Ex Parte Hutchison

Board of Patent Appeals and Interferences

Jul 20, 2009

10459722 (B.P.A.I. Jul. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ROBERT D. HUTCHISON
____________

Appeal 2009-003710
Application 10/459,722
Technology Center 1700
____________

Decided:1 July 20, 2009
____________

Before ROMULO H. DELMENDO, LINDA M. GAUDETTE, and
KAREN M. HASTINGS, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

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Appellant appeals under 35 U.S.C. § 134(a) from a final rejection of
claims 29-35. (Appeal Brief filed April 18, 2008, hereinafter “App. Br.,” 5;
Final Office Action mailed May 16, 2007). We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
Appellant’s claimed invention relates to a “floor covering,” e.g., “a
carpet . . . having a carpet surface which produces an apparent change in the
surface color . . . as a function of the observer’s perspective” (Specification,
hereinafter “Spec.,” ¶ [0001]; claim 29). According to Appellant, “textile
structure, texture and color are used to create a particular geometry which
affects the color of the textile the viewer sees from different perspectives”
(id. at ¶ [0003]).
Claim 29 reads as follows:
29. A floor covering, comprising:
a substrate;
a textile pile surface carried by said substrate having
generally longitudinally extending first surface portions raised
from laterally adjacent longitudinally extending second surface
portions;
each said first and second surface portions including a
plurality of yarns tufted through the substrate in a machine
direction, said plurality of yarns of said first surface portion
having a single dominant base color for said floor covering,
said plurality of yarns of said second portions having a central
plurality of yarn strands having said single dominant base color;
first and second yarn strands of said plurality of yarn
strands of said second surface portions straddling said central
plurality of yarn strands and lying on respective opposite sides
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of at least certain of said first surface portions at elevations
below upper faces of the pile surface of said certain first surface
portions, said first and second yarn strands having different first
and second accent colors relative to one another and a different
color than the dominant color of the first surface portion and
second central plurality of yarn strands of second surface
portions, enabling an individual standing on the floor covering
and viewing the floor covering (i) from one side of said certain
first surface portions to view the dominant color of the first
surface portions and the central plurality of yarn strands
respectively, and the accent color of said first yarn strands
without viewing the accent colors of the second yarn strands,
(ii) from the opposite side, to view the dominant color of the
first surface portions and central plurality of yarn strands
respectively and the accent color of said second yarn strands
without viewing the color of the first yarn strands, and (iii)
from directly above and substantially normal to the flooring
covering, to view simultaneously the dominant color of said
tufted yarns of said first surface portions, and the central
plurality of yarn strands of the second surface portions and the
accent colors of said first and second yarn strands, thereby
creating the appearance of a change in the colors of the surface
of the floor covering upon changing viewing perspectives.
(App. Br. 19-20, Claims Appendix.)
The Examiner relied upon the following as evidence of
unpatentability (Examiner’s Answer mailed July 23, 2008, hereinafter
“Ans.,” 3):
Birch US 4,659,602 Apr. 21, 1987
The Examiner rejected claims 29-35 under 35 U.S.C. § 103(a) as
unpatentable in view of Birch (Ans. 3).

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ISSUES
The Examiner found that Birch discloses a mat (i.e., a floor covering)
comprising a substrate tufted with yarn loops (Ans. 5). The Examiner
further found that Birch’s “Figure 1 [together with other disclosures
including col. 4, ll. 34-51] shows a tufted substrate having pile yarns of a
first height and color, a second height and color, and a third height and color
arranged in various configurations” (id.). According to the Examiner,
“Birch teaches [that] the [person of ordinary skill in the art] is in control
over strand length or pile height and color which enables various visual
effects . . . from various perspectives” (id.). In particular, the Examiner
found “that Birch’s Figure 6A inherently teaches the concept of color
changes in the pile surface that are dependent upon viewing perspectives”
(id. at 6).
The Examiner acknowledged, however, that Birch does not explicitly
teach the arrangement of colors in the first and second surface portions
recited in claim 29 (Ans. 5-7). Nevertheless, the Examiner concluded that it
would have been obvious to one of ordinary skill in the art to select a yarn
color scheme for Birch’s Figure 1 to arrive at a floor covering encompassed
by claim 29 because “the claimed invention can be achieved by a mere
change in color or location of the yarns” (id. at 7).
Appellant, on the other hand, contended that Birch does not suggest
the claimed subject matter but, in fact, teaches away from the claimed color
scheme (App. Br. 14-16). Furthermore, Appellant contended that the
claimed invention “has obtained commercial success” (App. Br. 12).

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Thus, the issues arising from the contentions of the Examiner and
Appellant are:
Has Appellant shown reversible error in the Examiner’s conclusion as
to claim 29 that one of ordinary skill in the art would have found it obvious
to produce a floor covering having the claimed color scheme in view of
Birch’s teachings as a whole?
If not, has Appellant provided persuasive evidence of commercial
success sufficient to outweigh the Examiner’s prima facie case of
obviousness?

FINDINGS OF FACT (“FF”)
1. Appellant’s Figure 3 is reproduced below:

Figure 3 depicts a carpet including a substrate 12 to which
textile fibers are secured to form a textile surface 14, wherein
the textile fibers comprise a first surface portion 15 comprising
ribs 16 that are raised relative to second surface portions 18, 20,
and 22, and second surface portions 18 have a dominant color
that differs from those of accent strands 20, 22, which in turn,
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differ in color relative to each other (Spec. ¶¶ [0012] and
[0015]).
2. In a non-limiting embodiment, the Specification states:
To provide the perceived color-changing visual
effect, one or more yarn strands, for example,
strand 20, is inserted . . . along one side of the first
raised portions 15, e.g., ribs 16. . . . The yarn
strand 20 is preferably a different color than the
fibers forming the portions 15 and 18. For
example, the yarn strand 20 may be red, while the
fibers of portions 15 and 18 may be black. Also,
multi-color space dyed yarns may be used as the
color accent strand 20. . . . For example, an
individual viewing the textile from perspective 24 .
. . as seen in Figure 3 will see the red yarn strands
20, as well as the black yarn strands forming
portions 15 and 18. . . . As the perspective 24
forms a sharper angle with the textile surface, the
red color of the yarn strands 20 will tend to
dominate the visual appearance of the textile with
diminishing contribution of the black fibers to the
perceived color of the textile surface [Spec. ¶
[0014]; emphasis added].
3. Birch discloses that “[v]isual effects are created by using yarn
strands of various pre-planned, non-random lengths and colors
to provide the desired overall pattern, color, and texture, with
reflection, scattering, and absorption properties being under the
designer’s control” (col. 1, l. 66 to col. 2, l. 2).

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4. Birch’s Figure 1 is reproduced below:

Birch’s Figure 1 depicts a camouflage mat 10 comprising
a dense pile 13 of tufted yarn strands 15, 16, and 17 of
varying heights that are secured to a backing layer 11
(col. 2, ll. 54-56; col. 4, ll. 34-51).
5. As a particular color embodiment, Birch discloses:
As an example of camouflage multicoloration
patterning, the darker shadowed parts of natural
terrains are simulated by coloring the short strands
black, whereas the brown tones of natural terrain
are simulated by dying the intermediate-length
strands in one or more shades of brown or tan.
The green tones of natural terrain are reproduced
by making the longest strands in one or more
shades of green, with the dye and delustrant being
selected to provide visual and infrared reflection
properties simulating the reflectance of natural
leaves, foliage, and other terrain features [col. 4, ll.
41-51].
6. Birch’s Figure 6A is reproduced below:

Figure 6A depicts an embodiment of a three-level construction
in which the same yarn color is used in different pile heights,
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with the different colors represented by “open loops,” an “x,”
and horizontal lines (col. 5, ll. 21-27).
7. Birch discloses:
In addition to the three-dimensional effects of a
multilevel pile construction, yarns of different
colors may be used at the same pile height to
achieve desired surface qualities. Further, the
desired dominant color in a specific pile height can
be achieved by using yarn of the color in a high
number of weight which suppresses yarns of
different coloration at the same pile height [col. 4,
ll. 62-68].
8. Birch discloses:
Of particular importance is the multilevel
tuft construction which provides a three-
dimensional effect, and accurate terrain
simulation over a range of potential viewing
angles. The designer controls the size,
orientation, and properties of individual
tufts, and can thereby simulate very fine
detail if close-range observation is expected.
[col. 7, ll. 20-26].

PRINCIPLES OF LAW
It is well settled that the United States Patent and Trademark Office
(PTO) is obligated to give claim terms their broadest reasonable
interpretation, taking into account any enlightenment by way of definitions
or otherwise found in the specification. In re ICON Health and Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007) (“[T]he PTO must give claims their
broadest reasonable construction consistent with the specification.
Therefore, we look to the specification to see if it provides a definition for
claim terms, but otherwise apply a broad interpretation.”) (Citation omitted).
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“Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex, Inc., 550 U.S. 398, 406
(2007).

ANALYSIS
Appellant has relied on the same arguments for all the appealed
claims and has stated that we may select claim 29 as representative (App. Br.
13). Accordingly, we confine our discussion to claim 29. See 37 C.F.R. §
41.37(c)(1)(vii).
We start with claim construction. Claim 29 recites the claim terms
“dominant base color” (“dominant color”) and “accent colors.” Appellant
does not direct us to any special definitions in the Specification that restrict
these terms to any particular spectral colors and, therefore, we apply a broad
construction (App. Br. 12-17). ICON Health, 496 F.3d at 1379.
Indeed, the Specification discloses an embodiment wherein the textile
surface includes a red color accent strand 20 and black yarn strands forming
portions 15 and 18 (FF 1 and 2). According to Appellant’s Specification,
“the red color of the yarn strands 20 will tend to dominate the visual
appearance of the textile with diminishing contribution of the black fibers to
the perceived color of the textile surface” at a sharply angled viewing
perspective with respect to the textile surface (FF 2). Thus, the Specification
indicates to a person skilled in the art that the claim term “dominant color”
or “accent colors” is not limited to any particular spectral color, but instead
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encompasses any spectral color that provides the required “dominant” or
“accent” characteristic, as would be understood by the person skilled in the
art reading the Specification. In other words, “dominant” and “accent” are
visual characteristics of the floor covering indicating the degree of a visual
effect, not characteristics that limit spectral color. Thus, we conclude that
the dominant base color includes a “dominant” spectral color, green, and that
the accent colors include black and tan, as they “accent” the floor covering.
Also, claim 29 recites: (1) “first portions raised from laterally
adjacent longitudinally extending second surface portions”; and (2) “first
and second yarn strands of said plurality of yarn strands of said second
surface portions straddling said central plurality of yarn strands and lying on
respective opposite sides of at least certain of said first surface portions.”
Appellant has not directed us to any special definition in the Specification
that restricts the scope of the claim terms (App. Br. 12-17), and thus we
apply a broad interpretation. ICON Health, 496 F.3d at 1379. When the
terms in recitations (1) and (2) are given their broadest reasonable
interpretation based on their plain meanings, one skilled in the relevant art
would have understood that the term “second surface portions” can include
strands of two different heights.
Having ascertained certain terms that appear in claim 29, we conclude
that a person skilled in the art would have understood that the subject matter
of claim 29 encompasses the following floor covering as shown in Figure A,
wherein strands 16 and the five short strands immediately to the right of
strands 16 collectively constitute “second surface portions.”

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Figure A is reproduced below:

Figure A

Color Legend:
Open – Green
Horizontal lines – Tan
Solid fill – Black

Figure A, which is a modification of Birch’s Figure 1, depicts a floor
covering encompassed by appealed claim 29.2
Our claim construction above demonstrates the weakness in
Appellant’s argument that Birch provides no suggestion to arrive at the
claimed arrangement of colors in the different yarn heights and locations.
As stated by the Examiner (Ans. 5), Birch’s teachings would have suggested
a camouflage mat, as represented by Birch’s Figure 1, wherein all the tall
strands are green, all the intermediate strands are tan, and all the short
strands are black (FF 4 and 5).
The only difference between Birch’s camouflage mat and the floor
covering encompassed by claim 29, as identified in our claim construction
above (Figure A), is that strands in the prior art corresponding to strands “a”
and “b” in Figure A mat are not green (“said plurality of yarns of said
second portions having a central plurality of yarn strands having said single
dominant base color [as the first portions]”).

2 Claim 29 does not exclude other yarn strands that are present in the floor
covering of Figure A.
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Birch, however, discloses or suggests different colors for strands of
the same group and height and the same color for strands of different groups
and heights (FF 6 and 7). According to Birch, the non-random lengths (i.e.,
texture) and color of the yarn used in the textile pile surface are selected to
achieve variations in color and other visual effects (FF 3 and 5-7). In other
words, Birch provides evidence that it is well known that strands in floor
coverings can have various heights and color arrangement for aesthetic and
visual effects. Thus, we concur with the Examiner that a person having
ordinary skill in the art would have found it prima facie obvious to modify
the color of the strands (corresponding to strands “a” and “b” of Figure A) in
Birch’s suggested camouflage mat to green with the reasonable expectation
that the floor covering would provide a slightly different visual effect, thus
arriving at a floor covering within the scope of claim 29.
The claimed effect of “the appearance of a change in the colors of the
surface of the floor covering upon changing viewing perspectives” (claim
29) would at least necessarily flow from the suggested modification of
Birch’s camouflage mat. Ex parte Obiaya, 227 USPQ 58, 60 (BPAI 1985)
(recognition of a result flowing naturally from following the suggestion of
the prior art cannot be the basis for patentability when the differences would
otherwise be obvious). In fact, Birch’s camouflage mat prior to modification
would necessarily exhibit this characteristic because certain fibers of a
particular color would not be seen, depending on the viewing angle, because
they would be blocked by fibers of a different color in the foreground.
We find no merit in Appellant’s argument that Birch teaches away
from the claimed invention. Specifically, Birch does not disparage the use
of a dominant color in different heights or the use of accent colors that are
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alternately seen and hidden from sight when viewed from opposite viewing
perspectives. Rather, Birch teaches that “[v]isual effects are created by
using yarn strands of various pre-planned, non-random lengths and colors to
provide the desired overall pattern, color, and texture, with reflection,
scattering, and absorption properties being under the designer’s control” and
that the disclosed covering provides “accurate terrain simulation over a
range of potential viewing angles” (FF 3 and 8). Thus, Birch does not teach
away from the path taken by Appellant.
Finally, Appellant’s argument of commercial success is unpersuasive
because it is unsubstantiated by any evidence (e.g., declaration evidence).
See In re Huang, 100 F.3d 135, 140 (1996) (“In the present case, Huang has
simply not provided sufficient information upon which the PTO could
determine whether the grips were commercially successful.”).

CONCLUSION
On this record, Appellant has failed to show that the Examiner
reversibly erred in:
concluding that Birch’s teachings would have suggested a floor
covering having a textile pile surface including a dominant color in the
second surface portions of the pile surface so that accent color yarn strands
straddle the dominant color of the second surface portions; and
concluding that Appellant’s statement of commercial success is
unpersuasive to rebut the prima facie case of obviousness.

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DECISION
The Examiner’s decision to reject appealed claims 29-35 under 35
U.S.C. § 103(a) as unpatentable in view of Birch 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)(1)(v).

AFFIRMED

bim

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