Ex Parte Kish et al

Patent Trials and Appeals Board

Sep 23, 2013

11343099 - (D) (P.T.A.B. Sep. 23, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/343,099 01/30/2006 William Kish FIREgd-util 5511
41324 7590 09/23/2013
CHRISTOPHER JOHN RUDY
209 HURON AVENUE, SUITE 8
PORT HURON, MI 48060
EXAMINER
AHVAZI, BIJAN
ART UNIT PAPER NUMBER
1763
MAIL DATE DELIVERY MODE
09/23/2013 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 WILLIAM KISH, KENNETH RUSK,
KARLAN C. KASTENDIECK, KEITH G. KASTENDIECK,
and MARK HARRISON
____________

Appeal 2012-005405
Application 11/343,099
Technology Center 1700
____________

Before ROMULO H. DELMENDO, JAMES C. HOUSEL, and
GEORGE C. BEST, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL

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The Appellants1 seek our review under 35 U.S.C. § 134(a) of a final
rejection of claims 1-16, 19, and 21-27. We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
BACKGROUND
The invention relates to a composition that is a fire retardant, stain
protectant, and/or mold inhibitor when applied on textile. Specification
(“Spec.”) 1, ll. 6-7. Representative claims 1, 19, and 21 are reproduced
below:
1. A composition of matter comprising combined fire
retardant and stain protectant components, wherein:
the composition, after it is applied to, and dried and
reached a constant mass on a flammable textile drapery
material, can reduce surface burning characteristics by at least
about 25%, when compared to the flammable textile drapery
material that is untreated, as tested by ASTM E84 (Steiner
Tunnel Test); and
the stain protectant component is present in an amount
that, when applied to an upholstery textile fabric in combination
with the remainder of the composition, and after the
composition is applied to, and dried and reached a constant
mass on the upholstery textile fabric, provides stain repellant or
soil releasing capability to the upholstery textile fabric.
19. A composition of matter comprising combined fire
retardant and mold inhibitor components, which is suitable for
spray-on application, wherein the fire retardant component
includes ingredients in approximate percentages by weight as
follows:
Water 70~90%;

1 The Appellants identify the real party in interest as “No-Burn Investments,
L.L.C., and No-Burn, Inc.” Appeal Brief filed September 23, 2011 (“App.
Br.”) at 1.
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Phosphorous containing acid 5~15%;
Ammonium base 5~15%;
Wetting and/or other agent 0.05~0.2%;
Preservative 0.01~0.1%;
and wherein:
the composition, after it is applied to, and dried and
reached a constant mass on a flammable textile drapery
material, can reduce surface burning characteristics by at least
about 25%, when compared to the flammable textile drapery
material that is untreated, as tested by ASTM E84 (Steiner
Tunnel Test); and
the mold inhibitor component, in combination with the
composition, is present in an amount effective for kill, control,
or prevention of growth of Stachybotrys chartarum after the
composition is applied to, and dried and reached a constant
mass on a substrate such that there is a reduction in the growth
of the Stachybotrys chartarum by at least about 85% for at least
about 30 days as tested by ASTM D5590-94 (Determination of
Resistance of a Coating Material to Fungal Growth).
21. The composition of claim 19, wherein the mold
inhibitor component includes a quaternary organic ammonium
halide, which is present at about 0.1% to 15% by weight of the
fire retardant component.
App. Br. (Claims App’x, CA-1, CA-3, CA-4).
The Examiner rejected the claims as follows:
I. Claims 1-16, 19, and 21-27 under 35 U.S.C. § 112, ¶ 2, as
indefinite;
II. Claims 19 and 21 under 35 U.S.C. § 102(a) as anticipated by or,
in the alternative, under 35 U.S.C. § 103(a) as unpatentable
over Kish;2

2 U.S. Patent Application Publication 2005/0022466 A1 published February
3, 2005.
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III. Claims 1, 2, and 24 under 35 U.S.C. § 102(b) as anticipated by,
or in the alternative, under 35 U.S.C. § 103(a) as unpatentable
over Pearson;3
IV. Claims 19 and 21 under 35 U.S.C. § 102(e) as anticipated by or,
in the alternative, under 35 U.S.C. § 103(a) as unpatentable
over Kish;
V. Claims 22 and 23 under 35 U.S.C. § 103(a) as unpatentable
over Kish;
VI. Claims 1-3, 7-12, 19, and 21-25 under 35 U.S.C. § 103(a) as
unpatentable over Kish in view of Pearson;
VII. Claims 4-6, 13-16, 26, and 27 under 35 U.S.C. § 103(a) as
unpatentable over Kish in view of Pearson and further in view
of Harrison;4 and
VIII. Claims 1-16, 19, and 21-27 under 35 U.S.C. § 103(a) as
unpatentable over Kish in view of the admitted prior art,
Masurf® FP-815 Material Data Sheet (hereinafter “Masurf”),5
and Harrison.
Examiner’s Answer entered December 12, 2012 (“Ans.”) 4-54.6

3 U.S. Patent 4,419,401 issued December 6, 1983.
4 U.S. Patent Application Publication 2004/0107505 published June 10,
2004.
5 “New” Masurf® FP-815 CP, Mason Chemical Company (exact publication
date unknown).
6 Rejection II through VII were designated as new rejections in the Answer.
Ans. 4-21.
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DISCUSSION
I. Claims 1-16, 19, & 21-27 under 35 U.S.C. § 112, ¶ 2:
We start with Rejection I. The Examiner stated:
The boundaries limitation of “at least about [25%]” in
independent claims 1, 19 and 24 and dependent claims 7-8, 25,
not clearly defined, thus render the claim indefinite, since the
word “about” permits some tolerance (see In re Ayers, 69
USPQ 109, and In re Erickson, 145 USPQ 207).
Ans. 22-23 (emphasis in original).
The Appellants, on the other hand, contend:
The rejection of all the claims as indefinite for the term,
“at least about,” is untenable since although the word, “about,”
permits some tolerance, it is acceptable to any person skilled in
the art, who is not without skill, who will read the supporting
descriptions in light of his knowledge and skill for guidance on
the level of that tolerance, and who is thus apprised to a
reasonable degree the metes and bounds of the claim. See, e.g.,
In re Moore, 439 F.2d 1232 [169 USPQ 236, 238] (CCPA
1971).
App. Br. 2-3.
Consistent with the ruling in Ex parte Kish, available at http://e-
foia.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd2011005781-01-
19-2012-1, at pages 6-7, where a similar rejection involving the same
limitation (“at least about 25%”) was reversed, we agree with the Appellants
that the Examiner’s rejection is not well founded. The mere fact that the
term “about” permits some tolerance does not, in and of itself, support a
rejection under 35 U.S.C. § 112, ¶ 2. In this case, the Examiner failed to
explain why one skilled in the relevant art would not have been able to
ascertain the scope of the claim in view of the recited term “about.” Cf.
Amgen, Inc. v. Chugai Pharm. Co., Ltd., 927 F.2d 1200, 1218 (Fed. Cir.
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1991) (holding that a specific activity of “at least about 160,000” was
indefinite where the scope of the limitation was in doubt, “especially when
. . . there is close prior art,” but cautioning that the holding “should not be
understood as ruling out any and all uses of this term in patent claims”).
Accordingly, we cannot uphold Rejection I.

II. Claims 19 & 21 under 35 U.S.C. § 102(a)/103(a) over Kish:
The subject application was filed January 30, 2006, claiming priority
to two provisional applications—namely, Provisional Application
60/656,148 filed February 23, 2005 and Provisional Application 60/670,121
filed April 11, 2005. Even assuming that claims 19 and 21 are entitled to the
earliest priority date (i.e., February 23, 2005), Kish is available as prior art
under 35 U.S.C. § 102(a) because it published February 3, 2005.
The Examiner found that Kish describes, either explicitly or
inherently, every limitation of claims 19 and 21. Ans. 4-6.
The Appellants contend that Kish does not anticipate because “[n]o
mold inhibitor was disclosed [in Kish] as going with the Form #2, #3 or #4
agents.” Reply Brief filed February 13, 2012 (“Reply Br.”) at 3. In
addition, the Appellants contend that “Kish . . . is not available under
35 USC [§ ]102(e) since it was owned by the same entity as the present
invention under the meaning of 35 USC[ §] 103(c).” Id.
Neither argument is persuasive to show reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(explaining that even if the examiner had failed to make a prima facie case,
the Board would not have erred in framing the issue as one of reversible
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error because it has long been the Board’s practice to require an appellant to
identify the alleged error in the examiner’s rejections).
The Appellants’ Specification informs one skilled in the relevant art
that the “[a]mmonium base” component recited in claim 19 may be in the
form of a 29% aqueous solution of ammonium hydroxide. Spec. 4, ll. 8-9.
In addition, the Specification states that the “[w]etting and/or other agent”
may be a 30% aqueous solution of coco amidopropyl betaine. Id. at 4, ll. 10-
12.
Kish describes a fire retardant composition including a mixture of a
substantially neutral ammonium phosphate salt and an active hydrogen-
containing nitrogenous organic compound, which generally acts as a
spumific, and a hydroxy-containing carbonific in various forms (i.e., Forms
#1 through #4). ¶ 38. Kish explicitly teaches that a mold inhibitor such as a
quaternary ammonium halide (e.g., didecyldimethylammonium chloride)
may be present in the compositions in an amount of about 0.1 to 10% by
weight. Id. Kish’s Form #3 is said to include:
Water 70~90% by weight
Polyphosphoric acid 5~15% by weight
Ammonium hydroxide 5~15% by weight
(29% aqueous solution)
Coco amidopropyl betaine 0.05~0.2% by weight
(30% aqueous solution)
Preservative 0.01~0.1% by weight
Id. at ¶ 43.
Contrary to the Appellants’ argument, Reply Br. 3-4, we find that
these disclosures in Kish constitute a sufficiently specific description of a
composition containing every component recited in claims 19 and 21.
Because Kish’s composition including, inter alia, 1~10% by weight of a
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quaternary ammonium halide is identical to the claimed composition in
terms of ingredients and their respective amounts, it would reasonably
appear that Kish’s composition would inherently or necessarily possess the
same properties recited in claim 19. In re Best, 562 F.2d 1252, 1255 (CCPA
1977) (“Where . . . the claimed and prior art products are identical or
substantially identical, or are produced by identical or substantially identical
processes, the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
claimed product.”).
The Appellants’ reliance on the provisions of 35 U.S.C. § 103(c) is
misplaced. The common ownership exclusion of 35 U.S.C. § 103(c) applies
only to prior art that is available under 35 U.S.C. § 102(e), (f), and (g). As
we found above, however, Kish, is available as 35 U.S.C. § 102(a) prior art.
Moreover, the provisions of 35 U.S.C. § 103(c) relate to prior art that is
applicable in the context of obviousness, not anticipation.
For these reasons, we find no error in the Examiner’s rejection under
35 U.S.C. § 102(a). Because claims 19 and 21 are anticipated by Kish, we
conclude that the subject of these claims also would have been obvious to
one of ordinary skill in the art in view of Kish. Structural Rubber Prods.
Co. v. Park Rubber Co., 749 F.2d 707, 716 (Fed. Cir. 1984) (“a disclosure
that anticipates under § 102 also renders the claim invalid under § 103”).

III. Claims 1, 2, & 24 under 35 U.S.C. § 102(b)/103(a) over Pearson:
The Appellants argue claims 1, 2, and 24 together. Reply Br. 4-5.
Therefore, we confine our discussion to claim 1, which we select as
representative. 37 C.F.R. § 41.37(c)(1)(vii).
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The Examiner found that Pearson describes, either explicitly or
inherently, every limitation of claim 1. Ans. 7.
The Appellants contend that Pearson does not suggest the claimed
surface burning characteristic, as recited in claim 1. Reply Br. 5.
Again, the Appellants’ argument does not persuade us of reversible
error on the part of the Examiner. Specifically, Pearson describes fire
retardant compositions suitable for application on textiles comprising:
ammonium phosphate 35-65 parts by weight
ammonium sulfate 10-30 parts by weight
alkanolamine 40-60 parts by weight
phosphoric acid 40-60 parts by weight
aldehyde 20-40 parts by weight
water 100-140 parts by weight
Col. 1, l. 57 to col. 2, l. 4. Thus, the total amount for all ingredients ranges
from 245-395 parts by weight. As acknowledged by the Appellants at
page 5 of the Reply Brief, Pearson teaches the use of a wetting agent such as
TRITON® X-100, col. 4, ll. 49-51, and a soil and stain resistant agent such
as TEFLON® (polytetrafluoroethylene), col. 6, ll. 6-9. According to
Pearson, 100% cotton ticking treated with the composition passed the
vertical flame and soil and stain resistance tests with little or no loss of fire
retardance. Col. 6, l. 62 to col. 7, l. 12.
Though Pearson does not perform a Steiner Tunnel Test (surface
burning characteristic) on a flammable drapery material, as recited in
claim 1, the burden of proof was properly shifted to the Appellants to show
that Pearson’s composition would not inherently or necessarily possess the
claimed characteristic in view of the compositional similarities between
Pearson’s composition and the claimed composition. “[C]hoosing to define
an element functionally, i.e., by what it does, carries with it a risk.” In re
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Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Where the PTO has reason
to believe that a functional limitation asserted to be critical may in fact be an
inherent characteristic of the prior art, it possesses the authority to shift the
burden of proof to the applicants to prove otherwise. Id. The “fairness [in
shifting the burden of proof to the applicants] is evidenced by the PTO’s
inability to manufacture products or to obtain and compare prior art
products.” Best, 562 F.2d at 1255.
For these reasons, we find no error in the Examiner’s anticipation
rejection. Because the Appellants rely on the same argument for both
anticipation and obviousness, Reply Br. 5, we also uphold the obviousness
rejection.

IV. Claims 19 & 21 under 35 U.S.C. § 102(e)/103(a) over Kish:
Kish is also available as prior art under 35 U.S.C. § 102(e) because it
was filed on October 4, 2004, which is well before the Appellants’ earliest
priority date of February 23, 2005.
We affirm the rejection under 35 U.S.C. § 102(e) of claims 19 and 21
over Kish based on the same factual findings with respect to Kish’s
disclosure as discussed in II above. Because we have affirmed the
anticipation rejection, we need not reach the 35 U.S.C. § 103(a) rejection.

V. Claims 22 & 23 under 35 U.S.C. § 103(a) over Kish:
With respect to the rejection under 35 U.S.C. § 103(a) of claims 22
and 23 over Kish, the Appellants argue:
Kish . . . is silent as to the specific amounts and even the
identities of the ingredients in the fire retardant component,
being silent, for example, as to the narrow ranges of ingredients
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of the fire retardant component as well as the identity of the
ammonium base as a hydroxide.
Reply Br. at 4.
The Appellants are incorrect. Claim 22 is reproduced below:
22. The composition of claim 21, wherein the fire
retardant component includes that the water is present about
from 76% to 82% by weight; the phosphorous containing acid
includes being provided as a polyphosphoric acid, and is
present about from 10% to12% by weight; the ammonium base
includes being provided as a hydroxide, and is present about
from 8% to 10% by weight.
App. Br. (Claims App’x, CA-4). As we found in II above, Kish discloses
ranges of amounts for the ingredients including water, polyphosphoric acid,
and ammonium hydroxide that significantly overlap those recited in claim
22. Kish at ¶ 43.
Therefore, we affirm Rejection V.

VI. Claims 1-3, 7-12, 19, & 21-25 under 35 U.S.C. § 103(a) over Kish &
Pearson:
A. Claims 1, 2 & 24
With respect to claims 1, 2, and 24, the Appellants contend that Kish
and Pearson are “disparate” and a person of ordinary skill in the art would
not have combined them. Reply Br. 5. The Appellants further argue that the
“the chemical arts are largely empirical and often highly difficult to predict.”
Id.
We disagree with the Appellants. Both references are directed to fire
retardant compositions and are therefore not “disparate.” Kish at ¶ 38;
Pearson at col. 1, l. 57 to col. 2, l. 4. Although Kish does not describe a stain
protectant component, as recited in claim 1, we find no error in the
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Examiner’s obviousness analysis as set forth on pages 12-13 of the Answer.,
which we adopt as our own. Even if we assume that the art is unpredictable
as alleged by the Appellants, only a reasonable expectation of success—not
absolute predictability—is required to establish obviousness under 35 U.S.C.
§ 103(a). In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988).
B. Claim 3
The Appellants argue that Kish does not disclose a stain protectant
component and Pearson does not disclose a fire retardant component with
the ingredients and amounts as recited in claim 3. Reply Br. 5. As
discussed in II above, Kish describes a fire retardant composition containing
water, phosphoric acid, ammonium base, wetting and/or other agent, and
preservative in amounts encompassed by the ranges recited in claim 3. As
discussed in VI. A above, Pearson provides a reason for adding a stain
protectant component into Kish’s composition. In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”).
C. Claims 7 & 9
Claim 7 recites the presence of a mold inhibitor “in an amount
effective for kill, control, or prevention of growth of Stachybotrys
chartarum, after the composition is applied to, and dried and reached a
constant mass on a substrate such that there is a reduction in the growth . . .
by at least about 85% for at least about 30 days . . . .” As discussed in II
above, Kish discloses the use of the same mold inhibitor in the same
amounts as disclosed for the claimed invention. Kish at ¶38; claim 21.
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D. Claims 8 & 10-12
See VI. D above.
E. Claim 19
See II above.
F. Claim 21
See II above.
G. Claims 22 & 23
See V above.
H. Claim 25
See VI. C above.

VII. Claims 4-6, 13-16, 26, & 27 under 35 U.S.C. § 103(a) over Kish,
Pearson, & Harrison:
Claims 4-6, 13-16, 26, and 27 all require a fluoroaliphatic
polyacrylate fluoropolymer as a component.
The Examiner found that although neither Kish nor Pearson discloses
the particular fluoropolymer recited in claim 4, Harrison describes the use of
such a polymer as a stain protectant in an aqueous detergent composition
and therefore would have prompted a person of ordinary skill in the art to
use such a fluoropolymer in Kish. Ans. 17-21, 40 (citing Harrison’s ¶¶ 2,
220).
The Appellants argue that Harrison is not relevant because it does not
relate to fire retardant compositions. Reply Br. 8. Furthermore, the
Appellants contend that Harrison “disclose[s] use of a sulfonated copolymer,
teaching away from a fluoraliphaticpolyacrylate fluoropolymer as required
in claims 4 and 5.” Id.
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We agree with the Appellants that the Examiner’s rejection is not well
founded. The Examiner failed to demonstrate that Harrison’s Repel-O-Tex
PF 594 from Rhodia is in fact a fluoroaliphatic polyacrylate fluoropolymer
as required by the rejected claims. Indeed, as pointed out by the Appellants,
Repel-O-Tex PF 594 is disclosed as a “Soil-release sulfonated Copolyester.”
Harrison at ¶ 220.
For these reasons, we cannot uphold the stated rejection.

VIII. Claims 1-16, 19, & 21-27 under 35 U.S.C. § 103(a) over Kish,
Admitted Prior Art, Masurf, & Harrison
A. Claims 1-3 & 24
The Examiner found, inter alia, that Kish does not describe a stain
protectant component as recited in claim 1, but that Masurf teaches a
fluoroaliphatic polyacrylate fluoropolymer, which is an effective carpet and
upholstery protectant with exceptional soil release performance and dry soil
resistance with water and oil repellency. Ans. 23. Alternatively, the
Examiner again relied on Harrison’s Repel-O-Tex PF 594. Id. at 24.
The Appellants contend that “since no [publication] date has been
established for the Masurf FP-815 CP MDS, it cannot be considered to be
prior art.” App. Br. 5. The Appellants further contend that Masurf does not
relate to fire retardant compositions and therefore cannot be combined with
Kish. Id.
As we discussed in VII, the Examiner’s reliance on Harrison is
misplaced. Nevertheless, we find the Examiner’s reliance on Masurf to be
sound. As pointed out by the Examiner at page 38 of the Answer, the
HTML version of Masurf indicates a copyright date of 2003, which is well
before the earliest priority date of the current application. See Masurf 2.
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Thus, although the exact publication date is unknown, it would reasonably
appear that Masurf was made accessible to the public in approximately
2003.7 The Appellants offered no evidence to the contrary.
Having determined that Masurf is prior art, we find that Masurf
discloses a 16% active fluoroaliphatic polyacrylate fluoropolymer in
water/glycol solution as an effective protectant for carpet and upholstery,
providing exceptional soil release performance, dry soil resistance, and
water and oil repellency. See Masurf, 1. Thus, although Masurf does not
disclose a flame retardant composition, a person of ordinary skill in the art
would have been prompted to add Masurf’s fluoropolymer solution into
Kish’s solution with a reasonable expectation of improving soil release
performance, dry soil resistance, and water and oil repellency of textiles.
Indeed, Kish’s Form #3 is applied to fabric, and therefore a person of
ordinary skill in the art would have considered teachings in the field of
textile treatment, including Masurf. ¶¶ 43, 56. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 417 (2007) (“When a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it, either in the same field or a different one.”); id. at 420 (“Common sense
teaches . . . that familiar items may have obvious uses beyond their primary
purposes, and in many cases a person of ordinary skill will be able to fit the
teachings of multiple patents together like pieces of a puzzle.”).
With respect to the properties recited in claim 1, it would reasonably
appear that Kish would possess the same or similar surface burn

7 In addition, the current Specification acknowledges that the stain protectant
described in Masurf was commercially obtainable from Mason Chemical.
Spec. 5, ll. 11-14.
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characteristics in view of the similarities in the compositions. And, the stain
repellant or soil release capability would be expected in view of the
teachings of Masurf.
B. Claims 4-6
The Appellants’ argument is limited to those against the Examiner’s
reliance on Harrison. As discussed in VIII. A above, however, we find no
error in the Examiner’s reliance on Masurf.
C. Claims 7, 9, & 25
The Appellants argue that “nothing in the applied references suggests
that a mold inhibitor effective against toxic black mold should be combined
with a fire retardant and a stain protectant . . . .” App. Br. 7. We find this
argument unpersuasive for the same reasons discussed in II above, where we
found that Kish describes the inclusion of 1~10% by weight of a quaternary
ammonium halide as a mold inhibitor.
D. Claims 8 & 10-12
The Appellants rely on the same arguments for claims 1-6, which we
have found unpersuasive.
E. Claim 13
See V above.
F. Claims 14 & 15
The Appellants repeat various arguments, which we have found
unpersuasive.
G. Claim 16
The Appellants repeat various arguments, which we have found
unpersuasive.
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H. Claims 19 & 21
The Appellants repeat various arguments, which we have found
unpersuasive.
I. Claims 22 & 23
The Appellants repeat various arguments, which we have found
unpersuasive.
J. Claims 26 & 27
The Appellants repeat various arguments, which we have found
unpersuasive.

SUMMARY
Rejections II through VI and VIII are affirmed.
Rejections I and VII are reversed.
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

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