Ex Parte Holland et al

Board of Patent Appeals and Interferences

Mar 29, 2005

09860423 (B.P.A.I. Mar. 29, 2005)

1Claims 2 and 15 were amended subsequent to the final rejection.
The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte JOHN E. HOLLAND
and
CONNIE W. HOLLAND
____________
Appeal No. 2005-0117
Application No. 09/860,423
____________
HEARD: March 9, 2005
____________
Before McQUADE, NASE, and BAHR, Administrative Patent Judges.
NASE, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final rejection (mailed February
26, 2003) of claims 1 to 27 which are all of the claims pending in this application.1
We AFFIRM.
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BACKGROUND
The appellants' invention relates to the field of protective coverings, and, more
particularly to a protective cover for lengths of material such as ropes, tethers, lanyards,
etc. of the type that are likely to be subjected to continuous abrasion and/or exposure to
undesirable environmental conditions or chemicals (specification, p. 1). A copy of the
claims under appeal is set forth in the appendix to the appellants' brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Kite, III et al. (Kite) 4,891,256 Jan. 2, 1990
Holt et al. (Holt) 5,070,597 Dec. 10, 1991
Andrieu et al. (Andrieu) 5,300,337 Apr. 5, 1994
Holland et al. (Holland) 5,395,682 Mar. 7, 1995
The rejections set forth in the final rejection are as follows:
1. Claims 1 to 9, 14 to 22 and 27 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Andrieu in view of Holland.
2. Claims 10 to 12 and 23 to 25 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Andrieu in view of Holland (herein referred to as modified Andrieu),
as applied to claims 1 and 14 above, further in view of Kite.
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3. Claims 13 and 26 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Andrieu in view of Holland, as applied to claims 1 and 14 above, further in view of
Holt.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejections, we make reference to the final
rejection and the answer (mailed October 22, 2003) for the examiner's complete
reasoning in support of the rejections, and to the brief (filed July 3, 2003) for the
appellants' arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants' specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
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2The appellants' specification (p. 2) teaches that the protective cover is
constructed from a woven fabric formed primarily from high- strength (high
performance) yarns. As used herein, "high-strength yarns'' refers to the entire family of
yarns that have a tensile modulus equal to or greater than 150 grams/denier and a
tenacity equal to or greater than 7 grams/denier. Such high strength yams may be
(continued...)
Rejection 1
We sustain the rejection of claims 1 to 9, 14 to 22 and 27 under 35 U.S.C. § 103.
The test for obviousness is what the combined teachings of the references would
have suggested to one of ordinary skill in the art. See In re Young, 927 F.2d 588, 591,
18 USPQ2d 1089, 1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208 USPQ
871, 881 (CCPA 1981). Moreover, in evaluating such references it is proper to take into
account not only the specific teachings of the references but also the inferences which
one skilled in the art would reasonably be expected to draw therefrom. In re Preda, 401
F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Claim 1 reads as follows:
A protective cover for cables or hoses used in environments in which the
cables and hoses are subjected to abrasion, chemicals, or weather extremes,
said protective cover comprising a sleeve surrounding said cable or hose, said
sleeve having open ends and formed of a fabric made substantially of high
performance yarns having a tensile modulus equal to or greater than 150
grams/denier and a tenacity equal to or greater than 7 grams/denier so that the
protective cover is abrasion-resistant, cut-resistant, and tear-resistant.[2]
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2(...continued)
formed from long chain polyethylene fibers (known as SPECTRA®), aramids such as
KEVLAR® (Dupont), liquid crystal polymers such as VECTRAN® (Hoechst Celanese), or
combinations thereof. The preferred yarn for the fabric is available from suppliers, such
as Allied Signal, under the tradename SPECTRA®. Fabrics woven or knitted from
selected one of these yarns have a high level of tear-resistance, abrasion-resistance,
cut-and-stab resistance, ultraviolet radiation resistance, and resistance to chemicals
and low temperatures. These characteristics improve both the strength and durability of
the fabric. ln addition, fabric so formed is only about one-third the weight of
conventional fabrics like vinyl-coated nylons and polyesters.
Andrieu's invention relates to wraparound fabric sleeves of interlaced fibrous
materials, the sleeves being preferably formed by a weaving process. More particularly,
Andrieu's invention relates to wraparound sleeves having a closure device and even
more specifically to wraparound sleeves for the protection of elongated articles, such as
cables wherein the sleeves are intended to provide protection from the effects of
abrasion or heat as well as to maintain the elongated articles in a neatly bundled
arrangement so that they are not damaged by moving machinery parts or the like.
Andrieu teaches (column 1, lines 48-61) that (1) a need exists for a simple and
reliable, relatively low cost system, for closure of a sleeve which will accommodate
variations in the diameter of a bundle of elongated articles, such as cables having
connectors intermediate their length, while allowing for cable breakouts at points where
a cable is required to be connected to a particular instrument or item of equipment; and
(2) in accordance with the invention, a ribbon or web of sleeving material is provided,
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the sleeving material being comprised of monofilament warps and bulky multi-filament
yarn as the fill material.
Figures 1 and 2 of Andrieu illustrate a woven fabric sleeve material of the kind
incorporating the features of his invention. The sleeve material is comprised of
monofilament warps 10 which are formed of polyester or other suitable material which
are preferably of the family of materials commonly referred to as engineered plastics.
Materials in the family of engineered plastics of the type referred to by Andrieu include
plastics that have a tensile modulus of greater than 50,000 psi and in the range of from
about 50,000 to about 200,000.
Holland's invention is directed to flexible curtains for covering cargo containers,
luggage trailers, and truck openings, and more particularly, to a fabric curtain cover that
has minimal weight, but increased abrasion resistance, tear-strength, cut-and-stab
resistance, and is compatible with the environment for which it is intended. In the
BACKGROUND OF THE INVENTION section, Holland discusses the disadvantages of
the standard cargo cover constructed from canvas or from vinyl coated nylon or
polyester. Then, in the SUMMARY OF THE INVENTION section, Holland teaches that:
The present invention is directed to an improved fabric and fabric cargo
cover fabricated from yarns formed of long chain expanded polyethylene fibers.
One source of such fibers is sold by Allied Signal under the trademark "Spectra".
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These fibers are sometimes referred to as "ultra high molecular weight
polyethylene" within the scope of U.S. Pat. No. 4,413,110. The specification and
teachings of this patent are incorporated by reference. Such a fabric has a high
level of tear-resistance, abrasion resistance, cut-and-stab resistance, and
chemical and cold resistance to improve the strength and durability of the fabric.
In addition, such fabric is about one-third the weight of such conventional fabrics
as vinyl coated nylon. This results in fuel savings of about $30 per year for each
pound of fabric used.
Holland teaches (column 3, lines 16-24) that:
The improved fabric is intended to be used as a fabric to cover cargo
containers, luggage trailers, and truck openings. While the improved fabric can
be used for a variety of purposes, the ensuing description is directed to a fabric
cover for a cargo container.
Accordingly, it is an object of the present invention to provide a durable,
lightweight fabric that has improved tear-strength, cut-and-stab resistance,
abrasion resistance, cold resistance, and chemical resistance.
Holland further teaches (column 6, lines 3-9) that:
The present invention has been described as utilized on a cargo cover 10
for a cargo container 12. The fabric 30 used for cargo cover 10 may also be used
for luggage trailer curtains and truck closure curtains generally covered by fabric
and other uses where a lightweight, tear-resistant, abrasion resistant,
stab-and-cut resistant, chemical resistant, and cold resistant fabric is required.
In the rejection of claim 1, the examiner ascertained (answer, p. 7) that Andrieu
does not disclose the protective cover being made from high performance yarns having
a tensile modulus equal to or greater than 150 grams/denier and a tenacity equal to or
greater than 7 grams/denier, wherein the yarns are cut and tear resistant. The
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examiner then determined (answer, pp. 8-9) that it would have been obvious to one
having ordinary skill in the art at the time the invention was made to modify the
protective cover of Andrieu (which is made of polyester fibers) to comprise Spectra®
fibers and the fabric parameters of the protective fabric as taught by Holland because
Holland teaches that such a fabric by made of commercially available Spectra® fibers
and having the specified parameters, overcomes the disadvantages of polyester fabric
covers, has minimal weight, increased abrasion resistance, tear strength, cut and stab
resistance, and is compatible with the environment in which the cover is used.
The appellants argue that claim 1 is not suggested by the teachings of Andrieu
and Holland for the following reasons. First, Andrieu's cover is not formed from a high
performance yarn. Second, Holland is directed to a cargo curtain, not a protective
sleeve, and as such is non-analogous. Third, there is no motivation, absent the use of
impermissible hindsight, for a person having ordinary skill in the art to have combined
the teachings of Andrieu and Holland so as to arrive at the claimed invention. Lastly,
the appellants urge that Andrieu's invention is directed to a low cost fabric which
teaches away from the invention which utilizes a costly high performance yarn.
In our view, the combined teachings of Andrieu and Holland would have made it
obvious at the time the invention was made to a person having ordinary skill in the art to
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3The appellants' specification (p. 2) teaches that a high- strength (high
performance) yarn has a tensile modulus equal to or greater than 150 grams/denier and
a tenacity equal to or greater than 7 grams/denier.
have modified the protective cover of Andrieu so as to utilize Spectra® fibers as set forth
in the rejection under appeal. We find the appellants' arguments unpersuasive for the
following reasons.
First, while Andrieu's cover is not formed from a high performance yarn3, the
teachings of Holland are sufficient to have made it obvious at the time the invention was
made to a person having ordinary skill in the art to have modified the protective cover of
Andrieu so as to utilize Spectra® fibers. In this regard, we note the rejection is under
35 U.S.C. § 103 not 35 U.S.C. § 102.
Second, while Holland is directed to a cargo curtain, not a protective sleeve,
Holland is analogous art. The test for non-analogous art is first whether the art is within
the field of the inventor's endeavor and, if not, whether it is reasonably pertinent to the
problem with which the inventor was involved. In re Wood, 599 F.2d 1032, 1036, 202
USPQ 171, 174 (CCPA 1979). A reference is reasonably pertinent if, even though it
may be in a different field of endeavor, it logically would have commended itself to an
inventor's attention in considering his problem because of the matter with which it deals.
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4 The use of hindsight knowledge derived from the appellants' own disclosure to
support an obviousness rejection under 35 U.S.C. § 103 is impermissible. See, for
example, W. L. Gore and Assocs., Inc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220
USPQ 303, 312-13 (Fed. Cir. 1983), cert. denied, 469 U.S. 851 (1984).
In re Clay, 966 F.2d 656, 659, 23 USPQ2d 1058, 1061 (Fed. Cir. 1992). In the present
instance, we are informed by the appellants' originally filed specification (p. 2) that the
present invention is directed to a simple, yet effective, abrasion-resistant protective
system for lengths of material such as hoses, cables, ropes, etc. of the type used in
high abrasion applications. Holland teaches that his fabric has a high level of
tear-resistance, abrasion resistance, cut-and-stab resistance, and chemical and cold
resistance to improve the strength and durability of the fabric and thus falls at least into
the latter category of the Wood test, and logically would have commended itself to an
artisan's attention in considering the appellants' problem. Thus, we conclude that
Holland is analogous art.
Third, there is motivation, without the use of impermissible hindsight4, for a
person having ordinary skill in the art to have combined the teachings of Andrieu and
Holland so as to arrive at the claimed invention. Holland's clear teaching that a fabric
made of commercially available Spectra® fibers has minimal weight, increased abrasion
resistance, tear strength, and cut and stab resistance which overcomes the
disadvantages of polyester fabric covers provides, in our opinion, sufficient motivation
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for an artisan to have modified Andrieu's protective cover by using Spectra® fibers, thus
arriving at the claimed invention. Additionally, we note that Holland also teaches that
his improved fabric can be used for uses other than as a cargo cover where a
lightweight, tear-resistant, abrasion resistant, stab-and-cut resistant, chemical resistant,
and cold resistant fabric is required.
Lastly, Andrieu's invention does not teach away from the claimed invention. As
to the specific question of "teaching away," our reviewing court in In re Gurley, 27 F.3d
551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994) stated "a reference will teach away if
it suggests that the line of development flowing from the reference's disclosure is
unlikely to be productive of the result sought by the applicant." In this case, Andrieu
does not teach or suggest that high performance yarns would not work in a protective
sleeve. Instead, Andrieu teaches that the woven fabric sleeve material is comprised of
monofilament warps which are formed of polyester or other suitable material from the
family of materials commonly referred to as engineered plastics. As such, it is our
view that Andrieu suggests utilizing engineered plastics to form the woven fabric sleeve.
Holland clearly teaches the benefits of a fabric which utilizes an engineered plastic high
performance yarn (i.e., Spectra® fibers).
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For the reasons set forth above, the decision of the examiner to reject claim 1
under 35 U.S.C. § 103 is affirmed.
The decision of the examiner to reject claims 2 to 9, 14 to 22 and 27 under
35 U.S.C. § 103 is also affirmed since the appellants have not argued separately the
patentability of any particular claim apart from the others, thus allowing claims 2 to 9, 14
to 22 and 27 to fall with claim 1 (see In re Young, 927 F.2d 588, 590, 18 USPQ2d
1089, 1091 (Fed. Cir. 1991); and In re Wood, 582 F.2d 638, 642, 199 USPQ 137, 140
(CCPA 1978)).
Rejection 2
We sustain the rejection of claims 10 to 12 and 23 to 25 under 35 U.S.C. § 103.
In this rejection, the examiner proposes to combine the closure device of Andrieu
as modified by Holland, and the plurality of axially compressible and radially expansible
devices of Kite (see Figure 3). The appellants argue (brief, p. 9) that:
As argued above, Andrieu et al. cannot be properly modified by Holland et al.
Further, the Examiner again provides no explanation how or why one of ordinary
skill would be motivated to modify Andrieu et al., and there is no teaching,
suggestion, or motivation in Andrieu et al. for such a modification.
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The appellants' argument is unpersuasive. First, there is ample motivation to
modify Andrieu based on the teachings of Holland as set forth previously. Second, both
Andrieu and Kite provide sufficient motivation to have made it obvious at the time the
invention was made to a person having ordinary skill in the art to form the protective
cover as a plurality of bands to provide cable breakouts as shown in Figure 3 of Kite.
For the reasons set forth above, the decision of the examiner to reject claims 10
to 12 and 23 to 25 under 35 U.S.C. § 103 is affirmed.
Rejection 3
We sustain the rejection of claims 13 and 26 under 35 U.S.C. § 103.
In this rejection, the examiner proposes to combine the closure device of Andrieu
as modified by Holland, and the tubular rubber member of Holt to obtain a protective
cover with a fabric hood fastened to at least one end. The appellants argue (brief, pp.
9-10) that there is no teaching, suggestion, or motivation in the applied prior art for such
a modification.
The appellants' argument is unpersuasive. It is our opinion that Holt's teaching of
end cap 19 (see Figure 6D) provides sufficient motivation to have made it obvious at the
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time the invention was made to a person having ordinary skill in the art to add an end
cap to the closure device of Andrieu as modified by Holland so as to close off the end of
a cable or hose.
For the reasons set forth above, the decision of the examiner to reject claims 13
and 26 under 35 U.S.C. § 103 is affirmed.
CONCLUSION
To summarize, the decision of the examiner to provisionally reject claims 1 to 27
under 35 U.S.C. § 103 is affirmed.
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No time period for taking any subsequent action in connection with this appeal
may be extended under 37 CFR § 1.136(a).
AFFIRMED
JOHN P. McQUADE )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
JEFFREY V. NASE ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JENNIFER D. BAHR )
Administrative Patent Judge )
Appeal No. 2005-0117
Application No. 09/860,423
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WOMBLE CARLYLE SANDRIDGE & RICE, PLLC
P.O. BOX 7037
ATLANTA, GA 30357-0037
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