Ex Parte Tachauer et al

Board of Patent Appeals and Interferences

Mar 29, 2011

10703696 (B.P.A.I. Mar. 29, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ERNESTO S. TACHAUER, WALLACE L. KURTZ, JR.,
BRIAN J. VANBENSCHOTEN, JOSEPH E. PIERCE,
ARTHUR GARAVAGLIA, SCOTT M. FILION,
WILLIAM P. CLUNE, CHRISTOPHER M. GALLANT
and NADEZHDA EFREMOVA
____________

Appeal 2009-010175
Application 10/703,696
Technology Center 3700
____________

Before JOHN C. KERINS, MICHAEL W. O’NEILL and
FRED A. SILVERBERG, Administrative Patent Judges.

KERINS, Administrative Patent Judge.
DECISION ON APPEAL

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STATEMENT OF THE CASE
Ernesto S. Tachauer et al. (Appellants) seek our review under 35
U.S.C. § 134 of the Examiner’s final rejection of claims 39, 40, 43, 44 and
48-68. Claims 1-38, 41, 42, 45-47 and 69-84 have been withdrawn from
consideration. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

THE INVENTION
Appellants’ invention is directed to a composite fastener material.
Claim 39, reproduced below, is illustrative:
39. A composite fastener material, comprising:

a length of a first material with peripheral edges;

a length of a second material with peripheral
edges;

at least one longitudinal lane of plastic resin
extending across a first peripheral edge of at least
one of the lengths of materials at a longitudinal,
continuous interface of the two materials, wherein
the plastic resin is bonded to the first and second
materials such that the first and second materials
are joined only by the resin; and

an array of fastener elements extending from one
side of the composite fastener material, the
fastener elements comprising engageable heads on
stems integrally formed with one lane of the plastic
resin;
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wherein the second material differs from the first
material by one of material composition, thickness,
texture, stretchability, breathability, and
compressability.

THE REJECTIONS
The Examiner has rejected:
(i) claims 39, 40, 43, 48 and 57-64 under 35 U.S.C. § 102(b) as being
anticipated by Avalon (US 6,419,667 B1, iss. Jul. 16, 2002);
(ii) claim 39 under 35 U.S.C. § 103(a) as being obvious over
Avalon1;
(iii) claims 39, 44 and 49-56 under 35 U.S.C. § 103(a) as being
unpatentable over Avalon and McFarland (US 4,579,556, iss. Apr. 1, 1986);
and
(iv) claims 65-68 under 35 U.S.C. §103(a) as being unpatentable over
Avalon.

ISSUE
Whether the Examiner erred in finding that Avalon discloses a plastic
resin bonded to first and second materials such that the first and second
materials are joined only by the resin?

ANALYSIS
The Examiner maintains that extensible portions 14a and non-
extensible portions 14b of Avalon correspond to the claimed lengths of first

1 This rejection is designated in the Examiner’s Answer as a new ground of
rejection. (Ans. 3).
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and second materials. (Ans. 4). The Examiner finds that adhesive 16, a
plastic resin, provides the means for joining the first and second materials.
(Ans. 7). The Examiner further maintains that Figure 1 of Avalon “clearly
show[s]” that first and second materials 14a, 14b, abut one another and are
not joined at their interfaces. (Id.). In addition, the Examiner notes that
“Avalon does not teach the materials 14a and 14b are joined by other
means”; that “Avalon provides no teaching that the portions 14a and 14b are
necessarily joined together as Appellant[s] suggest[]”; and that “there is not
[sic., no] teaching or suggestions that these portions are connected [by] other
that b [sic., than by] adhesive layer 16.” (Id.).
Appellants contend that persons of ordinary skill in the art “would
recognize that plastic materials with matching or near matching melt flow
characteristics coextruded as taught by Avalon would be joined together.”
(Appeal Br. 4). Appellants additionally point out that Avalon discloses that
the manufacture of facestock film 14 (made up of alternating lengths of
materials 14a and 14b) can take place separately from application of the
adhesive layer 16. (Id.). Avalon specifically states, in this regard, that,
“[t]he adhesive may be applied at the time of manufacture of the film 14 or
at a later time”. (Avalon, col. 4, ll. 1-2)(emphasis added). Appellants posit
that if, as maintained by the Examiner, materials 14a and 14b were not
joined at their interface as a result of the coextrusion, what Avalon describes
as a facestock film 14 would not exist. (Appeal Br. 4).
Appellants’ contentions are amply supported by evidence, whereas the
Examiner’s position is, in one case, not supported by the evidence cited
(Avalon’s Figure 1 does not “clearly show” that the materials merely abut
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and are not joined at their interfaces), and, in the other case, based solely
upon the lack of a specific disclosure in Avalon as to how the lengths of
material are joined.
That Avalon is silent as to how the materials are joined intimates that
they are joined in the coextrusion process.2 That Avalon further refers to the
product emanating from the coextrusion die and prior to the application of
the adhesive layer as a singular “film” and not, for example, as a series or
plurality of ribbons of material, evidences that persons of ordinary skill in
the art would understand that the adjacent lengths of material 14a and 14b
are joined to one another as a result of the extrusion process, and not as a
result of the later (either downstream in the manufacturing process, as shown
in Figure 3, or at a time later than the manufacture of the film) application of
the adhesive layer 16. Finally, the disclosure in Avalon of a concern with
matching or nearly matching the melt flow characteristics of the materials
used to form lengths 14a and 14b, would convey to a person of ordinary skill
in the art that the molten materials flowing through the extruder die are to be
joined in the process.
As such, the preponderance of evidence establishes that material
lengths 14a and 14b in Avalon are joined to each other regardless of the
presence of adhesive layer 16, and thus are not joined only by the adhesive
layer/resin, as maintained by the Examiner. We are thus constrained to

2 One glossary entry for the term “coextrusion” defines the term as a
“[p]rocess of extruding two or more materials through a single die with two
or more orifices arranged so that the extrudates merge and weld together into
a laminar structure before chilling.” See
http://www.specialchem4polymers.com/resources/glossary/index.aspx?id=c
(last visited Mar. 25, 2011).
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reverse the rejection of claims 39, 40, 43, 48 and 57-64 as anticipated by
Avalon. The remaining rejections of other subsets of the claims on appeal as
being obvious are premised, in all cases, at least on this same erroneous
finding as to the joining of the first and second materials only by a
longitudinal lane of resin. Those rejections will also not be sustained.

CONCLUSION
The Examiner erred in finding that Avalon discloses a plastic resin
bonded to first and second materials such that the first and second materials
are joined only by the resin. This erroneous finding was employed by the
Examiner in all rejections on appeal.

DECISION
The decision of the Examiner to reject claims 39, 40, 43, 44 and 48-68
is reversed.

REVERSED

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