Ex Parte Larson et al

Board of Patent Appeals and Interferences

Feb 16, 2010

10955770 (B.P.A.I. Feb. 16, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte TODD C. LARSON, MARK M. MLEZIVA,
BRETT HOEHN, WALTER MARSILE, and DAN CONRAD
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Appeal 2009-06966
Application 10/955,770
Technology Center 1700
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Decided: February 16, 2010
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Before BRADLEY R. GARRIS, CHUNG K. PAK, and TERRY J. OWENS,
Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-8 and 10-33, which are all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
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The Invention
The Appellants claim a nonwoven substrate having thereon a vibrant
graphic. Claim 1 is illustrative:
1. A non-woven substrate having a vibrant graphic
thereon, said substrate comprising:
a fibrous non-woven web comprised at least in part of
polyolefin fibers; and
a graphic applied to said fibrous non-woven web, said
graphic having a thickness of less than or equal to about 5
microns, at least a portion of the graphic having a dominant
primary color of magenta having a color density of at least
about 0.6 as determined by a Color Density Test.
The References
Umise 5,593,940 Jan. 14, 1997
Taniguchi 2002/0025752 A1 Feb. 28, 2002
Schulz 2004/0265516 A1 Dec. 30, 2004
(effective filing date Jun. 9, 2000)
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
4, 8, 10-12, 16-19, 24-27, 31 and 32 over Schulz in view of Umise, and
claims 5-7, 13-15, 20-23, 28-30 and 33 over Schulz in view of Umise and
Taniguchi.
OPINION
We affirm the Examiner’s rejections.
Issue
Have the Appellants shown reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
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obvious, to one of ordinary skill in the art, a vibrant graphic no thicker than
about 5 microns on a nonwoven substrate?
Findings of Fact
Schulz discloses a porous web substrate (100) having thereon an ink
receptive coating (106) onto which is printed a high color density
image (108) (¶¶ 0002, 0008-09). The substrate (100) preferably is
nonwoven (¶¶ 0011, 0051). The ink receptive coating (106) reduces the
likelihood that the ink used to form the image (108) will wick along or pool
in the substrate (100) fibers (¶ 0091). The disclosed image colors are black,
cyan, magenta and yellow and have the color densities required by the
Appellants’ claims (¶¶ 0151-52). Schulz is silent as to the image (108)’s
thickness.
Umise discloses a thermal transfer sheet (1) comprising a substrate
film (2) having a back coating layer (3) on one of its sides and a recording
material layer (4) on its other side (col. 4, ll. 46-52). The substrate film (2)
can be a polyolefin nonwoven fabric (col. 4, ll. 59-67). The ink applied to
the substrate film (2) to form the recording material layer (4) has a preferred
thickness of 0.1-30 microns, more preferably 2-10 microns, and the formed
recording material layer (4) has a thickness of about 0.2-5.0 microns,
preferably about 0.4-2.0 microns (col. 9, ll. 30-40; col. 10, ll. 51-53). A
colored image can be formed on an image receiving sheet, which can have a
dye-receiving layer on its surface, by contacting the back coating layer (3)
with a thermal head to melt colorant-containing heat fusible ink on the
recording material layer (4) and transfer it to the image receiving sheet
(col. 4, ll. 52-53; col. 8, ll. 60-65; col. 11, ll. 4-12).
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Taniguchi discloses a thermoplastic fibrous nonwoven sheet (1)
having a pattern (3) printed thereon using an electrophotographic process
(¶¶ 0001, 0019). The fibrous nonwoven sheet (1) can be made of polyolefin
fibers (¶ 0021). “The pattern 3 is defined by toner 4 deposited on the fibrous
nonwoven sheet” (¶ 0018). The toner (4) can be liquid or powder and can
contain a colorant (¶ 0028). The toner (4) on the fibrous nonwoven sheet (1)
has an outer layer (4a) around and slightly permeating the fibers (2a) in the
vicinity of the surface of the fibrous nonwoven sheet (1), and has an inner
layer (4b), contiguous to the outer layer (4a), around fibers (2b) immediately
underlying the fibrous nonwoven sheet (1)’s surface (¶¶ 0006, 0023). The
thickness of the toner outer layer (4a) is 1-100 microns, and the total
thickness of the toner outer layer (4a) and the toner inner layer (4b) is at
least 10 microns but less than the thickness of the nonwoven fabric (2)
(¶¶ 0025, 0027). If the total thickness is less than 10 microns “the desired
diffused reflection of the light in the inner layer 4b would become difficult
and, in consequence, the color tone of the inner layer 4b would be largely
depend [sic, dependent] on the angle of sight. Variation of the color tone in
the inner layer 4b would blur a transmitted color based on light absorption in
the nonwoven fabric 2 and would make the pattern 3 indistinct” (¶ 0027;
0044).
Analysis
The Examiner argues (Ans. 4):
Taniguchi does not establish any relationship between thickness and
vibrancy. Taniguchi teaches that there can be a detrimental effect on
clarity in that the color can become blurry at thicknesses less than
10 microns for the color layer, but there is nothing on the record
which equates relative clarity or blurriness with vibrancy or the
claimed Color Density Test values to show that a less clear or more
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blurry image is necessarily a less vibrant image or one which would
not have the claimed Color Density Test values.

The Appellants respond (Reply Br. 1-2):
Taniguchi at paragraphs [0027] and [0044] clearly states that at
thickness levels less than 10 microns, the color tone will vary and blur
a transmitted color based on light absorption . . . and would make the
pattern indistinct. As defined in Merriam Webster’s International
Dictionary (1983), vibrancy (as it relates to color) is the state of being
bright or brilliant. Under the same reference, tone refers to the quality
of color with reference to the degree of absorption or reflection of
light. That is, a decrease in color tone results in a darkening or muting
of the graphic. There is thus a clear interrelationship between color
tone and vibrancy and that a decrease or blurring of tone will result in
a decrease of vibrancy of the graphic.

A patent specification “acts as a dictionary when it expressly defines
terms used in the claims or when it defines terms by implication.” Vitronics
Corp. v. Conceptronic, Inc., 90 F.3d 1576, 1582 (Fed. Cir. 1996). The
specification is “the single best guide to the meaning of a disputed term.”
Id.
The Appellants’ Specification states:
The vibrancy of the graphic as used herein refers to the color density
of the graphic, i.e., the density of the color produced by the ink
composition on the non-woven substrate. [¶ 0056]
. . .
A higher color density equates to a higher vibrancy or intensity of the
color. In particular, as used herein, the color density of the graphic
refers to the color density of the dominant primary color of a graphic
(e.g., yellow, magenta, cyan or black) as determined using a
densitometer in accordance with the Color Density Test set forth
below. [¶ 0061]

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Thus, the Appellants’ Specification, which is the best guide to the
meaning of “vibrancy”, indicates that “vibrancy” means “color density” and
that color density is a characteristic of the ink’s color, not the ink’s
thickness. Consequently, because Schulz’s inks meet the Appellants’ color
density requirements (¶ 0152), Schultz’s printed images meet the
Appellants’ vibrant graphic requirement.
Hence, we are not persuaded by the Appellants’ argument that “at the
time of the present invention it would be predictable to one skilled in the art
that reducing the thickness of the graphic on a polyolefin fiber non-woven
web would be detrimental to the vibrancy of the graphic” (Br. 6) or that “the
conventional wisdom of one skilled in the art at the time of the invention
was that the vibrancy of a [sic] graphics on a [sic] non-woven webs could be
made more vibrant by increasing the volume of ink” (Br. 9).
The Appellants argue that “there is simply no disclosure or suggestion
provided by Umise et al. as to the thickness of whatever graphic image is
transferred to the recording media such as paper, rather the thickness
specified by Umise et al. is that of a layer of heat-transferrable [sic] ink on a
substrate” (Reply Br. 3).
Umise’s recording material layer (4)’s thickness is about 0.2 to
5.0 microns, preferably about 0.4 to 2.0 microns (col. 10, ll. 51-53). The
amount of material transferred from Umise’s recording material layer (4) to
the image-receiving sheet must be equal to or less than the amount on the
recording material layer (4) and, therefore, is within the Appellants’ range of
less than or equal to about 5 microns.

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Conclusion of Law
The Appellants have not shown reversible error in the Examiner’s
determination that the applied prior art would have rendered prima facie
obvious, to one of ordinary skill in the art, a vibrant graphic no thicker than
about 5 microns on a nonwoven substrate.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1-4, 8, 10-12, 16-19,
24-27, 31 and 32 over Schulz in view of Umise, and claims 5-7, 13-15, 20-
23, 28-30 and 33 over Schulz in view of Umise and Taniguchi 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

kmm

CHRISTOPHER M. GOFF (27839)
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