Ex Parte Weiss

Board of Patent Appeals and Interferences

Oct 31, 2007

10159762 (B.P.A.I. Oct. 31, 2007)

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UNITED STATES PATENT AND TRADEMARK OFFICE 3
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BEFORE THE BOARD OF PATENT APPEALS 6
AND INTERFERENCES 7
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Ex parte ALBERT WEISS 10
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Appeal No. 2007-0872 13
Application No. 10/159,762 14
Technology Center 3600 15
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Decided: November 6, 2007 18
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Before WILLIAM. F. PATE, III, HUBERT C. LORIN, and LINDA E. HORNER, 22
Administrative Patent Judges. 23
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PATE, III, Administrative Patent Judge. 25
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DECISION ON APPEAL 28
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This is an appeal from the final rejection of claims 21, 24-29, and 31-40. 30
These are the only claims remaining in the application. We have jurisdiction under 31
35 U.S.C. §§ 134 and 6. 32
The claimed invention is directed to a roller blind and a roller blind web. 33
The web is woven with a plurality of tubular pockets integrally formed therein. 34
The pockets can be used at the edge of the web in place of a hem to accept guide 35
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rods that guide the edges of the web when opening and closing the roller blind. 1
Claim 21, reproduced below, is further illustrative of the claimed subject matter. 2
21. A roller blind for alternately covering and uncovering an area, the 3
roller blind comprising a woven or knitted web, the woven or knitted web 4
defining a single layer of fabric having a first plurality of tubular pockets 5
woven or knitted into the fabric, each of said tubular pockets extending in a 6
warp direction, each of said tubular pockets adapted for receiving a guide 7
member for guiding movement of said web when alternately covering and 8
uncovering the area. 9
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The references of record relied upon by the Examiner as evidence of 11
obviousness are: 12
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Swanson US 4,531,562 Jul. 30, 1985 14
Schaap US 5,651,406 Jul. 29, 1997 15
Fernandez Lopez US 5,791,392 Aug. 11, 1998 16
Gottschalk US 6,286,579 B1 Sep. 11, 2001 17
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Claims 21 and 24-28 stand rejected under 35 U.S.C. § 103 as unpatentable 20
over Schaap in view of Fernandez Lopez. 21
Claims 29, 31, 32, and 37-40 stand rejected under 35 U.S.C. § 103 as 22
unpatentable over Gottschalk in view of Fernandez Lopez. 23
Claims 33-36 stand rejected under 35 U.S.C. § 103 as unpatentable over 24
Gottschalk in view of Fernandez Lopez and Swanson. 25
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ISSUE 27
The sole issue presented in this appeal is whether the Appellant has 28
established that the Examiner erred in rejecting the claimed invention on the 29
ground of obviousness. 30
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FINDINGS OF FACT 1
We agree with Appellant (Brief 6) that Schaap discloses a screen 1 that has 2
one end attached to a roller mechanism in the usual manner and that is mounted 3
within a housing 2 situated above the opening. The opposite end of the screen 1 is 4
attached to a pull beam 3. The screen 1 is wound around the roller mechanism and 5
is lowered from the housing 2 to cover the opening by being unwound from the 6
roller mechanism. Alternatively, the screen 1 is raised to cover the opening by 7
being wound onto the roller mechanism and retracted into the housing 2. Thus, the 8
Schaap screen 1 alternatively is wound around the roller mechanism and is 9
unwound from the roller mechanism. 10
We further agree with Appellant (Brief 6) that the Schaap device has a side 11
guide 4 disposed to each side of the screen 1, which extends through a slot 7 in the 12
side guide 4. The pull-beam 3 is guided in these side guides 4 in the usual manner. 13
A guiding rod 5 is provided to extend axially in each side guide 4. Each side guide 14
of the screen 1 is provided with a hem that engages one of the guide rods and slides 15
along the guide rod 5 in the usual manner as the screen 1 is raised or lowered. 16
Likewise, we agree with the Appellant (Brief 7) that Fernandez Lopez 17
discloses a shade for a roller blind that includes a woven fabric 1 having at regular 18
intervals, and in crosswise or transverse direction, a series of bands 2 obtained 19
during the weaving of the fabric 1. Each band 2 comprises two plies 3 and 4, 20
defining between them a pocket 5 for housing a corresponding rod which a roller 21
blind typically carries at regular intervals and wherein each of the pockets 5 is 22
defined by a different band 2. 23
Fernandez Lopez further includes a “lower hem which is similarly obtained 24
during the actual process of weaving of the fabric, since similarly to the bands or 25
strips for housing the rods, said lower hem also forms a woven band, of greater 26
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width, to receive the corresponding flat bar used as weight in the roller blinds.” 1
(Fernandez Lopez, col. 2, ll. 33-37). 2
Gottschalk discloses a retractable storm shade system with a roller blind web 3
36 having pockets 70 formed therein in the warp direction of the fabric. The fabric 4
is PVC coated. (Gottschalk, col. 4, ll. 32-26). Reinforcing rods 72 of Gottschalk 5
are provided with a length somewhat longer than the opening to be covered so that 6
when they are placed on raised members 50 they bow outwardly as seen in Fig. 3. 7
This bowing provides some measure of protection from flying debris (Gottschalk 8
col. 3, l. 63 – col. 4, l. 29). It is unclear from the disclosure of Gottschalk whether 9
the pockets 70 are woven into the warp of the fabric or whether the fabric has 10
multiple plies with the pocket 70 sewn therein. The Examiner directs our attention 11
to claim 5 of Gottschalk wherein it is stated that the fabric portion comprises a 12
single section of high strength fabric. The Examiner interprets this to mean a 13
single layer of high strength fabric. This appears to be conjecture on the part of the 14
Examiner, as a “single section” could refer merely to one piece of fabric. 15
Therefore, we are unable to find that Gottschalk is directed explicitly to a single 16
layer of fabric with pockets 70 woven therein. 17
Swanson has been cited to show a roller blind fabric having insulating, heat 18
collecting, or heat reflecting properties using a metallized Mylar plastic layer with 19
perforations, along with a black vinyl layer, and a transparent polyester plastic base 20
layer. (Swanson, col. 5, ll. 19-35). 21
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PRINCIPLES OF LAW 23
A claimed invention is unpatentable if the differences between it and the 24
prior art are “such that the subject matter as a whole would have been obvious at 25
the time the invention was made to a person having ordinary skill in the art.” 26
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35 U.S.C. § 103(a) (2000); KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727 (2007); 1
Graham v. John Deere Co., 383 U.S. 1, 13-14 (1966). 2
In Graham, the Court held that that the obviousness analysis is bottomed on 3
several basic factual inquiries: “[(1)] the scope and content of the prior art are to be 4
determined; [(2)] differences between the prior art and the claims at issue are to be 5
ascertained; and [(3)] the level of ordinary skill in the pertinent art resolved.” 383 6
U.S. at 17. See also KSR Int’l v. Teleflex Inc., 127 S.Ct. at 1734. “The 7
combination of familiar elements according to known methods is likely to be 8
obvious when it does no more than yield predictable results.” KSR, at 1739. 9
“When a work is available in one field of endeavor, design incentives and 10
other market forces can prompt variations of it, either in the same field or [in] a 11
different one. If a person of ordinary skill [in the art] can implement a predictable 12
variation, § 103 likely bars its patentability.” Id. at 1740. 13
“For the same reason, if a technique has been used to improve one device, 14
and a person of ordinary skill in the art would recognize that it would improve 15
similar devices in the same way, using the technique is obvious unless its actual 16
application is beyond his or her skill.” Id. 17
“Under the correct analysis, any need or problem known in the field of 18
endeavor at the time of invention and addressed by the patent can provide a reason 19
for combining the elements in the manner claimed.” Id. at 1742. 20
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ANALYSIS 22
We will affirm the obviousness rejection of claims 21 and 25-28 as 23
unpatentable over Schaap in view of Fernandez Lopez. As noted above in our 24
findings of fact, Schaap discloses that the web of a roller blind is provided with a 25
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side hem for reception of guide rods. On the other hand, Fernandez Lopez shows 1
that a hem at the margin of the roller blind web can be woven directly in the 2
material of the web. This is hem 10 of Fernandez Lopez designed for the reception 3
of the flat bar weight. Thus, Fernandez Lopez is suggestive of weaving a pocket 4
into a fabric and using the pocket for receipt of a rod or member that is to be 5
placed at the margin or edge of the fabric web. Accordingly, it is seen that to 6
replace the sewn hems of Schaap with a pocket woven directly into the fabric is a 7
simple substitution of one known element for another to obtain predictable results. 8
See KSR at 1740. Appellant’s argument regarding lack of motivation to combine is 9
unavailing in face of the Supreme Court’s decision in KSR. Furthermore, it is not 10
seen that whether all the woven pockets extend in a warp direction or in a weft 11
direction is a feature of patentable significance. Therefore, Appellant’s argument 12
directed to whether a hem is formed integrally on the bottom or side of the roller 13
shade is not convincing. 14
With respect to the rejection of claim 24, however, we do not find the 15
disclosure in any of the cited prior art involving woven or knitted webs which have 16
pockets that extend in both the web weft and web warp directions simultaneously. 17
Accordingly, we do not affirm the rejection of claim 24. 18
Similarly, with respect to the rejections of claims 29, 32, and 37-39, we will 19
affirm the rejection of these claims. Fernandez Lopez is a recognition in the art 20
that pockets for the receipt of reinforcing rods, weights, or the like can be woven 21
into the fabric rather than stitched therein. Accordingly, it is our view that the 22
provision of pockets in Gottschalk that are woven directly into the fabric is simply 23
combining prior art elements according to known methods to yield predictable 24
results. Id. We do not agree with Appellant’s contention that the fabric of 25
Gottschalk has already been guided before the pipes are received in the pockets. 26
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With reference to Figure 6, the web 36 has been pulled out laterally from the 1
window for insertion of guides or rods 72. Therefore, it can not be said to have 2
been guided across the window opening at this stage of Gottschalk’s assembly. The 3
argument that Gottschalk teaches away from the weaving or knitting of pockets 4
directly into the fabric because sewn pockets would make the web thicker and 5
therefore more protective is conjecture on the part of the Appellant. 6
In the Reply, Appellant argues that the rods of Gottschalk do not provide a 7
guiding function. We disagree. After the rods 72 are inserted in pockets 70 and as 8
the ends of the rods are placed over raised members 50, the fabric is guided into its 9
precise desired position protecting the window opening. 10
With respect to claim 31, here again we do not find in the prior art tubular 11
pockets that extend in two perpendicular directions and cross in the fabric and thus 12
we will reverse the rejection as to this claim. 13
With respect to claims 33-36 we also affirm the rejection of these claims 14
based as they are on the additional disclosure of Swanson which shows the feature 15
of a foil or coating on a roller blind web and Gottschalk’s disclosure of a PVC 16
coating. Using coatings and layers for weather protection (Gottschalk), heat 17
insulation, light blockage or reflection, and air tightness while permitting 18
illumination or vision (Swanson) are all features that are known in the prior art and 19
would have been obvious to use on a roller blind web with predictable results. 20
Finally, turning to a consideration of claim 40, we do not find in the prior art 21
the specific teaching that the thickness of the tubular pockets is substantially the 22
same as the thickness of the fabric web between the tubular pockets. As far as we 23
can determine, the Examiner has not addressed this feature with a convincing 24
argument. Accordingly, the rejection of claim 40 is also reversed. 25
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CONCLUSION AND ORDER 1
The obviousness rejections of claims 21, 25-29, and 32-39 have been 2
affirmed. The obviousness rejections of claims 24, 31, and 40 are reversed. The 3
decision of the Examiner is affirmed-in-part. 4
No time period for taking any subsequent action in connection with this 5
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006). 6
AFFIRMED-IN-PART 7
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DORITY & MANNING, P.A. 21
POST OFFICE BOX 1449 22
GREENVILLE, SC 29602-1449 23