Ex Parte Colson et al

Board of Patent Appeals and Interferences

Jun 22, 2009

11352551 (B.P.A.I. Jun. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte WENDELL B. COLSON, PAUL SWISCZ and
DAVID HARTMAN
____________

Appeal 2008-005831
Application 11/352,551
Technology Center 1700
____________

Decided: 1June 22, 2009
____________

Before EDWARD C. KIMLIN, CHUNG K. PAK, and
LINDA M. GAUDETTE, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's refusal to allow claims 1 through 10, 12, and 19 through 35. The
other pending claims in the above-identified application stand withdrawn

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 2008-005831
Application 11/352,551

from consideration by the Examiner. We have jurisdiction pursuant to 35
U.S.C. § 6.
We AFFIRM.
STATEMENT OF THE CASE
The subject matter on appeal, like the subject matter previously
considered in the decision entered February 29, 2008 on Appeal No. 2007-
4239 (Application 09/869,941), is directed to a non-woven fabric-like
material made of substantially parallel yarns being supported and bonded on
only one side thereof with an adhesive which is applied in a discontinuous
manner. In comparison with the claims previously considered by the Board
in the decision entered February 29, 2008 on Appeal No. 2007-4239, the
currently appealed claims further require a non-woven fabric consists
essentially of substantially parallel warp-direction yarns without any weft-
direction yarns and an adhesive coating in a certain proportion or in a certain
thickness. According to page 4, paragraph 0008, of the Specification:
For the purposes of this disclosure, "warp" yarn materials
include any combinations of materials or combinations of yarn
that have the yarns or fiber-substitute materials primarily
positioned to run in the machine direction of the apparatus and
that are aligned in a controlled manner before being treated with
an adhesive material to form a fabric-like, nonwoven substrate.
"Weft" yarn materials include any combinations of materials or
combinations of yarns that have the yarns or fiber-substitute
materials primarily positioned to run substantially
perpendicular to the warp yarn materials.

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Details of the appealed subject matter are recited in representative
claims 1, 2, 112, 12, and 21 reproduced below3:

1. A non-woven fabric wherein the fabric consists essentially of
substantially parallel warp-direction yarns without any weft-direction yarns,
said warp-direction yarns being supported and bonded on only one side by
an adhesive coating, said adhesive coating being non-continuous and having
a thickness of from about 0.25 mil to about 1 mil.

2. A non-woven fabric wherein the fabric consists essentially of
substantially parallel warp-direction yarns without any weft-direction yarns,
said warp-direction yarns being supported and bonded on only one side by
an adhesive coating, said adhesive being non-continuous and having been
coated on one side of said fibers at a level of from about 5 weight percent to
about 25 weight percent, based upon the weight of the fabric.

11. A method of forming a non-woven fibrous web, said method
comprising the steps of:
a. forming a substantially parallel array of yarns consisting
essentially of substantially parallel warp-direction yarns without any weft-
direction yarns, said array of yarns having two sides, a top side and a bottom
side;
b. contacting only one side of said parallel array of yarns with a
thin coating of wet or molten adhesive; and
c. drying the wet or molten adhesive coating to form a cohesive
web of non-woven parallel yarns.

12. A non-woven fibrous web made according to the method of
claim 11.

2 Claim 11 is reproduced to understand the full scope of product claim 12
since claim 12 relies on the method limitations recited in claim 11.
3 We limit our findings and conclusions to those claims Appellants have
substantively and separately argued consistent with 37 C.F.R. § 41.37(c)(1)
(vii) (2005).

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21. A non-woven fabric consisting essentially of parallel warp-
direction yarns, without any weft-direction yarns, held together by bridges of
an adhesive which is substantially only on one side of the warp-direction
yarns and discontinuous but prevents twisting of the individual warp-
direction yarns.

As evidence of unpatentability of the claimed subject matter, the
Examiner proffered the following prior art references:
Shambelan US 3,531,363 Sep. 29, 1970
Pittman US 3,753,842 Aug. 21, 1973
Garick US 3,758,329 Sep 11, 1973
Gott GB 2 041 028 A Sep 3, 1980
Sabee ‘064 US 4,910,064 Mar. 20, 1990

As evidence of patentability of the claimed subject matter, Appellants
relied upon the following reference:
Sabee ‘246 US 5,200, 246 Apr. 6, 1993

The Examiner rejected the claims on appeal as follows:
1. Claims 2, 5 through 7, 10, 12, 21, 22, 25 through 27, 30, and 32
through 35 under 35 U.S.C. § 102(b) as anticipated by the disclosure of
Sabee ‘064;
2. Claims 1, 3, 4, 9, 19, 20, 23, 24, 28, and 31 under 35 U.S.C. §
103(a) as unpatentable over the disclosure of Sabee ‘064;
3. Claims 8 and 29 under 35 U.S.C. § 103(a) as unpatentable over
the combined disclosures of Sabee ‘064 and Pittman; and
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4. Claims 1 through 10, 12, and 19 through 34 under 35 U.S.C. §
103(a) as unpatentable over the combined disclosures of Gott, Garick and
Shambelan.
Appellants traverse, arguing that the Examiner erred in rejecting the
claims on appeal under 35 U.S.C. §§ 102(b) and 103 (a) based on the prior
art of record. This appeal ensues.
1. Claims 2, 5 through 7, 10, 12, 21, 22, 25 through 27, 30, and 32
through 35 under 35 U.S.C. § 102(b) as anticipated by the disclosure of
Sabee ‘064.
ISSUES AND CONCLUSIONS
With respect to claim 2, 5 through 7, and 10, Appellants do not
dispute the Examiner’s finding that Sabee ‘064 teaches parallel continuous
filaments corresponding to the claimed substantially parallel warp-direction
yarns. (Compare Ans. 3 with App. Br. 27-39 and Reply Br. 8-12). Nor do
Appellants dispute the Examiner’s finding that Sabee ‘064 teaches the
employment of melt blown molten fibers corresponding to the claimed
adhesive in the claimed percentages to stabilize and bond the parallel
continuous filaments. (Compare Ans. 3-4, with App. Br. 27-39 and Reply
Br. 8-12). Rather, Appellants contend that Sabee ‘064 does not teach a non-
woven web fabric consisting essentially of stabilized and bonded parallel
continuous filaments corresponding to the claimed substantially parallel
warp-direction yarns without any weft-direction yarns. (See, e.g., App. Br.
27-28 and Reply Br. 8-9). According to Appellants, Sabee ‘064 teaches a
multi-layer non-woven fabric having the cross-laid yarns (weft-direction
yarns) excluded by claim 2. Id. Appellants also contend that Sabee ‘064
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does not teach employing an adhesive coating, especially an adhesive
coating on only one side of its parallel continuous filaments. (See, e.g., App.
Br. 29-32). In support of their position, Appellants also rely on U.S. Patent
5,200,246 issued to Sabee (Sabee ‘246) to show that Sabee ‘064 is directed
to a multi-layer non-woven web fabric employing adhesive fibers on both
sides of its parallel continuous filaments. (See, e.g., App. Br. 31-32).
Thus, the dispositive question is: Have Appellants identified
reversible error in the Examiner’s finding that Sabee ‘064 describes
supporting and bonding only parallel continuous filaments (corresponding to
the claimed substantially parallel warp-direction yarns) with a discontinuous
adhesive coating on only one side thereof of to form a non-woven web fabric
as required by claim 2? On this record, we answer this question in the
negative.
With respect to claim 12, Appellants contend that Sabee ‘064 does not
teach a non-woven web made by the particular method recited in method
claim 11, inclusive of the application of an adhesive coating to one side of
parallel fibers. (See App. Br. 34-35). Appellants also rely on Figure 61 A
to show that the non-woven web made by the claimed method is patentably
different from that taught by Sabee ‘064. (See App. Br. 35).
Thus, the dispositive questions are: Have Appellants identified
reversible error in the Examiner’s finding that Sabee ‘064 describes a non-
woven web identical or substantially identical to that claimed and if not,
have Appellants demonstrated that the method recited in claim 11
contributes to a feature not possessed by the non-woven web taught by
Sabee ‘064? On this record, we answer these questions in the negative.
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With respect to claims 21, 22, 25 through 27, 30, and 32 through 35,
Appellants contend that Sabee ‘064 does not teach a non-woven fabric
consisting essentially of parallel warp direction yarns (without any weft-
direction yarns) held together by the claimed adhesive bridges. (See App.
Br. 35-39).
Thus, the dispositive question is: Have Appellants identified
reversible error in the Examiner’s finding that Sabee ‘064 describes coating
molten fibers (adhesive) on only one side of parallel continuous filaments
(corresponding to the claimed substantially parallel warp-direction yarns) to
form a non-woven web having adhesive bridges as required by claim 21?
On this record, we answer this question in the negative.

RELEVANT FACTUAL FINDINGS (FF)

1. Sabee ‘064’s Abstract states:
A non-woven web is provided that has conformability and
drapability approaching that of woven fabrics. The non-woven
web comprises a number of substantially parallel continuous
filaments [corresponding to the claimed substantially warp-
direction yarns] that are stabilized by melt blown fibers [i.e.,
adhesive] to create a coherent web. The continuous filaments
are molecularly oriented, as by drawing before, during, or after
deposition of the melt blown fibers. The melt blown fibers may
be deposited on one or both sides of the continuous filaments,
and two or more webs may be cross laid and laminated
together. [Emphasis added.]

2. Consistent with the above Abstract, Sabee ‘064 teaches at col. 5, ll. 5-
65, that:
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[C]ontinuous filaments of a synthetic polymer in a curtain-like
form onto at least one side of which molten melt blown fibers
or filaments from a linear fiber generating apparatus are
deposited and self-bonded to stabilize or fix the continuous
filaments in substantially parallel or controlled alignment to
from a coherent web, and drawing, to molecularly orient, the
continuous filaments before, during, or after the deposition of
the melt blown fibers or filaments.
…The stabilized web is pulled from the exit draw roll by a
cross lapper, cross layer, heated embossing rolls, or a
conventional winder …
The laydown patterns of the continuous filament alignments
across the web are in a substantially predetermined controlled
alignment, thereby providing the web with a controlled
predetermined porosity, opacity, and a uniform basis weight
throughout the web. The basis weigh of the melt blown web or
fibers may be as low as about 3 to 5% of the final web basis.

3. Sabee ‘064 teaches that the melt blown fibers in an amount “as low as
2 to 4 grams per square meter have satisfactorily locked and held continuous
filaments in place during various processing procedures”; however, Sabee
prefers to employ the melt blown fibers in 5 to 10 gsm corresponding to the
Appellants’ claimed preferred amount recited in claim 4 (encompassed by
the percentage recited in claim 2) (col. 21, ll. 15-25).
4. Sabee ‘064 illustrates a patterned non-woven web made of
substantially parallel continuous filaments corresponding to the claimed
substantially parallel warp-direction yarns that are stabilized by melt blown
fibers placed on one side of the web to form random adhesive bridges
(spans) as shown in Figures. 6, 7a, and 8 below:
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5. Consistent with Figures 6, 7a, and 8, Sabee ‘064 teaches a non-woven
web comparable to a woven fabric, comprising parallel continuous filaments
which are stabilized by fusion bonding small diameter melt blown fibers
intermittently along the length of the parallel continuous filaments on one or
both sides of the parallel continuous filaments (col. 10, ll. 3-49, with a
greater focus on col. 10, ll. 42-49).
6. Sabee ‘064 teaches (col. 18, ll. 26-36) that:
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In another embodiment, the continuous filament curtain is
stabilized with a deposition of melt blown molten fibers or
filaments of a second polymer which may or may not be
compatible with the polymer of the continuous filaments; that
is, having the ability to form fusion or melt bonds with the
continuous filaments without continuous filaments degradation
at bond intersections. The melt blown fiber are deposited on
the continuous filament supported by a temperature controlled
accumulating roll which prevents the continuous filaments from
becoming overheated.

7. Sabee ‘064 illustrates spray coating melt blown fibers on one side of a
web of continuous filaments as shown in Figures 9 and 10 below:

8. Sabee ‘064 teaches (col. 14, l. 61 to col. 15, l. 1) that:
In another modification, one or more plies, mats, or
layers of melt blown superfine thermoplastic fibers such as
those described in “Industrial and Engineering Chemistry” may
be laminated to one or more stabilized webs by passing the ply
assembly through the heated embossing rolls 47. The
stabilized webs may consist of only one web of stabilized
longitudinal filaments or may consist of several layers,
including cross lapped and/or cross laid webs. [Emphasis
added.]

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9. Sabee ‘064 teaches (col. 7, ll. 4-38) that:
The thermoplastic melt blown fibers or filaments [made of
viscoelastic hot melt pressure sensitive adhesives and other hot melt
adhesives] used herein for stabilizing a curtain of continuous filaments can
be prepared by known techniques as described in an article by Van A. Wente
entitled “Super fine Thermoplastic Fibers” appearing in Industrial and
Engineering Chemistry, Vol. 48, No. 8, pp. 1342 to 1346. The fiber
diameters may vary from 0.5 to 50 or more microns depending upon the
combination of gas flow rates, polymer flow rates, die temperature and
polymer molecular weight….

10. Sabee ‘246 teaches (col. 2, ll. 45-58) that:

In accordance with the present invention, then, low cost
disposable fabrics…produced by the use of a stabilized
continuous filamentary web, the manufacture of which is fully
described in Sabee, U.S. Pat. No. 4,910,064, the disclosure of
which is incorporated herein by reference and relied upon. It is
this use of stabilized continuous filaments in combination with
melt blown gas-fiber streams which, upon simultaneous
deposition onto both sides of the stabilized continuous
filaments, intermingle with each other and lock the continuous
filaments in place by the joining of the two intermingled melt
blown webs.

11. Nowhere does Sabee ‘246 indicate that the entire Sabee ’064
disclosure is limited to the specific embodiment incorporated by reference in
Sabee ‘246 (FF 10).

PRINCIPLES OF LAW

It is well settled that the United States Patent and Trademark Office
(PTO) is obligated to give claim terms their broadest reasonable
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interpretation, taking into account any enlightenment by way of definitions
or otherwise found in the specification. In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[T]he PTO must give claims their
broadest reasonable construction consistent with the specification.
Therefore, we look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation.”) (Citation omitted);
In re Bigio, 381 F.3d 1320, 1324 (Fed. Cir. 2004) (“[T]he PTO gives a
disputed claim term its broadest reasonable interpretation during patent
prosecution.”).
This longstanding broadest reasonable interpretation principle is based
on the notion 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).
That is, a patent applicant has the opportunity and responsibility to remove
any ambiguity in claim term meaning by amending the application. “Only in
this way can uncertainties of claim scope be removed, as much as possible,
during the administrative process.” Id. at 322. “[A]s applicants may amend
claims to narrow their scope, a broad construction during prosecution creates
no unfairness to the applicant or patentee.” In re ICON Health, 496 F.3d at
1379.
Consistent with such principle, the transitional term “comprising” in a
claim is interpreted as permitting the inclusion of any unclaimed additional
materials or steps. In re Baxter, 656 F.2d 679, 686-87 (CCPA 1981). On
the other hand, the transitional term “consisting essentially of” in a claim is
interpreted as permitting the inclusion of those additional unclaimed
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materials or steps which do not materially affect the basic and novel
characteristics of a claimed invention. In re Herz, 537 F.2d 549, 551-52
(CCPA 1976). Appellants have the burden of showing that unclaimed
materials in a prior art reference would materially affect the basic and novel
characteristics of the claimed invention. In re De Lajarte, 337 F.2d 870,
874 (CCPA 1964).
Under 35 U.S.C. § 102(b), anticipation is established only if “each
and every element as set forth in the claim is found, either expressly or
inherently, described in a single prior art reference.” Verdegaal Bros. v.
Union Oil Co. of California, 814 F.2d 628, 631 (Fed. Cir. 1987).
As set forth by the court in Kalman v. Kimberly-Clark Corp., 713 F.2d 760,
772 (Fed. Cir. 1983), anticipation only requires that the claims on appeal
“‘read on’ something disclosed in the reference, i.e., all limitations in the
claim are found in the reference, or ‘fully met’ by it.”
“[E]ven though product-by-process claims are limited by and defined
by the process, determination of patentability is based on the product itself.”
In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985). “If the product in a
product-by-process claim is the same as or obvious from a product of the
prior art, the claim is unpatentable even though the prior product was made
by a different process.” Id.; see also, In re Spada, 911 F.2d 705, 708 (Fed.
Cir. 1990) (“[W]hen the PTO shows sound basis for believing that the
products of the applicant and the prior art are the same, the applicant has the
burden of showing that they are not.”). Once the PTO establishes a prima
facie case that the prior art product appears to be identical, the burden shifts
to the Applicant to prove the prior art products do not necessarily or
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inherently possess the characteristics of the claimed product. In re Thorpe,
777 F.2d at 698.

ANALYSES
CLAIMS 2, 5-7, and 10
Sabee’ 064, like Appellants, describes multiple embodiments directed
to non-woven web products comparable to a woven fabric. Sabee ‘064
teaches in one embodiment a non-woven web comparable to a woven fabric,
comprising parallel continuous filaments corresponding to the claimed
substantially parallel warp-direction yarns, which are stabilized by fusion
bonding small diameter melt blown fibers intermittently along the length of
the parallel continuous filaments on one or both sides of the parallel
continuous filaments. Sabee ‘064 also teaches drawing the parallel
continuous filaments fused with the claimed percentage of the melt blown
molten fibers through rolls (for the flattening and laminating purpose).
According to Sabee ‘064, additional layers, including a cross-laid layer of
yarns, may be employed, but are not required in forming its non-woven web
comparable to a woven fabric.
Sabee ‘064 illustrates spray coating melt blown molten fibers
corresponding to the claimed non-continuous adhesive coating on only one
side of its parallel continuous filaments corresponding to the claimed
substantially parallel warp-direction yarns for the purpose of stabilizing,
fixing and bonding them. Appellants have not defined the claimed word
“non-continuous adhesive coating” in the Specification to exclude the spray
coating of the melt blown molten fibers (non-continuous adhesive)
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illustrated by Sabee ‘064. Nor have Appellants claimed “non-continuous
adhesive coating” in a manner that is structurally and/or chemically
distinguishable from that produced by spray coating and drawing the spray
coated melt blown molten fibers via rolls as taught by Sabee ‘064.
Some dripping or leaking of minor amounts of the melt blown molten
fibers from the top to the sides of the parallel continuous filaments
illustrated in Figures 9 of Sabee ‘064 does not negate the teachings of Sabee
‘064, which clearly indicate that its non-woven web comparable to a woven
fabric can be formed by depositing melt blown molten fibers (adhesive) on
only one side of the parallel continuous filaments. In any event, the
transitional term “consists essentially of” recited in claim 2 does not
preclude such small amounts of additional melt blown molten fibers on an
additional side as is apparent from Appellants’ disclosure at paragraph 0146
of the Specification. It can be inferred from paragraph 0146 of the
Specification that up to about 10% of an additional adhesive on an additional
side of the aligned yarns does not materially or adversely affect the basic and
novel characteristics of the claimed non-woven web fabric.
Sabee ‘246 relied upon by Appellants refers to one embodiment of
Sabee ‘064, which is directed to a multi-layer non-woven web fabric
employing adhesive fibers on both sides of its parallel continuous filaments.
However, Sabee ‘064 is not limited to that embodiment only. As indicated
supra, Sabee ‘064 also teaches a non-woven web comparable to a woven
fabric consisting essentially of parallel continuous filaments (the claimed
substantially parallel warp-direction yarns) stabilized by fusion bonding
small diameter melt blown molten fibers.
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Accordingly, we determine that Appellants have not shown any
reversible error in the Examiner’s finding that Sabee ‘064 describes the
subject matter recited in claims 2, 5 through 7, and 10 within the meaning of
35 U.S.C. § 102(b).
CLAIM 12
Claim 12 is written in a product-by-process format (a product formed
by method claim 11). In particular, claim 12 recites a non-woven fibrous
web made according to the method “comprising” contacting only one side of
a substantially parallel array of yarns consisting essentially of substantially
parallel warp-direction yarns without any weft-direction yarns with a thin
coating of wet or molten adhesive.
As indicated supra, Sabee ‘064 illustrates spray coating melt blown
molten fibers corresponding to the claimed molten adhesive on only one side
of its parallel continuous filaments corresponding to the claimed
substantially parallel warp-direction yarns for the purpose of stabilizing,
fixing and bonding them to form a non-woven web. Claim 12 does not
recite “molten adhesive coating” in a manner that is structurally and/or
chemically distinguishable from those molten fibers taught by Sabee ‘064.
Appellants also have not shown that the method limitations included in
claim 12 contribute to a feature not possessed by the non-woven web taught
by Sabee ‘064. In this regard, the preferred non-woven web illustrated in
Figure 61A relied upon by Appellants does not show that the claimed non-
woven web made from the method limitations included in claim 12 is
patentably different from that shown by Sabee ‘064.
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Accordingly, we determine that Appellants have not shown any
reversible error in the Examiner’s finding that Sabee ‘064 describes the non-
woven web recited in claim 12 within the meaning of 35 U.S.C. § 102(b).

CLAIMS 21, 22, 25-27, 30, 32, and 33-35
As indicated supra, Sabee ‘064 teaches and illustrates spray coating
melt blown molten fibers corresponding to the claimed molten adhesive on
only one side of its parallel continuous filaments corresponding to the
claimed substantially parallel warp-direction yarns for the purpose of
stabilizing, fixing and bonding them to form a non-woven web having
random adhesive bridges (spans) between parallel filaments. Appellants
have not recited “bridges of an adhesive” in claim 21 in a manner that is
structurally and/or chemically distinguishable from those taught and
illustrated by Sabee ‘064. Nor have Appellants shown that the function of
the random adhesive bridges illustrated and taught by Sabee ‘064 does not
necessarily involve prevention of “twisting of the individual warp-direction
yarns” as required by claim 21.
Accordingly, we determine that Appellants have not shown any
reversible error in the Examiner’s finding that Sabee ‘064 describes the
subject matter recited in claims 21, 22, 25 through 27, 30, and 32 through
35 within the meaning of 35 U.S.C. § 102(b).

2. Claims 1, 3, 4, 9, 19, 20, 23, 24, 28, and 31 under 35 U.S.C. §
103(a) as unpatentable over the disclosure of Sabee
ISSUES AND CONCLUSIONS
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With respect to claims 1, 3, 4, 9, and 20, Appellants do not dispute the
Examiner’s finding that Sabee ‘064 teaches parallel continuous filaments
corresponding to the claimed substantially parallel warp-direction yarns.
(Compare Ans. 3-5 with App. Br. 40-46). Nor do Appellants dispute the
Examiner’s finding that Sabee ‘064 would have suggested the employment
of melt blown molten fibers corresponding to the claimed adhesive in the
claimed thickness to stabilize and bond the parallel continuous filaments.
(Compare Ans. 5-6, with App. Br. 40-46). Rather, Appellants contend that
Sabee ‘064 does not teach a non woven fabric made of parallel continuous
filaments corresponding to the claimed substantially parallel warp-direction
yarns, without any weft direction yarns (App. Br. 40). Appellants also
contend that Sabee ‘064 does not teach or would not have suggested
employing an adhesive coating on one side of its parallel continuous
filaments (App. Br. 40-41).
Thus, the dispositive question is: Have Appellants identified
reversible error in the Examiner’s determination that Sabee ‘064 teaches or
would have suggested a non-woven web comparable to a woven fabric
consisting of parallel continuous filaments corresponding to the claimed
substantially parallel warp-direction yarns, which are stabilized by spray
coating small diameter melt blown molten fibers corresponding to the
claimed adhesive on one or both sides of the parallel continuous filaments?
On this record, we answer this question in the negative.
With respect to claims 19, 23, 24, 28 and 31, Appellants rely on the
same arguments advanced in connection with the Examiner’s § 102 rejection
of claims 2 and 21 discussed above (App. Br. 43-46). Thus, the dispositive
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issues and answers to these issues remain identical to those set forth above in
connection with claims 2 and 21.
RELEVANT FACTUAL FINDINGS
12. Appellants’ Specification defines the claimed non-woven fabric
materials as those having the appearance of a woven fabric or those similar
to woven and knitted fabrics (“planar, inherently flexible, typically porous
structures composed primarily of natural or synthetic fiber materials” (Spec.
2, paras. 0004 and 0005).
13. Appellants do not dispute the Examiner’s finding that Sabee ‘064
would have suggested the employment of melt blown molten fibers
corresponding to the claimed adhesive in the claimed thickness to stabilize
and bond the parallel continuous filaments. (Compare Ans. 5-6, with App.
Br. 40-46).
PRINCIPLES OF LAW
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary considerations, if any. Graham
v. John Deere Co., 383 U.S. 1, 17-18 (1966).
As stated in KSR Int’l Co., v. Teleflex, Inc., 550 U.S. 398, 418 (2007):
“[A]nalysis [of whether the subject matter of a claim
would have been prima facie obvious] need not seek out precise
teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art
would employ.”

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See also DyStar Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick
Co., 464 F.3d 1356, 1361 (Fed. Cir. 2006) (“The motivation need not be
found in the references sought to be combined, but may be found in any
number of sources, including common knowledge, the prior art as a whole,
or the nature of the problem itself…“); In re Preda, 401 F.2d 825, 826
(CCPA 1968) (“[I]n considering the disclosure of a reference, it is proper to
take into account not only specific teachings of the reference but also the
inferences which one skilled in the art would reasonably be expected to draw
therefrom.”) .
When a particular parameter is recognized as a result-effective
variable, i.e., a variable which achieves a recognized result, the
determination of the optimum or workable ranges of such variable via
routine experimentation is well within the ambit of one of ordinary skill in
the art. 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.”); see also, In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003)
(“The normal desire of scientists or artisans to improve upon what is already
generally known provides the motivation to determine where in a disclosed
set of percentage ranges is the optimum combination of percentages.”).
“[W]here the prior art gives reason or motivation to make the claimed
[invention]…the burden (and opportunity) then falls on an applicant to rebut
that prima facie case. Such rebuttal or argument can consist of …any other
argument or presentation of evidence that is pertinent.” In re Dillon, 919
F.2d 688, 692-93 (Fed. Cir. 1990) (en banc). Appellants’ mere arguments in
the Brief or conclusory statements in the Specification not supported by
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factual evidence are not sufficient. See, e.g., In re De Blauwe, 736 F.2d 699,
705 (Fed. Cir. 1984); In re Lindner, 457 F.2d 506, 508 (CCPA 1972).

ANALYSES
Claims 1, 3, 4, 9, and 20
As indicated supra, Sabee ‘064 illustrates spray coating melt blown
molten fibers corresponding to the claimed non-continuous adhesive coating
on only one side of its parallel continuous filaments corresponding to the
claimed substantially parallel warp-direction yarns for the purpose of
stabilizing, fixing and bonding them to form a non-woven web comparable
to a woven fabric. According to Sabee ‘064, additional layers, including a
cross-laid layer of yarns, may be employed, but are not required in forming
its non-woven web comparable to a woven fabric.
As also indicated supra, Appellants have not defined the claimed
word “non-continuous adhesive coating” in the Specification to exclude the
spray coating of the melt blown molten fibers (non-continuous adhesive)
illustrated by Sabee ‘064. Nor have Appellants claimed “non-continuous
adhesive coating” in a manner that is structurally and/or chemically
distinguishable from that produced by spray coating and drawing melt blown
molten fibers as taught by Sabee ‘064. Specifically, Appellants have not
pointed out any specific structural or chemical difference between the
claimed “non-continuous adhesive coating” and Sabee ‘064’s non-
continuous molten fiber (adhesive) coating.
Accordingly, we determine that Appellants have not identified any
reversible error in the Examiner’s determination that Sabee ‘064 teaches or
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would have suggested the non-woven web fabric recited in claims 1, 3, 4, 9,
and 20 within the meaning of 35 U.S.C. § 103(a)..

Claims 19, 23, 24, 28, and 31
With respect to claim 19, Appellants rely on the same arguments
raised in connection with the Examiner’s § 102 rejection of claim 2
discussed above. With respect to claims 19, 23, 24, 28 and 31, Appellants
rely on the same arguments raised in connection with the Examiner’s § 102
rejection of claim 21 discussed above.
Accordingly, for the same factual findings and analyses set forth
above, we determine that Appellants have not identified any reversible error
in the Examiner’s determination that Sabee ‘064 teaches or would have
suggested the non-woven web comparable to a woven fabric recited in
claims 19, 23, 24, 28 and 31 within the meaning of 35 U.S.C. § 103(a).

3. Claims 8 and 29 under 35 U.S.C. § 103(a) as unpatentable over
the combined disclosures of Sabee and Pittman
ISSUE AND CONCLUSION
Appellants rely on the same arguments advanced in connection with
the Examiner’s rejections of claims 1, 2 and 21 discussed above (App. Br.
47 and 49). Appellants also contend that Pittman does not remedy the
deficiencies of Sabee ‘064 and is incompatible with the teachings of Sabee
‘064 (App. Br. 47-49).
Having already addressed Appellants’ arguments raised in connection
with claims 1, 2, and 21, the dispositive question in this case is: Have
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Appellants identified reversible error in the Examiner’s determination that
one of ordinary skill in the art would have been led to employ the type of
synthetic fibers, such as glass fibers, taught in Pittman in forming the non-
woven fabric taught by Sabee ‘064? On this record, we answer this question
in the negative.
RELEVANT FACTUAL FINDINGS
14. Sabee ‘064 teaches (col. 7, ll. 53-63) that:
The continuous filaments used herein to form a curtain of
continuous filaments can be of many materials, natural,
manmade, ranging from textile threads or yarns composed of
cotton, rayon, hemp, etc. to thermoplastic polymers. This
invention is not limited to the use of any particular fiber, but
can take advantage of many properties of different fibers. A
curtain of continuous filaments or threads using multifilament
threads of rayon or nylon is readily stabilized by depositing a
layer of molten melt blown fibers or filament on this continuous
filamentary web.
15. Pittman teaches a non-woven textile fabric which can be “prepared by
arranging the fibers and filaments in the desired pattern by any of the well-
known processes” (col. 1, ll. 6-9 and col. 2, ll. 21-23).
16. Pittman teaches that its non-woven fabric can be made of natural
fibers, such as hemp and cotton, and synthetic fibers, such as rayon, nylon,
polyesters, and glass (col. 2, ll. 41-51).
PRINCIPLES OF LAW
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The same principles of law set forth above are equally applicable to
the analysis below.
ANALYSIS
As indicated supra, Sabee ‘064 illustrates and teaches an improved
non-woven web comparable to a woven fabric prepared by spray coating
melt blown molten fibers corresponding to the claimed non-continuous
adhesive coating on only one side of its parallel continuous filaments
corresponding to the claimed substantially parallel warp-direction yarns for
the purpose of stabilizing, fixing and bonding the parallel continuous
filaments. This improved non-woven web, according Sabee ‘064, can be
formed by various fibers having different properties. Although Sabee ‘064
does not specifically identify glass fibers, Pittman teaches that glass fibers
are not only equivalent to those natural and synthetic fibers specifically
mentioned in Sabee ‘064, but also useful in forming a non-woven fabric
having desired patterns. Thus, one of ordinary skill in the art would have
had reason to employ the glass fibers taught in Pittman in forming the non-
woven fabric taught by Sabee ‘064.
Accordingly, we determine that Appellants have not identified any
reversible error in the Examiner’s determination that Sabee ‘064 would have
suggested the employment of the glass fibers taught in Pittman in forming
the non-woven fabric taught by Sabee ‘064 within the meaning of 35 U.S.C.
§ 103(a).
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4. Claims 1 through 10, 12, and 19 through 34 under 35 U.S.C. §
103(a) as unpatentable over the combined disclosures of Gott, Garick and
Shambelan.
ISSUE AND CONCLUSION
Appellants contend that the teachings of Gott, Garick and Shambelan
are incompatible and would not have suggested the subject matter recited in
claims 1 through 10, 12, and 19 through 34 (App. Br. 50-64).
Thus, the dispositive question is: Have Appellants identified
reversible error in the Examiner’s determination that the collective teachings
of Gott, Garick, and Shambelan would have led one of ordinary skill in the
art to form the claimed non-woven fabric? On this record, we answer this
question in the affirmative.
RELEVANT FACTUAL FINDINGS
17. Gott teaches a coherent web of fibrous strands prepared by applying
an adhesive on an array of fibrous strands having a series of parallel grooves
(p. 1).
18. Gott teaches that the adhesive is “continuously spread over the whole
sheet of yarns by the roller 18” (p.2, ll. 42-53).
19. The Examiner acknowledges that “Gott does not disclose that the
coating is discontinuous” (Ans. 8).
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20. Garick teaches “complete enveloping coating of metal, glass or
synthetic resin fibers by a heat-softenable material” (col. 1, ll. 15-17).
21. Garick teaches that the heat-softenable material includes various
metals and thermoplastic materials (col. 3, ll. 2-11).
22. Shambelan teaches and illustrates a non-woven fabric made of three
or more warp-like arrays of continuous filament yarns (col. 1, ll. 62-64 and
col. 2, ll. 71-72 and Figs. 3-6).
23. Shambelan teaches that at least one of these layers are superimposed
at an angle to one or more other layers (i.e., in a weft-direction) (col. 1, l. 62
to col. 2, l. 5 and col. 3, ll. 2-12).
24. Shambelan teaches (col. 1, ll. 18-25) that:
The superimposed filaments or yarns are united between the
intersection with crossing filaments, or yarns, to hold the
assembly together, whereas mobility is provided at the
intersections of crossing filaments or yarns. The union between
intersections may be accomplished by self-bonding or adhesive
–bonding, or by fiber-interentangling with fine streams of liquid
jetted at high pressure.
PRINCIPLES OF LAW
The same principles of law set forth above are equally applicable to
the analysis below.
ANALYSIS
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There is no dispute that Gott teaches a coherent web of fibrous strands
prepared by applying a continuous adhesive on an array of fibrous strands
having a series of parallel grooves. Recognizing that Gott does not teach the
claimed non-continuous adhesive coating, the Examiner relies on Shambelan
to show the claimed non-continuous adhesive coating. However, as taught
and illustrated by Shambelan, its non-continuous self-bonding is applicable
to three or more layers of parallel filaments superimposed in a perpendicular
manner. In other words, Shambelan teaches the importance of its non-
continuous adhesive bonding for the purpose of combining parallel warp-
direction yarns with weft direction yarns. The Examiner does not rely on
Garick for a non-continuous adhesive coating in forming Gott’s coherent
web of fibrous strands since Garick only teaches “complete enveloping
coating of metal, glass or synthetic resin fibers by a heat-softenable
material.” Thus, the Examiner has not demonstrated that the collective
teachings of Gott, Garick, and Shambelan would have led one of ordinary
skill in the art to form a non-woven fabric consisting essentially of parallel
warp-direction yarns (without any weft-direction yarns) supported and
bonded on only one side by a non-continuous adhesive coating.
Accordingly, we determine that Appellants have identified reversible
error in the Examiner’s determination that the collective teachings of Gott,
Garick, and Shambelan would have led one of ordinary skill in the art to
form the claimed non-woven fabric within the meaning of 35 U.S.C. § 103.

ORDER
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In summary, we affirm the Examiner’s rejections of claims 2, 5
through 7, 10, 12, 21, 22, 25 through 27, 30, and 32 through 35 under 35
U.S.C. § 102(b) as anticipated by Sabee ‘064, claims 1, 3, 4, 9, 19, 20, 23,
24, 28, and 31 under 35 U.S.C. § 103(a) as unpatentable over Sabee ‘064,
and claims 8 and 29 under 35 U.S.C. § 103(a) as unpatentable over Sabee
‘064 and Pittman, but reverse the Examiner’s rejection of claims 1 through
10, 12, and 19 through 34 under 35 U.S.C. § 103(a) as unpatentable over
Gott, Garick and Shambelan.
Accordingly, the decision of the Examiner is affirmed.

TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

tc

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