Ex Parte Feldman

Patent Trial and Appeal Board

Sep 21, 2018

13826267 (P.T.A.B. Sep. 21, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/826,267 03/14/2013
27939 7590 09/24/2018
Philip H. Burrus, IV
Burrus Intellectual Property Law Group LLC
222 12th Street NE
Suite 1803
Atlanta, GA 30309
FIRST NAMED INVENTOR
Jonathan Feldman
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.
BPMDL0060JF (10588U) 7892
EXAMINER
QUINN, RICHALE LEE
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
09/24/2018 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 JONATHAN FELDMAN 1
Appeal2018-000289
Application 13/826,267
Technology Center 3700
Before CHARLES N. GREENHUT, JAMES P. CALVE, and
BENJAMIN D. M. WOOD, Administrative Patent Judges.
CAL VE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the Office Action
finally rejecting claims 1-11 and 20. Appeal Br. 2. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Medline Industries, Inc. is identified as the real party in interest (Appeal
Br. 2) and also is the applicant pursuant to 37 C.F.R. § 1.46.
Appeal2018-000289
Application 13/826,267
CLAIMED SUBJECT MATTER
Claim 1, the sole independent claim, is reproduced below.
1. A method for sealing a seam of a medical gown,
compnsmg:
constructing the seam by sewing two layers of material
together, each layer of material comprising a weave of
untwisted continuous filament polyester and carbon
filament;
applying a porous polytetrafluoroethylene tape along the
seam; and
providing heat to the porous polytetrafluoroethylene tape,
thereby causing the porous polytetrafluoroethylene tape
to adhere to the weave.
Appeal Br. 27 (Claims App.).
REJECTIONS
Claims 8-10 are rejected under 35 U.S.C. § 112, second paragraph, as
being indefinite. 2
Claims 1, 3, 4, 8, and 9 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Reaney (US 5,162,149; iss. Nov. 10, 1992) and Taylor
(US 5,244,718; iss. Sept.14, 1993).
Claims 2, 5-7, 10, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Reaney, Taylor, and Benstock (US 5,003,902; iss. Apr. 2,
1991).
Claim 20 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Reaney, Taylor, and Schneider (US 4,971,073; iss. Nov. 20, 1990).
2 The rejection of claim 19 on this ground was mooted by the cancellation of
claim 19. Ans. 3. The rejection of claim 20 on this ground was withdrawn.
Id. at 4 (citing Notice of Panel Decision from Pre-Appeal Brief Review,
mailed Jan. 17, 2017).
2
Appeal2018-000289
Application 13/826,267
ANALYSIS
Claims 8-10 As Being Indefinite.
Inventors must "claim their invention in 'full, clear, concise, and exact
terms."' One-E-Way, Inc. v. Int'! Trade Comm 'n, 859 F.3d 1059, 1062
(Fed. Cir. 2017) (quoting 35 U.S.C. § 112). A "claim is indefinite when it
contains words or phrases whose meaning is unclear." Ex parte McAward,
No. 2015-006416, slip op. at 11 (PTAB Aug. 25, 2017) (precedential)
(quoting In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014)). Thus,
"claims are required to be cast in clear-as opposed to ambiguous, vague,
indefinite-terms." Id. ( quoting Packard, 751 F.3d at 1313)).
Claims 8 and 9
The Examiner determines that a material comprising "2 .2 ounce
polyester" in claim 8 and "2.6 ounce polyester" in claim 9 is indefinite
because it is unclear if ounces are per meter, per linear meter, per linear
yard, per meter squared, or another unit of measurement. Final Act. 2-3.
Appellant argues a skilled artisan would understand the term "ounce"
to describe a textile weight as "a measurement of ounces per yard-square."
Appeal Br. 10. Appellant cites a definition from BusinessDictionary.com as
"1. Fabric density: Expressed as ounces per square yard {oz/yd2)." Id.
Appellant also cites Internet search results to show that an "ounce" in fabric
is used to mean the weight in ounces per square yard. Id. at 10-11.
The Examiner agrees that "ounces per square yard is a standard unit of
measurement" but asserts that other measurement standards are used such as
"ounces per linear yard." Ans. 2. The Examiner reasons that claims 8 and 9
are indefinite because it is not clear what standard is claimed. Id.
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Appeal2018-000289
Application 13/826,267
The Specification discloses a taffeta weave in Figure 1 in which warp
filaments 101-104 and weft filaments 105-108 have a density that "results
in a 2.2-ounce [or 2.6-ounce] polyester weave 110." Spec. ,r 23. Thus, the
implication of this disclosure is that single-ply taffeta weave 110 in Figure 1
has a weight of 2.2-ounce or 2.6 ounce due to the densities of the warps and
wefts. Because taffeta weave 110 comprises warps 101-104 in one direction
and wefts 105-108 in a perpendicular direction, the BusinessDictionary.com
definition of "ounce" as being measured per square yard is not inconsistent
with the Specification, particularly where the Examiner does not dispute that
ounces per square yard is a standard unit of measurement. Ans. 2. We also
consider a definition of "fabric weight" from the McGraw-Hill Dictionary of
Scientific and Technical Terms, 6th ed. (McGraw-Hill Education, New York,
2003) as "[t]he number of ounces per square yard of a fabric." In view of
these definitions and Internet search evidence, we determine that a skilled
artisan would understand a weight of fabric provided in ounces to means
ounces per square yard as is used commonly in the textile industry, where
this ordinary and customary usage is consistent with the Specification and
claims. Thus, we do not sustain the rejection of claims 8 and 9 as indefinite.
Claim 10
The Examiner determines the limitation "providing the heat resulting
in an AAMI-PB70 Level-3 seal along the seam" in claim 10 is indefinite
because test methods change and it is unclear what structure provides the
claimed measures. Final Act. 3. The Examiner also finds that "appellant
has not tied the standard to any particular date or version, and the scope of
the claim language would be subject to change if the standard changed at the
discretion of the AAMI." Ans. 3.
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Appeal2018-000289
Application 13/826,267
Appellant argues that the Specification provides a lexicographic
definition of the limitation of "providing the heat resulting in an AAMI-
PB70 Level-3 seal along the seam." Appeal Br. 13. In particular, Appellant
asserts that paragraph 42 of the Specification discloses "the PB70 Standard"
as a well-known standard "of the Association for the Advancement of
Medical Instrumentation (AAMI)." Id. Appellant also argues that the
Specification describes material 100 and seams 500 as having a moisture
vapor transmission rate (MVTR) that allows for comfort while meeting the
Spray impact test (AATCC42), Hydrostatic Pressure testing (AATCC127),
and Viral Penetration testing (ASTM-F1671). Id. at 13-14. We agree.
Claim 10 depends from claim 1 and recites "providing the heat [ to the
porous polytetrafluoroethylene tape] resulting in an AAMI-PB70 Level-3
seal along the seam." Appeal Br. 28 (Claims App.). The Specification
discloses that material 100 and its sealed seams 500 can be configured to
meet the PB70 Standard of the Association for the Advancement of Medical
Instrumentation (AAMI). Spec. ,r 42. The Specification then explains
For example, the material 100 and its sealed seams 500 may
have a moisture vapor transmission rate (MVTR) that allows
for comfort during wearing while still meeting the Spray impact
test (AATCC42), Hydrostatic Pressure testing (AATCC127)
and Viral Penetration testing (ASTM-Fl671) guidelines.
Id. Thus, the Specification discloses the AAMI-PB70 Level-3 standard to
require meeting the AATCC42, AATCC127, and ASTM-F1671 guidelines.
Appeal Br. 13-14. "Well known industry standards need not be repeated in
a patent." Wellman, Inc. v. Eastman Chem. Co., 642 F.3d 1355, 1367 (Fed.
Cir. 2011). Thus, we do not sustain the rejection of claim 10.
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Appeal2018-000289
Application 13/826,267
Claim 11
In the Final Office Action, the Examiner styles this matter as a claim
objection involving informalities. See Final Act. 3. Normally, informalities
such as claim objections are petitionable, rather than appealable, matters. In
this case, however, we address the issue as one involving indefiniteness. We
do so because the Examiner raises this issue in the Final Office Action with
the rejections under 35 U.S.C. § 112, second paragraph, involving indefinite
claims and because, ultimately, the Examiner finds the language of claim 11
is unclear in meaning. See Ans. 4 ("It is of utmost importance that patents
issue with definite claims that clearly and precisely inform persons skilled in
the art of the boundaries of protected subject matter, and with respect to
claim 11 the claim language is not clear.")"
Dependent claim 11 recites "the constructing comprising creating a
double-C, interlocking seam." Appeal Br. 28 (Claims App.). The Examiner
determines that claim 11 has an error in syntax. Final Act. 3. We agree with
Appellant that claim 1 recites "constructing a seam," and claim 11 further
defines this action as "the constructing comprising creating a double-C,
interlocking seam." Appeal Br. 15, 27-28 (Claims App.). Thus, the seam of
claim 1 is constructed by creating a double-C, interlocking seam as recited in
claim 11. See Spec. ,r 35, Figs. 4, 5. Thus, we do not sustain the rejection of
claim 11 for indefiniteness.
Claims 1, 3, 4, 8, and 9
Unpatentable over Reaney and Taylor
Appellant argues claims 1, 3, 4, 8, and 9 as a group. Appeal Br. 16-
24. We select claim 1 as representative, with claims 3, 4, 8, and 9 standing
or falling with claim 1. 37 C.F.R. § 4I.37(c)(l)(iv).
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Appeal2018-000289
Application 13/826,267
The issue is whether Taylor teaches "a weave of untwisted continuous
ff lament polyester and carbon filament" as recited in claim 1. Appeal Br.
17. The Examiner finds that Taylor discloses a material having a weave of
untwisted continuous filament polyester and carbon filament that is about
1 % carbon and 99% polyester. Final Act. 4. The Examiner determines it
would have been obvious to use this material on Reaney's medical gown to
improve strength and permeability. Id. The Examiner finds that Taylor's
texturized filaments are nonlinear, untwisted continuous polyester filaments
that approximate the feel or "hand" of spun yams. Ans. 4---6.
Appellant argues that the portions of Taylor cited by the Examiner do
not teach an untwisted continuous filament polyester and carbon filament as
claimed. Appeal Br. 17-18. In particular, Appellant argues that
Taylor never teaches the use of any fabric comprising
untwisted continuous filament polyester and carbon filament in
any of its embodiments. To the contrary, the reference
expressly requires twisted filament fabric, and eschews the use
of untwisted filament as not providing the proper hand and feel.
Taylor expressly requires twisted filament to achieve several of
its design goals, including the desired hand. frictional features.
and durability features. Moreover, Taylor disparages the use
of untwisted filament
Id. at 18. Appellant argues that Taylor requires "textured materials," and
defines these "textured" materials as non-linear, convoluted, or curvilinear
states that are twisted, synthetic materials. Id. at 21; Reply Br. 9. Appellant
does not dispute that Taylor otherwise discloses continuous polyester and
carbon filaments as claimed. The dispute thus boils down to what is meant
by an untwisted continuous polyester filament as recited in claim 1.
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Appeal2018-000289
Application 13/826,267
The Specification discloses untwisted continuous polyester and
carbon filaments but does not otherwise define or describe what is meant by
untwisted. See Spec. ,r,r 18, 23, 25, 26. Figure 1 illustrates weave 100 with
continuous warp 101-104 and weft 105-108 filaments that are straight and
longitudinal.
An ordinary meaning of "twist" includes "to unite by winding," "to
make by twisting strands together," "twist thread from yam." Definition of
twist by Merriam-Webster at http://www.merriam-webster.com/dictionary/
twist (viewed Sept. 13, 2018).
This meaning is consistent with the Specification and its illustration of
filaments 101-108 that are woven or interlaced, rather than twisted together,
entwined, or wrapped around one another. Thus, we interpret "untwisted" to
mean filaments that are not intertwined or wrapped about one another.
We agree with the Examiner that Taylor's "texturized" continuous
polyester filaments are untwisted within the meaning of claim 1. This is so
because Taylor teaches "[a] texturized yam is one comprising a plurality of
synthetic filaments, which are deformed from a linear state to a convoluted
or curvilinear state" [so that] "[t]exturization increases the bulk of the yam."
Taylor, 6:20-24. We are not persuaded by Appellant's arguments that a
yam that is convoluted or curvilinear is a twisted yam or filament within the
meaning of claim 1. There is no disclosure in Taylor that filaments 16, 17
are twisted together or wrapped around one another like some conventional
cotton yams. Indeed, Taylor illustrates a two-by-two twill weave fabric 12
with filling yams 18 and warp yams 16 that appears very similar to the warp
and weft filaments of Appellant's taffeta weave as reproduced below.
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Appeal2018-000289
Application 13/826,267
Fig. 2 (above left) illustrates Taylor's weave 12. Fig. 1 (above right)
illustrates Appellant's weave 110. Claim 1 requires "untwisted" continuous
filaments (not linear or straight). See Ans. 6. As the Examiner points out,
twisted in the textiles generally refers to multiple filaments that are twisted
together to form a single yam. Id. This finding is consistent with Taylor's
discussion of prior art muslin fabrics that are formed of plain woven, cotton,
and spun yams. Taylor, 1 :45--46.
The Examiner provides a definition from Textiles Intelligence to show
that false twist texturized yams in Taylor are "untwisted" filaments. Ans. 5.
"False-twist texturing" is defined as "a process in which a single filament
yam is twisted, set and untwisted." Id. at 8 (Appendix) (emphasis added)
( citing (https://www.textilesintelligence.com/glo/index.cfm?section= F,
viewed Aug. 3, 2017). Taylor explains that false twist texturized yams and
air texturized yams provide greater bulk to the weave and give the fabric a
feel that is comparable to spun cotton muslins. Taylor, 3:29-50, 4:15---61,
6:20--42, 8: 12---67; see Appeal Br. 21. Taylor also teaches that the texturized
filaments provide these benefits irrespective of the weave. Id. at 9:25-36.
Thus, we sustain the rejection of claims 1, 3, 4, 8, and 9.
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Appeal2018-000289
Application 13/826,267
Claims 2, 5-7, 10, and 11
Unpatentable Over Reaney, Taylor, and Benstock
Appellant argues that the Examiner's reliance on Benstock to teach a
taffeta weave or providing heat as recited in claims 2, 5-7, 10, and 11 does
not cure the deficiencies of Reaney and Taylor as to claim 1 from which
these claims depend. Appeal Br. 24. Because we sustain the rejection of
claim 1, this argument is not persuasive and we also sustain the rejection of
claims 5-7, 10, and 11. However, we do not sustain the rejection of claim 2.
Regarding claim 2, Appellant argues persuasively that Benstock does
not teach "a taffeta weave," as recited in claim 2. Appeal Br. 24. Benstock
does not describe any of its fabrics as being a taffeta weave. The Examiner
relies on Figure 1 and Benstock' s discussion of exemplary fabrics. Final
Act. 5 ( citing Benstock, 1 :40-45). The Examiner provides no evidence that
these fabrics have a taffeta weave. 3 Final Act. 5. The Examiner also finds
that Figure 1 of Benstock, which is reproduced below, "shows a standard 1
up, 1 down, plain or taffeta weave." Ans. 6.
FIG-/
3 The Specification defines a taffeta weave as one where threads forming the
wefts and warps intertwine alternatively to produce the checkerboard effect
shown in Figure 1. Spec. ,r 22.
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Appeal2018-000289
Application 13/826,267
Figure 1 is a perspective view ofBenstock's inventive seam 10 with
the ends of fabric materials 12, 14 folded in overlapping U-shaped fashion.
Benstock, 3:29--30, 4:23-25. Fabrics 12 and 14 are not shown in sufficient
detail in Figure 1 to determine whether they are woven in a taffeta weave.
Benstock discloses that fabric materials 12, 14 are preferably a yam such as
a polyester texturized yam or a continuous filament polyester yam such as
FASHION BLOC or FASHION SHIELD, but any suitable fabric material
having a relatively dense weave and/or hydrophobic properties can be used.
Id. at 4: 1-10. Thus, we find insufficient evidence that Benstock discloses a
taffeta weave. Accordingly, we do not sustain the rejection of claim 2.
Claim 20
Unpatentable over Reaney, Taylor, and Schneider
Appellant argues that the Examiner's reliance on Schneider to teach
features recited in claim 20 does not cure the deficiencies of Reaney and
Taylor as to claim 1 from which claim 20 depends. Appeal Br. 25. Because
we sustain the rejection of claim 1, this argument is not persuasive and we
also sustain the rejection of claim 20.
DECISION
We reverse the rejections of claims 8-11 for indefiniteness.
We affirm the prior art rejections of claims 1, 3-11, and 20, but we
reverse the prior art rejection of claim 2.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED-IN-PART
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