Ex Parte Veillat et al

Board of Patent Appeals and Interferences

Mar 21, 2011

10530435 (B.P.A.I. Mar. 21, 2011)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CYRIL DAVID VEILLAT and CHRISTIAAN HENRI PETER
DIRKS
____________

Appeal 2010-005247
Application 10/530,435
Technology Center 1700
____________

Before BRADLEY R. GARRIS, PETER R. KRATZ, and
MARK NAGUMO, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

DECISION ON APPEAL1

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 2010-005247
Application 10/530,435

This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1-9, 16, and 17. We have jurisdiction
pursuant to 35 U.S.C. § 6. Oral arguments were presented on March 10,
2011.
Appellants’ claimed invention is directed to a method of making a
monofilament-like product. A precursor containing at least one strand that is
comprised of a spun yarn of polyolefin staple fibers (cut or broken
polyolefin continuous filaments) is employed.2 The precursor is exposed to
a temperature within the melting point range of the polyolefin fibers for a
time adequate to soften the staple fibers without partial melting. Adjacent
staple fibers are allowed to at least partially fuse to one another and,
concurrently, the precursor is stretched at a specified draw ratio. According
to Appellants, the monofilament-like product made from spun yarn
containing polyolefin staple fibers has, inter alia, improved resistance to
break when subjected to abrasive conditions over a known monofilament-
like product made from yarns composed of gel-spun polyolefin filaments
(Spec. 1, 2, and 12-18).
Claim 1, the sole independent claim on appeal, is illustrative and
reproduced below:

2 As explained in the Specification, “[s]ynthetic fibers are first made as
continuous filaments; they can be subsequently converted into staple fibers
by either cutting or stretch breaking processes” (Spec. 5, ll. 3 and 4). Spun
yarn is made by spinning (pulling and twisting) strands of parallel staple
fibers (Spec. 5, ll. 10-12). Appellants explain that “[a] strand of polyolefin
fibres is understood to be a fibrous article like a yarn containing
predominantly, i.e. 50 or more mass% of polyolefin fibres” (sentence
bridging Spec 2 and 3). However, Appellants further note that the spun yarn
may contain other staple fibers besides polyolefin fibers, even as a main
component, as well as indicating that other additives can be included (Spec.
6, l. 5 through 7, l. 10).
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Application 10/530,435

1. Process for making a monofilament-like product comprising the
steps of:
a) exposing a precursor of indefinite length containing at least one
strand comprised of spun yarn of polyolefin staple fibres to a
temperature within the melting point range of the polyolefin fibres
for a time sufficient to soften the staple fibers without partial
melting and allow adjacent staple fibers to at least partly fuse to
one another, and
b) simultaneously with step a) stretching the precursor at a draw ratio
of at least 1.0.

The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Kirkland (WO ‘029) WO 91/14029 Sep. 19, 1991
Cook 6,148,597 Nov. 21, 2000
Toray Ind. Inc. (JP ‘646) JP 87015646 Apr. 08, 19873
(abstract)
Claims 1-3, 5-9, 16 and 17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cook in view of WO ‘029. Claim 4 stands rejected
under 35 U.S.C. § 103(a) as being unpatentable over Cook in view of WO
‘029 and JP ‘646.
We affirm the stated rejections for substantially the reasons set forth
by the Examiner in the Answer, and as further explained below.
Appellants argue the claims subject to the first stated rejection
together as a group (see generally App. Br.).4 Accordingly, we select
independent claim 1 as the representative claim. Appellants do not argue

3 Our references to JP ‘646 are to the English language Derwent Abstract of
the Japan Patent Publication, of record, and on which the Examiner relied
exclusively.
4 The Reply Brief filed November 30, 2009 is not in compliance with 37
C.F.R. § 41.41(a)(2) as it introduces new evidence into the appeal record
(Reply Br. 3, n.4). Pursuant to 37 C.F.R. § 41.41(b), we do not consider the
Reply Brief.
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Application 10/530,435
separately rejected dependent claim 4 on the basis of the added features of
claim 4. Thus, we limit our discussion to claim 1 in deciding this appeal.
Appellants do not dispute the Examiner’s determination that
representative claim 1 differs from Cook by requiring the use of a spun yarn
strand made with staple polyolefin fibers as at least part of the precursor
(manufactured starting material) that is exposed to heat and stretching in
making a monofilament-like product. In this regard, the Examiner found
that Cook does not disclose use of polyolefin staple fibers in Cook’s
otherwise corresponding method of manufacturing a polyolefin fishing line
from yarns of gel spun polyolefin filaments (Ans. 3).
The Examiner relies on WO ‘029 to evince that “yarns can be made
from staple fibers of ultra high molecular weight polyethylenes in addition to
continuous filaments of ultra high molecular weight polyethylenes . . .”
(Ans. 3).
Based on the combined teachings of the applied references, the
Examiner maintains that (Ans. 4):
it would have been obvious to one of ordinary skill in the
art at the time the invention was made to have employed staple
fibers of ultra high molecular weight polyethylene rather than
continuous filaments of ultra high molecular weight
polyethylene as taught by Cook, in view of the teaching of WO
'029 that both types of fibers were known to be suitable for
fabrication into yarns and because WO '029 teaches that using
staple fibers can make the yarns less expensive since it permits
the use of some fibers which would have been wasted.

Appellants do not dispute that yarns can be made of staple fibers, such
as taught by Cook (App. Br. 10). “Nor do Applicants dispute that staple
fibers have in the past been spun into filaments” (id.). Nor do Appellants
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Application 10/530,435
argue that monofilament-like fiber products, such as claimed, could not have
been made from precursor staple polyolefin fibers prior to Appellants’
alleged contribution.
Rather, Appellants assert unexpected results for the claimed process
and argue that the Examiner’s proffered motivation for the proposed
modification of Cook’s process; that is, employing a strand containing
polyolefin staple fibers in a precursor used to make Cook’s monofilament-
like product, lacks substantiation in the referenced section of WO ‘029. In
this latter regard, Appellants urge that the Examiner’s asserted waste
conservation rationale for forming staple fibers from continuous polyolefin
filaments in making a yarn as taught by WO ‘029 is not supported in a
passage of WO ‘029 cited to by the Examiner (App. Br. 10, n. 4; WO ‘029,
p. 3, ll. 10-19; Ans. 4 and 5).
Appellants’ lack of motivation contention is not persuasive because
the cited passage of WO ‘029 ought to be read in light of the earlier
presented disclosure of WO ‘029, as an ordinarily skilled artisan would
have. In the preceding disclosure of WO ‘029, WO ‘029 teaches that
synthetic fiber-containing yarns are made less expensively by converting a
synthetic continuous filament fiber into staple fiber first (WO ‘029, p. 1, ll.
11-19). As explained in WO ‘029, this allows for the use of some fiber that
could otherwise have been wasted (id.). Moreover, waste conservation was
not the only reason advanced by the Examiner for using a strand of staple
fibers in the monofilament manufacturing method of Cook (Ans. 4).
It follows that, on this record, the Examiner has furnished prior art
supported reasons that, on the face thereof, would have prompted one of
ordinary skill in the art to employ at least a strand of polyolefin staple fibers
in Cook as a known and suitable way to form a yarn precursor for the
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Application 10/530,435
manufacture of the monofilament-like product of Cook with a reasonable
expectation of success in so doing.
Hence, the dispositive issue in this Appeal bottoms on the
persuasiveness of the evidence furnished by Appellants in asserting
unexpected results. The Evidence comes in the form of the Declaration
testimony of Christiaan H. P. Dirks, asserting to be qualified as a named co-
inventor and a person of at least ordinary skill in the art (Decl., paras. 1 and
3). The Dirks Declaration refers to the comparative evidence furnished in
the Specification (Decl. paras. 6-10).
Have Appellants borne their burden to establish that the process of
representative claim 1 is attended by production of a product having
unexpectedly improved break resistance characteristics that is commensurate
in scope with claim 1 and, if so, is the evidence is of such a character that,
on reevaluation of the Examiner’ case of obviousness in light of Appellants’
evidence, it warrants a conclusion that proffered evidence outweighs the
evidence inferring obviousness furnished by the Examiner?
We answer this compound question in the negative.
For substantially the reasons stated in the Answer, we agree with the
Examiner’s criticisms of the Dirks’ Declaration and the Specification
evidence brought to the fore in Dirks’ Declaration. The comparative
evidence set forth in the Specification has not been shown to be of such a
character and weight as to warrant reaching a conclusion that the alleged
“surprising” better abrasion resistance testified to in the Dirks Declaration
could reasonably be considered as carrying Appellants’ burden to establish
unexpected results were accrued that are reasonably co-extensive in scope
with the breadth of representative claim 1 (Ans. 4-7).
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Application 10/530,435
In this regard, the conclusory statements of named co-inventor
Christiaan H. P. Dirks concerning expected breakage at fused borders
between staple fibers during abrasion resistance testing and the Specification
evidence do not reasonably establish: (1) what would have been expected
prospectively by one of ordinary skill in the art, in terms of abrasion
resistance, for a mono-filament-like product made from a precursor having
at least one strand made from a spun yarn having staple polyethylene fibers
therein and/or (2) unexpected results when using staple polyolefin fibers to
form monofilament-like products in processes commensurate with the scope
of the claimed process over the closest prior art (Decl. paras 1, 3, 4, 6-10;
Ans. 4-7). In the absence of adequate evidence supporting either of these
issues, or in the absence of credible objective evidence regarding Mr. Dirks’
qualifications to speak to the knowledge and expectations of those ordinarily
skilled in the relevant arts, we accord his testimony little weight.
It follows that, on reconsideration of the evidence of obviousness
adduced by the Examiner taken together with the Dirks Declaration and the
Specification evidence furnished by Appellants, we determine that the
evidence tending to establish the obviousness of the claimed subject matter
outweighs the evidence tending toward a non-obvious conclusion, on this
record.

ORDER
The Examiner’s decision to reject claims 1-3, 5-9, 16 and 17 under 35
U.S.C. § 103(a) as being unpatentable over Cook in view of WO ‘029; and
to reject claim 4 under 35 U.S.C. § 103(a) as being unpatentable over Cook
in view of WO ‘029 and JP ‘646 is affirmed.
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Application 10/530,435
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

tc

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