Dupont Safety & Construction, Inc.Download PDFPatent Trials and Appeals BoardDec 1, 20212021003888 (P.T.A.B. Dec. 1, 2021) 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. 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 5 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 Copy with citationCopy as parenthetical citation