Ex Parte Cliver et al

Board of Patent Appeals and Interferences

Mar 27, 2009

10396899 (B.P.A.I. Mar. 27, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JAMES D. CLIVER, SCOTT LOVINGOOD,
F. JEFFERY MOORE, and DALE R. WILLIAMS
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Appeal 2009-0738
Application 10/396,899
Technology Center 1700
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Decided:1 March 27, 2009
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Before BRADLEY R. GARRIS, CHUNG K. PAK, and
JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-0738
Application 10/396,899

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This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 43-48. We have jurisdiction under 35 U.S.C. § 6.
WE AFFIRM.
Claim 43 is illustrative:
43. A patterned textile fabric having a predetermined pattern of
color defined by regions of greater and lesser uptake of the same
color of equally applied dye, wherein said regions of lesser dye
uptake of the finished fabric have substantially the same physical
strength as said regions of greater dye uptake, and wherein the
regions of lesser dye uptake are characterized by reduced surface
wetability relative to the regions of greater dye uptake, the reduced
surface wetability being imparted by a water soluble chemical
substance adapted to physically inhibit wetting.

The Examiner relies upon the following references:
Thomas US 4,131,422 Dec. 26, 1978
Moore US 5,984,977 Nov. 16, 1999
Kanzig WO 99/67459 Dec. 29, 1999

Appealed claims 43-48 stand rejected as unpatentable as follows:
(i) claims 43-47 are rejected under 35 U.S.C. § 102 (b) as anticipated by
or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Kanzig ;
(ii) claim 48 is rejected under 35 U.S.C. § 103(a) as obvious over Kanzig;
(iii) claims 43-47 are rejected under 35 U.S.C. § 102 (b) as anticipated by
or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Thomas;
(iv) claim 48 is rejected under 35 U.S.C. § 103(a) as obvious over
Thomas; and
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Application 10/396,899

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(v) claims 43-48 are rejected under 35 U.S.C. § 103(a) as obvious over
Moore.

ISSUE
Have Appellants shown reversible error in the Examiner’s conclusion
that patterned textile fabric having a predetermined pattern of color defined
by regions of greater and lesser uptake of the same color of equally applied
dye, as described by independent claim 43, was known to persons of
ordinary skill in the art as evidenced by Kanzig and Thomas or obvious over
Kanzig, Thomas and Moore.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in full agreement with the Examiner that the
claimed subject matter is unpatentable over the cited prior art. Accordingly,
we will sustain each of the Examiner’s rejections for the reasons set forth in
the present record. We add the following.2
Appellants’ claimed invention is directed to a patterned textile fabric
having a predetermined pattern of color defined by regions of greater and
lesser uptake of the same color of equally applied dye. The process utilized
to produce the pattern textile fabric involves applying a water soluble
chemical substance to selected regions of a fabric according to a pattern.
The chemical substance preferably includes a print paste comprising a

2 Appellants have not presented arguments directed to all the rejected claims.
We select claim 43 as representative of the rejected claims. We will also
address the Appellants’ arguments directed to specific claims and separately
rejected claims.
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Application 10/396,899

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thickening agent and water (Spec. 10). The treated regions are characterized
as having reduced surface wetability for a period of time greater than the
fabric is in contact with the aqueous dye liquor (Spec. 9). In some
embodiments, the chemical substance may include a dye so as to be colored
differently from the surrounding regions of the base fabric (Spec. 11). The
chemical substance is preferably dried prior to subsequent treatment with the
dye liquor (Spec. 12). Subsequently, dye liquor is exposed, continuously or
semi-continuously, to the entire fabric until untreated regions are saturated
while treated regions are less than fully saturated to thereby form a patterned
textile fabric (Spec. 12).

The Rejections over Kanzig
The Examiner determined that Kanzig teaches and suggests a printing
process for producing patterned textile fabrics that comprises the application
of a printing paste to specific areas of a fabric followed by dyeing the entire
fabric (Ans. 4-5). Kanzig discloses that a printing paste can comprise
thickeners (Kanzig 6). Kanzig also discloses that the printing paste can be
dried before subsequent treatment (Kanzig 8).
Appellants argue that the exemplified printing paste of Kanzig
comprises ethylene oxide with castor oil. Appellants contend that these
components are understood to be wetting agents which would increase the
wetability of the substrate to which they are applied. Appellants further
contend that eliminating the wetting agent would likely change the
performance of the printing paste (Br. 6-7).
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Appellants’ arguments are not persuasive. As pointed out by the
Examiner (Ans. 10), Kanzig exemplifies embodiments that do not include
ethylene oxide with castor oil. Further, Kanzig discloses that the printing
paste is applied to the fabric and dried prior to subsequent treatment. Since
the printing paste of Kanzig is dried prior to subsequent treatment and
comprises similar components to those utilized in the claimed chemical
substance, it is reasonable to believe that the treated area would have some
reduced wetability compared to the remaining portions of the fabric thus
producing a printed textile fabric that is the same as the claimed invention.
Appellants have not directed us to evidence that establishes that the treated
and dried portions of Kanzig do not possess some reduced wetability.
Appellants’ arguments regarding claim 46-48 have been considered.
These arguments are not persuasive for the reasons set forth by the Examiner
in the Answer. (Ans. 10-11). Moreover, Appellants have not asserted that it
was unknown to persons of ordinary skill in the art to produce printed textile
fabrics including predetermined patterns.

The Rejections over Thomas
The Examiner determined that Thomas teaches and suggests a
printing process for producing patterned textile fabrics that comprises the
application of a water soluble acid dyeable polymer (printing paste) to
specific areas of a fabric followed by dyeing the entire fabric (Ans. 6-7).
Thomas discloses the water soluble acid dyeable polymer that can comprise
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thickeners (Thomas, col. 5, ll. 4-35). Thomas discloses the dyeable polymer
can be dried before subsequent treatment (Thomas, col. 6, ll. 55-65).
Appellants’ principal argument is that, “[i]nstead of retarding dyeing
by inhibition of wetting, Thomas discloses application of a polymer which
enhances dyeing of the areas to which the polymer has been applied.”
(emphasis omitted) (Br. 8).
Appellants’ argument is not persuasive. The claimed invention does
not preclude the inclusion of areas of the fabric that have been treated to
have an enhanced dyeability. In fact, as stated above, the Specification
discloses that the treated portion may be treated so as to be colored
differently from the surrounding area. Further, Thomas discloses the
dyeable polymer is applied to the fabric and dried prior to subsequent
treatment. Since the dyeable polymer of Thomas is dried prior to subsequent
treatment and comprises similar components to those utilized in the claimed
chemical substance, it is reasonable to believe that the treated area of the
fabric would have some reduced wetability compared to the remaining
portions of the fabric. Appellants have not directed us to evidence that
establishes the treated and dried portions of the printed fabric of Thomas do
not possess some reduced wetability.
Appellants’ arguments regarding claim 46-48 have been considered.
These arguments are not persuasive for the reasons set forth by the Examiner
in the Answer. (Ans. 12-13).

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The Rejection over Moore
The Examiner determined that Moore would have suggested to a
person of ordinary skill in the art a printing process for fabrics that
comprises the application of a printing paste to specific areas of the fabric
followed by dyeing the entire fabric (Ans. 8-10).
Appellants’ principal argument is that “Moore provides neither
suggestion nor the motivation to employ physical inhibition of wetting to
achieve a pattern effect as seen in the instant application.” (Br. 9).
Appellants’ arguments are not persuasive. As pointed out by the
Examiner, Moore discloses an aspect of the invention where the printing
paste can comprise a thickener and a dye blocking agent without a wetting
agent. (Ans. 9). Since the printing paste of Moore is dried prior to
subsequent treatment and comprises similar components to those utilized in
the claimed chemical substance, it is reasonable to believe that the treated
area of the fabric would have some reduced wetability compared to the
remaining portions of the fabric. Appellants have not directed us to
evidence that establishes the treated and dried portions of Moore do not
possess some reduced wetability.
Appellants’ arguments regarding claim 46-48 have been considered.
These arguments are not persuasive for the reasons set forth by the Examiner
in the Answer. (Ans. 13-14). Moreover, Appellants have not asserted that it
was unknown and unobvious to persons of ordinary skill in the art to
produce printed textile fabrics including predetermined patterns such as
those described by the claimed invention.
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In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 43-48
is affirmed.
ORDER
The rejection of claims 43-47 under 35 U.S.C. § 102 (b) as anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Kanzig is
affirmed .
The rejection of claim 48 under 35 U.S.C. § 103(a) as obvious over
Kanzig is affirmed.
The rejection of claims 43-47 under 35 U.S.C. § 102 (b) as anticipated
by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over Thomas is
affirmed.
The rejection of claim 48 under 35 U.S.C. § 103(a) as obvious over
Thomas is affirmed.
The rejection of claims 43-48 under 35 U.S.C. § 103(a) as obvious
over Moore is affirmed.

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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)(iv).

AFFIRMED

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SARA M. CURRENT
LEGAL DEPARTMENT, M-495
PO BOX 1926
SPARTANBURG, SC 29304