Alvarado Chacon, Fresia et al.

Patent Trials and Appeals BoardJun 1, 2020

13978050 - (D) (P.T.A.B. Jun. 1, 2020)

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. 13/978,050 07/02/2013 Fresia Alvarado Chacon 157925 6688 25944 7590 06/01/2020 OLIFF PLC P.O. BOX 320850 ALEXANDRIA, VA 22320-4850 EXAMINER FIGG, LAURA B ART UNIT PAPER NUMBER 1781 NOTIFICATION DATE DELIVERY MODE 06/01/2020 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): OfficeAction25944@oliff.com jarmstrong@oliff.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte FRESIA ALVARADO CHACON, RICHARD VISSER, and ERNST MICHAEL WINKLER ____________ Appeal 2019-004947 Application 13/978,050 Technology Center 1700 ____________ Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the Examiner’s decision rejecting claims 1, 3, 4, 7–9, 11–14, 16, and 18–23.1 A hearing was held on May 13, 2020, a transcript of which will be made of record in due course. We have jurisdiction under 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. Appellant identifies TEIJIN ARAMID B.V. as the real party in interest. Appeal Br. 1. Appeal 2019-004947 Application 13/978,050 2 BACKGROUND The invention relates to technical paper. Spec. 1. According to the Specification, use of microfilaments having “stipulated parameters” provides increased strength relative to paper of the same weight comprising fibers. Id. at 1–2. Claim 1 is the sole independent claim and reads as follows: 1. A paper with a grammage of 10-100 g/m2 comprising: at least 20 wt.% of microfilaments, and at least 30 wt.% of a non-resinous binder, wherein the microfilaments have an average filament length in the range of 2-25 mm and a titer of 0.5-1.3 dtex, the non-resinous binder comprises fibrids, the microfilaments are para-aramid microfilaments and the fibrids are aramid fibrids, and the paper comprises at least 30 wt.% of fibrids as the non-resinous binder. Appeal Br. A-1 (Claims Appendix). REJECTIONS I. Claims 1, 7–9, 12–14, 18–20, and 23 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Naruse2 and Levit.3 II. Claims 3, 4, 16, and 22 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Naruse, Levit, and Kinsley.4 III. Claims 11 and 21 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Naruse, Levit, and Abramovici.5 2 US 2007/0167101 A1, published July 19, 2007. 3 US 2007/0137818 A1, published June 21, 2007. 4 US 2004/0140072 A1, published July 22, 2004. 5 US 2008/0217379 A1, published September 11, 2008. Appeal 2019-004947 Application 13/978,050 3 OPINION Rejection I: obviousness over Naruse and Levit With regard to the Examiner’s Rejection I, Appellant argues the rejected claims as a group, focusing on claim 1. We select claim 1 as representative; claims 7–9, 12–14, 18–20, and 23 stand or fall with claim 1. Relevant to Appellant’s arguments on appeal, the Examiner finds Naruse discloses paper comprising microfilaments having a titer in the range of 0.1–2 dtex, which encompasses the recited range of 0.5–1.3 dtex. Final Act. 4. The Examiner determines one of ordinary skill in the art would have had a reason to select microfilaments of any titer within Naruse’s disclosed range, including values within the encompassed range of 0.5–1.3 dtex. Id. Appellant contends that paper having the features recited in claim 1 exhibits an unexpected improvement in tensile strength that is neither described nor suggested in the relied-upon prior art. Appeal Br. 5. When claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness is typically established. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d 1465, 1469–70 (Fed. Cir. 1997). The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims. These cases have consistently held that the burden is on the Appellant to show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range. In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990). Here, Appellant relies on comparative test data presented in two Declarations as evidence that the claimed microfilament titer range achieves Appeal 2019-004947 Application 13/978,050 4 unexpected results. Appeal Br. 5–7. In the May 1 Declaration,6 Appellant identifies four paper samples, each comprising 30% microfilaments. May 1 Decl. 2. Sample papers 2 and 3 included microfilaments having a titer within the range recited in claim 1, and reportedly exhibited greater tensile index and breaking strength relative to paper samples 1 and 4 which included microfilaments having a titer outside the recited range. Id. at 2, Table 1. In the June 6 Declaration, Appellant identifies seven paper samples, each comprising 30% microfilaments. June 6 Decl. 2.7 In this second Declaration, Sample papers 2–5 included microfilaments having a titer within the range recited in claim 1, and reportedly exhibited greater tensile index relative to paper samples 1, 6, and 7 which included microfilaments having a titer outside the recited range. Id. at 2, Table 1. The Examiner finds Appellant’s evidence unpersuasive, in part because the information contained in the above-mentioned Declarations does not demonstrate that the reported change in paper properties was attributable to changes in microfilament titer. Advisory Act. 3. We agree. The Specification explains that paper strength is “[d]ue to the use of microfilaments,” and “[t]he microfilaments in the paper according to the invention are individual threads with the stipulated parameters.” Spec. 2 (emphasis added). The Specification goes on to identify certain microfilament parameters, including length, diameter, homogeneity, aspect ratio, and material, in addition to titer. Id. at 2–4. However, other than titer, none of the above-listed microfilament parameters is provided in Appellant’s 6 Declaration Under 37 C.F.R. §1.132, dated April 18, 2017, filed May 1, 2017. 7 Declaration Under 37 C.F.R. §1.132, dated April 25, 2017, filed June 6, 2018. Appeal 2019-004947 Application 13/978,050 5 evidence. See May 1 and June 6 Decl. ¶ 5 (“All papers comprise 70% fibrids (Type 8016 produced by Teijin Aramid) and 30% of (micro)filaments having filament titers varying between 0.39 dtex and 1.68 dtex.”). Indeed, Appellant acknowledges that the papers tested in the May 1 and June 6 Declarations differ “with regard to starting materials,” Appeal Br. 7, and that factors other than microfilament titer affect paper properties, id. at 9. See also Reply Br. 2 (“Appellant has never argued that the titer recited in claim 1 is the single factor that controls the tensile index.”). Absent evidence of these other property-affecting parameters in the tested papers, it is impossible to determine from the evidence submitted that the reported paper strengths were attributable to microfilament titer. Accordingly, we find Appellant’s contention that the microfilament titer recited in claim 1 achieves an unexpected paper strength is not sufficiently supported by the evidence presented. See In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984) (“It is well settled that unexpected results must be established by factual evidence. Mere argument or conclusory statements in the specification does not suffice.”) (citing In re Lindner, 457 F.2d 506, 508 (CCPA 1972)). For the foregoing reasons and those the Examiner presents, based on the totality of the record, we determine that the preponderance of evidence weighs in favor of obviousness, giving due weight to Appellant’s arguments and evidence. Accordingly, Rejection I is sustained. Rejections II and III: obviousness of claims 3, 4, 11, 16, 21, and 22 Appellant does not separately argue the Examiner’s rejection of claims 3, 4, 11, 16, 21, and 22 except to rely on the arguments discussed above in connection with claim 1. See Appeal Br. 13–14. Accordingly, we Appeal 2019-004947 Application 13/978,050 6 sustain Rejections II and III for the reasons given above in connection with Rejection I. CONCLUSION The Examiner’s decision rejecting claims 1, 3, 4, 7–9, 11–14, 16, and 18–23 is affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 7–9, 12– 14, 18–20, 23 103(a) Naruse, Levit 1, 7–9, 12–14, 18–20, 23 3, 4, 16, 22 103(a) Naruse, Levit, Kinsley 3, 4, 16, 22 11, 21 103(a) Naruse, Levit, Abramovici 11, 21 Overall outcome 1, 3, 4, 7– 9, 11–14, 16, 18–23 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