Ex Parte Dorsey et alDownload PDFPatent Trial and Appeal BoardMay 7, 201813726082 (P.T.A.B. May. 7, 2018) Copy Citation 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. Appeal2017-007808 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. 2 Appeal2017-007808 Application 13/726,082 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 3 Appeal2017-007808 Application 13/726,082 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 4 Appeal2017-007808 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 5 Appeal2017-007808 Application 13/726,082 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. 6 Appeal2017-007808 Application 13/726,082 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 7 Appeal2017-007808 Application 13/726,082 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 8 Appeal2017-007808 Application 13/726,082 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."). 9 Appeal2017-007808 Application 13/726,082 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). 10 Appeal2017-007808 Application 13/726,082 AFFIRMED 11 Copy with citationCopy as parenthetical citation