Matthias Schwender et al.

Patent Trials and Appeals Board

Oct 15, 2019

13261514 - (D) (P.T.A.B. Oct. 15, 2019)

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.
13/261,514 02/22/2013 Matthias Schwender 59876 6041
513 7590 10/15/2019
WENDEROTH, LIND & PONACK, L.L.P.
1025 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
EXAMINER
AN, MICHAEL J
ART UNIT PAPER NUMBER
1779
NOTIFICATION DATE DELIVERY MODE
10/15/2019 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):
eoa@wenderoth.com
kmiller@wenderoth.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MATTHIAS SCHWENDER, ANDREAS SCHMITZ, and
EDWIN KOCH
Appeal 2018-007832
Application 13/261,514
Technology Center 1700
BEFORE KAREN M. HASTINGS, MICHAEL G. MCMANUS, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 11–16, 18–26, and 28–48. We have
jurisdiction. 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Hydac
Filtertechnik GmbH. Appeal Br. 1.
Appeal 2018-007832
Application 13/261,514
2
CLAIMED SUBJECT MATTER
The subject matter on appeal concerns fluid filter materials and filter
elements having a support structure comprising a specific arrangement of
warp and weft threads. Claim 11, reproduced below, is illustrative of the
claimed subject matter:
11. A filter material for fluids, comprising:

at least one first layer of filter medium; and

a support structure resting flatly on at least one side of said filter
medium and formed of at least a first individual fabric having a
set of warp threads and a set of weft threads, at least one of said
sets forming a long weave with each of said threads thereof
passing over at least three adjacent threads of the other set and
then over a single thread of the threads of the other set in
sequence, all of said warp threads and said weft threads being of
a plastic material.

The prior art relied upon by the Examiner is:
Name Reference Date
Pall US 3,057,481 Oct. 9, 1962
Haerle US 5,266,279 Nov. 30, 1993
Kahlbaugh US 5,672,399 Sept. 30, 1997
Hansson US 7,059,361 B1 June 13, 2006
Schindelin US 2010/0224554 A1 Sept. 9, 2010
Miyagi EP 0139822 A2 May 8, 1985

The Examiner’s rejections are set forth at pages 3–19 of the Non-Final
Action dated August 30, 2017. Each rejection was maintained by the
Examiner in the Answer dated June 15, 2018. Ans. 4.

Appeal 2018-007832
Application 13/261,514
3
OPINION
We review appealed rejections for reversible error based on the
arguments and evidence the appellant provides for each issue the appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv) (2017); Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner
had failed to make a prima facie case, “it has long been the Board’s practice
to require an applicant to identify the alleged error in the examiner’s
rejections.”)).
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 11–16, 18–26, and 28–48 under 35 U.S.C. § 103(a) for the reasons
set forth in the Final Action, the Answer, and below. We address the claims
separately to the extent they are so argued by Appellant.
Independent Claims 11, 21, 31, and 40
The Examiner rejected independent claims 11 and 21 over the
combined disclosure of Miyagi and Schindelin. Final Act. 3–4, 7–8. In
rejecting independent claims 31 and 40, the Examiner relied on this same
combination of references, along with Pall for claims 31 and 40. Id. at 10–
12, 14–16.
Appellant argues limitations recited in each of the independent claims
11, 21, 31, and 40, focusing mainly on the Examiner’s reliance on
Schindelin. Appeal Br. 4–7. Relevant to this appeal, the Examiner finds
that Schindelin discloses a filter “support structure formed with a twill
weave wherein one weft thread run[s] over every two warp threads,” and
“suggests that one of ordinary skill in the art can modify the twill weave of
Appeal 2018-007832
Application 13/261,514
4
the support structure under at least one warp thread and over at least two
warp thread[s]. . . which would include a twill weave comprising a warp
thread over three warp threads.” Final Act. 4 (citing Schindelin ¶¶ 11, 48;
Fig. 4) (emphasis added). Appellant asserts that such disclosure of “at least
two warp threads” is not enabling for the recited limitation of “at least three
threads.” Appeal Br. 5. That argument amounts to little more than a naked
assertion of the prior art’s non-enablement and is, therefore, unpersuasive.
Here, Appellant offers no explanation regarding Schindelin’s disclosure to
persuasively establish it is not enabled, particularly in view of our reviewing
court’s holding “that a prior art printed publication cited by an examiner is
presumptively enabling barring any showing to the contrary by a patent
applicant.” In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012).
We also are unpersuaded by Appellant’s assertion that the Examiner’s
rejection lacks the requisite motivation that would have led the skilled
artisan to arrive at the claimed invention. Appeal Br. 5. On the record
before us, the Examiner provides ample explanation and evidence to support
the obviousness conclusion. See Final Act. 4 (citing Schindelin ¶¶ 28, 53).
Specifically, the Examiner correctly finds that Schindelin suggests its “twill
weave increases the mechanical load bearing capacity of the filter and
lowers the through flow resistance by allowing fluid to flow with relatively
little flow loss from the pleated filter medium.” Id.
Claims 12, 22, 32, and 41
Appellant contests the rejection of these claims, asserting that the
Examiner’s reliance on Haerle “for teaching a satin weave” is improper
because “the [Haerle] satin weave is for the filter medium and not for a
Appeal 2018-007832
Application 13/261,514
5
supporting structure to be used on a side of a filter medium layer.” Appeal
Br. 7. This argument is not persuasive for several reasons.
First, it is directed to the Haerle reference individually, and does not
address the relevant obviousness inquiry––i.e., what the disclosure of Haerle
would have taught, or suggested to, the person of ordinary skill. In re Merck
& Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references. . . . [The reference] must
be read, not in isolation, but for what it fairly teaches in combination with
the prior art as a whole.”).
Furthermore, Appellant’s assertion appears to be technically
incomplete because Haerle’s woven fabric, which can be in the form of a
satin weave, is a component part of “a substantially homogenous woven
fabric.” Haerle 1:66–67, 3:59–63. Haerle’s filter has “a multilayer woven
or knitted fabric [] used as the base material, wires or fibres being placed flat
on top of one another in several layers.” Id., 1:14–16. That “woven fabric
is in the form of a twilled wire fabric,” and then sintering material, such as
“powder, granules, fibre fragments or chips” is introduced into the twilled
wire fabric meshes. Id. at 1:9–11, 51–55. Haerle discloses “[t]he twilled
wire fabric moreover provides a spatial structure in which the sintering
material can be embedded.” Id. at 2:25–26 (emphasis added); see also id. at
2:53–60 (discussing how certain design parameters of “the wires or fibres of
the woven fabric” provides “an even better spatial structure for a layer and
even more sintering material can be introduced.”). Based on such
disclosure, we are unpersuaded by Appellant’s assertion that Haerle’s twill
weave is “not for a supporting structure.” Appeal Br. 7. Rather, the skilled
Appeal 2018-007832
Application 13/261,514
6
artisan would have understood that Haerle’s twill weave—of which the satin
weave is a “special form” (Haerle 3:59–63)––provides structural support to
the embedded sintering material.
Claims 13–16, 18, 23–26, 28, 33–37, and 42–46
For these claims, Appellant argues that the Examiner’s reliance on
Hansson is erroneous because Hansson’s multi-layer fabrics “only form the
filter medium and not a support structure for a filter medium.” Appeal. Br
7–8. Appellant’s argument against the rejection of these claims is
unpersuasive because it does not squarely address the rejection as set forth
by the Examiner. Specifically, the Examiner does not rely on Hansson to
disclose multiple fabric layers, but rather for its disclosure of binding
threads connecting multiple layers. Final Act. 5; see also Ans. 6 (“The
combination of Miyagi, Schindelin, with Pall, and/or Haerle further
discloses a support structure with a first individual fabric and a second
individual fabric” (citing Schindelin, Fig. 5)). Notably, Appellant does not
contest this finding. See Reply Br. 4. Instead, Appellant again focuses on
the teachings of the applied reference individually, rather than what the
reference would have taught or suggested to the skilled artisan when
combined with the other references discussed in the rejection. Id.; Appeal
Br. 7–8. Appellant’s argument, therefore, reveals no reversible error in the
Examiner’s reliance on Hansson’s disclosure of a binding thread to connect
individual fabric layers for the purpose of increasing the forming layers’
structural stability. Final Act. 5; Ans. 6–7.
Claims 19, 29, 38, and 47
The Examiner relies on Kahlbaugh to evince lamination of a
nonwoven to an individual fabric. Final Act. 6; Kahlbaugh 16:65–17:17.
Appeal 2018-007832
Application 13/261,514
7
Appellant argues that Kahlbaugh does not specifically mention lamination.
Appeal Br. 8. This argument is unpersuasive. The Examiner finds that the
skilled artisan would have understood Kahlbaugh’s disclosure of adhering
layers using hot melt spray or hot melt sheets as the recited lamination.
Ans. 8. This finding is not contested by Appellant. See Reply Br.,
generally. Thus, Appellant has failed to identify reversible error in the
rejection.
Claims 20, 30, 39, and 48
The Examiner relies on Kahlbaugh’s disclosure of coarse polyester
fibers (Kaulbach 18:41–42) which are taught to be secured to fine fibers by
an adhesive, such as “wet-laid water soluble or solvent based resin systems”
(id. at 17:2–11). Appellant argues that Kahlbaugh fails to disclose “a coated
polyester nonwoven.” Appeal Br. 8. Appellant also asserts that the cited
portions of Kahlbaugh relied on by the Examiner “do not necessarily result
in a coated polyester non-woven or a support resting flatly on one side of a
filter medium as required by these claims.” Reply Br. 4.
These arguments are not persuasive. Appellant again addresses the
teachings of Kahlbaugh in a vacuum, and also fails to explain how
Kahlbaugh’s “coarse support compris[ing] polyester fibers” is not evidence
that a “coated polyester nonwoven” was known in the prior art. Kahlbaugh
18:41–42. Kahlbaugh discloses “the coarse fiber layer may comprise . . . a
non-woven substantially continuous fiber matrix,” and that “[w]et-laid
materials may be utilized for the non-woven support.” Id. at 16:3–9. Such
wet-laid adhesives may be applied to the coarse fiber layer. Id. at 17:2–9.
Thus, the preponderance of evidence supports the Examiner’s position that
Kahlbaugh discloses the disputed limitation.
Appeal 2018-007832
Application 13/261,514
8
CONCLUSION
Because Appellant fails to identify reversible error in any of the
rejections, we affirm the decision of the Examiner to reject claims 11–16,
18–26, and 28–48.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Basis  Affirmed Reversed
11, 21 103(a) Miyagi, Schindelin  11, 21
12, 22 103(a) Miyagi, Schindelin,
Haerle 
12, 22
13–16, 18,
23–26, 28
103(a) Miyagi, Schindelin,
Haerle, Hansson
13–16, 18,
23–26, 28

19, 20, 29,
30
103(a) Miyagi, Schindelin,
Kahlbaugh
19, 20, 29,
30

31, 40, 41 103(a) Miyagi, Schindelin,
Pall
31, 40, 41
32, 41 103(a) Miyagi, Schindelin,
Pall, Haerle
32, 41
38, 39, 47,
48
103(a) Miyagi, Schindelin,
Pall, Kahlbaugh
38, 39, 47,
48

33–37, 42–
46
103(a) Miyagi, Schindelin,
Pall, Haerle, Hansson
33–37, 42–
46

Overall
Outcome
11–16, 18–
26, 28–48

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED