Ex Parte Diaz de Leon Izquierdo et al

Patent Trial and Appeal Board

Apr 16, 2018

13652740 (P.T.A.B. Apr. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/652,740 10/16/2012
148433 7590 04/18/2018
McNair Law Firm, P.A.
McNair Law Firm, P.A.
Bank of America Plaza
101 South Tryon Street, Suite 2610
Charlotte, NC 28280
FIRST NAMED INVENTOR
Sergio Rafael Diaz de Leon Izquierdo
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
742552/09250/12-549-US 8049
EXAMINER
HAUTH, GALEN H
ART UNIT PAPER NUMBER
1742
NOTIFICATION DATE DELIVERY MODE
04/18/2018 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):
mcnairip@mcnair.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte SERGIO RAFAEL DIAZ DE LEON IZUIERDO, MARCAL
BARGALLO ALABART, JOHN ARTHUR STREET, JOHN F. STEFFEN, and
RALPH A. MOODY III
Appeal 201 7-004509
Application 13/6527 40
Technology Center 1 700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JANEE. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEALt
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision to reject claims 1-43. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
1 In explaining our Decision, we cite to the Specification of October 16, 2012
(Spec.), Final Office Action of November 5, 2015 (Final Act.), Appeal Brief of
May 4, 2016 (Appeal Br.), Examiner's Answer of November 21, 2016 (Ans.),
and Reply Brief of January 20, 2017 (Reply Br.).
2 Appellant is the Applicant, AVINTIV Specialty Materials Inc., which,
according to the Brief, is the real party in interest. Appeal Br. 3.
Appeal 2017-004509
Application 13/6527 40
The claims are directed to a spinneret for melt-spinning filaments.
The spinneret has a spinneret body with three zones of capillaries. Claim 1 is
illustrative:
1. A spinneret for melt-spinning polymeric filaments,
compnsmg:
a spinneret body having an overall length to hydraulic
diameter ratio and defining orifices extending through the
spinneret body, wherein the orifices comprise capillaries that
open at a face of the spinneret body for polymer filament
extrusion therefrom, wherein the capillaries are arranged in a
plurality of different rows at the face of the spinneret body, and
wherein the plurality of different rows are arranged into a
plurality of different zones at the face of the spinneret body,
wherein the plurality of different zones comprises:
a first zone located centrally at the face of the
spinneret body, comprising a plurality of first rows, each
of said first rows comprising a plurality of first capillaries,
wherein the first capillaries are arranged in a first
capillary density, and the first capillaries individually
having a first cross-sectional shape, a first hydraulic
diameter, a first length, and a first length to hydraulic
diameter ratio,
a second zone located adjacent to the first zone at
the face of the spinneret body, comprising a plurality of
second rows, each of said second rows comprising a
plurality of second capillaries, wherein the second
capillaries are arranged in a second capillary density, and
the second capillaries individually having a second cross-
sectional shape, a second hydraulic diameter, a second
length, and a second length to hydraulic diameter ratio,
a third zone located adjacent to the first zone at the
face of the spinneret body, comprising a plurality of third
rows, each of said third rows comprising a plurality of
third capillaries, wherein the third capillaries are
arranged in a third capillary density, and the third
capillaries individually having a third cross-sectional
shape, a third hydraulic diameter, a third length, and a
third length to hydraulic diameter ratio;
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Application 13/6527 40
wherein the first zone is located between the second and
third zones, and the first zone is closer to a center of the face of
the spinneret body than the second and third zones, and wherein
the overall length to hydraulic diameter ratio is at least 3
percent.
Appeal Br. 34-35 (claims appendix) (emphasis added).
The Examiner maintains the following rejections:
A. Claims 1-25 rejected under 35 U.S.C. § 103(a) as obvious over
Schmieder3 in view of Rebouillat4;
B. Claims 26-43 rejected under 35 U.S.C. § 103(a) as obvious over
Schmieder in view of Rebouillat and further in view of
Brandner5 ; and
C. Claim 22 rejected under 35 U.S.C. § 112(b) or 35 U.S.C. § 112
if 2 (pre-AIA) as indefinite.
OPINION
A. Obviousness of claims 1-25 over Schmieder in view of Rebouillat
In arguing against the rejection of claims 1-25 as obvious over
Schmieder in view of Rebouillat, Appellant groups claims 1-6 and
8-17 together, claims 18-20 together, claims 21-25 together, and
claims 7 and 24 together. For each of these groups we select a single
claim as representative to resolve the issues on appeal.
Claims 1-6 and 8-17
For the group of claims 1-6 and 8-17, we select claim 1 as
representative to resolve the issues arising on appeal.
There is no dispute that Schmieder teaches a spinneret body with a
plurality of capillaries each having a given length and given diameter and
3 US 4,330,989, issued: May 25, 1982.
4 US 2009/0318048 Al, published: Dec. 24, 2009.
5 US 2008/0026659 Al, published: Jan. 31, 2008.
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Appeal 2017-004509
Application 13/6527 40
that the capillaries are grouped into distinct zones for producing distinct
types of filaments as shown in Figures 3a and 3b and that the particular
variations of the filaments can be controlled by varying the capillary length
and capillary diameter of a given capillary group. Compare Appeal Br.
22-28, with Final Act. 3-4. Schmieder's Figures 3a and 3b depict spinnerets
with larger bores 25 for forming coarse sheath threads, smaller bores 24 for
forming finer sheath threads, and bores 23 for forming core threads.
Schmieder col. 4, ll. 42-57, Figs. 3a, 3b. Schmieder discloses that one can
vary either the diameter or length of the capillary to control the coarseness
and fineness of the threads. Schmieder col. 5, 11. 1-15. This is depicted in
Figures 4a and 4b. As explained by Schmieder, larger diameter capillaries
(Dz in Figure 4a) and shorter length capillaries (D4 in Fig. 4b) result in
coarser fibrils. Id. Schmieder, thus, conveys to the ordinary artisan that the
diameter and length of the capillaries are variables that can be used to
control the coarseness and fineness of the fibrils.
There is also no dispute that Schmieder does not teach an overall
length to hydraulic diameter ratio of at least 3 percent. Compare Final 4,
with Appeal Br. 22-25.
The Examiner's rejection is grounded in a finding of inherency.
Specifically, the Examiner finds that Schmieder establishes that the capillary
length and diameter are result effective variables, further finds that a
capillary of a given length and given diameter possesses an inherent length
to diameter ratio, and thus the spinneret as a whole possesses an inherent
overall length to diameter ratio. Final Act. 4. Based on these findings, the
Examiner determines that because the ratio varies based on the chosen
capillary length and capillary diameter known to be varied by Schmieder to
obtain fine and coarse fibrils, one would have arrived at an overall length to
diameter ratio of at least 3% "through routine experimentation of desired
capillary length and diameters of the individual capillary groups and mere
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Application 13/6527 40
changes to the dimensions of the capillary are known design choices as
taught by Schmieder." Final Act. 4.
Appellant contends that the overall length to hydraulic diameter ratio
is not an art recognized result-effective variable and only a recognized result-
effective variable can be optimized. Appeal Br. 24-25; Reply Br. 6-7.
The issue is: Has Appellant identified a reversible error in the
Examiner's determination that the overall length to diameter ratio is
inherently optimized when the ordinary artisan optimized the length and
diameters of Schmieder's capillaries, which Schmieder indicates were known
result-effective variables, to obtain desired coarse and fine threads?
Appellant has not identified such an error.
As pointed out by Appellant, the overall length to hydraulic diameter
ratio is derived from greatest and smallest length-to-diameter-ratios of the
capillaries. Appeal Br. 22-23; see also Spec. if 82. Because each of
Schmieder's capillaries has a length and a diameter, each of Schmieder's
capillaries necessarily has a ratio oflength to diameter. Although Schmieder
does not disclose a calculation, the mathematical relationship nevertheless
exists. Schmieder seeks to create coarse threads and fine threads. The
percentage value for the overall length to hydraulic diameter ratio depends
on the difference between the desired coarseness and fineness. A 3 percent
difference is small. It is no stretch to find that the ordinary artisan following
the teachings of Schmieder and varying the diameter and/or length of the
capillaries to obtain the desired coarse and fine threads would have, through
routine experimentation, arrived at lengths and/or diameters that would
inherently result in an overall length to hydraulic diameter ratio of at least 3
percent.
Appellant contends that the Examiner's proposed modification of the
currently cited prior art would render Schmieder and/or Rebouillat
unsatisfactory for their intended purpose. Appeal Br. 25-28; Reply Br. 7-8.
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Application 13/6527 40
But as pointed out by Appellant, both Schmieder and Rebouillat are directed
to providing yarns made of filaments of different average diameters. Appeal
Br. 26-27. Rebouillat merely discloses selecting the various capillary
diameters to produce filaments of various different designs to optimize
processing and other properties. Rebouillat if 59. Appellant has not
persuaded us that the proposed modification would render Schmieder's
spinneret unsatisfactory for its intended purpose of spinning a combination of
fine and coarse threads. Both references intend to use the spinneret to
produce fine and coarse threads.
Appellant has not identified a reversible error in the Examiner's
rejection.
Claim Group 18-20, Group 21-25, and Group 7 and 24
For the group of claims 18-20, we select claim 18 as representative.
For the group of claims 21-25, we select claim 21 as representative. For the
group of claims 7 and 24, we select claim 7 as representative.
In arguing against the rejection of claims 7 and 18-25, Appellant recite
limitations found in claim 18, 21, 7, and 24 and state that Schmieder and
Rebouillat are silent regarding the particularly claimed combination of
features they quote. Appeal Br. 18-30. These statements do not address the
Examiner's findings and obviousness conclusions set forth in the rejection.
The Examiner set forth an obviousness analysis with specific reasoning for
each of the claims. Final Act. 5-6. As Appellant has not called into question
the Examiner's specific findings and conclusions, Appellant has not identified
a reversible error in the rejections.
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B. Obviousness of claims 26-43 over Schmieder in view of Rebouillat
and further in view of Brandner
In addressing the rejection of claims 26-43 as obvious over
Schmieder in view of Rebouillat and Brandner, Appellant does not
identify any error in the Examiner's findings and conclusions with
sufficient specificity to allow review. Appeal Br. 31-32. Thus,
Appellant has not identified a reversible error in the rejection. This
holds true for both the group of claims 26-31 and 33-43 as well as
separately discussed claim 32.
C. Indefiniteness of claim 22
The Examiner determines claim 22 is indefinite because it refers to a
polymer film extrusion without any proper antecedent basis and appears to
be directed to a method of extrusion instead of a spinneret body. Final Act. 2.
The Examiner also determines that it is unclear what structure is required
by "a quench air" and "a direction of the quench air" with reference to a
spinneret body. Id.
We agree with the Examiner that the claim is indefinite.
First, the claim is not directed to what Appellant intends. Appellant
contends that "claim 22 recites the structural arrangement of the capillaries
relative to a direction of quench air as discussed in paragraph [00109] of the
specification in relation to Figures 5A-5C." Appeal Br. 32. But claim 22
attempts to limit the polymer filament extrusion, not the structural
arrangement of the capillaries.
Claim 22 reads as follows:
22. The spinneret of claim 21, wherein the polymer
filament extrusion comprises a quench air, a pitch of capillaries
in adjacent rows aligned with a direction of the quench air, and
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Application 13/6527 40
a pitch of capillaries in adjacent rows that are oriented in an
orthogonal direction to the direction of the quench air.
Appeal Br. 43 (claims appendix) (emphasis added).
Claim 21 recites a spinneret body "wherein the orifices comprise
capillaries that open at a face of the spinneret body for polymer filament
extrusion therefrom." Appeal Br. 42 (claims appendix) (emphasis added).
Claim 22 recites that the polymer filament extrusion comprises quench
air and a pitch of capillaries; it does not state that capillaries have a
particular pitch as Appellant intends.
Second, it is incorrect to say the polymer filament extrusion comprises
a pitch of capillaries. It is not the polymer filament extrusion that comprises
a pitch of capillaries, it is the spinneret body that comprises multiple
capillaries having a pitch between them. See, e.g., Spec. if 109 ("As used
herein, 'pitch' refers to the linear center-to-center distance of two adjacent
capillaries."), Figs. 5A-5C (showing pitch 502, 504 in Fig. 5A, pitch 506, 508
in Fig. 5B, pitch 510, 512 in Fig. 5C between capillaries in adjacent rows).
Third, it is incorrect to say that the polymer filament extrusion
comprises a quench air. The language "polymer filament extrusion
therefrom" in claim 21 implies that extrusion occurs from the capillaries
before the filaments reach the quench air. This reading of the claim language
is consistent with the Specification. See, e.g., Spec. iii! 26-27 (using the past
tense when describing flowing cooling gas "beneath the spinneret and across
extruded filaments"); Spec. if 37 (using the past tense to describe passing the
extruded filaments through a quench region); Spec if 73 (defining "spinneret
body(ies)" as including "capillaries through which polymer is extruded to form
filaments or other fibers."); Spec. iii! 88, 104 (reciting that filaments are
extruded from the capillaries). The polymer filaments are already extruded
when contacted with quenching air. Thus, the polymer filament extrusion
cannot "comprise a quench air" as recited in claim 22.
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Application 13/6527 40
As determined by the Examiner, claim 22 is unclear and thus
indefinite.
CONCLUSION
In summary:
26-43 103(a) +Brandner 26-43
22 § 22
112(b)/112
ir 2
Summary 1-43
DECISION
The Examiner's decision is affirmed.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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