Ex Parte Weinberg et al

Patent Trial and Appeal Board

Feb 4, 2016

13088723 (P.T.A.B. Feb. 4, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/088,723 04/18/2011 MARK GARY WEINBERG
23906 7590 02/08/2016
EIDUPONTDENEMOURSANDCOMPANY
LEGAL PATENT RECORDS CENTER
CHESTNUT RUN PLAZA 721/2340
974 CENTRE ROAD, P.O. BOX 2915
WILMINGTON, DE 19805
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
TK3855USCNT1 9080
EXAMINER
COLE, ELIZABETH M
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
02/08/2016 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
PTO-Legal.PRC@dupont.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK GARY WEINBERG, GREGORY T. DEE,
and THOMAS WILLIAM HARDING
Appeal2014-005373
Application 13/088,723
Technology Center 1700
Before TERRY J. OWENS, CATHERINE Q. TIMM, and
AVEL YN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
Appeal2014-005373
Application 13/088,723
DECISION ON APPEAL 1
Appellants2 seek review, under 35 U.S.C. § 134, from the Examiner's
final decision to reject claims 1-12 and 30-34.3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
STATEMENT OF CASE
The claims are directed to a flash spun web containing sub-micron
filaments. Spec. 1. Claim 1, 30, and 34, reproduced below with the
limitations at issue emphasized, are illustrative of the claimed subject matter:
1. A nonwoven fibrous structure comprising an interconnecting
web of polyolefin filaments wherein the nonwoven structure is
in the form of a plexifilamentary three-dimensional integral
network of ribbon-like, film fibril elements of random length
having filament widths greater than about 1 micrometer which
are further interconnected with webs of smaller polyolefin
filaments having filament widths less than about 1 micrometer,
wherein said smaller polyolefin filaments comprise a majority
by number of all filaments.
30. A nonwoven fibrous structure comprising a collection of
filaments formed from a polyolefin composition comprising a
collection of polyolefin filaments filaments wherein the
nonwoven structure is in the form of a plexifilamentary three-
dimensional integral network of ribbon-like, film-fibril elements
of random length wherein the mean of the filament widths is less
1 In our opinion below, we refer to the Final Office Action filed September
24, 2013 (Final), the Appeal Brief filed December 10, 2013 (Appeal Br.), the
Examiner's Answer filed February 14, 2014 (Ans.) and the Reply Brief filed
February 28, 2014 (Reply Br.).
2 Appellants identify the real party in interest as E.I. du Pont de Nemours
and Company. Appeal Br. 1.
3 Claims 13-23 are withdrawn from consideration. Non-Final Office Action
filed July 5, 2103 at 1; see also Claims Appendix at Appeal Br. 13-17.
2
Appeal2014-005373
Application 13/088,723
than about 1 micrometer, and pores formed between said
polyolefin filaments, said nonwoven fibrous structure exhibiting
a pore size diameter equivalent distribution of between about
0.20 to about 2.5 micrometers.
34. A nonwoven fibrous structure comprising a plexifilamentary
web of polyolefin filaments wherein a majority of all filaments
have widths less than about 1 micrometer.
Claims Appendix at Appeal Br. 13, 16 and 17 (emphasis added).
REJECTIONS
The Examiner made the following rejections:
A. Claims 1--4, 7, and 8 stand rejected, under 35 U.S.C
§ 102(e), as being anticipated by Isele et al. 4 Final 2.
B. Claims 11, 30, 33, and 34 stand rejected, under 35 U.S.C
§ 102( e) as being anticipated, by Isele, or in the alternative
under 35 U.S.C § 103(a), as being obvious over Isele. Id.
at 3.
C. Claims 5, 6, 8, and 10 stand rejected under 35 U.S.C
§ 103(a), as being unpatentable, over Isele. Id.
D. Claims 1-12 and 24--345 are rejected under 35 U.S.C §
103 (a), as being unpatentable, over Lim et al. 6 and in view
of Chung et al. 7 Id. at 4.
Upon consideration of the record before us, we find that Appellants
have not shown reversible error in the Examiner's rejections A-D. Thus, we
4 Isele et al., US 2004/0266300 Al, published December 30, 2004
(hereinafter "Isele").
5 Claims 24--29 are cancelled. Claims Appendix at Appeal Br. 16.
6 Lim et al., US 6,034,008, issued March 7, 2000 (hereinafter "Lim").
7 Chung et al., US 2003/0106294 Al, published June 12, 2003 (hereinafter
"Chung").
3
Appeal2014-005373
Application 13/088,723
sustain these rejections and adopt the positions of the Examiner. We add the
following for emphasis.
OPINION
Anticipation-Rejection A
The Examiner rejects claims 1--4, 7, and 8, under 35 U.S.C. § 102(e),
as being anticipated by Isele. The Examiner finds that:
Isele discloses a nonwoven fabric having a film-fibril structure
(equated with the claimed plexifilamentary structure),
comprising a majority of fibers having a diameter of less than 1
micrometer and a minority of fibers having a diameter of greater
than 1 micrometer. See paragraphs 0029- 0032. The fibers can
be made of thermoplastic polymers including polyolefins,
polyesters, polyamides, polystyrenes, polyurethanes, etc. See
paragraph 0014. The material can be collected onto additional
layers which correspond to the claimed scrim layer [claim 9]. See
paragraph 0035-0036.
Final 2; Ans. 2. The Examiner continues that Isele teaches a network of
larger and smaller fibers that are interconnected to form a web. Ans. 6.
"The fibers are formed by melting and fibrillating a film and thus would
have a random length and a ribbon like structure [and] [t]he fibers are all
molten when formed and thus will necessarily be connected to each.
Therefore, Isele teaches the claimed structure." Id. at 6-7.
Appellants respond that Isele does not disclose the structural
relationship of the fibers of the claims-i.e., they are not plexifilamentary in
structure. Appeal Br. 4. This is because the fibers of Isele are made by melt
film or fiber bursting and, the claimed structure is not "inherent to the
bursting process." Appeal Br. 4--5; see also id. at 11 ("Isele teaches a fiber,
and assemblies of fibers. Not the claimed structure."). Appellants direct
attention to the definition of plexifilamentary structure as being three-
4
Appeal2014-005373
Application 13/088,723
dimensional networks or webs where "the film-fibril elements intermittently
unite and separate at irregular intervals in various places throughout the
length, width and thickness of the yam, thereby forming the three-
dimensional network." Reply Br. 4.
Thus, the issue becomes whether the Appellants have identified a
reversible error in the Examiner's finding that Isele teaches the
plexifilamentary structure required by claim 1. 8 For the reasons articulated
by the Examiner, we are not persuaded of such an error.
A plexifilamentary structure, as defined by the Applicants:
[is] characterized by a morphology substantially consisting of a
three-dimensional integral network of thin, ribbon-like, film-
fibril elements of random length that have a mean film thickness
of less than about 4 microns and a median fibril width of less
than 25 microns, and that are generally coextensively aligned
with the longitudinal axis of the yam.
Spec. 11: 13-18.
The Specification further states that:
In plexifilamentary yams, the film-fibril elements intermittently
unite and separate at irregular intervals in various places
throughout the length, width and thickness of the yam, thereby
fonning the three-dimensional network.
Spec. 11: 18-22. Notably, plexifilamentary structure is not defined by a
particular process,9 nor do the Appellants claim a structure derived from a
particular process.
8 Appellants focus their argument on the existence (or lack thereof) of a
plexifilamentary structure in Isele and do not separately dispute the presence
of the additional elements of dependent claims 2--4, 7, and 8 in Isele.
9 We note that the Specification does explain that "[p ]lexifilamentary yams
of this type have found widespread commercial value primarily in the form
5
Appeal2014-005373
Application 13/088,723
The Examiner correctly finds that Isele discloses a nonwoven
structure of fibers formed by melt fibrillation. Ans. 6. The fibers of Isele
are molten when formed and necessarily connected to each other in a
network or web. Id. at 6-7. Isele teaches that the web comprises a
combination of fibers having filament widths greater than one micron and
less than one micron, with the majority of fibers being less than one micron.
Final 2. And, as the Examiner points out, the fibers are thermoplastic
polymers including polyolefins such as polyethylene and polypropylene. Id.
at 2 and 4. Therefore, a preponderance of the evidence supports the
Examiner's finding that Isele teaches the claimed structure as required by
claims 1--4, 7, and 8.
Anticipation/Obviousness-Rejection B
The Examiner rejects claims 11, 30, 33, and 34, under 35 U.S.C
§ 102(e), as being anticipated, by Isele, or alternatively, under 35 U.S.C
§ 103(a), as being obvious over Isele. The Examiner finds that Isele
discloses a nonwoven material having a pore size less than 5 microns which
would embrace the claimed range of 0.2-2.5 microns. Final 3. The
Examiner continues that because Isele teaches pore size is related to the size
of the fibers, it necessarily follows that because Isele teaches the claimed
fiber widths it also teaches claimed pore size or that the claimed pore size
would be obvious. Id.
Appellants do not argue the Examiner erred in the findings of fact and
conclusion of obviousness on pore size. Instead, Appellants present
of flash-spun high density polyethylene non-woven fabrics." Spec. 11 :22-
26 (emphasis added). But, we do not read this as limiting the method of
production given the Appellants use non-limiting language-i.e., primarily.
6
Appeal2014-005373
Application 13/088,723
arguments consistent with those advanced for claim 1, i.e., that the
plexifilamentary structure of the instant application is not found in Isele. For
the reasons discussed above with claim 1, we find no error in the Examiner's
findings with respect to the rejection of claims 11, 30, 33, and 34.
Obviousness-Rejection C
The Examiner rejects claims 5, 6, 8, and 10, under 35 U.S.C § 103(a),
as being unpatentable, over Isele. The Examiner finds that the added
limitations relating to the selected polyolefin is obvious in light of Isele.
Appellants "respond that the same argument applies here as above, and that
one of skill in the art would not recognize or expect that a film or fiber
bursting process for making individualfibers, would produce the
plexifilamentary structure described here." Appeal Br. 7. For the reasons
discussed above with claim 1, we find no error in the Examiner's findings
with respect to the rejection of claims 5, 6, 8, and 10 under
35 U.S.C § 103(a).
Obviousness-Rejection D
The Examiner rejects claims 1-12 and 24--34, under 35 U.S.C §
103(a), as being unpatentable, over Lim in view of Chung. Final 4. The
Examiner finds that Lim teaches a plexifilamentary nonwoven structure
formed of high density polyethylene. Id. According to the Examiner, Lim
also teaches that fiber size becomes smaller as the concentration of the
polymer is reduced. Id. In addition, Lim teaches that pore size of the fabric
is related to fiber size-thus, smaller fibers yield smaller pores. Id. But, the
Examiner finds that Lim does not teach the claimed fiber sizes. The
Examiner continues that Chung discloses nonwoven fabrics made from
7
Appeal2014-005373
Application 13/088,723
polyolefins (such as polyethylene) that include fibers having a diameter of
less than 0.2 microns and microfibers having a diameter of greater than 0.2
microns, but less than 10 microns, and where the fine fibers comprise the
majority of the fibers. Id. at 4--5. Both Chung and Lim, according to the
Examiner, disclose materials useful as filters. Id. Therefore, says the
Examiner,
it would have been obvious to one of ordinary skill in the art at
the time the invention was made to have made the
plexifilamentary web of Lim . . . having the size disclosed in
Chung, in view of the teaching of Lim that smaller fibers produce
more efficient and effective filters which are more permeable,
and in view of the teaching of Chung that fibers having the
particularly claimed size ranges are useful in forming filters.
Final 5; Ans. 5.
Appellants counter that because Chung does not make
plexifilamentary webs, there is no expectation of success in the combination
of Chung and Lim. Reply Br. 6. Further, Appellants contends that undue
experimentation-not routine experimentation-is required. Appeal Br. 8-
9. Appellants dispute the Examiner's finding that Lim teaches how to adjust
the size of the fibers. According to Appellants, the charge injector of the
instant application (not found in Lim) is necessary to achieve submicron
sized fibers as illustrated in Figures 7 and 8. Id. at 10; Reply Br. 5-7.
Appellants also argue that Table 4, of Lim, provides evidence that "no
reduction in fiber size was produced by the reduction in polymer
concentration." Reply Br. 6-7.
The Examiner correctly finds that Lim and Chung both teach
nonwoven materials, made from polyolefins such as polyethylene, that are
useful as filters. Final 5; Ans. 4--5. Lim and Chung also teach filtering dust
and other particulates having particle sizes of 1-2 microns and 0.01-10
8
Appeal2014-005373
Application 13/088,723
microns respectively. Lim col. 2, 11. 29-31; Chung at i-f 4. Lim teaches that
pore size of the fabric is related to the fiber size-the smaller the fibers, the
smaller the pores. Final 5; Ans. 4. Lim also discloses that "fiber size
becomes smaller as the polymer concentration is reduced." Id. at 6. Chung
teaches that combinations of fiber sizes, including nanosized fibers, produce
more efficient filters. Final 5; Ans. 5. Therefore, "Chung provides a
rationale for making fibers having the particularly claimed fiber size [and]
distribution" and Lim provides the method for making the plexifilamentary
fibers smaller. Final 6-7; Ans. 5 ("When used for filtration, the fine fiber
layers comprises both nanofibers and microfibers.").
Moreover, Appellants contention that Lim fails to teach controlling
fiber size fails to rebut the Examiner's prima facie case. Appellants argue
that:
[i]n Lim table 4, polymer concentrations of 11-16% were used,
and mean fiber diameters of 11 to 18.2 microns were produced.
No reduction in fiber size was produced by the reduction in
polymer concentration.
Lim was therefore not correct in saying or implying that
simply reducing polymer concentration produces smaller fibers,
or even a coherent web.
Reply Br. 7. But, a closer examination of Table 4 shows that fiber size was
in fact reduced where polymer concentration was lowered. See Lim at Table
4. Comparing Examples 22 and 23, using 12% and 11 % Freon®-11
respectively, yields mean fiber sizes of 18.2 and 11.0 microns respectively.
Id. Accordingly, we find no error in the Examiner's rejection of claims 1-12
and 24--34, under 35 U.S.C § 103 (a), over Lim in view of Chung.
CONCLUSION
The Examiner did not err in rejecting claims 1--4, 7, and 8, under
9
Appeal2014-005373
Application 13/088,723
35 U.S.C § 102(e), as being anticipated by Isele.
The Examiner did not err in rejecting claims 11, 30, 33, and 34 under
35 U.S.C § 102(e), as being anticipated by Isele, or alternatively under
35 U.S.C § 103(a) as obvious over Isele.
The Examiner did not err in rejecting claims 5, 6, 8, and 10, under
35 U.S.C § 103(a), as being unpatentable over Isele.
The Examiner did not err in rejecting claims 1-12 and 24--34, under
35 U.S.C § 103 (a), as being unpatentable, over Lim and further in view of
Chung.
DECISION
For the above reasons, the Examiner's rejection of claims 1-12 and
30-34 is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l )(iv) (2009).
AFFIRMED
10