Ex Parte HowlandDownload PDFPatent Trial and Appeal BoardNov 28, 201713949279 (P.T.A.B. Nov. 28, 2017) Copy Citation United States Patent and Trademark Office 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/949,279 07/24/2013 Charles A. Howland WM075-US 6189 24222 7590 Maine Cemota & Rardin 547 Amherst Street 3rd Floor Nashua, NH 03063 EXAMINER FERREIRA, CATHERINE M ART UNIT PAPER NUMBER 3765 NOTIFICATION DATE DELIVERY MODE 11/30/2017 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): patents @ mcr-ip.com dwitmer@mcr-ip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CHARLES A. HOWLAND Appeal 2017-011143 Application 13/949,279 Technology Center 3700 Before LINDA E. HORNER, ANNETTE R. REIMERS, and GORDON D. KINDER, Administrative Patent Judges. KINDER, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134 from a rejection of claims 1, 3—11, and 34. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We are informed that the real party in interest is Warwick Mills, Inc. Appeal Br. 3 (dated January 23, 2017). Appeal 2017-011143 Application 13/949,279 CLAIMED SUBJECT MATTER The claims are directed to a three dimensional glove with a performance-enhancing layer laminated thereto. Spec., Title. Claims 1, 3— 11, and 34 are pending.2 Claim 1, the only independent claim, is reproduced below to illustrate the claimed subject matter. 1. A glove having a three-dimensional hollow shape adapted for insertion therein of a human hand, the glove comprising: a seamless knit or woven glove shell having a three- dimensional hollow shape adapted for insertion therein of a human hand, said glove shell including a palm region, four fingers, and a thumb, the glove shell having an interior surface and an exterior surface; and a laminate preform bonded by a lamination adhesive layer to a portion of the exterior surface of the glove shell, the laminate preform including an enhancement feature that cannot be provided by dipping the glove shell into a liquid coating material, the lamination adhesive layer being a layer of an adhesive that requires application of pressure at an elevated temperature so as to adhesively bond the laminate preform to the exterior surface of the glove shell. Appeal Br. 18 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Sedlak US 3,515,625 June 2, 1970 Guillot US 5,498,649 Mar. 12, 1996 Nestegard US 5,962,108 Oct. 5, 1999 Nagafuchi US 6,203,874 B1 Mar. 20, 2001 Liou US 2005/0221073 A1 Oct. 6, 2005 Schneider US 2006/0009104 A1 Jan. 12, 2006 2 Claims 2 and 12—16 have been withdrawn. Claims 17—33 have been cancelled. Final Act. 2 (dated Sept. 9, 2016). 2 Appeal 2017-011143 Application 13/949,279 Yang US 7,469,427 B2 Dec. 30,2008 VanErmen US 2009/0139011 A1 June 4, 2009 Carbary US 2012/0124931 A1 May 24,2012 REJECTIONS 1. Claims 1, 4, 7, and 11 are rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, and Schneider. 2. Claim 3 is rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, Schneider, and Sedlak. 3. Claim 6 is rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, Schneider, and Guillot. 4. Claims 5 and 10 are rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen Yang, Schneider, and Carbary. 5. Claim 8 is rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, Schneider, and Nagafuchi. 6. Claim 9 is rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, Schneider, and Nestegard. 7. Claim 34 is rejected under 35 U.S.C. § 103(a) as being unpatentable over VanErmen, Yang, Schneider, and Liou. ANALYSIS Rejection 1 — Claims 1, 4, 7, and 11 — Obvious over VanErmen, Yang, and Schneider Appellant argues claims 1, 4, 7, and 11 as a group. We select claim 1 as representative, and claims 4, 7, and 11 stand or fall with claim 1. 37 CFR § 41.37(c)(l)(iv). The Examiner finds that VanErmen discloses all the features of claim 1 except that 3 Appeal 2017-011143 Application 13/949,279 VanErmen is silent to a laminate preform bonded by a lamination adhesive layer to a portion of the exterior surface of the glove shell, the laminate preform including an enhancement feature that cannot be provided by dipping the glove shell into a liquid coating material, the lamination adhesive layer being a layer of an adhesive that requires application of pressure at an elevated temperature so as to adhesively bond the laminate preform to the exterior surface of the glove shell. Final Act. 4—5. The Examiner then turns to Yang for its disclosure of a laminate preform bonded to a portion of the exterior surface of a glove shell. Final Act. 5 (citing Yang 6:33—34 and 12:60—13:4). Finally, the Examiner looks to Schneider, finding that Schneider discloses “a lamination adhesive layer which bonds the layers of material together,” the adhesive layer requiring the application of pressure and elevated temperature. Final Act. 5 (citing Schneider || 31, 35, and 61). Based on these findings, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to modify a three dimensional glove of VanErmen by constructing the 3D glove with a stretch bonded laminate as taught by Yang and adhesive layers bonded with pressure and heat as taught by Schneider in order to adhere the enhancement feature without compromising the elasticity of the layers and maintain the puncture and abrasion resistance of the glove for keeping it pliable, drapable, and comfortable when worn. Id. Appellant does not challenge any of the Examiner’s findings concerning what is disclosed by the cited references. Appeal Br. 6—12, Reply Br. 3—9.3 Appellant challenges the Examiner’s conclusion that the claimed invention is obvious, arguing “obviousness requires not only a motive to combine, but also an ability to combine, in that the combination 3 (Dated Aug. 28, 2017) 4 Appeal 2017-011143 Application 13/949,279 must be within the ‘level of ordinary skill in the pertinent art.’” Appeal Br. 8. Appellant asserts that the Examiner failed to determine the level of skill in the art, and that a person of ordinary skill in the art at the time of the invention “could not have combined the elements as claimed by known methods.” Id. Appellant contends that the Declaration filed by the inventor under 37 C.F.R. § 1.132 (Appeal Br. 21—25, hereinafter “Declaration”) supports his position. Appellant’s Declaration states that there were two approaches to glove manufacturing at the time of the invention, one in which two flat sheets were joined along a hand-shaped perimeter (a two dimensional process) and one in which the glove was knitted into a three dimensional, hollow object shaped to receive a hand. Appeal Br. 22 (Declaration). The inventor declares that these “two approaches are fundamentally incompatible.” Id. To explain this incompatibility, the Declaration continues: It is not possible to simply transfer these 2D methods to the manufacture of a 3d glove, at least because: • The 3d glove cannot be kept flat by web tension, because it is not formed on a web; • Even if the 3d glove were somehow part of a web, its 3 dimensional shape would prevent it from being put under tension; and • The 3D glove cannot be transported through a coating or lamination process by rollers, because it has no web. Appeal Br. 23 (Declaration). The Declaration then describes challenges faced in manufacturing the claimed glove. Id. at 23—24 (Declaration). Appellant’s Appeal Brief continues this theme, explaining that VanErmen is directed to a 3D glove, while Schneider and Yang recite enhancements that are applicable to 2D gloves. In Yang and Schneider, the recited enhancement and adhesive are applied 5 Appeal 2017-011143 Application 13/949,279 to a single, flat, hand-shaped panel before the panels are assembled to form a 2D glove. Obviously this is not possible for a 3D glove such as the glove disclosed by VanErmen. Id. at 8. The Examiner responds to this argument by noting that “[ajpplying an enhancement feature on a portion of the gloves [sic] exterior surface [as required by Claim 1 ] could include anything from decoration to elastic yams at the wrist region.” Ans. 2—3.4 The Examiner finds that a person of ordinary skill in the art would have all the references available, as they relate to the protective glove art. The Examiner further finds that one of ordinary skill in the art would have been able to combine the teachings of the references because they all address “similar type[s] of problems encountered in the art and/or available prior art solutions to those problems.” Ans. 3. The Examiner addresses Appellant’s contention that the method of making the claimed glove is relevant by pointing out that neither the stmctural features of the claimed glove nor the arguments of Appellant have disclosed “any stmctural differences that result by the process of making the glove.” Ans. 4. The Examiner repeats the finding that “ VanErmen discloses the three dimensional knit glove and Yang discloses an enhancement feature attached to a portion of the glove which indeed meets the claim limitation as written.” Id. In addition to not questioning any of the Examiner’s findings about what the references disclose individually, Appellant has not challenged the Examiner’s finding that the references would have been available to the skilled glove maker. See generally Appeal Br. 6—12, Reply Br. 3—9. The 4 (Dated June 29, 2017) 6 Appeal 2017-011143 Application 13/949,279 principal question before us is whether one of ordinary skill in the glove making art would have found it obvious to combine the teachings of VanErmen, Yang, and Schneider to arrive at what is claimed in claim 1. Appellant asserts that the combination proposed by the Examiner was not obvious because it was beyond the skill of an ordinarily skilled glove maker. Appeal Br. 6, Reply Br. 3. While it is always preferable for the factfinder to specify the level of skill it has found to apply to the invention at issue, the absence of specific findings on the level of skill in the art does not give rise to reversible error where the prior art itself reflects an appropriate level and a need for testimony is not shown. Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed. Cir. 2001) {citing Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed. Cir. 1985)). Our review of the references cited by the Examiner reveals a high level of skill. For example, Sedlak relates to producing an elastomeric material filled with lead or tungsten for use in radiation-protecting garments including gloves. Sedlak 2:7—13. Guillot discloses a low density thermoplastic ablative insulation used in rocket engines. Guillot 1:7—13. Carbary relates to a gunnable adhesive made from silicone resin, and organopolysiloxane, a filler, a solvent, a crosslinker, and a catalyst. Carbary 11 8—16. Nestegard discloses a retroreflective layer adhered to a flexible fabric, such as might be used as a vehicle cover or a portable highway sign. Nestegard 1:18—37. The references used to reject claim 1 reflect a similarly high level of skill in the art. The principal reference, VanErmen, discloses a knitted, three dimensional glove with rigid plates directly adhered to an area of its outside surface. VanErmen 119. The rigid plates are made of a polymeric 7 Appeal 2017-011143 Application 13/949,279 composite, for example, a thermoset epoxy polymer reinforced with inorganic particles and having a tensile strength that exceeds 100 kg/cm2. VanErmen 117. The plates are typically applied using a screen printing process. VanErmen 119.5 Yang, as discussed above discloses a non-woven fabric glove. Yang 1:65—68. The non-woven material may be a laminate with elastic strands between layers of the non woven fabric and formed into a glove. Yang 4:53— 59. In light of these references, we conclude that the person of ordinary skill in the art has knowledge of a wide variety of knitted, woven and non- woven fabrics, as well as of the various polymers and organic and inorganic fibers used to make these fabrics. We gauge the level of skill to be high, a finding consistent with the Declaration. In the Declaration, the inventor reveals that he holds a Bachelor of Science in Mechanical Engineering from MIT and 25 years of experience manufacturing fabric products. Appeal Br. 21 (Declaration). Given the background of a sophisticated art, we agree with the Examiner that it would have been obvious to modify VanErmen’s glove by adding an enhancement fabricated from Yang’s flexible, stretchable material to a portion of the glove, using Schneider’s pressure and heat activated adhesive. The Declaration describes VanErmen’s “complex and difficult set of processes for coating a 3D glove by employing multiple wet screen 5 We note that screen printing involves applying uncured plate material through a flat screen, contradicting Appellant’s assertion that 2D and 3D processes cannot be combined. 8 Appeal 2017-011143 Application 13/949,279 printing and curing processes to achieve his cut resistant layers.”6 Appeal Br. 23 (Declaration). The Declaration continues, “The very fact that VanErmen was forced to resort to these difficult methods by itself is evidence that the more straightforward approaches of Schneider and Yang were not applicable to VanErmen’s 3D glove.” Id. Appellant’s argument is not persuasive because it is not tied to the language of Claim 1. Claim 1 requires only that “a portion of the exterior surface of the glove shell” (Appeal Br. 18 (Claims Appendix)) be provided with a laminate preform including an enhancement feature. VanErmen’s process is “complex and difficult” only when VanErmen chooses to apply his enhancement to several different surfaces of the glove. Choosing only a single portion of the glove, as required by claim 1, e.g., the palm, VanErmen’s process would be straightforward.7 VanErmen’s screen is one “typically used in the screen printing industry” (VanErmen 119), but VanErmen specifically suggests that other printing techniques may be used as well with other polymer composites, including UV or electron-beam cured resins, and that the printing machines would be changed accordingly. Id. at 120. In view of the high level of skill in the art and VanErmen’s specific teaching of a two-dimensional printing process applied to a knitted glove, we cannot agree with Appellant that “it would have been beyond the ability of one skilled in the art to apply to the 3D glove of VanErmen the 6 By terming VanErmen “typical of the state of the art of 3D glove manufacturing at the time of the invention” (Appeal Br. 23 (Declaration)) and its processes “complex and difficult” (id.) this passage from the Declaration confirms the high level of ordinary skill in the art. 7 The Final Action stressed that claim 1 required only “a portion” of the glove to have the enhancement feature. Final Act. 10 (emphasis in original), see also Ans. 2—3. 9 Appeal 2017-011143 Application 13/949,279 technique for improvement of 2D gloves taught by Yang and Schneider.” Reply Br. 4. To the contrary, VanErmen specifically describes a two- dimensional process for applying enhancements to gloves, and one of ordinary skill in the art would readily see that other two-dimensional improvement techniques could be used as well, given the high level of skill in the art. The Examiner gives little weight to the Declaration, saying it fails to meet the requirements for demonstrating long-felt need. We consider the Declaration for all that it describes, without constraining it to any particular secondary consideration, such as proof of long-felt need. Nevertheless, the fact that the Declaration points to no structural impediment to applying the two-dimensional processes of Yang and/or Schneider to the three dimensional glove of VanErmen weakens the Declaration. There is no reference in the Declaration to any claim limitation, and it is principally directed to manufacturing processes. Appeal Br. 23 (Declaration) (“The examiner has missed a critical aspect of process engineering” and “The process described in the present application . . .”.) Such processes may be important for commercial operation or the mass production of the claimed gloves, but the challenges they pose do not make it impossible — as Appellant contends — or even improbable for one of ordinary skill in the art to make gloves rendered obvious by the cited art. For these reasons, we affirm the rejection of claim 1; claims 4, 7, and 11 fall with claim 1. 10 Appeal 2017-011143 Application 13/949,279 Rejection 2 — Claim 3 — Obvious over VanErmen, Yang, Schneider, and Sedlak Appellant argues that claim 3 is patentable over VanErmen, Yang, Schneider, and Sedlak. Appeal Br. 12. Specifically, Appellant argues that although Sedlak may teach an enhanced elastomeric material that can be formed into a glove, “Sedlak does not teach an enhancement feature that can be applied to a glove using a pressure and temperature activated laminate adhesive.” Id. This argument is not persuasive because it attacks the references separately and does not address the combination of references upon which the Examiner relied. One cannot show nonobviousness by attacking references individually where the references are based on combinations of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Beyond this, Appellant merely argues that Sedlak does not cure the asserted deficiencies of the Examiner’s rejection of claim 1. Inasmuch as we see no such deficiencies, we are not persuaded that the Examiner erred in the rejection of claim 3. Rejection 3 — Claim 6— Obvious over VanErmen, Yang, Schneider, and Guillot Appellant argues that claim 6 is improperly rejected over VanErmen, Yang, and Schneider as applied to claim 1 and further in view of Guillot. Appeal Br. 12—13. Appellant argues that Guillot does nothing to teach the combination of VanErmen, Yang, and Schneider used to reject claim 1 and therefore does not cure the deficiencies of the rejection of claim 1. Id. Inasmuch as we see no such deficiencies, we are not persuaded that the Examiner erred in the rejection of claim 6. 11 Appeal 2017-011143 Application 13/949,279 Rejection 4—Claims 5 and 10 — Obvious over VanErmen, Yang, Schneider, and Carbary Appellant argues that claims 5 and 10 are improperly rejected over VanErmen, Yang, and Schneider, as applied to claim 1 and further in view of Carbary. Appeal Br. 13—14. Appellant makes the same arguments about Carbary that it made about Guillot, and we find them unpersuasive for the same reasons. Rejection 5 — Claim 8 — Obvious over VanErmen, Yang, Schneider, and Nagafuchi Appellant argues that claim 8 is wrongly rejected over VanErmen, Yang, and Schneider as applied to claim 1, and further in view of Nagafuchi. Appeal Br. 14. Appellant argues there is nothing in Nagafuchi that cures the deficiencies alleged by Appellant to the VanErmen, Yang, and Schneider combination. Id. Because we affirm the rejection of claim 1, Appellant’s argument in connection with claim 8 is not persuasive, and we likewise affirm the rejection of claim 8. Rejection 6— Claim 9—Obvious over VanErmen, Yang, Schneider, and Nestegard Appellant argues that claim 9 is improperly rejected over VanErmen, Yang, and Schneider as applied to claim 1 and further in view of Nestegard. Appeal Br. 14—15. Appellant argues that there is nothing in Nestegard that cures the deficiencies alleged by Appellant in the VanErmen, Yang, and Schneider combination. Id. Because we affirm the rejection of claim 1, Appellant’s argument is not persuasive, and we likewise affirm the rejection of claim 9. Rejection 7— Claim 34 — Obvious over VanErmen, Yang, Schneider, and Liou 12 Appeal 2017-011143 Application 13/949,279 Appellant argues that claim 34 is wrongly rejected over VanErmen, Yang, and Schneider as applied to claim 1 and further in view of Liou. Appeal Br. 15—16. Appellant notes that Liou discloses an enhancement feature applied by dipping, and is therefore excluded from the subject matter of claim 1, but Appellant does not explain how the teachings of Liou have been misunderstood or misapplied by the Examiner. Id. Einally, Appellant argues there is nothing in Liou which cures the deficiencies alleged by Appellant to the VanErmen, Yang, and Schneider combination. Id. Because we affirm the rejection of claim 1, Appellant’s argument is not persuasive, and we likewise affirm the rejection of claim 34. DECISION The Examiner’s rejections of claims 1, 3—11, and 34 are 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). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 13 Copy with citationCopy as parenthetical citation