Ex Parte Steele

Board of Patent Appeals and Interferences

Jun 14, 2011

10656057 (B.P.A.I. Jun. 14, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte RONALD E. STEELE
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Appeal 2010-004247
Application 10/656057
Technology Center 1700
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Before TERRY J. OWENS, PETER F. KRATZ and
CATHERINE Q. TIMM, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1-5 and 7. Claim 6, which is the only other pending
claim, stands withdrawn from consideration by the Examiner. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellant claims a process for making a polyamide filament.
Claim 1 is illustrative:
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1. A process for making a synthetic melt spun polyamide
filament comprising the steps of:
supplying polyamide polymer with an RV of 36 to 38 to a solid phase
polycondensation apparatus;
humidifying a purge gas with water vapor;
supplying said purge gas to the solid phase polycondensation
apparatus at a flow rate in the range of about 2 to about 3 kg/hour per
kg of polymer per hour;
treating the polyamide polymer in the solid phase polycondensation
apparatus with the purge gas at a solid phase polycondensation system
pressure of about 110 to about 120 kPascal;
conveying the treated polyamide polymer to a melt extrusion
apparatus;
melting the polyamide polymer in the melt extrusion apparatus;
extruding the melted polyamide polymer through a spinneret plate;
and forming at least one continuous filament of polyamide polymer
with a yarn RV of about 51 to about 54.

The References
Eberius 4,034,034 Jul. 5, 1977
Schwinn 6,235,390 May 22, 2001

Fourné, Synthetic Fibers 359 (1999).

The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1-
3, 5 and 7 over Schwinn,1 and claim 4 over Schwinn in view of either
Eberius or Fourné.
OPINION
We reverse the rejections. We need to address only the independent
claims, i.e., claims 1 and 7.2

1 The Examiner’s Answer incorrectly states that withdrawn claim 6, rather
than claim 7, is rejected (Ans. 3).
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Issue
Has the Appellant indicated reversible error in the Examiner’s
determination that Schwinn would have rendered prima facie obvious, to one
of ordinary skill in the art, a process which makes a filament having a yarn
RV of about 51 to about 54?
Findings of Fact
Schwinn discloses a solid phase polymerization process which forms
filaments having a relative viscosity (RV) of at least about 140 from
polymer flakes having an RV of about 40 to about 60 (col. 5, l. 61; col. 6,
ll. 61-64; col. 7, l. 30). Gas exiting a solid phase polymerization vessel (16)
can have a dew point temperature above 30 ºC and, therefore, need drying
(col. 9, ll. 2-5). Up to 100%, most preferably about 70-90%, of the
circulating gas is passed through a drying system (14) such that the inlet gas
to the solid phase polymerization vessel (16) has a dew point temperature no
higher than about 20 ºC, most preferably about 5-20ºC (col. 8, l. 58 – col. 9,
l. 2).
Analysis
The Appellant argues that Schwinn “fails to teach the formation of a
continuous filament of polyamide polymer with a yarn RV of about 51 to
54” (Br. 4).
The Examiner argues that between Schwinn’s gas inlet (24) and gas
outlet (26) the circulating gas is humidified, and that because Schwinn meets
all the component and process limitations of the Appellant’s independent

2 The Examiner does not rely upon Eberius or Fourné for any disclosure
which remedies the deficiency in Schwinn as to the independent claims
(Ans. 6-8).
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claims, including the requirement of “humidifying a purge gas with water
vapor” (claim 1) and “treating a nitrogen comprising purge gas with water
vapor” (claim 7), the filaments produced by the process necessarily have the
same RV as the Appellant’s filaments, i.e., about 51 to about 54 (Ans. 5-6,
9-10).
The Examiner’s argument is not well taken because, first, Schwinn
teaches that the filament RV is at least about 140 (col. 5, l. 61), not about 51
to about 54.
Second, Schwinn’s humidification of the circulating gas in the solid
phase polymerization vessel (16) falls within the Appellant’s claims only
because of the breadth of the claims, not because Schwinn is performing the
Appellant’s humidification. If, instead of saying “supplying said purge gas”,
the Appellant’s independent claims said “supplying said humidified purge
gas” (which is what the Appellant does; Spec. 4:21-24), the Examiner’s
argument would not be applicable because regardless of whether all or only
part of Schwinn’s circulating gas is dried, the water which the circulating
gas picks up in the solid phase polymerization vessel (16) is removed from
the circulating gas such that the inlet gas to the solid phase polymerization
vessel (16) has a dew point no higher than about 20 ºC (col. 8, l. 58 – col. 9,
l. 21). When an examiner relies upon a theory of inherency, “the examiner
must provide a basis in fact and/or technical reasoning to reasonably support
the determination that the allegedly inherent characteristic necessarily flows
from the teachings of the applied prior art.” Ex parte Levy, 17 USPQ2d
1461, 1464 (Bd. Pat. App. & Int. 1990). The Examiner has not provided a
factual basis which supports the Examiner’s inherency argument.

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Conclusion of Law
The Appellant has indicated reversible error in the Examiner’s
determination that Schwinn would have rendered prima facie obvious, to one
of ordinary skill in the art, a process which makes a filament having a yarn
RV of about 51 to about 54.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1-3, 5 and 7 over
Schwinn, and claim 4 over Schwinn in view of either Eberius or Fourné are
reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED

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