Ex Parte Dorsey et al

Patent Trial and Appeal Board

May 7, 2018

13726082 (P.T.A.B. May. 7, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131726,082 12/22/2012
23117 7590 05/09/2018
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Kyra DORSEY
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BHD-5865-8 2268
EXAMINER
CHOI, PETER Y
ART UNIT PAPER NUMBER
1786
NOTIFICATION DATE DELIVERY MODE
05/09/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KYRA DORSEY and GORDON D. MEIKLE
Appeal2017-007808
Application 13/726,082 1
Technology Center 1700
Before ROMULO H. DELMENDO, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.
HOUSEL, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
Appellant filed an appeal under 35 U.S.C. § 134(a) from the
Examiner's decision rejecting claims 1, 3, 5, 6, and 9-12 under 35 U.S.C.
§ 103(a) over Dolsey2 in view of Jeambar3 and Suzuki. 4
We have jurisdiction under 35 U.S.C. § 6(b). 5
1 Appellant is the Applicant, Suominen Corporation, which, according to the
Brief, is the real party in interest. Appeal Brief (Br. 2) filed May 9, 2016.
2 Dolsey et al., US 6,120,888 A, issued Sept. 19, 2000 ("Dolsey").
3 Jeambar, WO 2004/063451 Al, published July 29, 2004 ("Jeambar").
4 Suzuki et al., US 4,718,152, issued Jan. 12, 1988 ("Suzuki").
5 Our Decision refers to the Specification (Spec.) filed December 22, 2012
and the Examiner's Answer (Ans.) notice emailed October 21, 2016.
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Application 13/726,082
We AFFIRM.
The subject matter on appeal relates to hydraulically patterned,
fibrous, sided non woven materials (see, e.g., claim 1, infra). The Inventors
disclose that the use of high pressure jets to entangle fibers in a non woven
web is known but conventionally took place by supporting the nonwoven
web with a highly porous member (e.g., a mesh belt or a metal screen) so
high pressure fluid can pass through the nonwoven web and be collected.
Spec. i-f 3. The Inventors disclose a reflectively patterned, fibrous, sided
non woven material comprising a first set of fibers predominantly forming a
first surface of the material and a second set of fibers predominantly forming
an opposing surface. Id. i-f 6. In a method of manufacturing the material, the
nonwoven material is disposed between a surface of a patterned support
(e.g., a patterned roller having an intermediate impervious layer) and a
hydraulic needling manifold so jets of liquid pass through the material,
impinge the support, and are reflected away from the support back to the
non woven to cause patterning in a surface of the material. Id. i-fi-1 34, 80-82,
and 88. The Inventors state their process provides an increase in wet
thickness and improved drapeability (a descriptive term indicating relative
fabric softness). Id. i-f 96-97.
Independent claim 1 is illustrative and is reproduced below from the
Claims Appendix of the Appeal Brief. 6 Limitations at issue are italicized.
1. A fibrous hydraulically patterned sided nonwoven
material comprising:
a first web formed of a first set of short fibers
hydraulically needled with a second web formed of a second set
6 Br. 10.
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of fibers, wherein
the first set of short fibers comprise cellulose pulp fibers
having an average fiber length of 0.7 mm to 12 mm, and
wherein
the second set of fibers comprise continuous nonbroken
melt-spun thermoplastic filaments, and wherein
the material has a first surface substantially comprising
the first set of short fibers and an opposing second surface
substantially comprising the second set of fibers, and wherein
the first surface is reflectively hydraulically patterned by
the first surface being positioned adjacent a patterned non-
porous support surface and the impingement of a hydraulic
fluid stream at a maximum pressure of 5 00 psi passing through
the opposed second surface to the first surface and against the
non-porous support surface to thereby have a visual and tactile
appearance depending on a pattern of the non-porous support
surface on which hydraulic patterning is performed, and
wherein
the hydraulically patterned sided nonwoven material
exhibits an increase in wet thickness of 10% or more and an
increase in drapeability of 100% or more as compared to a
precursor nonwoven material prior to hydraulic patterning.
B. DISCUSSION
The Examiner finds Dolsey discloses a hydroentangled fibrous web
including a first layer composed of cellulosic fibers and a second layer
including filaments of polyamides, polyesters, and polyolefins. Ans. 2-3.
The Examiner finds Dolsey discloses hydroentangling the web by passing
fluid through orifices at about 200 to about 2000 psi so the fluid impacts the
web as it is supported by a foraminous surface and that, depending upon
process factors, the second layer may face the jets of fluid. Id. at 3.
The Examiner finds Dolsey does not disclose an average fiber length
for the cellulosic fibers of the first layer or that the first layer is reflectively
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hydraulically patterned with a non-porous support surface, as recited in
claim 1. Id.
The Examiner finds Jeambar discloses manufacturing a nonwoven
composed of two webs, with a lower web including long artificial synthetic
fibers (e.g., polyester, polypropylene, or polyamide fibers) and an upper web
including short natural fibers having a length between 0.5 and 8 mm. Id. at
4. The Examiner concludes it would have been obvious to use cellulosic
fibers having a length between 0.5 and 8 mm in the material of Dolsey
because Jeambar demonstrates it was conventional to use such a fiber length
for natural fibers in a multi-layered hydroentangled fibrous web. Id. at 4--5.
The Examiner finds Suzuki discloses a method for producing
patterned nonwoven fabric from a fibrous web by providing water streams
that penetrate the fibrous web, strike a nonporous support, and rebound
upward to act upon the fibrous web and cause fiber entangling. Id. at 5. The
Examiner concludes it would have been obvious to modify Dolsey, as
modified in view of Jeambar, to use a nonporous support in its
hydroentangling process because Suzuki discloses its process provides
improved bulkiness and surface characteristics. Id.
The Examiner determines that although the combination of Dolsey,
Jeambar, and Suzuki does not specifically teach the increase in wet thickness
and drapeability recited in claim 1, these properties would naturally follow
from the combination suggested by the prior art references. Id. at 6-7.
Appellant contends the claimed process of reflective patterning
imparts definitive structural characteristics to the resulting material, with
Samples 1 and 2 in Appellant's Specification demonstrating these structural
characteristics. Br. 5-8. Appellant further asserts Dolsey does not disclose
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Application 13/726,082
reflective patterning, Jeambar does not disclose reflective patterning but
discloses the side of the web with short natural fibers is positioned adjacent
to water jets with a suction roll instead adjacent to a nonporous support, and
Suzuki's web is symmetrical instead of a sided web including a first set of
fibers forming a first side and a second set of fibers forming a second side,
as recited in claim 1. Id. at 6-8.
Appellant's arguments are unpersuasive. Dolsey discloses a
hydroentangled web including a first layer of cellulosic fibers and a second
layer of synthetic polymer fibers, which can be polyester or polyamide fibers
(i.e., thermoplastic fibers). Dolsey 1:41-50, 2:6-7, 2:49---62, 3:20-30, and
7: 17-20. The hydraulic entangling process includes impacting the web with
fluid at about 200 to about 2000 psi while the web is supported by a
foraminous surface (e.g., a mesh). Id. at 9:38--45. As the Examiner
correctly explains at pages 9-11 of the Examiner's Answer, Dolsey discloses
that the first layer of cellulosic fibers may face the hydroentangling jets or,
depending upon various factors of the process, the second layer of the web
may face the jets. Dolsey 12:52---67, 13:1-3. Thus, Dolsey supports the
Examiner's findings regarding Dolsey' s disclosure.
Although Dolsey does not disclose an average fiber length of 0.7 to 12
mm for the cellulose fibers of the first layer, Jeambar discloses a composite
non woven composed of two webs: a lower web including artificial and/or
synthetic fibers and an upper web including short natural fibers having a
length between 0.5 and 8 mm. Jeambar abstract, 4:4--8. Jeambar discloses
the synthetic fibers can be polyester or polyamide fibers and the natural
fibers can be cellulose fibers. Id. at 4: 19-23, 5: 10-13. Thus, Jeambar
demonstrates it was known to use a two-sided nonwoven web including the
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two types of fibers disclosed by Dolsey and it was known to use cellulosic
fibers having lengths overlapping the length range recited in claim 1.
Therefore, J eambar' s disclosure supports the Examiner's findings and
conclusion that it would have been obvious to modify Dolsey in view of
Jeambar to use known fibers for their predictable use. "The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 416 (2007).
Suzuki discloses a process for producing patterned nonwoven fabric
by subjected a fibrous web to a fiber entangling treatment. Suzuki 1: 10-24,
2:26-45. Specifically, a fibrous web 77 is subjected to a fiber entangling
treatment via high velocity water stream from nozzles 6b, 6c, and 6d while
the web 7 is supported by smooth-surfaced rolls 4a, 4b, and 4c and via a
high velocity water stream from a nozzle 6e while the web 7 is supported by
a water-impermeable roll S. Id. at 3:14--66 and 4:1-8. Suzuki states that the
water-impermeable roll S has a surface relief pattern that imparts a pattern to
the non woven fabric of the web 7. Id. at 4: 1-8. Suzuki discloses that the
water streams from nozzles 6b, 6c, and 6d penetrate the thickness of the web
7 while the web 7 is supported by rolls 4a, 4b, and 4c, strike the rolls 4a, 4b,
and 4c, and then rebound upwards to act upon the web 7. Id. at 4: 12-18.
Suzuki discloses the water stream impacting the web 7, while it is supported
by roll S, behaves in the same manner as those from nozzles 6b, 6c, and 6d
(i.e., penetrates the web 7, rebounds from roll S, and acts upon the web 7).
Id. at 4:12-18 and 5:10-16.
7 Throughout this Decision, for clarity, we present labels to elements in
figures in bold font, regardless of their presentation in the original document.
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Moreover, Suzuki discloses "[a]s material for the fibrous web, every
kind of fibers conventionally used for woven or nonwoven fabrics may be
used in the form of tandem web, parallel web or cross web." Id. at 6:33-35.
Thus, although Suzuki does not specifically disclose the use of a two-sided
web, Suzuki's disclosure is general and wide ranging in terms of the types of
fibers and webs that can be used in its process. Suzuki further discloses the
fabric produced by this process has improved bulkiness, improved surface
gloss, and improvement to its soft and warm touch in comparison to
previous inventions. Id. at 1:62---68 and 2: 1-22. As a result, Suzuki's
disclosure supports the Examiner's findings and conclusion that it would
have been obvious to modify Dolsey, as modified by Jeambar, in view of
Suzuki.
Where the claimed and prior art products are identical or substantially
identical, or are produced by identical or substantially identical processes,
the PTO can require an applicant to prove that the prior art products do not
necessarily or inherently possess the characteristics of the claimed product.
In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); In re Best, 562 F.2d 1252,
1255 (CCP A 1977). Once the Examiner provides a reasonable basis to
believe that the characteristic is inherent, the burden shifts to the applicant to
prove that the prior art products do not necessarily possess the characteristics
of his claimed product. Best, at 1254--55 (discussing In re Swinehart, 439
F.2d 210 (CCPA 1971) and In re Ludtke, 441F.2d660 (CCPA 1971)).
Here, the combination of Dolsey, Jeambar, and Suzuki suggests a
product substantially similar to that recited in claim 1. The combination
would have resulted in a nonwoven material comprising a first set of short
fibers hydraulically needled (i.e., hydroentangled) with a second set of
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fibers, wherein the first set of fibers form a first surface of the web and
comprise cellulosic fibers having a length between 0.5 and 8 mm and the
second set of fibers form a second, opposing surface of the web and
comprise thermoplastic fibers, as suggested by the combination of Dolsey
and Jeambar. As discussed further below, Appellant does not direct us to
persuasive evidence demonstrating that the differences between claim 1 and
the closest prior art give rise to any difference in characteristics that would
have been considered unexpected. In re Dillon, 919 F.2d 688, 692 (Fed. Cir.
1990) (en bane).
Further, although claim 1 recites product-by-process limitations, as
correctly stated by the Examiner (Ans. 6-7), the process suggested by the
applied references is also substantially similar to that recited in claim 1. As
discussed above, Dolsey discloses hydroentangling the fibers of its
nonwoven web via fluid at a pressure of about 200 to about 2000 psi while
either the first side or the second side faces the jets of fluid. Although
Dolsey discloses the use of a foraminous (e.g., mesh) support for the
hydroentangling process, Suzuki discloses the use of a water-impermeable
patterned roll to pattern a fibrous web and that a high velocity water stream
penetrates the fibrous web, strikes and rebounds from the roll, and then acts
upon the fibrous web again, with the fibrous web receiving a pattern
corresponding to the pattern of the roll (Suzuki 4: 1-8, 4: 12-18, and 5: 10-
16), like the reflectively hydraulically patterning process recited in claim 1.
As a result, the Examiner has provided a reasonable basis that the
product and process suggested by the combination of Dolsey, Jeambar, and
Suzuki is substantially identical to the material of claim 1 in composition,
structure, and process of manufacture and that the wet thickness and
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drapeability recited in claim 1 would naturally follow from the combination
suggested in the prior art. Appellant's arguments and evidence, however, do
not demonstrate a reversible error in the Examiner's rejection. Appellant's
arguments address the references individually and make the conclusory
argument that the combination of Dolsey, Jeambar, and Suzuki does not
disclose "which of the paths that is favorable." Br. 7. However, "the test for
combining references is not what the individual references themselves
suggest but rather what the combination of disclosures taken as a whole
would suggest to one of ordinary skill in the art." In re McLaughlin, 443
F.2d 1392, 1395 (CCPA 1971. Here, the combination of Dolsey, Jeambar,
and Suzuki would have suggested the claimed product and a substantially
similar process of manufacture, as discussed above. Indeed, Suzuki provides
a reason to modify Dolsey's process to use Suzuki's patterned water-
impermeable roll 5 to pattern a nonwoven fabric by disclosing advantageous
properties for a fabric made according to Suzuki's process. KSR, 550 U.S. at
420 ("[I]n many cases a person of ordinary skill will be able to fit the
teachings of multiple patents together like pieces of a puzzle").
To the extent Appellant would assert that Samples 1 and 2 in their
Specification serve to demonstrate unexpected results, Appellant has not
provided evidence to support such an assertion. Unexpected results must be
established by factual evidence. Attorney argument does not suffice. See In
re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (attorney argument is not
the kind of factual evidence that is required to rebut a prima facie case of
obviousness); see also In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1994)
("Mere argument or conclusory statements in the specification does not
suffice.").
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Further, Appellant has not compared Samples 1 or 2 with the closest
prior art (e.g., Dolsey). "[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art." In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991 ). Moreover, evidence of secondary considerations must be
reasonably commensurate with the scope of the claims. See In re Tiffin, 58
CCPA 1420, 448 F.2d 791, 792 (1971); In re Hiniker, 150 F.3d 1362, 1369
(Fed. Cir. 1998). Samples 1 and 2 were made from a composite material
comprising 85% pulp fiber and 15% thermoplastic fibers, the exact types of
which are unclear. Spec. i-fi-193, 96. However, the first set of fibers in claim
1 encompass any type of cellulosic pulp fibers having an average fiber
length of 0. 7 mm to 12 mm and encompass any type of continuous,
nonbroken, melt-spun thermoplastic filaments, not just the specific materials
used for Samples 1 and 2.
Based on the foregoing, any assertion by Appellant of unexpected
results is entitled to little weight. A preponderance of the evidence supports
the Examiner's obviousness determination for claim 1. Appellant does not
argue claims 3, 5, 6, and 9-12 separately from claim 1. Br. 5-8.
For the reasons discussed above and those set forth in the Examiner's
Answer, we sustain the Examiner's§ 103 rejection of claims 1, 3, 5, 6, and
9-12 over Dolsey, Jeambar, and Suzuki.
C. DECISION
The decision of the Examiner 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).
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AFFIRMED
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