Ex Parte Cliver et al

Patent Trial and Appeal Board

Jul 24, 2017

13107854 (P.T.A.B. Jul. 24, 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.
6510 8395
EXAMINER
MCCORMACK, JASON L
ART UNIT PAPER NUMBER
2881
MAIL DATE DELIVERY MODE
13/107,854 05/13/2011
25280 7590
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
James D. Oliver
07/24/2017 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 JAMES D. OLIVER, J. TRAVIS GREER, and SHULONG LI
Appeal 2016-005070
Application 13/107,854
Technology Center 2800
Before JAMES C. HOUSEL, JULIA HEANEY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 request our review pursuant to 35 U.S.C. § 134(a) of the
Examiner’s Final rejection of claims 1—25 of Application 13/107,854 as
1 This Decision refers to the Specification (filed May 13, 2011, “Spec.”),
Final Office Action (dated July 25, 2013, “Final Act.”), Appeal Brief (filed
June 25, 2014, “Br.”), and Examiner’s Answer (dated Aug. 28, 2014,
“Ans.”).
2 Appellants identify the real party in interest as Milliken & Company.
Br. 2.
Appeal 2016-005070
Application 13/107,854
unpatentable over at least the basic combination of Underwood3 4 5and
Matsumura.4,5 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
BACKGROUND
The subject matter on appeal relates to a textile material comprising a
textile substrate and a finish disposed on at least one surface of the textile
substrate. Br. 2; see also Spec. ]Hf 9, 22. The finish comprises a binder and
at least one energy-absorbing agent, selected from the group consisting of
pigments, vat dyes, and combinations thereof. Br. 3. The claimed subject
matter seeks to provide lighter weight textile materials that protect from
radiation, such as near-infrared radiation generated by an arc flash, and are
suitable for use in making garments that are comfortable to wear. Spec. 14.
Claim 1, reproduced below, is illustrative of the subject matter:
A textile material comprising:
(a) a textile substrate having a first surface and a
second surface opposite the first surface, the textile
substrate comprising a plurality of yams, the plurality of
yams comprising a plurality of first yams disposed in a
first direction in the textile substrate and a plurality of
second yams disposed in a second direction perpendicular
3 Underwood et al., US 2011/0191949 Al; pub. Aug. 11, 2011 (hereinafter
“Underwood”).
4 Matsumura et al., US 2006/0252325 Al; pub. Nov. 9, 2006 (hereinafter
“Matsumura”).
5 The Examiner applies additional references in the rejections of claims 6,
8—10, and 12—24, although those rejections are based on the same findings as
the rejection of claims 1—5, 7, and 11. Final Action 4—17. Appellants’
arguments are all directed to the basic combination of Underwood and
Matsumura set forth in the rejection of claims 1—5, 7, and 11. App. Br. 5—8.
2
Appeal 2016-005070
Application 13/107,854
to the first direction, the first yams and the second yams
being provided in a woven pattern selected from the group
consisting of basket weaves, sateen weaves, satin weaves,
rip-stop weaves, and twill weaves, the textile substrate
comprising about 30% or more by weight inherent flame
resistant fibers;
and
(b) a finish disposed on at least one surface of
the textile substrate, the finish comprising a binder and at
least one energy-absorbing agent, the energy-absorbing
agent being selected from the group consisting of
pigments, vat dyes, and combinations thereof, wherein the
energy-absorbing agent exhibits an absorbance of
electromagnetic radiation at a wavelength of 1,000 nm
(Aiooo), an absorbance of electromagnetic radiation at a
wavelength of 800 nm (A80o), an absorbance of
electromagnetic radiation within the range of wavelengths
from 400 nm to 700 nm, and a maximum of the absorbance
of electromagnetic radiation within the range of
wavelengths from 400 nm to 700 nm (Avismax), wherein the
result of Agoo/Avis max is about 0.3 or more, and wherein the
result of Aiooo/Avis max is about 0.1 or more.
Br. 9, Claims Appx.
DISCUSSION
The Examiner finds that Underwood discloses a textile material
including the elements of claim 1, except that Underwood does not explicitly
disclose “a binding agent used to absorb light.” Final Act. 4—5 (citing
Underwood Tflf 9, 37). The Examiner finds that Matsumura teaches a flame
retardant woven fabric that may comprise a binder and a pigment, and may
absorb ultraviolet light or other energy. Id. at 5 (citing Matsumura H 31, 32,
88, and 90). The Examiner determines that it would have been obvious to a
person of ordinary skill in the art to have combined Underwood and
3
Appeal 2016-005070
Application 13/107,854
Matsumura in order to provide a user with optimal protection from fire and
from light. Id. The Examiner further explains the combination of
Underwood and Matsumura as follows:
[Although Underwood discloses that a pattern may be printed onto
the fabric [0005], there is no explicit disclosure of a binding agent on
a surface. Matsumura discloses a process for strengthening the fabric,
which may contain pigments [0031], by laminating a plurality of
fabrics together using an "epoxy-based adhesive" [0059]. Paragraph
[0090] specifically refers to this adhesive as an "epoxy binder."
Appellant's specification discloses, at paragraph [0022] that "the
binder present in the finish can be any suitable binder that is durable
to laundering, such as. . . epoxy binders". One of ordinary skill in the
art would recognize that a textile material may have its protective
qualities enhanced by adding additional layers with an epoxy binder
used to secure the layers (as disclosed in Matsumura) wherein the
layers which may contain pigment (as in Matsumura) may have such
pigment present on the surfaces, or simply throughout the material (as
in Underwood).
Ans. 3.
Appellants argue inter alia that the Examiner erred because the
combination of Underwood and Matsumura does not possess a finish
“comprising a binder and at least one energy-absorbing agent” on a surface
of the textile substrate, as recited in claim 1. Br. 7. Appellants’ argument is
persuasive of reversible error. The Examiner’s reasoning does not explain
how the combination of Underwood and Matsumura would meet that
element of claim 1. Matsumura’s only disclosure of pigment, (see
Matsumura 131), teaches that the pigment may be present as an additive
contained in its high-performance fiber, but does not teach that the pigment
is an energy-absorbing agent in a fabric finish. Further, the Examiner’s
reliance on Underwood as teaching pigment on the surface of a fabric (see
Ans. 3 (finding that Underwood’s vat dyes “mean the entire fabric, including
4
Appeal 2016-005070
Application 13/107,854
the surface.”)), does not explain how Underwood teaches the energy­
absorbing agent required by claim 1. Indeed, the Examiner acknowledges
that Underwood does not disclose an energy-absorbing agent on the fabric
surface. Final Act. 5.
We also determine that the Examiner does not adequately explain why
a person of ordinary skill in the art would have been led to provide a user of
Underwood’s fabric with protection from light. Final Act. 5.6 Further,
although the Examiner points to Matsumura’s disclosure of an ultraviolet-
ray absorber (i.e., an energy-absorbing agent) as an additive which may be
present in its fiber, the rejection does not sufficiently explain how any
teaching from either reference would have led a person of ordinary skill to
include the ultraviolet-ray absorber in a finish disposed on at least one
surface of the fabric.
Accordingly, we cannot sustain the rejection of claim 1. Our
conclusion also applies to all of the rejections of independent and dependent
claims because each of the rejections is based on the combination of
Underwood and Matsumura for the same reason.
DECISION
We reverse the rejections of claims 1—25.
REVERSED
6 We have not located any explicit or inherent disclosure in Underwood to
support the Examiner’s finding that Figure 1 “illustrates that light does not
penetrate the fabric.” See Final Act. 5.
5