Dupont Safety & Construction, Inc.

Patent Trials and Appeals Board

Dec 1, 2021

2021003888 (P.T.A.B. Dec. 1, 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.
14/985,897 12/31/2015 Allen L. Price P-79448-US 1025
49443 7590 12/01/2021
Pearl Cohen Zedek Latzer Baratz LLP
7 Times Square, 19th Floor
New York, NY 10036
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
12/01/2021 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):
Arch-USPTO@PearlCohen.com
USPTO@PearlCohen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALLEN L. PRICE, DAVID BRAHMS, SCOTT JANCO,
COURTNEY MUSCIANO, ROBERT GRAVEL, ERIC A. BARTER,
MATT LANGLEY, JAMES STAHL, and VINCENT GALLACHER
Appeal 2021-003888
Application 14/985,897
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
N. WHITNEY WILSON, Administrative Patent Judges.
TIMM, 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 1 and 6–10. We have jurisdiction under
35 U.S.C. § 6(b). A video hearing was held on November 8, 2021.
We REVERSE.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as DuPont Safety & Construction, Inc.
Reply Br. 1.
Appeal 2021-003888
Application 14/985,897
2
CLAIMED SUBJECT MATTER
The claims are directed to a ballistic material including a woven para-
aramid ballistic fabric and a hydroentangled nonwoven fiber component
needlepunched with the fabric to form a consolidated material. See, e.g.,
claim 1. Claim 1, reproduced below with the limitation most at issue
italicized, is illustrative of the claimed subject matter:
1. A ballistic material, comprising:
a first woven para-aramid ballistic fabric having a fiber
denier in a range of 50 d to 5000 d; and
a hydroentangled nonwoven fiber component consisting
essentially of ballistic grade para aramid fibers having a denier
in a range of about 0.5 d to about 2.5 d and a density of about
10 gsm to about 200 gsm; wherein
the hydroentangled nonwoven component is
needlepunched with the woven ballistic fabric to form a
consolidated material.
Appeal Br. 9 (Claims Appendix) (emphasis added).
REJECTION
Claims 1 and 6–10 are rejected under 35 U.S.C. § 103 as being
unpatentable over Price (US 7,101,818 B2, issued Sept. 5, 2006) in view of
Van der Loo (US 5,569,528, issued Oct. 29, 1996). Final Act. 3.
OPINION
All of the claims require a hydroentangled nonwoven component
needlepunched with a woven ballistic fabric to form a consolidated material.
See, e.g., claim 1. There is no dispute that Price teaches a similar
consolidated material with one important difference: Price’s nonwoven is
taught to be manufactured, for example, by dry laid carding and mechanical
Appeal 2021-003888
Application 14/985,897
3
needling. Price, col. 4, ll. 8–11. Price is silent on its non-woven component
being hydroentangled.
The Examiner acknowledges that Price does not disclose a
hydroentangled component and turns to Van der Loo. Final Act. 3.
Van der Loo provides some evidence that hydroentangling and
needling were known alternatives for entangling layers of carded
nonwovens. Van der Loo, col. 5, ll. 1–19; col. 6, ll. 8–19. Moreover, the
Examiner’s finding of a suggestion of using hydroentangling instead of
needling to form a nonwoven is supported by Van der Loo. Van der Loo,
col. 6, ll. 17–18 (“The advantage of hydroentangling over needling is that
the fibres are damaged less.”). Although this advantage is geared toward a
step of hydroentangling a stack of carded, calendared, and stretched
polyolefin nonwoven layers (Van der Loo, col. 5, ll. 1–19; col. 6, ll. 8–19), it
is reasonable to conclude that mechanical needling and hydroentangling
were understood, generally, to be useful for entangling fibers for making
nonwovens.
What tips the scales on this record is Appellant’s showing of
unexpected results.
Appellant has provided evidence regarding the expectation of the
ordinary artisan in the art. According to Appellant, “[t]he expectation in the
art is that an identical stack of woven para-aramid layers reinforced with the
same weight of nonwoven para-aramid fibers of the same denier would yield
the same ballistic performance.” Appeal Br. 7. Appellant supports this
statement with evidence. Particularly, the linearity of the correlation between
weight and ballistic performance measured as V-50. Declaration of David
Brahms, dated Aug. 10, 2018, ¶¶ 6–7.
Appeal 2021-003888
Application 14/985,897
4
Second, Appellant has provided declaratory evidence that their results
were different than those of the prior art. After detailing the process of
forming “shoot packs” of ballistic materials made with identical materials
and by identical processes except for the use of a non-woven that is
hydroentanged versus needled, Brahms declares that “[a] significant
difference in the V-50 performance was observed between the two types of
shoot packs, notwithstanding that the same materials in the same weights
were used to make the different shoot packs.” Declaration of David Brahms,
dated Feb. 5, 2019, ¶¶ 7–11 (“Brahms II Decl.”). According to Brahms,
“[t]he mean V-50 for the batting fiber-incorporated shootpacks was 1539.40
fps. The mean V-50 for the spunlace 1609.20. Statistical analysis verifies
that the observed difference was not merely random.” Brahms II Decl. ¶ 11.
The data is shown in Exhibit A attached to the Brahms II Declaration. The
results represent a difference between the closest prior art and Appellant’s
claimed invention.
Third, Brahms declares that the result was unexpected. Brahms
declares that “[w]hen we first substituted spunlace material, we had hoped
for some processing advantages and some reduction in weight for the final
ballistic product. We did not expect an improvement in ballistic properties.”
Brahms II Decl. ¶ 5. And Brahms further declares that,
[s]pecifically, an amount of fiber material, incorporated as
spunlace, produced unexpected advantages in terms of the
ballistic performance as compared to the same amount of fiber
material incorporated from a needled batting. We now believe
that the improvement in ballistic performance is due to the
availability of the fibers of the spunlace material.
Appeal 2021-003888
Application 14/985,897
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Brahms II Decl. ¶ 6. The data shows an improvement in ballistic
performance (V-50) and Brahms declares that the difference was
unexpected.
The Examiner determines that these results are in the realm of the
expected because the results are on the order of a 4.5% improvement or even
smaller for the shoot packs containing a single nonwoven layer. Ans. 5–6.
But the Examiner’s determination discounts Brahms’s specific statements
that the difference was unexpected to them because they were not expecting
that lower weight products would achieve V-50 ballistic performance
improvements above the normal linear correlation seen in other known
products. The Examiner failed to give Declarant Brahms’s statements proper
weight. The Examiner’s error was reversible error given the lack of
evidence, on this appeal record, showing that those of ordinary skill in the
art would have expected the V-50 deviation from the norm.
CONCLUSION
The Examiner’s decision to reject claims 1 and 6–10 is reversed.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 6–10 103 Price, Van der Loo 1, 6–10

REVERSED