Ex Parte Fujisawa et al

Patent Trial and Appeal BoardMar 20, 2017

12988563 (P.T.A.B. Mar. 20, 2017)

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. 12/988,563 10/19/2010 Michinori Fujisawa 369902US99PCT 1720 22850 7590 03/22/2017 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER REA, CHRISTINE ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 03/22/2017 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): patentdocket @ oblon. com oblonpat @ oblon. com tfarrell@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MICHINORI FUJISAWA, JIRO TANAKA, NORIO MAKIYAMA, YOSHIYUKI ANDO, and YOSHIKINOBUTO Appeal 2016-001970 Application 12/988,563 Technology Center 1700 Before KAREN M. HASTINGS, AVELYN M. ROSS, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134(a) from a rejection2 of claims 1—4, 8—11, and 13. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 The real party in interest is identified as Kuraray Co. LTD., Okayama, Japan (Appeal Brief, filed May 4, 2015 (“App. Br.”), 2.) 2 Non-Final Office Action mailed December 4, 2014 (“Office Action,” cited as “Act.”). Prosecution history shows that the Examiner previously issued at least two non-final rejections and at least two final rejections. Appeal 2016-001970 Application 12/988,563 CLAIMED SUBJECT MATTER The claims are directed to a base material for artificial leather and process for producing the same. (Spec. 11.)3 Claim 1, reproduced below, is the sole independent claim and is illustrative of the claimed subject matter: 1. A substrate, comprising a nonwoven fabric comprising bundles of microfme filaments, wherein the nonwoven fabric is obtained by removing a sea component from sea-island filaments to convert the sea-island filaments to the bundles of the micro fine filaments, such that: (1) each bundle of microfme filaments comprises 8 to 70 micro fine filaments having a nearly circular cross-sectional shape; (2) each bundle of micro fine filaments has a cross- sectional area of 170 to 700 pm2 and a flatness of less than 3.0; (3) on a cross section parallel to a thickness direction of the nonwoven fabric, the number of bundles per area is 1500 to 3000/mm2; (4) on a cross section parallel to a thickness direction of the nonwoven fabric, gaps between the bundles of microfme filaments have a size of 70 pm or less. (Claims Appendix, App. Br. 24 (emphasis added).) REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Morishima US 2001/0038901 A1 Nov. 8, 2001 Nakayama US 2009/0274862 A1 Nov. 5, 2009 3 Application 12/998,563, Base Material for Artificial Leather and Process for Producing the Same, filed February 6, 2013. We refer to the “’563 Specification,” which we cite as “Spec.” 2 Appeal 2016-001970 Application 12/988,563 REJECTIONS Claims 1—4, 8—11, and 13 are rejected under pre-AIA 35 U.S.C. § 103(a) as being unpatentable Nakayama in view of Morishima. (Act. 2.) OPINION Findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. To establish a prima facie case of obviousness, the Examiner must show that each and every limitation of the claim is described or suggested by the prior art or would have been obvious based on the knowledge of those of ordinary skill in the art or the inferences and creative steps a person of ordinary skill in the art would have employed. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988); KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). The Examiner acknowledges that Nakayama does not “each bundle of micro fine filaments” having “a flatness of less than 3.0” as recited in claim 1 but finds that “the prior art combination additionally establishes that the fiber bundles may have a circular shape, which appears to be within the scope of the claimed flatness.” (Act. 5.) The Examiner states in the Answer that “Appellant is not claiming that every single filament or every single bundle in the fabric has a certain flatness” and that claim 1 is rendered obvious because “at least some of the bundles of microfme filaments would have a flatness of less than 3.0 as taught by Morishima.” (Ans. 7.)4 4 Examiner’s Answer mailed October 5, 2015 (“Ans.”). 3 Appeal 2016-001970 Application 12/988,563 As Appellants point out, the Examiner has not established that “each5 bundle of micro fine filaments” having “a flatness of less than 3.0” as recited in claim 1 is taught or suggested by the prior art (Reply Br. 4, 5). Indeed, the Examiner tacitly admits that only “at least some of the bundles of micro fine filaments” may have the recited flatness. (See Ans. 7.) The Examiner has not offered any reasoning why each bundle would have a flatness less than 3.0 as recited in claim 1. Furthermore, the Examiner has not offered any reasoning based on the skilled artisan’s knowledge or inferences and creativity employed that would support an obviousness conclusion. The obviousness rejection therefore cannot be sustained. On the record before us, the Examiner has not shown that each and every limitation of the claim is either described or suggested by the prior art or would have been obvious based on the knowledge or inferences and creativity of the ordinary artisan. See Fine, 837 F.2d at 1074; see also In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). For the reasons set out above and in Appellants’ briefs, we reverse the §103 rejection on appeal. 5 “Each” means “every.” Oxford English Dictionary at www.oed.com accessed March 15, 2017. 4 Appeal 2016-001970 Application 12/988,563 DECISION The Examiner’s rejection of claims 1—4, 8—11, and 13 is reversed. REVERSED 5