Ex Parte Howland

Patent Trial and Appeal Board

Nov 28, 2017

13949279 (P.T.A.B. Nov. 28, 2017)

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).
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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
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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)
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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
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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)
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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
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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.
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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.
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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.
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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.
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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
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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
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