POLITEX s.a.s.di FREUDENBERG POLITEX s.r.l.

Patent Trials and Appeals Board

Oct 25, 2021

2021003828 (P.T.A.B. Oct. 25, 2021)

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.
14/352,119 04/16/2014 Massimo Migliavacca 2014-0449A 9804
513 7590 10/25/2021
WENDEROTH, LIND & PONACK, L.L.P.
1025 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
EXAMINER
IMANI, ELIZABETH MARY COLE
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
10/25/2021 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 MASSIMO MIGLIAVACCA, MARINELLA LEVI, and
STEFANO TURRI
____________

Appeal 2021-003828
Application 14/352,119
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, DEBRA L. DENNETT, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, 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 finally reject claims 13, 19–24, 26–28, and 31–46.
An oral hearing was held on October 4, 2021, a transcript of which is of
record. We have jurisdiction under 35 U.S.C. § 6(a).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies POLITEX S.A.S. DI
FREUDENBERG POLITEX S.R.L. as the real party in interest. Appeal Br.
5.
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The invention relates generally to a binding resin for nonwoven
fabrics, in particular for manufacturing supports for bituminous membranes,
to the method for preparing it, and to the nonwoven fabric obtained by using
said resin. Spec. 1. Claim 13, reproduced from the Claims Appendix to the
Appeal Brief, illustrates the invention:
13. A nonwoven support manufactured from fibers
consisting of polyethylene terephthalate (PET) to form
bituminous membranes,
wherein the nonwoven support is impregnated with a
binding resin,
wherein the binding resin consists of an aqueous starch-
based solution, a crosslinking agent of natural origin which is a
carboxylic acid having two or more carboxylic groups, a
catalyst and optionally one or more additives, and
wherein the starch is in an amount from 8% to 30% as a
percentage by weight in the binding resin, the crosslinking
agent is in an amount from 5% to 25% as a percentage by
weight of the starch and the catalyst is in an amount from 40%
to 60% as a percentage by weight of the crosslinking agent.

Independent claim 33 also recites a nonwoven support similar to the
one recited in claim 1.
Appellant requests review of the Examiner’s rejection of claims 13,
19–24, 26–28, and 31–46 under pre-AIA 35 U.S.C. § 103(a) as unpatentable
over Van Herwijnen (US 2008/0108741 A1, published May 8, 2008), Trksak
(US 2010/0330376 A1, published December 30, 2010), and Rempt (EP 2
192 153 A, published June 2, 2010).2 Appeal Br. 11; Final Act. 2.

2 While the Examiner and Appellant refer to EP 2 192 153 A as EP ’153
throughout the prosecution of this Application, we prefer to refer to the
reference using the last name of the first named inventor (Rempt).
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OPINION
After review of the respective positions of Appellant and the
Examiner, we affirm the Examiner’s rejection of claims 13, 19–24, 26–28,
and 31–46 under 35 U.S.C. § 103(a) for essentially the reasons the Examiner
presents. We add the following for emphasis.
Claims 13 and 33
Appellant argues independent claims 13 and 33 together. See
generally Appeal Br. We therefore limit our discussion to independent
claim 13 with the understanding that the discussion applies equally to both
claims.
Claim 13 recites a nonwoven support manufactured from fibers
consisting of polyethylene terephthalate (PET) and impregnated with a
binding resin, wherein the binding resin consists of an aqueous starch-based
solution, a crosslinking agent of natural origin which is a carboxylic acid
having two or more carboxylic groups, and a catalyst. The claim recites
specific amounts for the binder components.
The Examiner finds Van Herwijnen discloses a nonwoven support
manufactured from polyester fibers by impregnating the nonwoven support
with a binder resin consisting of an aqueous starch-based solution, a
crosslinking agent of natural origin which is a carboxylic acid having two or
more carboxylic groups, and a catalyst, wherein the amounts of each
components in Van Herwijnen encompasses the claimed amount ranges for
the same components. Final Act. 2. The Examiner finds that Van
Herwijnen does not disclose (1) the amount of catalyst relative to the amount
of crosslinking agent and is silent as to the amount of catalyst present and
(2) the binder is applied to a nonwoven support consisting of polyethylene
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terephthalate (PET) fibers. Id. at 3–4.
Regarding difference (1), the Examiner finds Trksak teaches that
catalysts can be employed in the formation of formaldehyde-free starch
based binders in amounts of 1–10 percent of the total weight of the binder.
Final Act. 3; Trksak ¶ 45. The Examiner finds that one skilled in the art
would have been able to determine the amount of catalyst necessary to
increase the rate of Van Herwijnen’s reaction. Id. at 3. Therefore, the
Examiner determines that it would have been obvious for one of ordinary
skill in the art to use a catalyst in an amount sufficient to achieve the desired
result. Id.
Regarding difference (2), the Examiner finds Rempt teaches it is
known to make nonwoven supports consisting of PET fibers and to treat the
nonwoven support with starch based binders. Final Act. 4; Rempt ¶¶ 1–3,
72–74, 80–82. The Examiner finds that Rempt discloses these nonwoven
supports as useful roofing materials. Final Act. 4; Rempt ¶¶ 1–3. The
Examiner determines it would have been obvious to one having ordinary
skill in the art to use Rempt’s PET nonwoven support in place of Van
Herwijnen’s nonwoven support because Rempt teaches the PET nonwoven
support as an alternative support for roofing applications. Final Act. 4.
Appellant argues Van Herwijnen teaches a nonwoven support having
glass fibers and not PET fibers as claimed. Appeal Br. 15. According to
Appellant, Van Herwijnen’s disclosure is directed principally to
embodiments of glass fiber products. Id. Appellant contends Van
Herwijnen does not disclose PET fibers and the alternative fiber materials
listed in Van Herwijnen’s paragraph 30 are never mentioned again in the
reference. Id. at 15–16. Appellant further contends that Van Herwijnen’s
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paragraph 43 teaches away from a non-glass fiber support because it teaches
using other fibers as additives only. Id. at 16.
In connection with the issue of a nonwoven support made from PET
fibers, Appellant additionally argues one skilled in the art would not use
Rempt’s PET nonwoven support in place of the nonwoven supports of Van
Herwijnen because Rempt uses a non-starch based binder instead of a starch-
based binder, as claimed, to make the roofing material with the nonwoven
support. Id. at 18–19. Appellant also argues that Rempt, like Van
Herwijnen, exemplifies only glass fiber nonwoven supports, and, thus, there
is no teaching or suggestion in Rempt to use a starch based binder solution
for binding PET nonwovens. Id. at 19.
Appellant’s arguments do not identify error in the Examiner’s
determination of obviousness.
As Appellant acknowledges in the arguments, Van Herwijnen’s
paragraph 30 discloses that the nonwoven support can be made from
polyester fibers. Specifically, Van Herwijnen discloses “[t]he non-woven
fiber is glass fiber, rock wool fiber, cellulose, hemp, wool, jute, polyester,
. . .” Van Herwijnen ¶ 30. This language informs the person of ordinary
skill in the art that the nonwoven support can be made solely from one of the
fibers listed. That is, Van Herwijnen encompasses a non-glass fiber
nonwoven support consisting of polyester fibers. Appellant’s reliance on
Van Herwijnen’s disclosure in paragraph 43 as teaching away from a non-
glass fiber support is misplaced. In paragraph 30, Van Herwijnen recites the
fiber materials that can be used to form the nonwoven support and then
specifically describes “the term ‘glass fiber’ is intended to embrace heat-
resistant fibers suitable for withstanding elevated temperatures.” One skilled
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in the art would have reasonably inferred from this disclosure that any fiber
used to form a nonwoven support itself, particularly for roofing applications,
would have to be a heat-resistant fiber suitable for withstanding elevated
temperatures. See In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992)
(holding that a reference stands for all of the specific teachings thereof as
well as the inferences one of ordinary skill in the art would have reasonably
been expected to draw therefrom). See also KSR Int'l Co. v. Teleflex Inc.,
550 U.S. 398, 418 (2007) (“the [obviousness] analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ”). On the other hand, Van
Herwijnen’s paragraph 43 describes fibrous additives “that are not in
themselves heat-resistant.” In view of the above, one skilled in the art would
reasonably understand that the respective paragraphs of Van Herwijnen’s
disclosure are directed to different fibers used for different purposes.
Appellant’s arguments do not address this distinction adequately and, thus,
Appellant has not explained sufficiently how Van Herwijnen teaches away
from a non-glass fiber support.
With respect to Appellant’s arguments concerning PET nonwoven
supports and Rempt, given that Van Herwijnen discloses the use of polyester
nonwoven supports for making roofing products, the Examiner has provided
a reasonable basis for one skilled in the art to use other polyester nonwoven
supports, such as Rempt’s PET nonwoven supports, that are known for use
in making roofing products. Final Act. 4; Ans. 6–8; see In re O'Farrell, 853
F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under § 103, all that is
required is a reasonable expectation of success.”). Appellant’s argument
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that Rempt uses a binder different from the one claimed does not address the
rejection the Examiner presents. In re Merck & Co., Inc., 800 F.2d 1091,
1097 (Fed. Cir. 1986); In re Keller, 642 F.2d 413, 425 (CCPA 1981) (“[T]he
test [for obviousness] is what the combined teachings of the references
would have suggested to those of ordinary skill in the art.”); KSR Int'l Co. v.
Teleflex Inc., 550 U.S. at 418 (“the [obviousness] analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ”). Appellant does not
explain adequately why one skilled in the art would not have been capable of
adapting Rempt’s PET nonwoven support for use in Van Herwijnen roofing
products given that Van Herwijnen teaches the use of polyester nonwovens
in general for that same purpose.
Regarding Appellant’s argument that the disclosures of Van
Herwijnen and Rempt focus on exemplifying glass fiber nonwoven support
embodiments (Appeal Br. 15, 19), these disclosures appear to be directed, at
best, to preferred embodiments. It is well settled that a reference may be
relied upon for all that it discloses and not merely the preferred
embodiments as suggested by Appellant. See Merck & Co. v. Biocraft
Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“[A]ll disclosures of the
prior art, including unpreferred embodiments, must be considered.”)
(quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)); see also In re
Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982) (explaining that a prior art
reference’s disclosure is not limited to its examples). The disclosed
examples and preferred embodiments do not constitute a teaching away from
a broader disclosure or non-preferred embodiments. In re Susi, 440 F.2d
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442, 446 n.3 (CCPA 1971). Appellant has not explained adequately why
these respective disclosures of Van Herwijnen and Rempt limit or teach
away from the broader disclosure of each reference.
Appellant argues that the claimed range of amounts for the
crosslinking agents of 5–25% is critical. Appeal Br. 20. In support of this
argument, Appellant first contends that Van Herwijnen teaches away from
the claimed range for the crosslinking agent by failing to disclose using an
amount of crosslinking agent as low as 25% by weight of the starch. Id. at
19–20. Secondly, Appellant contends the amount of crosslinking agent
provides unexpected results in terms of both mechanical strength and
flexibility at both normal and high temperatures over the prior art. Id. at 21.
Appellant directs attention to the Declaration under 37 C.F.R. § 1.132 by
Davide Mario Orlando (hereinafter “Declaration” or “Decl.”) in support of
this contention. Id. at 21–23.
Appellant’s first contention is unavailing as Declarant agrees with the
Examiner’s finding that Van Herwijnen teaches a range of amounts of 5.3%
to 185.7% for a crosslinking agent as a percentage of the starch amount that
substantially encompasses the claimed range of 5–25% for this component.
Final Act. 2; Decl. 2.
With respect to the second contention, Appellant directs our attention
to the experimental data discussed in the Declaration. Appeal Br. 22–24;
Decl. 2–5.
When evidence of secondary considerations is submitted, we begin
anew and evaluate the rebuttal evidence along with the evidence upon which
the conclusion of obviousness was based. In re Rinehart, 531 F.2d 1048,
1052 (CCPA 1976). The burden of establishing unexpected results rests on
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the Appellant. Appellant may meet this burden by establishing that the
difference between the claimed invention and the closest prior art is an
unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972). Appellant must establish the unexpected results with factual
evidence; attorney statements are insufficient to establish unexpected results.
See In re Geisler, 116 F.3d 1465, 1470–71 (Fed. Cir. 1997). Further, a
showing of unexpected results with evidentiary support must be reasonably
commensurate in scope with the degree of protection sought by the claims
on appeal. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); see also In re
Clemens, 622 F.2d 1029, 1035 (CCPA 1980).
Appellant specifically directs attention to data in Tables 1–4 in the
Declaration as showing unexpected results in terms of both mechanical
strength and flexibility at both normal and high temperatures over the art.
Appeal Br. 21; Decl. 3–7. According to Tables 1–3, an inventive sample C0
containing a crosslinking agent in the amount of 17% outperforms
comparative samples C1, C2, and C3 comprising crosslinking agents in the
amounts of 35%, 50%, and 80%, respectively, in terms of the stated
properties. Appeal Br. 22; Decl. 5. Table 4 presents a comparison of
inventive sample C4 (12% crosslinking agent) and comparative sample C5
(50% crosslinking agent) that shows similar results at temperatures of 25 oC
and 180 oC. Appeal Br. 22–23; Decl. 7–8.
We have considered Appellant’s evidence and agree with the
Examiner’s analysis that the evidence is insufficient to show
nonobviousness. Ans. 9–10.
Moreover, it is unclear whether the showing that Appellant relies
upon compares the inventive nonwoven support to the closest prior art (Van
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Herwijnen). For example, Declarant states that the PET nonwoven supports
were used in the inventive sample C0 and comparative samples C1-C3.
Decl. 2. We note that Declarant does not identify the composition of the
nonwoven supports in inventive sample C4 and comparative sample C5. Id.
at 6. Given Appellant’s contention that Van Herwijnen fails to teach
nonwoven supports consisting of PET fibers or polyester fiber, for that
matter, Declarant offers no comparison of the claimed invention against
nonwoven supports consisting of fibers other than PET fibers. Crosslinking
agent amounts well outside the claimed range for that component is also
evidence that the showing Appellant presents is not against the closest prior
art given that Van Herwijnen’s lower range amounts substantially
encompasses the claimed range.
In addition, Declarant’s showing is limited to two inventive samples
C0 and C4 having 17% and 12% crosslinking agent, respectively. Neither
Declarant nor Appellant explains why this limited number of inventive
samples is representative of the broader claimed range for the crosslinking
agent of 5–25%.
We note that Appellant also relies on the Declaration and evidence in
the Specification to allege that the claimed nonwoven support has
unexpected and highly advantageous mechanical properties at 180°C.
Appeal Br. 26. However, we again agree with the Examiner’s determination
that the Declaration is insufficient to establish unexpected results at 180°C
for the reasons the Examiner presents and we give above. Ans. 11.
Thus, on this record, Appellant has not explained adequately why one
of ordinary skill in the art would have found the evidence relied upon
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unexpected or why that evidence is reasonably commensurate in scope with
the claims.
Appellant argues Van Herwijnen does not disclose the amount of
catalyst or the amount of catalyst relative to the amount of crosslinking
agent. Appeal Br. 24. Appellant further argues that, even though Trksak’s
disclosure of catalyst amounts of 1–10% of the total weight of the binder,
there would have been no reasonable expectation of success of modifying
Van Herwijnen’s unspecific and broad disclosure relating to the catalyst in
view of Trksak’s teachings to arrive at the claimed catalyst amount of 40%
to 60% as a percentage by weight of the crosslinking agent. Id. at 24–25.
Appellant additionally asserts the amount of catalyst is critical because it is
based on the critical amount of crosslinking agent recited in the claim. Id. at
24.
Appellant’s arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness.
The Examiner relies on Trksak to establish that the amount of catalyst
needed for a reaction is a result effective variable that depends on a number
of factors, one of which is the crosslinker used. Final Act. 3; Ans. 10. In
fact, Trksak discloses that “[o]ne skilled in the art will recognize that the
catalyst chosen depends upon the crosslinker used. Likewise, the amount of
catalyst required depends on the crosslinker used.” Trksak ¶ 45. The
Examiner supplements Trksak’s disclosure by providing a technical
explanation of why one skilled in the art would have been capable of
determining the amount of catalyst necessary for a reaction based on
economic and efficiency considerations. Final Act. 3; Ans. 10. Appellant’s
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arguments fail to address the Examiner’s technical explanation in the Appeal
or Reply Briefs.
To the extent that Appellant is relying on the Declaration to establish
unexpected results for the amount of catalyst because the claimed amount is
based on the crosslinking agent, we again find the evidence insufficient to
show nonobviousness for the reasons we give above in our prior discussion
of the Declaration. Moreover, Declarant provides no basis for one skilled in
the art to associate the criticality of the catalyst to the criticality of the
crosslinking agent.
Claims 19, 34
Claims 19 and 34 recite using PET fibers that are staple fibers or
spunbonded fibers.
For these claims, Appellant additionally argues that the combined
teachings of the cited art do not teach PET fibers as staple fibers or
spunbonded fibers. Appeal Br. 28.
Appellant’s argument is unavailing because it does not address the
Examiner’s reliance on Van Herwijnen’s disclosure that fibers used in
making nonwoven supports can be spunbonded fibers. Final Act. 2; Van
Herwijnen ¶¶ 41–42.
Claims 20, 35
Claims 20 and 35 specify a use for the nonwoven support in a field of
general construction, flooring, thermal insulation or soundproofing.
Appellant relies on the arguments presented for claim 13 to address
the rejection of this claim. Accordingly, we are unpersuaded by these
arguments for the reasons the Examiner presents and we give above.
Claims 21, 22, 36, 37
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Claims 21 and 36 as well as claims 22 and 37 recite a narrower range
for the amounts of crosslinking agent and catalyst, respectively.
Appellant’s arguments for these claims are based on the data
presented in the previously discussed Declaration. Accordingly, we are
unpersuaded by these arguments and the Declaration for the reasons the
Examiner presents and we give above.
Claims 23, 24 and 38, 39
Claims 23, 24, 38, 39 recite a specific catalyst for use in the
nonwoven support.
Appellant contends the cited art does not lead one skilled in the art to
the claimed catalyst. Appeal Br. 30.
We are unpersuaded by this argument because Trksak teaches sodium
hypophosphite as a known catalyst for use in formaldehyde-free binder
systems. Trksak ¶ 45. Moreover, Appellant also acknowledges that
phosphorus-containing compounds are known catalysts for formaldehyde-
free binders. Spec. 4. Given these disclosures, Appellant has not adequately
explained why one skilled in the art would not have used such well known
catalysts in Van Herwijnen’s formaldehyde-free binders.
Claims 26, 40
Claims 26 and 40 recite the use of a natural binder.
We have considered Appellant’s arguments for these claims in full but
are unpersuaded of reversible error in the Examiner’s determination of
obviousness. Appeal Br. 31. Appellant’s arguments do not address the
Examiner’s finding that any material which is made of chemical elements
where at least the elements are found in nature is considered natural. Final
Act. 3.
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Claims 27, 28, 41, 42
Claims 27 and 41 recite the nonwoven support as having a tensile
deformation of 54.3% to 80.9% at ambient temperature. Claims 28 and 42
recite the nonwoven support as having a Young module of 46 to 122 MPa at
ambient temperature and at 180°C.
Appellant direct us to Test 2 and Test 3 in the Specification as
providing evidence of unexpected results with respect to tensile deformation
and Young Module. Appeal Br. 31–33.
We have considered Appellant’s arguments and data from the
Specification but agree that the showing is insufficient to show
nonobviousness for the reasons the Examiner presents (Ans. 12–13) as well
as reasons similar to the ones we give above with respect to the Declaration.
Claims 31, 32, 43, 44
Claims 31, 32, 43, and 44 recite specific crosslinking agents.
We have considered Appellant’s arguments for these claims. Appeal
Br. 33–34. However, we find the arguments unavailing because they do not
address the Examiner’s finding that Van Herwijnen discloses crosslinking
agents formed from a multifunctional acid having at least two carboxylic
groups such as citric acid, maleic acid, and succinic acid. Final Act. 3; see
Van Herwijnen ¶ 27.
To the extent that Appellant also relies on the previous showings to
allege unexpected results from using the claimed amounts of crosslinking
agents, we again reiterate that the showings are insufficient to overcome the
nonobviousness rejections for the reasons we give above.

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Claims 45, 46
Claim 45 recites a starch that is a native starch. Claim 46 recites
starch is a modified starch comprising starch molecules subjected to a
controlled degradation or a physical treatment.
We have considered Appellant’s arguments for these claims. Appeal
Br. 34–35. However, we find the arguments unavailing because they do not
address the Examiner’s finding that Van Herwijnen discloses using starch
that can be a natural starch or one which has been subjected to control
degradation or physical treatments. Ans. 14; Van Herwijnen ¶¶ 19–25. Nor
does Appellant address this finding in the Reply Brief. See generally Replay
Br.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
Accordingly, we affirm the Examiner’s prior art rejection of claim 13,
19–24, 2–28, and 31–46 under 35 U.S.C. § 103(a) for the reasons the
Examiner presents and we give above.

CONCLUSION
The Examiner’s prior art rejection of claims 13, 19–24, 2–28, and 31–
46 is affirmed.

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DECISION SUMMARY
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
13, 19–24,
26–28,
31–46
103 Van Herwijnen,
Trksak, Rempt
13, 19–24,
26–28,
31–46

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)(1)(iv).

AFFIRMED