Velcro BVBADownload PDFPatent Trials and Appeals BoardNov 13, 20202020000416 (P.T.A.B. Nov. 13, 2020) Copy Citation 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. 15/068,802 03/14/2016 LUIS PARELLADA ARMELA 05918-0633001 7913 26201 7590 11/13/2020 FISH & RICHARDSON P.C. (AU) P.O BOX 1022 Minneapolis, MN 55440-1022 EXAMINER GUO, TONG ART UNIT PAPER NUMBER 1783 NOTIFICATION DATE DELIVERY MODE 11/13/2020 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): PATDOCTC@fr.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ________________ Ex parte LUIS PARELLADA ARMELA and CARLOS SÁEZ COMET ________________ Appeal 2020-000416 Application 15/068,802 Technology Center 1700 ________________ Before JEFFREY T. SMITH, KAREN M. HASTINGS, and N. WHITNEY WILSON, Administrative Patent Judges. PER CURIAM DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1–20 as being unpatentable over at least the basic combination of Shephard (US 2005/0181352 Al, pub. Aug. 18, 2005), and Krantz (US 2002/0022108 Al, pub. Feb. 21, 2002) as evidenced by Velcro 1 We use the word “Appellant” to refer to the “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Velcro BVBA as the real party in interest (Appeal Br. 1). Appeal 2020-000416 Application 15/068,802 2 (Velcro Brand 2015 Product line Brochure)2. An oral hearing was conducted October 29, 2020. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. Claims 1 and 18 are illustrative of the claimed subject matter (emphasis added to highlight key limitation in dispute): 1. A printed media display system, comprising a media mounting surface carrying discrete male touch fastening elements arranged in a field extending across the surface, each male touch fastening element having a stem projecting outward and supporting a fiber-engageable head; and print media in the form of a flexible sheet having a fastening side and a print side, the fastening side featuring engageable fibers in a fibrous field extending across a length and width of the flexible sheet, such that the fastening side of the print media is releasably engageable with the media mounting surface so as to display the print side; wherein the media mounting surface and the fastening side of the print media together form a releasable fastening having a Peel Strength; and wherein the flexible sheet has a Bending Rigidity; the Peel Strength and Bending Rigidity related such that the print media display system has a Wrinkle Propagation Coefficient of between 10 and 30. 2 The Examiner applies Shepard (US 2004/0067342 Al, pub. Apr. 8, 2004) in addition to this basic combination to claim 11 (Ans. 10), No (US 2010/0158546 Al, pub. June 24, 2010) in addition to this basic combination to claims 13 and 14 (Ans. 12), and Shimomura (US 2005/0112493 Al, pub. May 26, 2005) in addition to this basic combination to claims 15 and 16 (Ans. 12). Appeal 2020-000416 Application 15/068,802 3 18. A printed media display system, comprising a media mounting surface carrying discrete male touch fastening elements arranged in a field extending across the surface, each male touch fastening element having a stem projecting outward and supporting a fiber-engageable head; and print media in the form of a flexible sheet having a fastening side and a print side, the fastening side featuring engageable fibers in a fibrous field extending across a length and width of the flexible sheet, such that the fastening side of the print media is releasably engageable with the media mounting surface so as to display the print side; wherein the media mounting surface and the fastening side of the print media together form a releasable fastening having a Shear Strength; and wherein the flexible sheet has a Torsional Rigidity; the Shear Strength and Torsional Rigidity related such that the print media display system has a Torsional Alignment Coefficient of at least 5000. Independent claim 17 is directed to “print media in the form of a flexible sheet” and recites, as does claim 1, “the print media display system has a Wrinkle Propagation Coefficient of between 10 and 30” (Claims Appendix 21). OPINION The Examiner has the initial burden of establishing a prima facie case of obviousness of the claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the prior art or on any other ground, of presenting a prima facie case of unpatentability.”). To establish a prima facie case of obviousness, the Examiner must show that each and every Appeal 2020-000416 Application 15/068,802 4 limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art or the inferences and creative steps a person of ordinary skill in the art would have employed. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988); KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Examiner relies upon the doctrine of inherency for the disputed features of the wrinkle propagation coefficient and the torsional alignment coefficient. There is no dispute that the applied prior art does not explicitly disclose these features/properties. Rather, the Examiner’s position is that once one of ordinary skill in the art chooses amongst known options for Shepard’s hook and loop material based on Shephard and Krantz, one would have “expected that the [claimed] properties” would have been obtained (e.g., Ans. 6). Appellant contends that the Examiner has not met his burden for establishing that the Shephard/Krantz product is substantially identical to Appellant’s such that it would have inherently possessed the properties claimed (Appeal Br. 10 (“simply mating the same hooks. . .with the same non-woven material” as used in Appellant’s Specification does not necessarily result in the recited properties). Appellant points out the Examiner must identify art that describes an “identical or substantially identical hook-loop fastening in combination with a flexible sheet of identical substantially identical structure (so as to presume a similar bending stiffness)” (e.g., Appeal Br. 11 (emphasis and internal quotation marks omitted)). Appellant contends that the Examiner has, for example, failed to show that the applied prior art has a starched based stable coating as Appeal 2020-000416 Application 15/068,802 5 described in Appellant’s Specification so as to establish an identical or substantially identical product based on the applied prior art (id.). It is well settled that when a claimed product reasonably appears to be substantially the same as a product disclosed by the prior art, the burden is on the applicant to prove that the prior art product does not necessarily or inherently possess characteristics attributed to the claimed product, and that it is of no moment whether the rejection is based on § 102 or § 103 since the burden is on the applicant is the same. In re Spada, 911 F.2d 705, 708 (Fed Cir. 1990); In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Here, however, the Examiner has not adequately shown that the product disclosed in the prior art is substantially the same and/or is produced by substantially the same method described in Appellant’s Specification so as to shift the burden to Appellant to prove otherwise. A preponderance of the evidence supports Appellant’s position that the Examiner has not shown how the applied prior art inherently possesses the claimed properties, or teaches or suggests the claimed properties (Appeal Br. 12–17). We appreciate that the Examiner attempts to rely upon Shephard ¶ 14 for a recognition that one of ordinary skill would have appreciated that the weight of the coating is a result effective variable (Ans. 19). The Examiner states that Shephard discloses that “the coated image on the back of the loop is a result effective variable to the lateral stiffness of the hook/loop assembly [such that] [A]ppellant is not the first person who recognizes or appreciates [this]” (see Ans. 19, relying upon Shephard ¶ 14 (emphasis omitted)). However, Shephard paragraph 14 discusses a “sheet-form placemat system for a dog or cat” with a loop surface that engages hooks on “one or more objects appropriate for the pet (such as, for example, a water bowl, a Appeal 2020-000416 Application 15/068,802 6 place card with the pet’s name, or an image of the pet . . .)”. Paragraph 14 of Shephard ends with “[t]he sheet form placemat has lateral stiffness sufficient to not fold or buckle when subjected to normal pet activity”. The Examiner then turns to the basis weight taught in No (applied only to dependent claims 13 and 14) to exemplify that basis weights recited in claims 13 and 14 are obvious. The Examiner’s conclusory statement that one would have known to optimize coating weight based on paragraph 14 of Shephard and the basis weights taught in No to achieve the claimed properties (Ans. 19) does not amount to adequate reasoning based on the skilled artisan’s knowledge or inferences and creativity employed that would support an obviousness conclusion on this appeal record. For example only, the Examiner does not make any findings with respect to the specific coating materials of the applied references in relationship to the basis weights taught in No such that it is reasonable to have reached a determination that the claimed properties would have been obtained. In light of these circumstances, a preponderance of the evidence supports Appellant’s position that the Examiner has not pointed to any evidence to adequately establish that the applied prior art teaches or suggests the claimed combination of features and properties for a print media display as recited in each of Appellant’s independent claims. On the record before us, the Examiner has not shown that each and every limitation of the claim is inherent, or either described or suggested by the prior art or would have been obvious based on the knowledge or inferences and creativity of the ordinary artisan. See In re Fine, 837 F.2d at 1074; see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A Appeal 2020-000416 Application 15/068,802 7 rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). The Examiner does not rely upon the other reference applied in the § 103 rejection of claims 11, 15, and 16, or any other rationale to cure these deficiencies. Accordingly, we reverse all § 103 rejections on appeal. In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–10, 12, 17–20 103 Shephard, Krantz, Velcro 1–10, 12, 17–20 11 103 Shephard, Krantz, Velcro, Shepard 11 13, 14 103 Shephard, Krantz, No 13, 14 15, 16 103 Shephard, Krantz, Shimomura 15, 16 Overall Outcome 1–20 The Examiner’s § 103 rejections of all the claims on appeal are reversed. REVERSED Copy with citationCopy as parenthetical citation