Ex Parte Sommer

Patent Trial and Appeal Board

Jul 22, 2016

12991362 (P.T.A.B. Jul. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/991,362 01/26/2011 Sebastian Sommer
535 7590 07/26/2016
KFROSS PC
311 E York St
Savannah, GA 31401-3814
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.
30116 8114
EXAMINER
TENTONI, LEO B
ART UNIT PAPER NUMBER
1742
NOTIFICATION DATE DELIVERY MODE
07/26/2016 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):
savannah@kfrpc.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SEBASTIAN SOMMER
Appeal2014-008803
Application 12/991,362
Technology Center 1700
Before JEFFREY T. SMITH, MICHELLE N. ANKENBRAND, and
AVEL YN M. ROSS, Administrative Patent Judges.
ANKENBRAND, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellant 1 appeals under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 16-23, 26-29, and 31-36. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.
Background
The subject matter on appeal relates to a method of manufacturing a
spunbond nonwoven from filaments. Spec. 1, 2--4. Claim 16, the sole
independent claim, is representative of the claims on appeal, and is
1 Appellant identifies Reifenhaeuser Gmbh & Co. KG as the real party in
interest. Br. 1.
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Application 12/991,3 62
reproduced below from the Claims Appendix to the Appeal Brief:
1. A method of making a spunbond non woven from
thermoplastic filaments, the method comprising the steps of
sequentially:
spinning the filaments from at least one spinner;
cooling and stretching the spun filaments;
depositing the cooled and stretched filaments on a surface to
form a nonwoven fleece web;
moving the fleece web in a travel direction;
introducing a liquid medium into the moving fleece web;
mechanically needling the moving fleece web into which the
liquid medium was introduced; and
hydraulically or hydrodynamically final consolidating by
hydroentanglement the mechanically needled and moving
fleece web to a basis weight of more than 80 g/m2 from a top
side as well as from a lower side of the nonwoven fleece web
by high-pressure water-jet bars above and below the nonwoven
fleece web, one of the bars being upstream of the other bar and
having a hpi density that is smaller than that of the other bar
and that is equal to at most 40.
Br. 13 (Claims App'x).
Lou
Fleissner
("Fleissner I")
Fleissner
("Fleissner II")
Noelle
Lynde
Turi
Takayasu
The References
us 4,582,750
us 5,761,778
us 6, 112,385
US 2001/0005926 Al
US 2005/0120497 Al
US 2006/0057921 Al
US 2006/0225952 Al
2
Apr. 15, 1986
June 9, 1998
Sept. 5, 2000
July 5, 2001
June 9, 2005
Mar. 16, 2006
Oct. 12, 2006
Appeal2014-008803
Application 12/991,3 62
The Rejections
The Examiner maintains the following rejections on appeal:
1. Claims 16-21, 26-29, and 31-36 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Lynde, Lou, Fleissner I,
Turi, and Fleissner II;
2. Claim 22 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Lynde, Lou, Fleissner I, Turi, Fleissner II, and Takayasu;
and
3. Claim 23 is rejected under 35 U.S.C. § 103(a) as unpatentable over
the combination of Lynde, Lou, Fleissner I, Turi, Fleissner II, and Noelle.
OPINION
After having considered the evidence presented in this Appeal and
each of Appellant's contentions, we are not persuaded that Appellant
identifies reversible error, and we affirm the Examiner's§ 103 rejections for
the reasons expressed in the Final Action and the Answer. \Ve add the
following primarily for emphasis.
Rejections 1 and 2
Appellant argues the claims as a group, relying on the limitations of
independent claim 16, and does not present arguments for the separate
patentability of the dependent claims. Br. 8-11. We, therefore, limit our
discussion to representative claim 16, which controls our rulings as to both
grounds of rejection. 2
2 Although the Examiner rejects claim 22 as part of a separate ground of
rejection and applies an additional reference to that claim, it is apparent from
Appellant's Brief that Appellant relies on the arguments presented for claim
16 for the separate rejection of claim 22. See Br. 8 (noting that the
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Appeal2014-008803
Application 12/991,3 62
As is relevant to the issues on appeal, the Examiner finds that Lynde
discloses Appellant's recited process, except for ( 1) the step of introducing a
liquid medium into the moving fleece web prior to mechanical needling, and
(2) the particulars of the hydro-entangling, i.e., hydro-entangling from a top
side and a lower side of the non woven fleece using water-jet bars above and
below the fleece web, with one of the bars located upstream of, and having a
hole per in ("hpi") density that is smaller than, the other bar and equal to at
most 40. Final Act. 2-3. The Examiner further finds that Lou teaches the
step of introducing a liquid medium into the fleece prior to mechanical
needling, and that Fleissner I, Turi, and Fleissner II disclose the particulars
of the hydro-entangling recited in claim 16. Id. at 3--4.
The Examiner concludes that it would have been obvious to introduce
a liquid medium into a moving fleece web prior to mechanical needling in
Lynde's process "in order to facilitate the mechanical needling of the fleece
web." Id. at 3. The Examiner further concludes that it would have been
obvious to incorporate the particulars of hydro-entangling/hydro-engorging
disclosed in Fleissner I, Turi, and Fleissner II into Lynde's process "in order
to process a moving fleece web in a tension free manner to manufacture a
spun-bond non-woven web." Id. at 4.
Appellant argues that the applied prior art references do not disclose
"both water-jet needling [i.e., hydroentanglement] and mechanical needling
in the same process," as recited in claim 16. Br. 11. In particular, Appellant
argues Lynde teaches that hydroentanglement and mechanical needling are
arguments presented apply to "[a ]ll but claim 23 "). We, therefore, address
both rejections together.
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Appeal2014-008803
Application 12/991,3 62
"mutually exclusive" processes, such that Lynde teaches away from the
recited process. Id. at 8.
We are not persuaded. Rather, we concur with the Examiner that
Lynde teaches using both steps in the same process. Answer 7-8 (citing
Lynde i-f 48). Indeed, Lynde expressly discloses that the nonwoven "can be
prepared by a variety of processes including, but not limited to, air-
entanglement, hydro-entanglement, thermal bonding, carding, needle
punching, ... and combinations of these processes." Lynde i-f 48 (emphasis
added). Accordingly, we find Appellant's argument that Lynde teaches
needle punching and hydroentanglement as mutually exclusive processes
without merit, and are not persuaded that Lynde teaches away from the
recited two-stage needling process.
Appellant argues that Lou, Fleissner I, Turi, and Fleissner II fail to
disclose two-stage needling, and that each reference is missing some of the
additional limitations of claim 16. Br. 9-10. Appellant's arguments are not
germane to the fundamental basis of the Examiner's rejection. For example,
the Examiner does not find that Lou, Fleissner I, Turi, and/ or Fleissner II
teach or disclose two-stage needling, but, rather, relies on Lynde for that
teaching. See Final Act. 2-3; Ans. 8-9. Likewise, the Examiner does not
rely on Fleissner I for disclosing the hpi density of the water-jet bars recited
in claim 16; the Examiner relies on Turi as teaching that limitation. Final
Act. 4. 3
3 We also note that Appellant does not challenge the Examiner's findings as
to the limitations of claim 16 that each of Lou, Fleissner I, Turi, and
Fleissner II teach. See Br. 9-10.
5
Appeal2014-008803
Application 12/991,3 62
Further, one cannot show nonobviousness by attacking the references
individually where a rejection is based on a combination of references. In re
Keller, 642 F.2d 413, 425 (CCPA 1981) ("[T]he test [for obviousness] is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art."). Here, Appellant attacks each of Lou,
Fleissner I, Turi, and Fleissner II individually instead of focusing on the
disclosure of the prior art as a whole, which, as discussed above, includes
Lynde's disclosure of using a combination of mechanical needling and
hydro-entanglement in a method for making a spunbond nonwoven.
Appellant argues that Fleissner I relates to staple fibers, not filaments
and, as a result, the ordinarily skilled artisan would not find a process
employing carded staple fiber pertinent to the treatment of a spun-filament
nonwoven. Br. 9. We are not persuaded.
Fleissner I describes the field of invention as related to "a method for
hydrodynamic entanglement or needling ... of fibers of a fiber web,
especially a nonwoven fiber web, composed of natural and/or synthetic
fibers of any type." Fleissner I, 1 :7-11. Thus, although Fleissner I
exemplifies staple fibers, it is not limited to such fibers. See Merck & Co. v.
Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) ("[I]n a section 103
inquiry, 'the fact that a specific [embodiment] is taught to be preferred is not
controlling, since all disclosures of the prior art, including unpreferred
embodiments, must be considered."') (citation omitted).
Appellant argues that Turi discloses hydroengorgement, a process in
which "hydroentanglement is not desired." Br. 10. Thus, argues Appellant,
Turi teaches away from the hydroentanglement step recited in claim 16. Id.
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Appeal2014-008803
Application 12/991,3 62
Appellant's argument, again, is not germane to the fundamental basis
of the Examiner's rejection, which relies on Turi's teaching of the recited
hpi density in the water-jet bar and the hydroentanglement step disclosed in
the additional references, including Lynde, Fleissner I, and Fleissner II. See
Final Act. 2--4. Nevertheless, Turi's teaching of an alternative bonding
process, i.e., hydroengorgement, is not a teaching away from a method that
employs hydroentanglement, such as the method disclosed in Lynde. "The
prior art's mere disclosure of more than one alternative does not constitute a
teaching away from ... [other] alternatives because such disclosure does not
criticize, discredit, or otherwise discourage the solution claimed .... " In re
Fulton, 391F.3d1195, 1201 (Fed. Cir. 2004). Accordingly, we affirm the
rejections of claims 16-22, 26-29, and 31-36 under 35 U.S.C. § 103(a).
Rejection 3
The Examiner rejects claim 23 as obvious over the combination of
Lynde, Lou, Fleissner I, Turi, Fleissner II, and Noelle. Final Act. 5-6.
Appellant, however, does not direct us to any error in the Examiner's
findings or conclusions as to the additional reference, Noelle. Rather,
Appellant argues that Noelle does not remedy the deficiencies in the
combination of Lynde, Lou, Fleissner I, Turi, and Fleissner II because
Noelle does not teach the web density recited in the claims and "relates
purely to hydroentanglement or water needling." Br. 14--15.
For the reasons discussed above, we find no deficiency in the
combined teachings of Lynde, Lou, Fleissner I, Turi, and Fleissner II that
requires curing by Noelle, which the Examiner relies upon for teaching the
step of pre-moistening the web after mechanical needling and before
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Appeal2014-008803
Application 12/991,3 62
hydraulic consolidation. Final Act. 6. Accordingly, we also affirm the
rejection of claim 23 under 35 U.S.C. § 103(a).
DECISION/ORDER
The Examiner's rejections of claims 16-23, 26-29, and 31-36 under
35 U.S.C. § 103(a) are 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).
AFFIRMED
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