Ex Parte Kopf et alDownload PDFPatent Trial and Appeal BoardFeb 27, 201812470243 (P.T.A.B. Feb. 27, 2018) 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. 12/470,243 05/21/2009 Patrik Kopf 101769-505 3481 27387 7590 02/28/2018 LONDA, BRUCE S. NORRIS MCLAUGHLIN & MARCUS, PA 875 THIRD AVE, 8TH FLOOR NEW YORK, NY 10022 EXAMINER GOLDEN, CHINESSA T ART UNIT PAPER NUMBER 1788 MAIL DATE DELIVERY MODE 02/28/2018 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 PATRIK KOPF and ANDREAS WAHLERS-SCHMIDLIN ____________ Appeal 2017-005148 Application 12/470,243 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, CHRISTOPHER L. OGDEN, and MONTÉ T. SQUIRE, Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 1–4, 7, 8, 10, 11, 13, and 15–20, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In our Decision, we refer to the Specification filed May 21, 2009, as amended July 27, 2009 (“Spec.”); Non-Final Office Action docketed January 4, 2016 (“Non-Final Act.”); Appeal Brief filed June 29, 2016 (“App. Br.”); Examiner’s Answer docketed December 14, 2016 (“Ans.”); and Reply Brief filed February 6, 2017 (“Reply Brief”). 2 Appellants identify “tesa SE” as the real party in interest. App. Br. 2. Appeal 2017-005148 Application 12/470,243 2 The Claimed Invention Appellants’ disclosure relates to an adhesive tape for wrapping elongate material, such as lines or cable looms, having a nonwoven-based carrier and having a pressure-sensitive adhesive coating applied to at least one side of the carrier. Spec. 1, Abstract. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (App. Br. 16) (key disputed claim language italicized and bolded): 1. An adhesive tape for jacketing elongate material, said adhesive tape comprising a nonwoven-based carrier which is provided at least on one side with an adhesive coating, the carrier having a basis weight of 30 to 120 g/m2, wherein the carrier is composed of at least one ply of a preconsolidated nonwoven web, which is overstitched with a multiplicity of threads, and has a thread density of less than 22 threads per 25 mm width of the carrier, wherein the carrier has a stitch length of more than 1.5 mm, wherein the preconsolidated nonwoven web has an ultimate tensile strength of at least 2 N/cm and no more than 28 N/cm, wherein the preconsolidated nonwoven web is a mechanically consolidated staple fiber web consolidated as a result of at least one of air jets and water jets or by needling. The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Wildeman et al., US 3,967,472 July 6, 1976 (hereinafter “Wildeman”) Riedel et al., US 5,496,603 Mar. 5, 1996 (hereinafter “Riedel”) Appeal 2017-005148 Application 12/470,243 3 Külper et al., US 6,436,528 B1 Aug. 20, 2002 (hereinafter “Külper ’528”)3 Külper US 2004/0082243 A1 Apr. 29, 2004 (hereinafter “Külper ’243”)4 The Rejections On appeal, the Examiner maintains the following rejections: 1. Claims 1–4, 10, 11, 13, and 15–20 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Külper ’243 in view of Wildeman and in further view of Riedel (“Rejection 1”). Ans. 2; Non-Final Act. 4. 2. Claims 7 and 8 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Külper ’243 in view of Wildeman and in further view of Riedel as set forth above for claim 1, in view of Külper ’528 (“Rejection 2”). Ans. 6–7; Non-Final Act. 8. OPINION Having considered the respective positions advanced by the Examiner and Appellants in light of this appeal record, we affirm the Examiner’s rejections based on the fact finding and reasoning set forth in the Answer and Non-Final Office Action, which we adopt as our own. We highlight and address specific findings and arguments below for emphasis. 3 Appellants refer to the Külper ’528 reference as “Külper II” in both the Appeal Brief and Reply Brief. 4 Appellants refer to the Külper ’243 reference as “Külper I” in both the Appeal Brief and Reply Brief. Appeal 2017-005148 Application 12/470,243 4 Rejection 1 Appellants argue claims 1–4, 10, 11, 13, and 15–20 as a group. App. Br. 5. We select claim 1 as representative and the remaining claims subject to this rejection stand or fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner determines that the combination of Külper ’243, Wildeman, and Riedel suggests an adhesive tape satisfying all of the limitations of claim 1 and thus, concludes the combination would have rendered claim 1 obvious. Ans. 2–5 (citing Külper ’243, Title, Abstract, ¶¶ 54, 64, 66–67, 71; Wildeman, col. 2, ll. 5–15, 15–20, 66–68, col. 3, ll. 49–52, 55–58, col. 5, ll. 40–42; Riedel, Abstract, col. 11, ll. 15–25, col. 12, ll. 17–30, 40–42). Appellants argue that the Examiner’s rejection should be reversed because Külper ’243 does not disclose that consolidated staple fiber webs are additionally consolidated or require additional consolidation and the rejection is based on the Examiner’s misreading of paragraph 65 of the reference. App. Br. 8. In particular, Appellants contend that although paragraph 65 of Külper ’243 discloses that consolidated staple fiber webs are one type of suitable nonwoven, the paragraph also discloses that filament webs, meltblown webs, and spunbonded webs require additional consolidation in order to be utilized as a suitable nonwoven. Id. at 9; see also Reply Br. 2–3. Appellants further contend that Külper ’243, Wildeman, and Riedel, whether taken individually or in combination, do not teach or suggest a preconsolidated nonwoven that is overstitched with a multiplicity of threads, as required by claim 1. App. Br. 9; Reply Br. 4. Appeal 2017-005148 Application 12/470,243 5 Appellants also contend that the cited art fails to teach or suggest at least a preconsolidated nonwoven web having an ultimate tensile strength of at least 2 N/cm and no more than 28 N/cm, wherein the preconsolidated nonwoven web is a mechanically consolidated staple fiber web consolidated as a result of at least one of air jets and water jets or by needling as required by independent claim 1. App. Br. 12; see also Reply Br. 6. Appellants further argue that a person of ordinary skill in the art would not have been motivated to replace Külper ’243’s step of thermofixing the preconsolidated web with an overstitching step in the manner claimed and the Examiner’s rejection is based on “improper ‘hindsight reconstruction’” of Appellants’ claimed invention. App. Br. 10. We do not find Appellants’ arguments persuasive of reversible error in the Examiner’s rejection. On the record before us, we find that a preponderance of the evidence and sound technical reasoning support the Examiner’s analysis and determination that the combination of Külper ’243, Wildeman, and Riedel suggests all of the limitations of claim 1, and the Examiner’s conclusion that the combination would have rendered the claim obvious. Külper ’243, Title, Abstract, ¶¶ 54, 64, 66–67, 71; Wildeman, col. 2, ll. 5–15, 15–20, 66–68, col. 3, ll. 49–52, 55–58, col. 5, ll. 40–42; Riedel, Abstract, col. 11, ll. 15–25, col. 12, ll. 17–30, 40–42. Contrary to what Appellants argue (App. Br. 8–9), the cited art does teach or suggest “a preconsolidated nonwoven web, which is overstitched with a multiplicity of threads,” as recited in claim 1. As the Examiner finds (Ans. 2, 8), Külper ’243 teaches an adhesive tape for wrapping elongate product and that, as backing material for the adhesive tape, it is possible to use all known nonwoven webs. Külper ’243, Abstract, ¶ 64. As the Appeal 2017-005148 Application 12/470,243 6 Examiner further finds (Ans. 2–3, 8), Külper ’243 explicitly teaches that suitable nonwovens used as backing material for the adhesive tape include “consolidated staple fiber webs” (Külper ’243 ¶ 65); the staple fiber web is preconsolidated by the formation of loops from fibers of the web or by needling, stitching or air-jet or water-jet treatment (id. ¶ 71); and webs which have proven particularly advantageous are those consolidated by overstitching with separate threads or by interlooping (id. ¶ 66). We do not find Appellants’ argument at pages 8–9 of the Appeal Brief and pages 2–3 of the Reply Brief regarding what Appellants contend paragraph 65 of Külper ’243 discloses persuasive of reversible error in the Examiner’s rejection because it too narrowly construes the scope of Külper ’243’s disclosure and what the reference’s teachings would have suggested to one of ordinary skill in the art. A reference must be considered for all that it teaches, including the reasonable inferences that would be drawn by the skilled artisan. See In re Preda, 401 F.2d 825, 826 (CCPA 1968). Considering Külper ’243’s teachings as a whole, including paragraphs 64, 66–67, 71 as cited by the Examiner, and not just what Appellants contend paragraph 65 discloses, we concur with the Examiner’s finding that the Külper ’243 reference teaches or suggests the “preconsolidated nonwoven web” recitation of claim 1. Moreover, Appellants’ mere disagreement with the Examiner regarding what Appellants contend paragraph 65 of Külper ’243 discloses, without more, is insufficient to rebut or otherwise establish reversible error in the Examiner’s factual findings in this regard. See SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1320 (Fed. Cir. 2006) (“[M]ere Appeal 2017-005148 Application 12/470,243 7 statements of disagreement . . . as to the existence of factual disputes do not amount to a developed argument.”). We do not find Appellants’ contention that the cited art fails to teach or suggest “at least a preconsolidated nonwoven web having an ultimate tensile strength of at least 2 N/cm and no more than 28 N/cm” (App. Br. 12; Reply Br. 6) persuasive of reversible error in the Examiner’s rejection based on the fact finding and for the reasons provided by the Examiner at pages 2– 5 and 8–11 of the Answer. In particular, as the Examiner finds (Ans. 4), Riedel discloses nonwoven sheet materials or tapes comprising a randomly interlaced fibrous web of staple fibers and binder fibers having a web direction tensile strength of at least about 10 N/cm, preferably at least about 15 N/cm, and more preferably at least about 20 N/cm (Riedel, Abstract, col. 12, ll. 17–30), which falls within the claimed range. As the Examiner further finds (Ans. 4–5), Riedel suggests that having enhanced tensile strength is suitable/preferable in forming a strong, conformable, and readily tearable tape (Riedel, col. 11, ll. 15–25, col. 12, ll. 40–42). The Examiner also provides a reasonable basis and identifies a preponderance of the evidence in the record to evince why one of ordinary skill would have combined the teachings of the cited references to arrive at Appellants’ claimed invention. Ans. 4–5 (explaining that one of ordinary skill in the art would have had reason to form Külper ’243’s nonwoven backing to exhibit a tensile strength as taught by Riedel to form a nonwoven sheet material and tape having enhanced tensile strength); Riedel, col. 12, ll. 40–42; Ans. 3–4 (concluding that it would have been obvious to one of ordinary skill in the art at the time of the invention to utilize the stitching Appeal 2017-005148 Application 12/470,243 8 thread having stitch density (i.e. thread density) and stitch length as taught by Wildeman for the overstitching of the preconsolidated web as disclosed by Külper ’243 to form a stitchbonded fabric because Wildeman teaches that the claimed stitch density and stitch length would have been conventional to the stitchbonded art); Wildeman, col. 2, ll. 5–15, col. 3, ll. 49–52, 57–58. See also KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining that any need or problem known in the art can provide a reason for combining the elements in the manner claimed). Appellants fail to direct us to sufficient evidence or provide an adequate technical explanation to establish why the Examiner’s articulated reasoning for combining the teachings of the prior art to arrive at the claimed invention lacks a rational underpinning or is otherwise based on some other reversible error. We do not find Appellants’ argument that a person of ordinary skill in the art would not have been motivated to replace Külper ’243’s step of thermofixing the preconsolidated web with an overstitching step in the manner claimed (App. Br. 10) persuasive of reversible error in the Examiner’s rejection because it is conclusory. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellants’ assertions that “a skilled artisan would not have been motivated to modify Külper I with the teachings of Wildeman” and “a person of ordinary skill in the art would not have been motivated to utilize the stitching thread having stitch density (i.e., thread density and stitch length) as taught by Wildeman for the overstitching of Külper I’s alleged preconsolidated web” (App. Br. 11) are equally unpersuasive of reversible error because they too are conclusory, and Appellants do not provide an Appeal 2017-005148 Application 12/470,243 9 adequate technical explanation or direct us to sufficient evidence in the record to support them. De Blauwe, 736 F.2d at 705. Moreover, as the Examiner explains at pages 10–11 of the Answer, Appellants’ arguments are misplaced because they misconstrue the Examiner’s rejection. In particular, as the Examiner finds (Ans. 10), and contrary to what Appellants’ argument suggests, the Examiner relies on Külper ’243 for teaching the claimed consolidation as a result of at least one of air jets and water jets or by needling and overstitched with a multiplicity of threads, and relies Wildeman for teaching the claimed thread density. Appellants’ contention that the Examiner’s rejection is based on improper hindsight reconstruction (App. Br. 10) is not persuasive of reversible error because it is conclusory. De Blauwe, 736 F.2d at 705. Moreover, as previously discussed above, we are persuaded that the Examiner provides a reasonable basis and identifies sufficient evidence in the record to evince why one of ordinary skill would have combined the teachings of the cited references to arrive at the claimed invention. Accordingly, we affirm the Examiner’s rejection of claims 1–4, 10, 11, 13, and 15–20 under 35 U.S.C. § 103 as obvious over the combination of Külper ’243, Wildeman, and Riedel. Rejection 2 Appellants do not present any additional substantive arguments in response to the Examiner’s Rejection 2, stated above. Rather, Appellants rely on the same arguments previously presented above in response to the Examiner’s Rejection 1 regarding claim 1 and the combination of Külper ’243, Wildeman, and Riedel. See App. Br. 13–14. Appeal 2017-005148 Application 12/470,243 10 Accordingly, based on the findings and technical reasoning provided by the Examiner and for the same reasons discussed above for affirming the Examiner’s rejection of claim 1, we affirm the Examiner’s Rejection 2. DECISION/ORDER The Examiner’s rejections of claims 1–4, 7, 8, 10, 11, 13, and 15–20 are affirmed. It is ordered that the Examiner’s decision 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). AFFIRMED Copy with citationCopy as parenthetical citation