Ex Parte Sebastian et al

Patent Trial and Appeal Board

Apr 6, 2018

13241399 (P.T.A.B. Apr. 6, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/241,399 09/23/2011
26158 7590 04/10/2018
WOMBLE BOND DICKINSON (US) LLP
ATTN: IP DOCKETING
P.O. BOX 7037
ATLANTA, GA 30357-0037
FIRST NAMED INVENTOR
Andries D. Sebastian
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.
R60999 2410.1 (0277.7) 2117
EXAMINER
TOLIN, MICHAEL A
ART UNIT PAPER NUMBER
1745
NOTIFICATION DATE DELIVERY MODE
04/10/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
IPDocketing@wbd-us.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDRIES D. SEBASTIAN, HU AMIN GAN,
KENNETH C. DELOACH, RICHARD L. SIZEMORE, and
DEANM. VICK
Appeal2017-005982
Application 13/241,399
Technology Center 1700
Before TERRY J. OWENS, CHRISTOPHER L. OGDEN, and
AVELYN M. ROSS, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1-3, 6-8, 13, 15, 17-20, and 51-53 in the
above-identified application. 2 We have authority pursuant to 35 U.S.C.
§ 6(b ). We reverse.
1 Appellants identify R. J. Reynolds Tobacco Company as the real party in
interest. Appeal Brief 2, Nov. 14, 2016 [hereinafter Appeal Br.].
2 Final Office Action, June 15, 2016 [hereinafter Final Action]; Examiner's
Answer, Jan. 4, 2017 [hereinafter Answer]; see also Appeal Br.; Reply Brief,
Feb. 23, 2017 [hereinafter Reply Br.].
Appeal2017-005982
Application 13/241,399
BACKGROUND
Appellants' invention relates to methods of producing a cigarette filter
element. See Spec. 1: 1--4, 7 :9--11. According to Appellants, the process of
making cigarette filters traditionally starts with a tow fiber, which is "a
substantially untwisted bundle of two or more substantially continuous
filaments of a fiber." Id. at 7: 11-13. The prior art process involves opening
(spreading out) the tow, removing crimps from the tow, blooming the tow,
applying a plasticizer, and then making the filter rod. See id. at 7-12; Fig. 1.
In this context, Appellants' invention "presents methods ... for improved
filter elements that incorporate two or more fibers that may define differing
characteristics." Id. at 13 :6-8.
The following is representative claim 1:
1. A method for forming a cigarette filter element, the
method comprising:
providing a first fiber defining a first characteristic;
providing a second fiber defining a second characteristic,
wherein the first fiber and the second fiber
respectively comprise a plurality of filaments, and
wherein the first characteristic of the first fiber
differs from the second characteristic of the second fiber;
combining the first fiber and the second fiber in a
texturing apparatus such that the first fiber is at least partially
entangled with the second fiber to form a mixed fiber product
without conducting a separate separation operation in which
the filaments of the first fiber or the filaments of the second fiber
are at least partially separated from one another prior to the
first fiber and the second fiber being combined in the texturing
apparatus;
applying the plasticizer to the mixed fiber product; and
at least partially enclosing the mixed fiber product in a
plug wrap.
2
Appeal2017-005982
Application 13/241,399
Appeal Br. 26 (emphasis of key limitation added). Method claim 52 is also
independent. See id. at 36-37.
The Examiner maintains the following grounds of rejection: 3
1. Claims 1-3, 6-8, 13, 17, and 51 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Yamashita4 in view of Armstrong5 and
Tomioka. 6 See Final Action 13-19.
2. Claims 17-19 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yamashita, Armstrong, Tomioka, Berger '702, 7 and
MacHenry. 8 See id. at 20.
3. Claims 17-20 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yamashita, Armstrong, Tomioka, Berger '702, and Berger
'430. 9 See id. at 20.
4. Claim 53 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Yamashita, Armstrong, Tomioka, and Grumer. 10 See id. at
20.
5. Claims 1, 15, and 52 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yamashita, Lloyd, 11 and Tomioka. See id. at 20-24.
3 In the Answer, the Examiner withdrew a number of other rejections under
35 U.S.C. § 103(a) that had appeared in the Final Action. Answer 16-17.
4 Yamashita, US 6,571,802 Bl (issued June 3, 2003).
5 Armstrong et al., US 3,724,199 (issued Apr. 3, 1973).
6 Tomioka et al., US 4,173,504 (issued Nov. 6, 1979).
7 Berger, US 3,111,702 (issued Nov. 26, 1963) [hereinafter Berger '702].
8 MacHenry, US 2,812,767 (issued Nov. 12, 1957).
9 Berger, US 5,509,430 (issued Apr. 23, 1996) [hereinafter Berger '430].
10 Grumer et al., US 4,368,688 (issued Jan. 18, 1983).
11 Lloyd et al., US 3,775,958 (issued Dec. 4, 1973).
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Appeal2017-005982
Application 13/241,399
DISCUSSION
Rejections 1-4 (claims 1-3, 6-8, 13, 17-20, 51, and 53)
Yamashita discloses a method for forming a cigarette filter element.
See Yamashita 1: 11-13. In this process, a plug-making machine opens a tow
fiber comprising cellulose acetate, followed by the addition of a plasticizer
and formation into a fibrous rod. Id. at 7:41--45. The Examiner finds that the
tow fiber may comprise two fibers with different characteristics, as recited in
claim 1. See Final Action 13 (citing Yamashita 7:64--67). Among the
differences between Yamashita's disclosure and the invention recited in
claim 1, the Examiner finds that
Yamashita does not teach combining the first and second fibers
in a texturing apparatus such that first fiber is at least partially
entangled with the second fiber to form a mixed fiber product
without conducting a separate separation operation in which the
filaments of the first fiber or the filaments of the second fiber are
at least partially separated from one another prior to the first fiber
and the second fiber being combined in the texturing apparatus.
Id. at 13. However, the Examiner finds that Armstrong teaches a suitable
pneumatic device for intermixing fibers without conducting a separate
separation operation. Id. at 14--15. We reproduce Figure 1 of Armstrong
below:
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Appeal2017-005982
Application 13/241,399
Armstrong's Figure 1 depicts a device to implement "a process for
intermingling the filaments of two or more constituent yams at the optimum
point for assuring proper intermingling of the filaments." Armstrong 1 :5-8.
The device combines individual spun yams 26 and 28 through guide 30
(creating doubled yam 32) before passing them side-by-side between nip
rolls 34 and 36. Id. at 1:51---62. The device feeds doubled yam 32 to draw
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Appeal2017-005982
Application 13/241,399
roll 40 under tension because draw roll 40 is driven at a higher surface speed
than nip rolls 34 and 36. Id. at 1 :62-2:3, 2: 17-22. After draw roll 40,
doubled yam 32 passes through "pneumatic intermixing chamber 44 wherein
the filaments of the constituent yams 26 and 28 are intermingled or
interlaced with one another by a high-velocity air stream to form a plied yam
46." Id. at 2:4--9.
The Examiner determines that a person of ordinary skill in the art
would have been motivated to use the teachings of Armstrong of "a known
suitable method to achieve a uniform mixture of fibers," and that
Armstrong's method does not include a distinct operation to separate the
fibers before the combining step. Final Action 14--15.
Appellants dispute that Armstrong's method omits a separate
separation operation, and argue that this separation operation occurs when
doubled yam 32 is compressed between nip rolls 34 and 36. See Appeal Br.
18. As evidence, Appellants cite Ames et al., US 6,543,106 Bl (issued Apr.
8, 2003). Appeal Br. 18. Appellants argue that Ames, like Armstrong,
includes nip rolls that stretch fibers before they pass to an air opening jet,
and that Ames discloses that the rolls act to open or separate the fibers. See
id. at 16, 18. According to Appellants, Ames teaches that this stretching
causes a separation of fibers. See id. at 18 (citing Ames 6 :23-54 ).
The Examiner responds that Armstrong contains no indication that nip
rolls 34 and 36 open or separate the fibers. Answer 18. The Examiner also
points to differences between the rollers of Ames and the rollers of
Armstrong, such as that Ames uses pairs of rubber and metal rollers with
grooves or threads, which are specifically designed to deregister and separate
the tow fibers. See id.
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Appeal2017-005982
Application 13/241,399
We agree with Appellants that Ames evinces that a nip roller
assembly, when used to add tension to a bundle of fibers in the manner
described by Armstrong, would lead to at least some deregistering and
separating of the fibers. See, e.g., Ames 5:67---6:3. While the Examiner
points to differences between the rollers in Ames and Armstrong, the
Examiner does not provide evidence or technical reasoning that separation
would not occur, absent the specific structure of the nip rolls in Ames.
Moreover, Appellants' Specification lists blooming as one of the possible
separation operations known to at least partially separate fibers from one
another, and notes that blooming may include "tensioning and relaxing
alternating sections of the tow using rollers," with or without the use of
pneumatic banding jets. Spec. 8. In light of the above, the Examiner has not
shown by a preponderance of the evidence that Armstrong teaches the
absence of any distinct separation operation prior to the combining step.
Because the Examiner's other findings and determinations do not cure this
error, we reverse the Examiner's rejections 1--4.
Rejection 5 (claims 1, 15, 52)
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Appeal2017-005982
Application 13/241,399
Lloyd's Figure 1 depicts an "[a]pparatus for interlacing a filament yam to
give it compactness and other characteristics of a twisted yam." Lloyd
abstract. In the device, multifilament yam 12 passes through upstream and
downstream pneumatic false twisters 18 and 20, respectively. Id. at 2:24--33.
In one embodiment, "filaments of different chemical composition can be
worked upon simultaneously and they will be interlaced and effectively
blended at the same time." Id. at 3:54--57.
The Examiner determines that a skilled artisan would have been
motivated to use Lloyd's method of combining fibers because it is "a known
suitable method to achieve a blending of the fibers." Final Action 22.
Appellants argue that Lloyd's method for combining the fibers is not
suitable in a method for forming a cigarette filter element, as recited in
independent claims 1 and 52, because Lloyd teaches the production of a
highly compact yam. Appeal Br. 20 (citing Lloyd 1 :8-28, 54--57).
According to Appellants, a highly compact yam is not sufficiently open to
allow enough airflow for it to be useful for forming a cigarette filter element.
Id. The Examiner does not rebut this argument in the Answer, although the
Examiner points out there is nothing in the claims ruling out a further
opening step between combining the fibers and applying the plasticizer. See
Answer 19-20. Appellants respond, however, that Yamashita only teaches
an opening operation on a fiber tow, not a compact interlaced yam. See
Reply Br. 6.
The Examiner has not directed our attention to any evidence or
technical reasoning for why a skilled artisan would have considered the
compact yam produced by Lloyd's disclosure to be a suitable mixed fiber
product for producing a cigarette filter element as recited in independent
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Appeal2017-005982
Application 13/241,399
claims 1 or 52. Thus, the Examiner has not made a prima facie case that the
claimed inventions are obvious over Yamashita in view of Lloyd and
Tomioka, and we therefore reverse the Examiner's rejection 5.
CONCLUSION
The following table summarizes the decision:
1-3, 6-8, § 103(a) Yamashita, Armstrong, 1-3, 6-8, 13,
13,17,51 Tomioka 17,51
17-19 § 103(a) Yamashita, Armstrong, 17-19
Tomioka, Berger '702,
Mac Hen
17-20 § 103(a) Yamashita, Armstrong, 17-20
Tomioka, Berger '702,
Berger '430
53 § 103(a) Yamashita, Armstrong, 53
Tomioka, Grumer
1, 15, 52 § 103(a) Yamashita, Lloyd, 1,15,52
Tomioka
Summary 1-3, 6-8, 13,
15, 17-20,
51-53
DECISION
The Examiner's decision is reversed.
REVERSED
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