Ex Parte Axelrod

Patent Trial and Appeal BoardSep 27, 2012

12339973 (P.T.A.B. Sep. 27, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE 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. 12/339,973 12/19/2008 Glen S. Axelrod TFH079CON 8184 32047 7590 09/27/2012 GROSSMAN, TUCKER, PERREAULT & PFLEGER, PLLC 55 SOUTH COMMERICAL STREET MANCHESTER, NH 03101 EXAMINER NGUYEN, SON T ART UNIT PAPER NUMBER 3643 MAIL DATE DELIVERY MODE 09/27/2012 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE __________ BEFORE THE PATENT TRIAL AND APPEAL BOARD __________ Ex parte GLEN S. AXELROD __________ Appeal 2011-012694 Application 12/339,973 Technology Center 3600 __________ Before LORA M. GREEN, MELANIE L. McCOLLUM, and ULRIKE W. JENKS, Administrative Patent Judges. JENKS, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134 from the Examiner’s rejection of claims directed to an animal chew toy. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. Appeal 2011-012694 Application 12/339,973 2 STATEMENT OF THE CASE Claims 1, 2, and 4-8 are on appeal, and can be found in the Claims Appendix of the Appeal Brief (App. Br. 15-16). Claims 1 and 7 are independent claims. Claim 1 is representative of the claims on appeal, and reads as follows (emphasis added): 1. An animal chew toy comprising: a woven or non-woven fabric shaft having a plurality of fibers, said fabric shaft having a length and end portions, wherein one or a plurality of void spaces are located between said plurality of fibers; and an over-molded polymer material portion, wherein said over- molded polymer material portion comprises a polymer resin and said over-molded polymer material portion is located only at the end portion of said length of said fabric shaft and within said one or a plurality of fiber void spaces and is mechanically engaged to said fibers, further characterized in that said over-molded polymer surrounds one or more of said fibers at said end portions, wherein said fabric shaft is selected from the group consisting of oriented polyethylene fiber and poly-paraphenylene terephthalamide fiber having an ultimate tensile strength of 2.1 GPa and higher. The following grounds of rejection are before us for review: The Examiner has rejected claims 1, 2, and 4-8 under 35 U.S.C. § 103(a) as unpatentable over Levin1 and Ward.2 1 Levin et al., US 6,672,252 B2, issued Jan. 6, 2004 2 Ward et al., US 6,277,773 B1, issued Aug. 21, 2001 Appeal 2011-012694 Application 12/339,973 3 ISSUE The Examiner takes the position that Levin disclosed a woven or non-woven fabric shaft (col. 5, lines 40-42, the toy can be bone shaped, thus, a bone shaped toy would have a shaft in the middle with knuckles at the ends for end portions) . . . [having] an over- molded polymer material portion (col. 4, lines 5-38), wherein said overmolded polymer material portion comprises a polymer resin . . . and said fibers are embedded within said over-molded polymer along said portion of said length of said fabric shaft. (Ans. 3-4.) The Examiner further asserts that it would have been obvious to “have the polymeric resin of Levin et al. be located only at the end portions of the shaft of Levin et al., depending on the user's preference to do so.” (Ans. 4-5.) Appellant contends that the fibers disclosed in Levin are not in woven or non-woven fabric form. (App. B. 5.) According to Appellant, “Levin does not teach or disclose a fabric shaft but instead teaches that fibers are free ‘inclusions’ which Levin identifies as loose fibers having a length of 1800 microns to 2500 microns, preferably at 4-8% by weight of the polymeric material.” (App. Br. 11.) Appellant asserts that “[a]s set forth in the Examiner's response, ‘[t]he polyester or desired material fibers of Levin et al. are assumingly dispersed throughout the whole bone toy.’” (Reply Br. 9.) That is, Appellant “submits that fibers of Levin are dispersed in a resin throughout the whole bone toy.” (Reply Br. 9-10.) The issue presented is: Does the evidence of record support the Appeal 2011-012694 Application 12/339,973 4 Examiner’s conclusion that the combination of Levin in view of Ward3 disclosed a non-woven fabric shaft with an “overmolded polymer material portion that is located at the end of said shaft?” FINDINGS OF FACT FF1. “Upon the introduction of the polymeric material to the fabric, which is defined herein as ‘overmolding,’ the polymeric material may locate within the void spaces. In another embodiment, the polymeric material may mechanically engage with the fibers.” (Spec. 7, ll. 16-19.) FF2. “[I]t can be appreciated that the polymeric resin need not be limited to over-molded at the end portions 30, and may be over-molded anywhere along the length of fabric 20 as may be desired.” (Spec. 5, ll 18-20.) FF3. “[I]ncluded in the polymeric composition will be inclusion members. Preferably, the inclusions are either hard components or fibers. The inclusions are preferred for use in cleaning the animal's teeth. Any of a variety of different types of fibrous materials may be used, including synthetic and natural fibers.” (Levin col. 2, ll. 29-34.) FF4. Levin provides that fibrous materials can include “cellulose, sisal, cotton, and any of a variety of synthetic fibers. The synthetic fibers include polyester, nylon, olefin, and any other synthetic fiber.” (Levin col. 4, ll. 63- 65.) FF5. “All fiber types used for these tests were longer than 1 mm in length on average and as long as 2.5 mm on average. The fiber and grain additions 3 Ward was relied upon for its disclosure of materials with a tensile strength exceeding 2.1 GPa. Appeal 2011-012694 Application 12/339,973 5 were added for dental benefits and rigidness. The fiber also will add sheer strength to the piece as an additional benefit.” (Levin col. 10, ll. 59-64.) PRINCIPLES OF LAW “[T]he words of a claim ‘are generally given their ordinary and customary meaning.’ . . . [T]he ordinary and customary meaning of a claim term is the meaning that the term would have to a person of ordinary skill in the art in question at the time of the invention.” Phillips v. AWH Corp., 415 F.3d 1303, 1312-13 (Fed. Cir. 2005). Each element in a claim is material to defining the scope of the invention. Warner-Jenkinson Co. v. Hilton Davis Chemical Co., 520 U.S. 17, 29 (1997). “[C]laims are interpreted with an eye toward giving effect to all terms in the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006). ANALYSIS Appellant asserts that Levin does not disclose woven or non-woven fabrics. Appellant asserts that “in the context of Levin [] the fibers are not in fabric form. The fibers are unambiguously defined as ‘inclusions’, . . . they are added to polymer material as free fibers, as Levin ultimately relies on such free fibers to reach his objective of positioning such inclusions within an animal's teeth.” (App. Br. 8.) “Appellant … submits that the term ‘fibrous materials’ as used by Levin is not used to describe a woven or non- woven fabric, or any other ‘fabric type’ . . . Appellant . . . submits that Levin Appeal 2011-012694 Application 12/339,973 6 uses the term ‘fibrous materials’ to describe the material composition of various fibers.” (Reply Br. 6.) The Specification does not provide a separate definition of what is encompassed by a woven or non-woven fabric shaft. (FFs 1, 2.) The Examiner takes the position that if “the fibers are loose [in Levin], then those fibers can be considered non-woven.” (Ans. 7.) The industry definition of nonwoven fabric provided by the Appellant in the Reply Brief is “[a]n assembly of textile fibers held together by mechanical interlocking in a random web or mat, by fusing of the fibers (in the case of thermoplastic fibers), or by bonding with a cementing medium such as starch, glue, casein, rubber, latex, or one of the cellulose derivatives or synthetic resins.” (Reply Br. 8.) The industry definition agrees with the Examiner’s position that the entire dog chew disclosed by Levin encompasses non-woven fabric material, because the fibers are dispersed in a cementing medium. The Examiner asserts that it would have been obvious to have polymeric resin located only at the end of the fabric shaft based on “user's preference to do so since Applicant has [shown] no criticality as to why it is important to have the resin only at the end portions and it appears that Applicant states that it is not limited to only at the end portions and that it can be anywhere else.” (Ans. 4-5.) The Examiner takes the position that the location of the over-molded material is dependent on preference and “based on where the animal bite[s] mostly on the toy.” (Ans. 5.) If the placement of the over-molded polymer is a mere design choice as suggested by the Examiner, then removal of the polymer from the center of Levin’s chew toy should leave a fabric shaft with over-molded polymer ends. Here, the Appeal 2011-012694 Application 12/339,973 7 removal of the polymer from the center of Levin’s chew toy would result in two over-molded end portions that are not held together by any kind of fabric shaft because the cementing material (polymer) is required to form the shaft. Appellant asserts that the placement of the over-molded polymer at the ends of the fabric shaft is a preferred embodiment of the invention, and a feature not present in the cited art. (App. Br. 9.) Appellant asserts that the Examiner has not established a prima facie case. (App. Br. 9.) “[C]laims are interpreted with an eye toward giving effect to all terms in the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 950 (Fed. Cir. 2006) The industry definition of a non-woven fabric includes a fabric material embedded in a cementing medium. By the industry definition, Levin’s entire chew toy comprises a non-woven fabric shaft, there is no disclosure in Levin of adding additional polymer material to the end of the fabric shaft. We find that the Examiner has not provided a sound rational for adding additional over-molded polymer to the ends of the fabric shaft of Levin to arrive at the claimed chew toy construction. CONCLUSION OF LAW The preponderance of evidence on this record fails to support Examiner's finding that Levin in view of Ward teaches Appellant’s claimed invention. The rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over Levin in view of Ward is reversed. Independent claim 7 also Appeal 2011-012694 Application 12/339,973 8 recites the limitation that the “over-molded polymer material is located only at the end portions of said length of said fabric shaft.” We thus reverse the rejection of claims 1, 2, and 4-8 under 35 U.S.C. § 103(a) as unpatentable over Levin and Ward. REVERSED dm