Ex Parte Travelute et al

Board of Patent Appeals and Interferences

Oct 25, 2010

10813893 (B.P.A.I. Oct. 25, 2010)

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.
10/813,893 03/31/2004 Frederick L. Travelute III 3000.193 5764
21176 7590 10/25/2010
SUMMA, ADDITON & ASHE, P.A.
11610 NORTH COMMUNITY HOUSE ROAD
SUITE 200
CHARLOTTE, NC 28277
EXAMINER
VO, HAI
ART UNIT PAPER NUMBER
1788
MAIL DATE DELIVERY MODE
10/25/2010 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FREDERICK L. TRAVELUTE III and GLEN P. REESE
____________________

Appeal 2010-000475
Application 10/813,893
Technology Center 1700
____________________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL1
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision dated December 7, 2007 to finally reject claims 1-9, 11, 13-16, 20,

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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21, 40, 41, 43, 45-48, 51-57, and 60 (See Notice of Appeal dated May 5,
2008). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention relates to synthetic, low density, light weight
polyester filaments and fibers (Spec. ¶ [0001]). Claim 1 is illustrative:
1. A lightweight, low density foamed fiber consisting
essentially of:
a copolymer of polyester and polyethylene glycol, with
the polyethylene glycol being present in an amount of between
about 6 and 10 percent by weight, said copolymer having a
greater elasticity than a corresponding monomer-based
polyester;
more than thirty five percent functional void fraction in
the form of foam-forming cells for reducing the density of the
fiber as compared to a solid fiber;
at least five void cells per axial cross section for
increasing the structural integrity of the fiber as compared to
less uniform foams; and
submicron-sized particles of a fluorocarbon nucleating
agent, present in an amount less than 10 percent by weight.
The Examiner relies upon the following evidence:
First Named Inventor Document No. Issue or Pub. Date
Siggel
Soehngen
Li
Travelute
Nichols
Travelute
Edwards
US 4,164,603
US 4,290,987
US 4,626,390
US 5,407,625
US 6,485,829 B2
US 2006/0057359 A1
US 2007/0059511 A1
Aug. 14, 1979
Sep. 22, 1981
Dec. 2, 1986
Apr. 18, 1995
Nov. 26, 2002
Mar. 16, 2006
Mar. 15, 2007
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3
Sato JP 08-2602852 Oct. 8, 1996

The Examiner maintains the following rejections:
1. The rejection of claims 1-6, 11, and 14-16 under 35 U.S.C. § 103(a) as
unpatentable over Siggel in view of Nichols and Soehngen;
2. The rejection of claims 8, 9, 20, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Siggel in view of Nichols, Soehngen, and Sato;
3. The rejection of claims 55-57 and 60 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Li;
4. The rejection of claims 1-7, 11, and 13-15 under 35 U.S.C. § 103(a) as
unpatentable over Li in view of Nichols;
5. The rejection of claim 16 under 35 U.S.C. § 103(a) as unpatentable
over Li in view of Nichols and Soehngen;
6. The rejection of claims 8, 9, 20, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Li in view of Nichols and Sato;
7. The rejection of claims 40, 41, 43, 45-48, and 51-54 under 35 U.S.C.
§ 103(a) as unpatentable over Li in view of Nichols and Travelute;
8. The provisional rejection of claims 1-9, 11, 13-16, 20, 21, 40, 41, 43,
45-48, 51-57, and 60 under the doctrine of obviousness-type double
patenting as unpatentable over claims 1-67 of U.S. Patent Application
No. 11/244,687 (US 2006/0057359 A1); and
9. The provisional rejection of claims 1-9, 11, 13-16, 20, 21, 40, 41, 43,
45-48, 51-57, and 60 under the doctrine of obviousness-type double

2 The Examiner cites to the Patent Abstracts of Japan English Abstract made
of record in an Office Communication dated December 6, 2005. A full
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4
patenting as unpatentable over claims 1-48 of U.S. Patent Application
No. 11/364,242 (US 2007/0059511 A1).
Appellants appeal only the first two of the above listed rejections, i.e.,
the rejections based primarily on Siggel, Nichols, and Soehngen (Br. 5 and
8). While the Examiner adds Sato to reject claims 8, 9, 20, and 21,
Appellants addresses both rejections with a single argument focused on the
limitations of claim 1 (Br. 9-13). Therefore, our focus will necessarily be on
claim 1 for deciding the issue arising from Appellants’ argument.
II. DISPOSITIVE ISSUE
The dispositive issue arising from the contentions of Appellants and
the Examiner is: does the evidence support the Appellants’ view that the
presence of silicone oil materially affects the basis and novel characteristics
of Appellants’ claimed invention, such that the “consisting essentially of”
language of claim 1 excludes prior art, such as Siggel, that teaches including
silicone oil? We answer this question in the negative.
III. DISCUSSION
We adopt the Examiner’s findings in the Answer as our own and add
any additional findings of fact appearing below for emphasis.
Appellants contend that Siggel provides sufficient evidence that the
inclusion of silicone oil is essential to the production of “a plurality of
adjacent, separate, discontinuous cavities,” such that its inclusion materially
affects the basic and novel characteristics of the claimed invention, which
produces such cavities without the need for silicone oil (Br. 9-13).

English translation of the Japanese document was made of record on May
28, 2009.
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The Examiner contends that “Appellants have not provided any
factual evidence indicating that the silicone oil may materially change the
density, porosity of the filaments and/or the shapes, diameters of the discrete
cavities” (Ans. 13).
The “phrase ‘consisting essentially of’ limits the scope of a claim to
the specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition.” In re Herz, 537 F.2d 549, 551-52
(CCPA 1976) (emphasis added). In assessing a broadest reasonable claim
construction wherein a potentially exclusionary “consisting essentially of”
transitional phrase is involved, Appellants bear the burden of: (1) showing
the basic and novel characteristics of their claimed invention, and (2)
establishing how those characteristics would be materially changed by the
presence of any component included in an applied reference but not recited
as an element in the claims. See In re DeLajarte, 337 F.2d 870, 873-74
(CCPA 1964); Ex parte Hoffman, 12 USPQ2d 1061, 1063-64 (BPAI 1989).
The written description in Appellants’ Specification must be
considered in determining whether Appellants have met this burden. Herz,
537 F.2d at 551 (“[I]t is necessary and proper to determine whether [the]
specification reasonably supports a construction” that would exclude or
include particular ingredients.); see also PPG Indus., Inc. v. Guardian Indus.
Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (Patentees “could have defined
the scope of the phrase ‘consisting essentially of’ for purposes of its patent
by making clear in its specification what it regarded as constituting a
material change in the basic and novel characteristics of the invention. The
question for our decision is whether PPG did so.”).
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6
Appellants’ reliance on the holding of In re Garnero, 412 F.2d 276,
279 (CCPA 1969), is misplaced because the facts of Garnero differ from
those presented here. In Garnero, the basic and novel characteristics were
apparent and specifically recited in the claim at issue, i.e., that the perlite
particles were “interbonded to one another by interfusion.” Garnero, 412
F.2d at 279. Accordingly, the presence of an additional binder would affect
the perlite being held together specifically “by interfusion.” Id. Thus, we do
not agree that Garnero stands for the general principle proposed by
Appellants that “one of the basic and novel characteristics of a claimed
invention may be its exclusion of an element which the prior art teaches is
necessary” (Br. 12). Rather, Garnero supports the holdings of Herz and
PPG that Appellants’ Specification should clarify what is regarded as
constituting a material change in the basic and novel characteristics of the
invention.
We find no disclosure in Appellants’ Specification which defines the
term “consisting essentially of” language in claim 1 with respect to the
inclusion of silicone oil or that clearly establishes that the invention would
be materially changed by the addition of silicone oil. Indeed, Appellants’
Specification is completely silent as to the use of silicone oil and
consistently uses open “comprising” language, suggesting that the inclusion
of additional materials would not materially affect the invention (See e.g.,
Spec. ¶¶ [0011]-[0013]).
Moreover, Appellants’ Specification fails to clearly set forth that a
plurality of adjacent, separate, discontinuous cavities constitutes the basic
and novel characteristics of the claimed invention, as argued by Appellants
(Br. 9 and 11). To the contrary, Appellants’ Specification indicates that low
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7
density foamed polymers are well established in the art (Spec. ¶ [0007]) and
seems to suggest that the basic and novel characteristics of the invention is
the large void fraction obtained by the presence of several small cells, rather
than the conventional use of large cells to reduce fiber density (see Spec. ¶¶
[0020] and [0023]). Appellants do not contest that the claimed void fraction
and number of cells per cross-section are taught by the prior art.
Further, we do not subscribe to Appellants’ position that the teachings
of Siggel prove the basic and novel characteristics of Appellants’ invention.
While we agree with Appellants that Siggel teaches that silicone oil is
necessary for its invention, we do not find a sufficient teaching in Siggel to
prove that silicone oil is essential to produce adjacent, separate, and
discontinuous cavities, as argued by Appellants.
To the contrary, Siggel teaches that filaments with small, separate
cavities were known in the art (Siggel, col. 1, ll. 9-16). Siggel fails to
explain what specific function the silicone oil performs in its invention.
However, Siggel discloses that silicone oil is known to improve the gliding
properties of the polymer in the extruder and possibly functions as a
plasticizer (Siggel, col. 4, ll. 49-53), and Siggel theorizes that improvements
in spinneret running times can be attributed to the use of silicone oil (Siggel,
col. 5, l. 65 to col. 6, l. 13).
Accordingly, the teachings of Siggel are insufficient to prove that the
inclusion of silicone oil would necessarily affect the formation of adjacent,
separate, and discontinuous cavities in Appellants’ invention.
Accordingly, we sustain the Examiner’s rejections.
IV. REMAINING REJECTIONS
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8
Appellants did not present any arguments rebutting the remaining
rejections under 35 U.S.C. § 102 or § 103 and did not list or rebut the
obviousness-type double patenting rejections (Br. 4-5 and 8). Only those
arguments actually made by Appellants have been considered in this
decision. Arguments which Appellants could have made but chose not to
make have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2008); MPEP § 1205.02 (8th Ed., Rev. 7, July 2008) (“If a
ground of rejection stated by the examiner is not addressed in the appellant's
brief, that ground of rejection will be summarily sustained by the Board.”).
As such, we summarily sustain the remaining rejections.
V. CONCLUSION
On the record before us and for the reasons discussed above, we
sustain the rejections maintained by the Examiner.
VI. DECISION
The decision of the Examiner is affirmed.
VII. TIME PERIOD FOR RESPONSE
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

cam

Appeal 2010-000475
Application 10/813,893

9

SUMMA, ADDITON & ASHE, P.A.
11610 NORTH COMMUNITY HOUSE ROAD
SUITE 200
CHARLOTTE, NC 28277

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte FREDERICK L. TRAVELUTE III and GLEN P. REESE
____________________

Appeal 2010-000475
Application 10/813,893
Technology Center 1700
____________________

Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL1
I. STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision dated December 7, 2007 to finally reject claims 1-9, 11, 13-16, 20,

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2010-000475
Application 10/813,893

2
21, 40, 41, 43, 45-48, 51-57, and 60 (See Notice of Appeal dated May 5,
2008). We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention relates to synthetic, low density, light weight
polyester filaments and fibers (Spec. ¶ [0001]). Claim 1 is illustrative:
1. A lightweight, low density foamed fiber consisting
essentially of:
a copolymer of polyester and polyethylene glycol, with
the polyethylene glycol being present in an amount of between
about 6 and 10 percent by weight, said copolymer having a
greater elasticity than a corresponding monomer-based
polyester;
more than thirty five percent functional void fraction in
the form of foam-forming cells for reducing the density of the
fiber as compared to a solid fiber;
at least five void cells per axial cross section for
increasing the structural integrity of the fiber as compared to
less uniform foams; and
submicron-sized particles of a fluorocarbon nucleating
agent, present in an amount less than 10 percent by weight.
The Examiner relies upon the following evidence:
First Named Inventor Document No. Issue or Pub. Date
Siggel
Soehngen
Li
Travelute
Nichols
Travelute
Edwards
US 4,164,603
US 4,290,987
US 4,626,390
US 5,407,625
US 6,485,829 B2
US 2006/0057359 A1
US 2007/0059511 A1
Aug. 14, 1979
Sep. 22, 1981
Dec. 2, 1986
Apr. 18, 1995
Nov. 26, 2002
Mar. 16, 2006
Mar. 15, 2007
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3
Sato JP 08-2602852 Oct. 8, 1996

The Examiner maintains the following rejections:
1. The rejection of claims 1-6, 11, and 14-16 under 35 U.S.C. § 103(a) as
unpatentable over Siggel in view of Nichols and Soehngen;
2. The rejection of claims 8, 9, 20, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Siggel in view of Nichols, Soehngen, and Sato;
3. The rejection of claims 55-57 and 60 under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as
obvious over Li;
4. The rejection of claims 1-7, 11, and 13-15 under 35 U.S.C. § 103(a) as
unpatentable over Li in view of Nichols;
5. The rejection of claim 16 under 35 U.S.C. § 103(a) as unpatentable
over Li in view of Nichols and Soehngen;
6. The rejection of claims 8, 9, 20, and 21 under 35 U.S.C. § 103(a) as
unpatentable over Li in view of Nichols and Sato;
7. The rejection of claims 40, 41, 43, 45-48, and 51-54 under 35 U.S.C.
§ 103(a) as unpatentable over Li in view of Nichols and Travelute;
8. The provisional rejection of claims 1-9, 11, 13-16, 20, 21, 40, 41, 43,
45-48, 51-57, and 60 under the doctrine of obviousness-type double
patenting as unpatentable over claims 1-67 of U.S. Patent Application
No. 11/244,687 (US 2006/0057359 A1); and
9. The provisional rejection of claims 1-9, 11, 13-16, 20, 21, 40, 41, 43,
45-48, 51-57, and 60 under the doctrine of obviousness-type double

2 The Examiner cites to the Patent Abstracts of Japan English Abstract made
of record in an Office Communication dated December 6, 2005. A full
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Application 10/813,893

4
patenting as unpatentable over claims 1-48 of U.S. Patent Application
No. 11/364,242 (US 2007/0059511 A1).
Appellants appeal only the first two of the above listed rejections, i.e.,
the rejections based primarily on Siggel, Nichols, and Soehngen (Br. 5 and
8). While the Examiner adds Sato to reject claims 8, 9, 20, and 21,
Appellants addresses both rejections with a single argument focused on the
limitations of claim 1 (Br. 9-13). Therefore, our focus will necessarily be on
claim 1 for deciding the issue arising from Appellants’ argument.
II. DISPOSITIVE ISSUE
The dispositive issue arising from the contentions of Appellants and
the Examiner is: does the evidence support the Appellants’ view that the
presence of silicone oil materially affects the basis and novel characteristics
of Appellants’ claimed invention, such that the “consisting essentially of”
language of claim 1 excludes prior art, such as Siggel, that teaches including
silicone oil? We answer this question in the negative.
III. DISCUSSION
We adopt the Examiner’s findings in the Answer as our own and add
any additional findings of fact appearing below for emphasis.
Appellants contend that Siggel provides sufficient evidence that the
inclusion of silicone oil is essential to the production of “a plurality of
adjacent, separate, discontinuous cavities,” such that its inclusion materially
affects the basic and novel characteristics of the claimed invention, which
produces such cavities without the need for silicone oil (Br. 9-13).

English translation of the Japanese document was made of record on May
28, 2009.
Appeal 2010-000475
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5
The Examiner contends that “Appellants have not provided any
factual evidence indicating that the silicone oil may materially change the
density, porosity of the filaments and/or the shapes, diameters of the discrete
cavities” (Ans. 13).
The “phrase ‘consisting essentially of’ limits the scope of a claim to
the specified ingredients and those that do not materially affect the basic and
novel characteristic(s) of a composition.” In re Herz, 537 F.2d 549, 551-52
(CCPA 1976) (emphasis added). In assessing a broadest reasonable claim
construction wherein a potentially exclusionary “consisting essentially of”
transitional phrase is involved, Appellants bear the burden of: (1) showing
the basic and novel characteristics of their claimed invention, and (2)
establishing how those characteristics would be materially changed by the
presence of any component included in an applied reference but not recited
as an element in the claims. See In re DeLajarte, 337 F.2d 870, 873-74
(CCPA 1964); Ex parte Hoffman, 12 USPQ2d 1061, 1063-64 (BPAI 1989).
The written description in Appellants’ Specification must be
considered in determining whether Appellants have met this burden. Herz,
537 F.2d at 551 (“[I]t is necessary and proper to determine whether [the]
specification reasonably supports a construction” that would exclude or
include particular ingredients.); see also PPG Indus., Inc. v. Guardian Indus.
Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998) (Patentees “could have defined
the scope of the phrase ‘consisting essentially of’ for purposes of its patent
by making clear in its specification what it regarded as constituting a
material change in the basic and novel characteristics of the invention. The
question for our decision is whether PPG did so.”).
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6
Appellants’ reliance on the holding of In re Garnero, 412 F.2d 276,
279 (CCPA 1969), is misplaced because the facts of Garnero differ from
those presented here. In Garnero, the basic and novel characteristics were
apparent and specifically recited in the claim at issue, i.e., that the perlite
particles were “interbonded to one another by interfusion.” Garnero, 412
F.2d at 279. Accordingly, the presence of an additional binder would affect
the perlite being held together specifically “by interfusion.” Id. Thus, we do
not agree that Garnero stands for the general principle proposed by
Appellants that “one of the basic and novel characteristics of a claimed
invention may be its exclusion of an element which the prior art teaches is
necessary” (Br. 12). Rather, Garnero supports the holdings of Herz and
PPG that Appellants’ Specification should clarify what is regarded as
constituting a material change in the basic and novel characteristics of the
invention.
We find no disclosure in Appellants’ Specification which defines the
term “consisting essentially of” language in claim 1 with respect to the
inclusion of silicone oil or that clearly establishes that the invention would
be materially changed by the addition of silicone oil. Indeed, Appellants’
Specification is completely silent as to the use of silicone oil and
consistently uses open “comprising” language, suggesting that the inclusion
of additional materials would not materially affect the invention (See e.g.,
Spec. ¶¶ [0011]-[0013]).
Moreover, Appellants’ Specification fails to clearly set forth that a
plurality of adjacent, separate, discontinuous cavities constitutes the basic
and novel characteristics of the claimed invention, as argued by Appellants
(Br. 9 and 11). To the contrary, Appellants’ Specification indicates that low
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7
density foamed polymers are well established in the art (Spec. ¶ [0007]) and
seems to suggest that the basic and novel characteristics of the invention is
the large void fraction obtained by the presence of several small cells, rather
than the conventional use of large cells to reduce fiber density (see Spec. ¶¶
[0020] and [0023]). Appellants do not contest that the claimed void fraction
and number of cells per cross-section are taught by the prior art.
Further, we do not subscribe to Appellants’ position that the teachings
of Siggel prove the basic and novel characteristics of Appellants’ invention.
While we agree with Appellants that Siggel teaches that silicone oil is
necessary for its invention, we do not find a sufficient teaching in Siggel to
prove that silicone oil is essential to produce adjacent, separate, and
discontinuous cavities, as argued by Appellants.
To the contrary, Siggel teaches that filaments with small, separate
cavities were known in the art (Siggel, col. 1, ll. 9-16). Siggel fails to
explain what specific function the silicone oil performs in its invention.
However, Siggel discloses that silicone oil is known to improve the gliding
properties of the polymer in the extruder and possibly functions as a
plasticizer (Siggel, col. 4, ll. 49-53), and Siggel theorizes that improvements
in spinneret running times can be attributed to the use of silicone oil (Siggel,
col. 5, l. 65 to col. 6, l. 13).
Accordingly, the teachings of Siggel are insufficient to prove that the
inclusion of silicone oil would necessarily affect the formation of adjacent,
separate, and discontinuous cavities in Appellants’ invention.
Accordingly, we sustain the Examiner’s rejections.
IV. REMAINING REJECTIONS
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Appellants did not present any arguments rebutting the remaining
rejections under 35 U.S.C. § 102 or § 103 and did not list or rebut the
obviousness-type double patenting rejections (Br. 4-5 and 8). Only those
arguments actually made by Appellants have been considered in this
decision. Arguments which Appellants could have made but chose not to
make have not been considered and are deemed to be waived. See 37 C.F.R.
§ 41.37(c)(1)(vii) (2008); MPEP § 1205.02 (8th Ed., Rev. 7, July 2008) (“If a
ground of rejection stated by the examiner is not addressed in the appellant's
brief, that ground of rejection will be summarily sustained by the Board.”).
As such, we summarily sustain the remaining rejections.
V. CONCLUSION
On the record before us and for the reasons discussed above, we
sustain the rejections maintained by the Examiner.
VI. DECISION
The decision of the Examiner is affirmed.
VII. TIME PERIOD FOR RESPONSE
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

cam

Appeal 2010-000475
Application 10/813,893

9

SUMMA, ADDITON & ASHE, P.A.
11610 NORTH COMMUNITY HOUSE ROAD
SUITE 200
CHARLOTTE, NC 28277