printed matter will not distinguish the invention from the prior art in terms of
patentability. In re Gulack, 703 F.2d at 1386; In re Miller, 418 F.2d at 1396.
Appellants have not identified a functional relationship between the color
scheme and the nonwoven product layered substrate. Indeed, the color
scheme is merely an aesthetic choice.
Claims 57 and 62
Appellants assert that Uttenbroek does not suggest at least portions of
a second material are deposited on a first layer non-uniformly, thereby
forming substantial translucent regions in the second layer. Br. 13.
We agree with the Examiner’s response made on pages 10-11 of the
Answer wherein the Examiner states that Uttenbroek teaches at page 4, that
the amount of nonwoven material deposited in forming a layer will
determine the relative opacity of a layer. Uttenbroek, p. 4, ll. 13-34 and p. 6,
ll. 26-28. The Examiner correctly states that Uttenbroek teaches that the
relative opacity of a nonwoven material can be controlled by controlling the
amount of layers which makes up the layer, and therefore teaches it is a
result effective variable and therefore obvious. In re Antonie, 559 F.2d at
620; In re Boesch, 617 F.2d at 276; In re Peterson, 315 F.3d at 1330.
Claim 71
Appellants argue that Uttenbroek does not teach or suggest three (3)
layers having three (3) different colors and does not have the translucent
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portion of the second layer so that the second and third colors are visible
through the first layer to produce an appearance of depth. Br. 14.
We adopt the Examiner’s response made on page 11 of the Answer,
wherein the Examiner states:
With regard to the additional layers, since WO '380 teaches
additional layers and teaches forming a material having
layers of different colors, it would have been obvious to one
of ordinary skill in the art at the time the invention was made
to have employed additional colors in the extra layers in
order to form a more complex and appealing colored product.
With regard to the particular colors and patterns chosen, it
would have been obvious to one of ordinary skill in the art at
the time the invention was made to have selected the
particular colors and patterns through the process of routine
experimentation in order to arrive at a product having the
desired appearance.
We therefore agree with the Examiner’s position. In re Gulack, 703
F.2d at 1386 and In re Miller, 418 F.2d at 1396.
Claim 75
Appellants argue that Uttenbroek does not suggest a three (3) layer
nonwoven product where the colors of the layers are formed by varying the
concentration of pigments with the first and third colors being substantially
the same and the second color being substantially different from the third
color. Appellants further argue that Utenbroek does not show translucent
portions of the first and third layers whereby the second color is visible
through the first and third layers to produce an appearance of thickness.
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We again adopt the Examiner’s above-quoted position from page 11
of the Answer, and agree with the Examiner’s position. Id.
3. The Rejection of Claims 21-37 under 85 U.S.C. § 103 as being
obvious over Uttenbroek in view of Yeo and Brunson
Appellants’ argue that Yeo (formerly referred to as Bradley) and
Brunson do not teach or suggest a randomly occurring color scheme, much
less a third randomly occurring color scheme. Appellants also argue that
Uttenbroek in view of Yeo and Brunson teach or suggest a third color
scheme different from the first and second color schemes visible from at
least a portion of the product. Appellants also argue that, as set forth in
claim 23 (which is depended from claim 21), none of these three (3)
references teaches or suggests a three (3) layer product with each of the three
(3) layers having a different color scheme. Br. 15.
For the same reasons, discussed supra, involving similar limitations,
we agree with the Examiner’s unpatentability determination. In re Gulack,
703 F.2d at 1386; In re Miller, 418 F.2d at 1396.
4. The Rejection of Claims 3-4 and 15-16 under 35 U.S.C. §103 (a) is
being obvious over Uttenbroek in view of Okazaki
Appellants argue that Tamemaru teaches away from forming a
random color scheme. Br. 17. The Examiner correctly indicates that
Okazaki was applied for teaching the use of bicomponent fibers to form
colored fibers and fabrics and for employing more pigment in the sheath
than the core, and not for teaching a particular pattern or color scheme. Ans.
13. We therefore are not convinced by Appellants’ argument and therefore
agree with the Examiner’s position.
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5. Reply Brief
Appellants’ arguments in their Reply Brief are equally unconvincing
because, again, Appellants have not demonstrated a functional relationship,
but merely an aesthetic one attributable to the various claimed color
schemes. In re Gulack, 703 F.2d at 1386; In re Miller, 418 F.2d at 1396.
DECISION
Each rejection 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)(v).

AFFIRMED

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RICHARD J. BERMAN
ARENT FOX LLP
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