12430638 (P.T.A.B. Sep. 21, 2012)

Ex Parte Link et al

Patent Trial and Appeal BoardSep 21, 2012

12430638 (P.T.A.B. Sep. 21, 2012)

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. 12/430,638 04/27/2009 Eberhard Link FRD007CIP2 3528 32047 7590 09/21/2012 GROSSMAN, TUCKER, PERREAULT & PFLEGER, PLLC 55 SOUTH COMMERICAL STREET MANCHESTER, NH 03101 EXAMINER CHOI, PETER Y ART UNIT PAPER NUMBER 1786 MAIL DATE DELIVERY MODE 09/21/2012 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 EBERHARD LINK and JAMES FRASCH ____________ Appeal 2011-008025 Application 12/430,638 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, ROMULO H. DELMENDO, and KAREN M. HASTINGS, Administrative Patent Judges. DELMENDO, Administrative Patent Judge DECISION ON APPEAL Eberhard Link and James Frasch, the Appellants,1 seek our review under 35 U.S.C. § 134(a) of a final rejection of claims 1-7. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The Appellants identify the real party in interest as “Freudenberg Nonwovens, L.P.” Appeal Brief filed November 15, 2010 (“App. Br.”) at 1. Appeal 2011-008025 Application 12/430,638 2 STATEMENT OF THE CASE The invention relates to a fire resistant needle punched materials. Spec. ¶ [0002]. Representative claim 1 is reproduced below: 1. A fire blocking needle-punched non-woven textile comprising: a first carded web providing a first layer of char-forming fibers comprising aramid and/or melamine/formaldehyde fiber; a second carded web providing a second layer of oxygen- depleting fibers comprising a blend of polyacrylonitrile copolymer with a halogen comonomer and a polyester polymer; said char-forming fibers of said first layer being present in said second layer at a level of 0-5.0 % by weight; said oxygen-depleting fibers of said second layer being present in said first layer at a level of 0 to 5.0 % by weight; and wherein said non-woven textile has a maximum thickness of 3.0 mm and when applied to a mattress, according to 16 CFR 1633, indicates a peak heat release rate of less than 200 kW within 30 minutes of testing and the total energy released of no more than 15 MJ for the first 10 minutes of testing. App. Br. 14 (Claims App’x). The Examiner rejected claims 1-7 under 35 U.S.C. § 103(a) as follows: I. Claims 1-7 as unpatentable over Mater;2 II. Claims 1-7 as unpatentable over Mater and Jones;3 2 U.S. Patent Application Publication 2004/0198125 A1 published October 7, 2004. 3 U.S. Patent Application Publication 2005/0095936 A1 published May 5, Appeal 2011-008025 Application 12/430,638 3 III. Claims 2, 3, 6, and 7 as unpatentable over Mater, as applied in Rejection I above, in view of Hope; and IV. Claims 2, 3, 6, and 7 as unpatentable over Mater and Jones, as applied in Rejection II above, further in view of Hope.4 Examiner’s Answer mailed February 11, 2011 (“Ans.”) at 4-23. DISCUSSION We affirm all four rejections. Because we agree with the Examiner that the subject matter of claim 1 would have been obvious to a person of ordinary skill in the art in view of Mater,5 we adopt the factual findings and legal conclusions as set forth in the Answer as our own and add the following comments for emphasis. The Appellants’ position appears to be based on the belief that Mater would not have prompted a person of ordinary skill in the art to select a thickness for the non-woven material below 6 mm, such as 3.0 mm, which is 2005. 4 U.S. Patent Application Publication 2006/0116043 A1 published June 1, 2006. 5 The Appellants focus their arguments primarily on Mater, which is central to all four rejections. App. Br. 4-12; Reply Brief filed April 11, 2011 at 5-9. In addition, the Appellants argue the claims together based on a limitation recited in claim 1 (“wherein said non-woven textile has a maximum thickness of 3.0 mm”). Id. Accordingly, we focus our attention to Mater as applied against claim 1. 37 C.F.R. § 41.37(c)(1)(vii). Appeal 2011-008025 Application 12/430,638 4 the maximum thickness value recited in claim 1. App. Br. 6-8. The Appellants are incorrect. Mater discloses that “[t]he highloft nonwoven material . . . preferably has a thickness falling within a range of 6 mm to 75 mm” (emphasis added). ¶ [0017]. While Mater teaches a range of 6 mm to 75 mm as one of several preferred ranges, Mater explicitly teaches thicknesses below 6 mm, as follows: The foregoing thickness ranges show preferred ranges relative to the noted basis weights that are well suited for typical intended usage of the present invention, but thickness levels above and below the noted ranges are also possible relative to the noted basis weights and vice versa depending of the desired flame barrier requirements and intended usage. Id. Given Mater’s disclosure as a whole, we find no error in the Examiner’s determination (Ans. 6-7) that a person of ordinary skill in the art would have found it obvious to determine the optimum or workable range of thicknesses through routine experimentation. In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.”). Appeal 2011-008025 Application 12/430,638 5 The Appellants have failed to demonstrate any criticality, much less an unexpected criticality, for the claimed maximum thickness of 3 mm relative to Mater’s disclosed thickness.6 SUMMARY For these reasons, we affirm Rejections I through IV above. The Examiner’s decision to reject claims 1-7 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. AFFIRMED tc 6 The Appellants refer to a “Link Declaration.” App. Br. 9-10. The Appellants, however, failed to comply with 37 C.F.R. § 41.37(c)(1)(ix). Therefore, the “Link Declaration” is not properly before us. Even if it were properly before us, we find no error in the Examiner’s assessment of the proffered evidence. Ans. 16-19.