Ex Parte Scherb

Board of Patent Appeals and Interferences

Apr 10, 2009

10969946 (B.P.A.I. Apr. 10, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THOMAS THOROEE SCHERB
____________

Appeal 2009-1592
Application 10/969,946
Technology Center 1700
____________

Decided:1 April 10, 2009
____________

Before EDWARD C. KIMLIN, CATHERINE Q. TIMM, and
MARK NAGUMO, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 6, and 41-62.
Claims 2-5, 7-40, and 63-141 have been withdrawn from consideration.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-1592
Application 10/969,946

We have jurisdiction under 35 U.S.C. § 6(b). Claim 1 is illustrative:
1. A method for production of a web of tissue material,
comprising:
supplying at least two stock grades to a multilayer flow box;

winding up the tissue web on a reel of a reel-up; and

maintaining a winding nip having a line pressure of less than or equal
to 0.8 kN/m to influence the hardness of the reel produced.

The Examiner relies upon the following references in the rejection of
the appealed claims (Ans. 3):
Takeuchi 6,258,210 B1 Jul. 10, 2001
Beisswanger 2001/0052560 A1 Dec. 20, 2001
Appellant’s claimed invention is directed to a method for producing a
web of tissue material. The method entails winding the tissue web on a reel
and maintaining a winding nip having a line pressure of less than or equal to
0.8 kN/m.
Appealed claims 1, 6, 41, and 43-45 stand rejected under 35 U.S.C.
§ 102(e) as being anticipated by Takeuchi. Claims 42, 46-58, and 62 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over Takeuchi in
view of Beisswanger.2
We have thoroughly reviewed the respective positions of Appellant
and the Examiner. In so doing, we agree with Appellant that the Examiner’s
rejections are not supported by the cited prior art. Accordingly, we will not
sustain the Examiner’s rejections.

2 The Examiner has withdrawn the rejection of claims 1, 6, and 41-62 under
35 U.S.C. § 112, second paragraph. Accordingly, claims 59-61 are not
under rejection.
2
Appeal 2009-1592
Application 10/969,946

We consider first the § 102 rejection over Takeuchi. The Examiner
appreciates that Takeuchi does not teach any line pressure at the nip between
winder roll 14 and paper roll 15. However, the Examiner finds that the
claim recitation “a line pressure of less than or equal to 0.8 kN/m” includes
the value of zero linear pressure, and somehow concludes that Takeuchi’s
lack of a disclosure of a line pressure is tantamount to a description of a line
pressure of zero at the nip. The flaw in the Examiner’s reasoning, however,
is that Takeuchi’s silence with respect to the line pressure cannot be taken as
an actual description of zero line pressure within the meaning of § 102.
Manifestly, Takeuchi’s linear pressure may exceed the claimed upper limit
of 0.8 kN/m. As stressed by Appellant, a reference must provide a clear
description of every claim feature to support a rejection under § 102 and,
here, a disclosure of nothing is not equivalent to a description of zero.
Clearly, a description of the relevant claim feature is not found in the
Takeuchi disclosure.
The Examiner’s citation of Beisswanger for the § 103 rejection does
not remedy the deficiency in Takeuchi discussed above.
In conclusion, based on the foregoing, we are constrained to reverse
the Examiner’s rejections.
REVERSED

Ssl

GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
3