Ex Parte Keuchel et alDownload PDFPatent Trial and Appeal BoardDec 30, 201610792483 (P.T.A.B. Dec. 30, 2016) 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. 2004/01 5012 EXAMINER PIZIALI, ANDREW T ART UNIT PAPER NUMBER 1789 MAIL DATE DELIVERY MODE 10/792,483 03/03/2004 12/30/20167590 ANDREW F. SAYKO JR. 1014 CROOKED OAKS LANE SEABROOK ISLAND, SC 29455-6502 Kenneth Keuchel 12/30/2016 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 KENNETH KEUCHEL and HERBERT WILLIE REUCHEL Appeal 2016-000079 Application 10/792,483 Technology Center 1700 Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and DONNA M. PRAISS, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting: 1. Claims 1, 3, 5, 6, 8—11, 13—15, and 17—20 under 35 USC § 103(a) as unpatentable over Kent3 in view of Kidder,4 and 1 In this decision, we refer to the Specification filed Mar. 3, 2004 (“Spec.”), the Final Office Action mailed July 16, 20014 (“Final Act.”), the Appeal Brief filed Dec. 8, 2014 (“Br.”), the Examiner’s Answer mailed July 23, 2015 (“Ans.”), and our prior Decision on Appeal mailed Dec. 3, 2012 (“Dec.”). 2 Appellants identify Spunfab, Ltd. as the real party in interest. Br. 3. 3 Kent et al., US 5,380,477, issued Jan. 10, 1995 (“Kent”). 4 Kidder, US 3,985,714, issued Oct. 12, 1976 (“Kidder”). Appeal 2016-000079 Application 10/792,483 2. Claims 10 and 11 as unpatentable over Kent in view of Kidder and further in view of King,5 Varma,6 or Ogura.7 We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. The subject matter of this appeal relates to “a thermoplastic nylon polymeric adhesive matrix that can be made up of. . . a nonwoven fibrous web or a non- fibrous stereo reticulated web.” Spec. 1. Claim 1 is representative of the claims in this appeal and is reproduced below from the Claims Appendix to the Appeal Brief (paragraphing and bracketed matter added):8 1. A polymeric adhesive matrix consisting essentially of a substantially uniform thickness fibrous or non-fibrous matrix that consists essentially of a substantially uniform thickness matrix of either: a nonwoven web or a non-fibrous stereo reticulated web, said matrix consisting essentially of a thermoplastic polymeric material that consists of an amine-terminated polyamide, consisting essentially of [a] an amine-terminated Nylon 12 or [b] amine-terminated Nylon 11 polymer, or [c] blends thereof [with]9 up to forty (40) weight percent of another thermoplastic polymeric material. 5 King et al., US 4,330,659, issued May 18, 1982 (“King”). 6 Varma et al., US 4,421,820, issued Dec. 20, 1983 (“Varma”). 7 Ogura et al., US 5,302,672, issued Apr. 12, 1994 (“Ogura”). 8 Appellants do not present separate arguments for claims 1, 3, 5, 6, 8—11, 13—15, and 17—20 on appeal from the rejection over Kent in view of Kidder. Accordingly, claims 3, 5, 6, 8—11, 13—15, and 17—20 stand or fall with claim 1. 9 Per the Advisory Action mailed Oct. 15, 2014, the Examiner did not enter a proposed amendment after final to insert the word “and” into claim 1 at this place. Therefore, we do not construe claim 1 as including the word “and.” Nevertheless, claim 1 is missing a connective word. As originally filed, claim 1 included the word “with” before the phrase “up to 40 weight percent,” therefore we construe claim 1 as including the word “with.” Spec. 26. 2 Appeal 2016-000079 Application 10/792,483 Kent evidences that at the time of Appellants’ invention, a polymeric adhesive matrix was known in the art to consist essentially of a thermoplastic polymeric material that consists of Nylon 12 or Nylon 11 polymer, or blends thereof with 20—85 weight percent of another compatible thermoplastic polymeric material, and that the fabric sheets may have a uniform thickness. Final Act. 3; Ans. 3; Kent 4:29-38, 4:52-5:42, 5:53-61, 6:5-22, 7:59-8:2. The Examiner acknowledges that Kent does not disclose the use of an amine-terminated nylon (polyamide), but does disclose coloring the fibers. Final Act. 3; Ans. 3^4; Kent 5:62—68, 6:1—5. Therefore the Examiner combines the disclosures of Kent and Kidder on the basis that Kidder evidences that at the time of Appellants’ invention, it was known in the art to form amine ends to improve dyeability and/or viscosity. Final Act. 3; Ans. 4; Kidder 2:4—13. Based on the above findings of fact, the Examiner concludes it would have been obvious to one of ordinary skill in the art “to use amine-terminated polyamide, motivated by a desire to produce a polyamide with improved dyeability and/or viscosity.” Final Act. 3; Ans. 4. The Examiner further finds that the Declaration of Kenneth Keuchel dated January 26, 2013 (“Keuchel Deck”) is unpersuasive regarding whether a skilled artisan would have “tie[d] up (e.g. by reacting with a dye) the amine end groups of a Nylon 11/Nylon 12.” Final Act. 6. The Examiner specifically finds that hardeners that are sometimes used in curing processes are not required by Kent and that “an amine hardener is just one hardener that could be used (if a hardener was desired).” Id. Appellants do not dispute that Kent discloses the addition of pigments to color the thermoplastic materials nor do Appellants dispute that Kidder discloses improving viscosity in addition to dyeability with the use of amine-terminated polyamide. Br. 5—13. Instead, Appellants contend the Examiner reversibly erred 3 Appeal 2016-000079 Application 10/792,483 in rejecting the claims because “[t]he examiner has presented no factual evidence to rebut the facts and conclusions set forth in the Declaration.” Id. at 5. Specifically, Appellants assert that “[t]he newly submitted Declaration demonstrates that one skilled in the art of producing adhesive webs for use in forming multi-layer composites would never add anything to enhance dyeability because such a skilled person would never want to dye such an adhesive web. In addition, such an unnecessary additive or a dye would make such an adhesive web less suitable for its intended uses.” Id. at 7. According to Appellants, “it would not be logical for one skilled in the art to seek improved dyeability or to consider prior art relating to improved dyeability for an adhesive matrix that will form an internal layer in the multi-layer laminate of the claimed invention.” Id. Appellants also argue that “[a]ll that Kidder teaches are methods for producing a substantially uniform ratio between the two types of end groups (amine and acid end groups) for different polyamides, in order to provide substantially uniform acid dyeability.” Id. at 9. The preponderance of the evidence thus supports the Examiner’s finding that Kidder discloses that some or all of the produced polyamide may have amine ends. Ans. 8; Kidder 2:14—29. In our prior Decision, we noted that the claim language “consisting essentially of’ defines a composition comprising the recited ingredients and those that do not materially affect the basic and novel characteristics of the claimed composition. In such cases, the burden is on the applicant to demonstrate that the inclusion of an ingredient not recited in the claim would alter the basic and novel characteristics of the composition. In our Decision, we suggested that Appellants might discharge this duty by presenting an argument supported by evidence that the inclusion of some amount of acid-terminated rather than entirely amine-terminated Nylon 11 and Nylon 12 as disclosed by Kidder results in a material change in the claimed 4 Appeal 2016-000079 Application 10/792,483 polymeric adhesive matrix. We do not see such an argument presented in the Appeal Brief or addressed in the Keuchel Declaration. Instead, Appellants argue that the uniform ratio between the two types of end groups taught by Kidder is for the purpose of providing substantially uniform acid dyeability “which has no relevance to Appellant’s claimed invention” (Br. 9) and “dyeing the adhesive layer would be unnecessary and a waste of time, effort and materials and would never be a valid consideration in choosing an internal adhesive layer of a multi-layer laminate” {id. at 10). The Keuchel Declaration states that “the addition of a dye adds an impurity to the nonwoven adhesive web that does not enhance the adhesive properties of the web” and that “[t]he use of this acid [dye] will render an amine non-reactive toward an epoxide.” Keuchel Dec. 7— 8. The Keuchel Declaration further states “in many of the recreational uses for the Nylon 11 and Nylon 12 nonwovens for composites, the resins can cure at room temperature. For these systems, an amine terminated system is preferred.” Id. at 9. Regarding the difference between reactions with amines and those with carboxylic acid, the Keuchel Declaration states “[t]he reaction of an amine and an epoxide requires no base or other catalyst to achieve fast complete reactions” while “[cjarboxylic acids and epoxides react to form ether bonds [and these] reactions are relatively slow . . . .” Id. Such arguments and evidence do not establish a material difference with a matrix containing a polyamide with a uniform ratio between the two types of end groups and are insufficient to rebut the Examiner’s determination that the appealed claims do not exclude some portion of the Nylon 11 and Nylon 12 being acid-terminated. Moreover, Appellants’ Specification indicates the presence of carboxyl groups would not materially change the claimed polymeric adhesive matrix. Spec. 16—17. The Keuchel Declaration refers to “performance benefits of the novel nonwoven adhesive matrix of the present 5 Appeal 2016-000079 Application 10/792,483 invention and the multi-layer laminates produced therefrom,” but it does not establish unexpected results over the cited prior art as noted by the Examiner. Keuchel Decl. 10; Ans. 11. The Keuchel Declaration also does not establish that “a skilled person would never want to dye such an adhesive web” as asserted by Appellants (Br. 7) when the addition of a dye merely adds an impurity that “does not enhance the adhesive properties of the web.” Keuchel Decl. 7—8. Appellants further contend that Kent does not disclose “a substantially uniform thickness non woven web” because “[t]he fact that [Kent’s webs] can be calendared or comprise flat sheets does not mean that such webs or sheets will necessarily have a substantially uniform thickness.” Br. 7. This argument is unpersuasive because, as noted by the Examiner, Appellants’ Specification states that calendaring results in uniform thickness. Ans. 9-10; Spec. 12:382—386, 13:397-400; Keuchel Decl. 4—5. Appellants further contend that this claim element is not met by Kent because “there is no reinforcing component [in the claimed matrix], which is required in the yams that are used by Kent to form the fabrics that the examiner has characterized as Kent’s matrix.” Br. 8. We are not persuaded by Appellants’ argument because the claimed matrix includes “blends thereof [with] up to forty (40) weight percent of another thermoplastic polymeric material” which is disclosed by Kent. Ans. 6 (citing Kent 4:52—5:42, 6:5—22). For the reasons stated above and in the Answer, including the Response to Argument section, we affirm the Examiner’s decision to reject claims 1, 3, 5, 6, 8— 11, 13—15, and 17—20 under 35 USC § 103(a) over the combination of Kent and Kidder. 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). AFFIRMED 6 Copy with citationCopy as parenthetical citation