Ex Parte Snider et al

Patent Trial and Appeal Board

Apr 29, 2015

11449265 (P.T.A.B. Apr. 29, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/449,265 06/08/2006 Jerry Snider 02-272-US-DIV 6280
62753 7590 04/30/2015
Todd M. Hess
Senior Intellectual Property Counsel
Polymer Group, Inc.
9335 Harris Corners Parkway, Suite 300
Charlotte, NC 28269
EXAMINER
MATZEK, MATTHEW D
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
04/30/2015 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 JERRY SNIDER, ANDREW DELANEY, NICK CARTER,
CHERYL CARLSON, JULIE THOMPSON, and JENNIFER MAYHORN1
____________

Appeal 2013-005647
Application 11/449,265
Technology Center 1700
____________
Before BRADLEY R. GARRIS, CHARLES F. WARREN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s
rejection under 35 U.S.C. § 103(a) of claims 7–9, 11, 23–30, 32–34, and 36–
39 as unpatentable over Batra (US 6,520,330 B1, issued Feb. 18, 2003) in
view of Evans (US 3,485,706, issued Dec. 23, 1969). We have jurisdiction
under 35 U.S.C. § 6.
We AFFIRM.

1 Polymer Group, Inc. is identified as the real party in interest. App. Br. 3.
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Application 11/449,265
2
Appellants claim a nonwoven fabric comprising a hydraulically-
entangled nonwoven precursor web providing a nonwoven fabric containing
three-dimensional images that provide a performance attribute and/or an
aesthetic attribute wherein one of the images comprises a repeating pattern
of apertures (independent claims 7, 8, and 11).

A copy of representative claim 7, taken from the Claims Appendix of
the Appeal Brief, follows.
7. A nonwoven fabric containing at least two intercalated three-
dimensional images comprising:
a hydraulically-entangled nonwoven precursor web having
hydraulically imparted into the web at least a first three-dimensional image
within a second three-dimensional image providing a nonwoven fabric
containing at least two dissimilar intercalated three-dimensional images,
wherein a first three-dimensional image provides a performance attribute
and a second three-dimensional image provides an aesthetic attribute,
wherein the first and second three-dimensional images intercalated within
the nonwoven fabric are arranged in a manner selected from the group
consisting of co-planar to one another, multi-planar to one another, and both,
and wherein one of said first and second three-dimensional images imparted
to said web comprises a repeating pattern of apertures.

We sustain the above rejection for the reasons expressed in the Final
Action, the Answer, and below.

The Examiner concludes that it would have been obvious to provide a
consumer product (e.g., paper toweling) containing three-dimensional
images as taught by Batra in the form of hydraulically-entangled continuous
filaments and short fibers that provide a nonwoven fabric containing
hydraulically-imparted images and apertures as taught by Evans in order to
Appeal 2013-005647
Application 11/449,265
3
achieve the benefits taught by Evans such as a fabric having good surface
durability (Final Action 5–6; see, e.g., Batra Abst., Evans col. 11, ll. 18–20).

In response to the Examiner’s obviousness conclusion, Appellants
present arguments that are unpersuasive because they are directed to the
references individually rather than the combination of references applied in
the rejection. See In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986)
(“Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.”).

For example, Appellants argue that Batra’s tissue sheet goods would
not tolerate, and would be rendered unsatisfactory by, the hydraulic
conditions used by Evans for creating images and apertures (App. Br. 17–
21). However, the proposed combination of references does not result in
subjecting the tissue sheet goods of Batra to the hydraulic conditions of
Evans. As indicated above, the Examiner proposes forming Batra’s products
or goods with hydraulically-entangled continuous filaments and short fibers
which are taught by Evans to be suitable for making a nonwoven fabric
having good surface durability.

Concerning this proposal, Appellants concede that Batra discloses
using a combination of fibers but argue that Batra does not “make[] any
reference to a combined use of paper fibers with continuous filaments” (id.
at 22).

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The deficiency of this argument is that it is not accompanied by any
explanation why Evans would not have suggested providing Batra with the
combination of continuous filaments and short fibers as proposed by the
Examiner. Based on the record of this appeal, the proposed combination of
Batra and Evans reflects a prima facie case of obviousness because it is a
combination of familiar elements according to known methods that yield no
more than unpredictable results. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 416 (2007) (“The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.”).

Regarding an image that provides a performance attribute as required
by independent claims 7 and 8, Appellants argue that Batra and Evans “refer
to aesthetic patterns, not performance patterns” (App. Br. 23).2

Appellants do not embellish this argument with any explanation why
the images of the Batra and Evans combination are incapable of possessing
performance as well as aesthetic attributes. On the other hand, because the
images of Evans alone or in combination with Batra are structurally
indistinguishable from Appellants’ claimed images, it is reasonable to
believe that these prior art and claimed images possess the same capabilities
or attributes. Therefore, the record supports a determination that the prior
art images necessarily and inherently possess performance attributes such as

2 Appellants’ argument is not applicable to claim 11 because this claim does
not require any performance attribute.
Appeal 2013-005647
Application 11/449,265
5
the absorbency characteristic desired for the products of both Batra and
Evans or the attributes of facilitating exfoliation and lather generation as
recited in claim 9. In this regard, we emphasize that Appellants are legally
incorrect in stating an inherency position cannot be based on a combination
of prior art references (id. at 26). See PAR Pharm., Inc. v. TWI Pharms.,
Inc., 773 F.3d 1186, 1195–96 (Fed. Cir. 2014) (“[I]n order to rely on
inherency to establish the existence of a claim limitation in the prior art in an
obviousness analysis—the limitation at issue necessarily must be present, or
the natural result of the combination of elements explicitly disclosed by the
prior art.”). For these reasons, the argument under review lacks convincing
merit.

With respect to the fibrous bundles recitation in dependent claims 23
and 26, Appellants argue “no such disclosure of fibrous bundles exists in
either cited reference” (App. Br. 27).

This argument has no persuasive merit because Appellants fail to
explain how the claimed fibrous bundles distinguish from the hydraulically-
entangled fibers resulting from the Batra and Evans combination proposed
by the Examiner.

Appellants also present an argument concerning the requirement of
dependent claims 25 and 28 that the images are arranged in a multi-planar
manner to one another (id. at 28–29).

For this claim requirement, the Examiner relies on the Batra
disclosure at column 8, lines 22–40, that images (i.e., indicia) may be at
Appeal 2013-005647
Application 11/449,265
6
different depths (i.e., in different/multiple planes) (Final Action ¶ bridging
3–4; see also Ans. ¶ bridging 2–3, 11). Appellants’ argument does not
address this disclosure of Batra and therefore does not show error in the
Examiner’s rejection of the claims in question.

Appellants’ remaining arguments are not convincing for reasons
analogous to those expressed above.

As a final matter deserving of attention, we observe that, in addition to
arguing Batra and Evans do not establish a prima facie case of obviousness
for independent claims 7 and 8, Appellants state “the indicated secondary
consideration evidence of unexpected results has been submitted adequate to
rebut such prima facie obviousness” (App. Br. 23, 26). We emphasize that
Appellants in their Appeal Brief do not identify with any reasonable
specificity evidence of unexpected results.

The decision of the Examiner 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)(1)(iv).

AFFIRMED

cdc