Ex Parte Morris

Patent Trial and Appeal Board

Aug 31, 2018

12956502 (P.T.A.B. Aug. 31, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/956,502 11/30/2010
25280 7590
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
08/31/2018
FIRST NAMED INVENTOR
David D. Morris
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
6456 9479
EXAMINER
HOOK, JAMES F
ART UNIT PAPER NUMBER
3753
MAIL DATE DELIVERY MODE
08/31/2018 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 DAVID D. MORRIS 1
Appeal 2017-011162
Application 12/956,502
Technology Center 3700
Before: BENJAMIN D. M. WOOD, BRETT C. MARTIN, and
PAUL J. KORNICZKY, Administrative Patent Judges.
WOOD, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant states that the real party in interest is Milliken & Company.
App. Br. 2.
Appeal 2017-011162
Application 12/956,502
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134 from a rejection of claims 8,
11-16, 18, 20, and 22-27. Claims 1-7, 9, 10, 17, 19, and 21 have been
cancelled. App. Br. 2. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
THE INVENTION
The claims are directed to a woven textile fabric and innerduct having
multiple-inserted filling yams. Claim 1, reproduced below, is illustrative of
the claimed subject matter:
8. An innerduct for a cable, comprising one or
more strip-shaped lengths of woven textile fabric
configured to create a flexible, longitudinal
compartment for enveloping a cable, wherein the
woven textile fabric comprises:
a plurality of warp yams, wherein the warp yams
are monofilament warp yams;
and,
a plurality of filling yams interwoven with the
warp yams, wherein the filling yams consist of a
repeating pattern of picks of monofilament yams and
double-inserted multifilament yams, wherein the
arrangement of monofilament yams to double
inserted multifilament yams is selected from the
group consisting of 1 :1, 1 :2, 1 :3, 2:3, 3:4, and 3:5.
James
Bedingfield
Itoh
REFERENCES
US 7,188,642 B2
US 7,799,997 B2
US 8,925,592 B2
2
Mar. 13, 2007
Sept. 21, 2010
Jan. 6,2015
Appeal 2017-011162
Application 12/956,502
REJECTIONS
Claims 8, 11-16, 18, 20, and 22-27 are rejected under pre-AIA 35
U.S.C. § 103(a) as unpatentable over Bedingfield and James.
Claims 8, 15, 16, 24, 26, and 27 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Itoh and James.
Claims 11-14, 18, 20, 22, 23, and 25 are rejected under pre-AIA 35
U.S.C. § 103(a) as unpatentable over Itoh, James, and Bedingfield.
ANALYSIS
Claims 8, 11-16, 18, 20, and 22-27-
Rejected as Unpatentable over Bedingfield and James
Appellant argues the claims subject to this rejection as a group. App.
Br. 4. We select claim 8 as representative of the group, and decide the
appeal of this rejection on the basis of claim 8 alone. 37 C.F.R.
§ 4I.37(c)(l)(iv).
We have considered Appellant's arguments, but are not persuaded that
the Examiner erred in rejecting claim 8 as unpatentable over Bedingfield and
James. Appellant first argues that "James does not teach that it is old and
well known to form a woven fabric for use in fabric sleeves for wires,"
because James teaches "a pull tape[,] not a fabric sleeve." App. Br. 4. This
argument is not commensurate in scope with the rejection, however, because
the Examiner relies on Bedingfield, not James, to teach a cable innerduct
comprising one or more strip-shaped lengths of woven textile fabric. Final
Act. 2. "Non-obviousness cannot be established by attacking the references
individually where the rejection is based upon the teachings of a
combination of references." See In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986).
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Application 12/956,502
Appellant next argues that James does not teach "multiple inserted
yams." Id. at 5. The Examiner finds that James' teaching to use yams 28 as
"floats," combined with the other warp and weft yams, corresponds to the
double-inserted limitation. Final Act. 3, 6; Ans. 3, 7. Appellant responds
that "James teaches that some of the warp yams being in a plain weave and
some of the warp yams being in a twill or satin weave," but "a satin and
twill weave are not the same as a multiple-inserted weave." Id. at 5.
Appellant essentially contends that yams are "double-inserted" only if a pair
of yams passes successively over and under every warp yam together. App.
Br. 6. In James, two yams only pass through some of the yams together.
Appellant does not provide any evidence or persuasive argument in support
of narrowly construing "double-inserted" to require double-inserted yams to
pass through every warp together, or allege that the Specification defines the
term in this manner. Accordingly, we are not persuaded that the Examiner
erred in finding that James teaches double-inserted yams.
Claims 8, 15, 16, 24, 26, and 27-
Rejected as Unpatentable over Itoh and James
Appellant argues the claims subject to this rejection as a group. App.
Br. 6. We select claim 8 as representative of the group, and decide the
appeal of this rejection on the basis of claim 8 alone. 37 C.F.R.
§ 4I.37(c)(l)(iv).
We have considered Appellant's arguments but are not persuaded of
Examiner error. Appellant first argues that "Itoh does not teach a woven
textile fabric that can be folded and sewn together to create at least one
pocket for enveloping a cable." App. Br. 7. Claim 8, however, does not
require the woven fabric to be "folded and sewn together to create at least
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Application 12/956,502
one pocket" for enveloping a cable. Instead, the claim only requires the
fabric to be "configured" to create a "compartment" for enveloping a cable.
Thus, this argument is unavailing.
Appellant also argues that "[ o ]ne skilled in the art, having read the
Itoh reference would not be motivated to change the picks to only contain
multifilaments in the multiple-inserted picks and have the monofilaments as
separate picks as this would cause the monofilaments to move from their
intended location during use." App. Br. 8. In support of this argument,
Appellant relies on Itoh' s teaching to use a multifilament yam as one of the
two double-inserted fill yams "to maintain the warp monofilaments 22 in
their intended location, even under external abrasion force." Id. at 7
( quoting Itoh 5: 1-7). Appellant's argument suggests that combining Itoh
with James would result in no multifilament yams being used in the multi-
inserted picks. We disagree, as James teaches using multifilament yams in
both the warp and fill directions. See, e.g., James 3:49-67, Fig. 2. Thus,
this argument is also unavailing.
Claims 11-14, 18, 20, 22, 23, and 25-
Rejected as Unpatentable over Itoh, James, and Bedingfield
Appellant argues the claims subject to this rejection as a group. App.
Br. 8. We select claim 13 as representative of the group, and decide the
appeal of this rejection on the basis of claim 13 alone. 37 C.F.R.
§ 4I.37(c)(l)(iv).
Claim 13 depends from claim 8 and additionally recites "wherein the
one or more strip-shaped lengths of woven textile fabric are configured to
create at least two flexible, longitudinal compartments for enveloping cables,
and each of the compartments contains a pull line." Appellant asserts that
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Application 12/956,502
"it is unclear how one would be able to modify the cigarette wrapping
shaped fabric of Itoh into a unitary structure with at least two flexible,
longitudinal compartments, with each of the compartments configured for
enveloping a cable." App. Br. 9. But the Examiner relies on the
combination of Itoh and Bedingfield, not on Itoh alone, to teach this feature.
Final Act. 5; see also Ans. 9 ("Bedingfield discloses multiple embodiments
of how to fold a woven material so that it can protect more than one wire at a
time by creating a plurality of pockets for the wires.") ( citing Bedingfield,
Figs. 2, 4, 5A, 5B, 6A-E, 7 A-E). Thus, Appellant's argument is
unpersuasive.
DECISION
For the above reasons, the Examiner's rejection of claims 8, 11-16, 18
20, and 22-27 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)(l )(iv).
AFFIRMED
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