Ex Parte HOMOELLE et al

Patent Trials and Appeals Board

May 3, 2019

13298437 - (D) (P.T.A.B. May. 3, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/298,437 11/17/2011
25889 7590 05/03/2019
COLLARD & ROE, P.C.
1077 NORTHERN BOULEVARD
ROSLYN, NY 11576
FIRST NAMED INVENTOR
Dieter HOMOELLE
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.
HOMOELLE ET AL - 3 1562
EXAMINER
WORRELL, KEVIN
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
05/03/2019 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 DIETER HOMOELLE and GEORG BALDAUF
Appeal2017-008243
Application 13/298,437
Technology Center 1700
Before WESLEY B. DERRICK, SHELDON M. McGEE, and
JANEE. INGLESE, Administrative Patent Judges.
McGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants 1 appeal from the Examiner's
rejection under 35 U.S.C. §103(a).
An oral hearing was held April 30, 2019.
We have jurisdiction. 35 U.S.C. § 6.
We affirm.
1 Appellants identify Nordenia Technologies, GmbH as the real party in
interest. App. Br. 3.
Appeal2017-008243
Application 13/298,437
BACKGROUND
Appellants claim a laminate material element for a hook-and-loop
closure to be used on a diaper. Claims App'x, Claim 1.
Sole independent claim 1 2 is representative, and is copied below from
the Claims Appendix to the Appeal Brief:
1. A laminate material element for a hook-and-loop closure,
for a diaper closure, comprising:
a carrier; [and]
a textile material glued onto the carrier, said textile
material having a weight per surface area unit between 1 O[g]/m2
and 40g/m2 and having a basic structure formed from threads or
fibers, with additional threads incorporated into the basic
structure by knitting,
wherein the additional threads incorporated into the basic
structure by knitting form loops provided for making a
connection with hook-and-loop hooks,
wherein at least a part of the threads or fibers of the basic
structure is formed from polyamide, and
wherein the additional threads have polyolefin as a main
component.
App. Br. 17.
2 In the event of further prosecution, Appellants are encouraged to correct
the apparent typographical error in the surface area unit to read "1 Og/m2"
( emphasis added).
2
Appeal2017-008243
Application 13/298,437
STATEMENT OF THE CASE
The Examiner rejects claims 1-10 and 12 under 35 U.S.C. § I03(a) as
unpatentable over the combined disclosures ofBaldauf3 and Nestegard. 4
Final Act. 3. The Examiner additionally rejects claims 3 and 4 under
35 U.S.C. § I03(a) as unpatentable over these references in combination
with Kurz. 5 Id. at 5.
The Examiner finds, and Appellants do not dispute, that Baldauf
teaches every limitation recited in sole independent claim 1, except that it
"does not explicitly teach a specific combination of at least some polyamide
fibers in the basic structure with primarily polypropylene [a type of
polyolefin] fibers in the additional fiber loops." Id. at 3 (citing Baldauf,I,I 3,
10, 13); see generally App. Br. For this limitation, the Examiner turns to
Nestegard, which the Examiner undisputedly finds "teaches sheet materials
for portions of fasteners wherein pile yams are entwined in a woven or
knitted backing and the pile yams project from the backing to form loops or
hooks ( see Abstract and Fig. 1 ). " Final Act. 3. The Examiner points to
"Example Sheet Materials 6 through 15," which, although formed by
weaving, have "polypropylene fibers [] used as pile fiber loops and
polyamide fibers [] used in a base fabric." Id. Based on these findings, the
Examiner determines it would have been obvious to modify Baldauf s textile
materials-which are generally taught to comprise polypropylene, polyester,
3 US 2006/0182927 Al, published Aug. 17, 2006.
4 EP O 330 415 A2, published Aug. 30, 1989. We note that Susan K.
Nestegard is the third-listed inventor of this application. In order to be
consistent with the Examiner and Applicant, however, our Decision also
refers to this document as "Nestegard."
5 US 4,467,625, issued Aug. 28, 1984.
3
Appeal2017-008243
Application 13/298,437
or polyamide yams-to have the specific arrangement set forth in Nestegard.
Id. The Examiner reasons that such a combination would have been obvious
"in order to utilize the polyamide yams as bonding fibers and to obtain loop
fastener portions having high average hook pullout force properties." Id.
(citing Nestegard, Examples 6-15, Table 1).
OPINION
We address the claims separately to the extent they are so argued by
Appellants. 37 C.F.R. § 41.37(c)(l)(iv).
Claims 1, 2, 4-10, and 12
Appellants argue that "Nestegard not only fails to teach or suggest 'a
textile material glued onto the carrier', but further teaches away from the use
thereof' because Nestegard uses a heat treatment and the claimed "textile
material is adhered to the carrier without any heat treatment." App. Br. 12.
These arguments are unpersuasive. Regarding Appellants' assertion
that Nestegard fails to teach or suggest gluing, we note that the Examiner
does not rely on Nestegard to satisfy the limitation requiring the textile
material to be glued onto the carrier. Final Act. 3. The Examiner finds that
Baldauf discloses this limitation. Id.
Appellants' assertion that N estegard teaches away also falls short.
One purpose of heating Nestegard's backing material is to promote
adherence of the yam to it upon cooling. Nestegard, Abstract ("[t]he
backing is heated to soften the binding material so that it flows and, upon
cooling, adheres to adjacent portions of the yams, thereby anchoring the pile
yams in the backing."); see also id. at 2:47--48 ("heating the backing to melt
the binding material so that it flows and adheres to adjacent portions of the
4
Appeal2017-008243
Application 13/298,437
yams."). In Baldauf, such adherence of the fibers to the carrier is "achieved
by means of gluing." Baldauf,I 10. Thus, the prior art relied on by the
Examiner teaches two methods of adhering yams to a backing
material/carrier film. Under these circumstances, our reviewing court has
stated that "[t]he prior art's mere disclosure of more than one alternative
does not constitute a teaching away from ... alternatives because such
disclosure does not criticize, discredit, or otherwise discourage the solution
claimed." In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Here,
Appellants point us to no such disclosure in Nestegard that disparages the
claimed gluing. Thus, we disagree with Appellants that Nestegard teaches
away.
We also note that Appellants assert, without embellishment, that if
Baldauf and Nestegard were combined, the skilled artisan "surely would use
the two component material disclosed by Nestegard instead of a textile
material glued onto carrier." App. Br. 13. Because Appellants do not
explain why this is true with any degree of specificity, this assertion is
unpersuasive.
Appellants' assertions regarding Nestegard's purported density and
durability (id. at 13-14) are similarly unpersuasive. Here, the Examiner
finds, and Appellants do not dispute, that Baldauf discloses a textile material
that has a weight per unit area (i.e., density) of between 5g/m2 and 50g/m2.
Final Act. 3 (citing Baldauf,I 13). Thus, Baldauf's range completely
encompasses the one claimed.
As explained by our reviewing court, "[i]n cases involving
overlapping ranges, [ the court and its] predecessor court have consistently
held that even a slight overlap in range establishes a prima facie case of
obviousness." In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ( citing
5
Appeal2017-008243
Application 13/298,437
In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990); In re Malagari, 499
F.2d 1297, 1303 (CCPA 1974)). "When, as here, the claimed ranges are
completely encompassed by the prior art, the conclusion is even more
compelling than in cases of mere overlap." Peterson, 315 F.3d at 1330.
Because Baldauf discloses a density range that fully
encompasses the range recited in claim 1, the Examiner need not find
that Nestegard also discloses this limitation. Furthermore, as the
Examiner correctly notes (Ans. 7), Nestegard's sheet materials "can be
used for portions of fasteners in . . . disposable garments such as
diapers." Nestegard 3:44--46. Baldauf discloses a similar use for its
textile material which, again, has a density value that fully encompasses
that claimed. Baldauf ,r,r 3, 13, 24. Thus, we cannot agree with
Appellants that Nestegard's "durable embodiment is in strict
contradiction to the claimed weight per surface area." App. Br. 14.
Because Appellants do not identify error in the Examiner's rejection
of claims 1, 2, 4--10, and 12, we sustain it.
Claim 3
Claim 3 depends from claim 2 and requires that "the basic structure
has wales in a knitting direction and stitch courses in a transverse direction,
and wherein the first thread type is knitted in such a manner that the first
thread type connects at least two wales." App. Br. 17-18.
Appellants argue that Nestegard does not disclose this arrangement.
Id. at 14--15. This argument is unpersuasive of reversible error because
Appellants do not address the full scope of the prior art relied on by the
Examiner. Compare Final Act. 4, 5, to App. Br. 14--15. Particularly
noteworthy here is that Appellants fail to even address the Examiner's
6
Appeal2017-008243
Application 13/298,437
alternative ground of rejection of claim 3 which additionally relies on the
teachings of Kurz. Final Act. 5.
The rejection of claim 3 is sustained.
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).
AFFIRMED
7