Ex parte Rhode

Board of Patent Appeals and Interferences

Feb 28, 2000

08279557 (B.P.A.I. Feb. 28, 2000)

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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 18
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte WERNER RHODE
________________
Appeal No. 1997-1422
Application 08/279,557
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ON BRIEF
________________
Before KIMLIN, OWENS and KRATZ, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the examiner’s refusal to allow
claims 1-20 as amended after final rejection. These are all
of the claims in the application.
THE INVENTION
Appellant claims a weft inserted warp knit fabric for use
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Application 08/279,557
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as the female fabric in a hook and loop fastener. The fabric
has wales of stitches on its back side having free loops
arranged such that adjacent loops tilt sideways alternately in
opposite directions. Claim 1 is illustrative and reads as
follows:
1. A weft inserted warp knit fabric for use as the
female fabric in a hook and loop fastener comprising: a weft
inserted warp knit fabric having a face side and a back side,
said back side of said fabric having a plurality of spaced
wales of stitches with a lap portion of each of said stitches
projecting outwardly therefrom to form a free loop connected
only at its base to its respective wale with adjacent loops in
each wale tilted sidewise alternately in opposite directions
and a weft yarn inserted into the courses of the fabric
between the face and back side of the fabric and extending
across the full width of the fabric.
THE REFERENCES
Rogers 4,624,116 Nov. 25,
1986
Matsuda 4,709,562 Dec. 1,
1987
THE REJECTION
Claims 1-20 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Rogers in view of Matsuda.
OPINION
We have carefully considered all of the arguments
advanced by appellant and the examiner and agree with
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Application 08/279,557
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appellant that the aforementioned rejection is not well
founded. Accordingly, we reverse this rejection.
Rogers discloses a weft inserted warp knit fabric for use
as the female fabric in a hook and loop fastener (col. 1,
lines 9-13). Rogers’ fabric has spaced wales of stitches with
a lap loop (12) of each of the stitches projecting outwardly
therefrom to form a free loop connected only at its base to
its respective wale (col. 1, lines 46-53). Unlike appellant’s
loops which are tilted sideways alternately in opposite
directions, Rogers’ loops all point in the same direction
(figure 2).
Matsuda discloses a warp knit support tape for hook and
loop fasteners, having pile loops (17) which tilt sideways
alternately on opposite sides of wales (18) (col. lines 34-39;
col. 2, lines 15-19; figure 4). Matsuda teaches that this
arrangement of pile loops provides increased opportunity to
engage the hooks on the mating tape (col. 2, lines 19-23).
Appellant argues that “[t]here is no teaching in Matsuda
that would make it obvious that the lap side loops of Rogers
can be alternated in the manner claimed” (brief, page 4).
The examiner argues that it would have been obvious to
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Application 08/279,557
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one of ordinary skill in the art to make Rogers’ lap loops
tilt sideways alternately in opposite directions to provide
increased opportunity to engage the hooks on the mating fabric
as taught by Matsuda (answer, pages 6 and 8).
Even if Matsuda would have motivated one of ordinary
skill in the art to arrange Rogers’ loops such that they tilt
sideways alternately in opposite directions, the examiner’s
argument is not persuasive because the examiner has not
provided evidence that the level of ordinary skill in the art
was such that the ordinarily skilled artisan would have had a
reasonable expectation of success in making this modification.
See In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438, 1442 (Fed.
Cir. 1991); In re O’Farrell, 853 F.2d 894, 902, 7 USPQ2d 1673,
1680 (Fed. Cir. 1988); In re Longi, 759 F.2d 887, 892-93, 225
USPQ 645, 648 (Fed. Cir. 1985). The Rogers and Matsuda free
loop structures differ in that in the Rogers fabric, the inner
loop of two loops of a wale is used to form the free loops
(figure 1), whereas in the Matsuda fabric, the outer loop of
three loops of a wale is used to form the free loops, and the
free loops pass through the wale in a different manner than in
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Application 08/279,557
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the Rogers fabric (figure 3). The examiner has not explained
why one of ordinary skill in the art, given these references
but not appellant’s disclosure, would have had a reasonable
expectation of success in modifying the structure of the
Rogers fabric in the manner proposed by the examiner.
The examiner, therefore, has not carried the burden of
establishing a prima facie case of obviousness of appellant’s
claimed invention.
DECISION
The rejection of claims 1-20 under 35 U.S.C. § 103 as
being unpatentable over Rogers in view of Matsuda is reversed.
REVERSED
EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
TERRY J. OWENS ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS AND
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Application 08/279,557
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) INTERFERENCES
)
)
PETER F. KRATZ )
Administrative Patent Judge )
tjo/ki
Appeal No. 1997-1422
Application 08/279,557
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Terry M. Moyer
P. O. Box 1927
Spartanburg, SC 29304