Ex Parte Stewart et al

Patent Trial and Appeal Board

Nov 18, 2013

12025975 (P.T.A.B. Nov. 18, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte RICHARD STEWART and SARAVAN MUTHANANDAM
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Appeal 2012-002343
Application 12/025,975
Technology Center 3600
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Before STEFAN STAICOVICI, PHILLIP J. KAUFFMAN, and
JILL D. HILL, Administrative Patent Judges.

STAICOVICI, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
Richard Stewart and Saravan Muthanandam (Appellants) appeal
under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-27
under 35 U.S.C. § 103(a) as unpatentable over Seltzer (US 3,290,702, issued
Dec. 13, 1966) and Tharpe (US 2008/0268734 A1, published Oct. 30, 2008).
We have jurisdiction over this appeal under 35 U.S.C. § 6(b).

INVENTION
Appellants’ invention relates to “contoured or fitted bed sheets.”
Spec. 1, para. [0001] and fig. 2.
Claim 1 is illustrative of the claimed invention and reads as follows:
1. A textile article consisting essentially of a bed sheet
defined by a one-ply woven web of warp yarns and fill yarns
having a top panel and a side panel depending from the top
panel, the warp yarns extending in a warp direction through the
top panel and side panel and the fill yarns extending in a fill
direction through the top panel and the side panel, a plurality of
the fill yarns being a non-spandex, non-core spun elastomeric
yarn whereby the bed sheet is stretchable at least along the
elastomeric yarns as a contoured bed sheet.

SUMMARY OF DECISION
We REVERSE.

ANALYSIS
Each of independent claims 1, 12, and 23 requires, inter alia, “a non-
spandex, non-core spun elastomeric yarn.” App. Br., Clms. App’x.
The Examiner found that Seltzer discloses all the limitations of
independent claims 1, 12, and 23 with the exception of “an elastomeric
fiber.” Ans. 4. The Examiner further found that Appellants’ Specification
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describes “a well[-]known . . . elastic multifilament yarn, such as a bi-
component polyester textile fiber,” namely, elasterell-p. Ans. 4-5 (citing to
Spec., para. [0024]). Furthermore, the Examiner found that Tharpe discloses
an elastomeric fiber including “a well[-]known non-stretchable core
consisting of a polyester textile fiber known as elastrell-p.” Ans. 5 (citing to
Tharpe, para. [0020]). The Examiner concluded that:
It would have been obvious for one having
ordinary skill in the art at the time of the invention
to select a well[-]known non-stretchable polyester
fiber such as elasterell-p as disclosed by Tharpe
yielding predictable results to provide a higher
recovery and strength to the yarns being stretched
in at least one direction in the sheet of Seltzer.
Id.
According to the Examiner, because both Seltzer and Tharpe deal with a
stretchable fabric employing a non-stretchable fiber, “selecting a well[-]
known alternative equivalent fiber [such as elasterell-p] is considered an
obvious modification that would yield predictable results . . . in the sheet of
Seltzer.” Ans. 10.
Appellants argue that Seltzer teaches away from the Examiner’s
proposed modification because not only does Seltzer expressly exclude the
use of elastomeric yarns to make a bedsheet stretchable, Seltzer specifically
discloses using non-stretchable yarns to form the stretchable bedsheet. App.
Br. 13-14 (citing to Seltzer, col. 2, ll. 25-30 and 59-65 and col. 3, ll. 50-53).
We agree.
As noted by Appellants, Seltzer specifically discloses that sheets using
elastomeric yarns suffer from deficiencies. Seltzer, col. 2, ll. 28-31. Thus,
Seltzer proposes to obtain stretchability and recoverability of the fabric by
using “non-stretchable” yarns. See App. Br. 14; see also Seltzer, col. 3, ll.
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49-52 and 57-59. Seltzer further describes a “non-stretchable” yarn as
“those yarns such as cotton and rayon . . . which inherently have little
stretchability and to distinguish these yarns from those of a true stretchable
nature such as texturized nylon, rubber, or the like.” Seltzer, col. 2, ll. 59-65
(emphasis added). Although we appreciate the Examiner’s position that an
elasterell-p filament constitutes an inelastic filament (see Tharpe, para.
[0020]), nonetheless, Tharpe discloses that by applying an artificial crimp
(textured or self-textured), the elasterell-p filament may exhibit excellent
recovery characteristics, that is, may “exhibit substantial percent elastic
recovery.” See Tharpe, para. [0017]. Thus, even assuming arguendo that
the elasterell-p filament of Tharpe is an equivalent alternative to the non-
stretchable fibers of Seltzer, as the Examiner proposes, because Schultz
distinguishes “non-stretchable” yarns from texturized (crimped) yarns,
Schultz discourages the use of an artificially crimped (textured or self-
textured) elasterell-p filament to make a stretchable fabric, as the Examiner
proposes. Furthermore, because the elasterell-p filament of Tharpe is
stretchable, we do not agree with the Examiner’s position that the elasterell-
p filament of Tharpe is an equivalent alternative to the non-stretchable fibers
of Seltzer. “A reference may be said to teach away when a person of
ordinary skill, upon [examining] the reference, would be discouraged from
following the path set out in the reference, or would be led in a direction
divergent from the path that was taken by the applicant.” In re Gurley, 27
F.3d 551, 553 (Fed. Cir. 1994). Accordingly, the modification proposed by
the Examiner would not have been obvious to the person of ordinary skill in
the art.
In conclusion, for the foregoing reasons, we do not sustain the
rejection of independent claims 1,12, and 23, and their respective dependent
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claims 2-11, 13-22, and 24-27, under 35 U.S.C. § 103(a) as unpatentable
over Seltzer and Tharpe. See In re Fine, 837 F.2d 1071, 1076 (Fed. Cir.
1988).

SUMMARY
The Examiner’s decision to reject claims 1-27 is reversed.

REVERSED

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