Ex Parte Kanzow et al

Patent Trial and Appeal Board

Dec 14, 2016

12659281 (P.T.A.B. Dec. 14, 2016)

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.
12/659,281 03/03/2010 Henning Kanzow 207-138 7654
47988 7590 12/14/2016
Walter Ottesen, P.A.
PO BOX 4026
GAITHERSBURG, MD 20885-4026
EXAMINER
LIU, HENRY Y
ART UNIT PAPER NUMBER
3654
MAIL DATE DELIVERY MODE
12/14/2016 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 HENNING KANZOW, MARKO SCHLEICHER,
REINHARD TEVES, and CLAUS-LÜDER MAHNKEN
____________

Appeal 2014-009204
Application 12/659,281
Technology Center 3600
____________

Before ANNETTE R. REIMERS, LISA M. GUIJT, and
ERIC C. JESCHKE, Administrative Patent Judges.

JESCHKE, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Henning Kanzow et al. (“Appellants”) seek review under 35 U.S.C.
§ 134(a) of the Examiner’s decision, as set forth in the Non-Final Office
Action dated November 6, 2013 (“Non-Final Act.”), rejecting claims 1–8,
12–16, 18–38, 42–46, and 48–61.1 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

1 Appellants identify ContiTech Antriebssysteme GmbH as the real
party in interest. Appeal Br. 2. Appellants state to also “remain a party of
interest because of the German law (Gesetz über Arbeitnehmererfindungen)
covering employed inventors.” Id.
Appeal 2014-009204
Application 12/659,281

2
BACKGROUND
The disclosed subject matter “relates to a flexurally elastic drive belt
(power transmission belt) . . . having a textile overlay on the working side
thereof that is susceptible to wear.” Spec. 1, ll. 11–14. Claims 1, 31, and 61
are independent. Claim 1 is reproduced below:
l. A flexurally elastic drive belt comprising:
a belt body defining a longitudinal direction
and having a work side subject to wear during
operational use of said drive belt;
a textile overlay disposed on said work side
of said drive belt;
in a state in advance of fabrication and in
advance of vulcanization, said textile overlay
having an elongation at tear in said longitudinal
direction of at least 30% and an elongation at tear in
a transverse direction of at least 100%;
said textile overlay being made of a textile
material which includes staple fibers in a proportion
in terms of quantity of at least 30% by weight;
said textile overlay comprises a sheet-like
structure in the form of a woven fabric; and,
wherein said staple fibers comprise cotton,
cellulose, or cotton and cellulose.

Appeal 2014-009204
Application 12/659,281

3
REJECTIONS
1. Claims 1–8, 24–26, 28, 31–38, 54–56, 58, and 61 stand rejected
under 35 U.S.C. § 102(b) as anticipated by Wetzel (US 4,169,393, issued
Oct. 2, 1979).2
2. Claims 13, 14, 23, 29, 43, 44, 53, and 59 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Wetzel and Beckh (US 5,429,555,
issued July 4, 1995).
3. Claims 15, 16, 19, 45, 46, and 49 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Wetzel, Beckh, and Lofgren ’264
(US 6,461,264 B1, issued Oct. 8, 2002).
4. Claims 12, 18, 42, and 48 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wetzel, Beckh, and Patterson (US 5,112,282,
issued May 12, 1992).
5. Claims 20–22 and 50–52 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Wetzel, Beckh, and Knutson (US 6,572,505
B1, issued June 3, 2003).
6. Claims 27 and 57 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wetzel, Beckh, and Billups (US 6,409,621 B1, issued
June 25, 2002).
7. Claims 30 and 60 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Wetzel, Beckh, and Lofgren ’004 (US 6,770,004 B1,
issued Aug. 3, 2004).

2 The Examiner rejected claims 1–8, 24–26, 28, 31–38, 54–56, 58, and
61, in the alternative, under 35 U.S.C. § 103(a) as unpatentable over Wetzel
and Beckh (US 5,429,555, issued July 4, 1995). Non-Final Act. 3–11. In
the Answer, the Examiner withdraws this alternative rejection. Ans. 2.
Appeal 2014-009204
Application 12/659,281

4
DISCUSSION
Rejection 1
Appellants argue the patentability of the three independent claims—
claims 1, 31, and 61—based on the same arguments and do not provide
separate arguments for any dependent claims. Appeal Br. 16–21. We select
claim 1 as representative, with the remaining claims standing or falling with
claim 1. See 37 C.F.R. § 41.37 (c)(1)(iv) (2013).
Claim 1 recites, inter alia, “said textile overlay comprises a sheet-like
structure in the form of a woven fabric.” Appeal Br. 25 (Claims App.)
(emphasis added). In the rejection, the Examiner found that Wetzel “teaches
said textile overlay (33) comprises a sheet-like structure in the form of a
woven fabric (Col. 7 lines 28–35).” Non-Final Act. 3.
Appellants argue that “[a] woven fabric is a textile formed by weaving
a warp thread and a weft thread, which are perpendicular to each other and
preferably run in the transverse and the longitudinal direction of the belt,
respectively.” Appeal Br. 16 (citing Spec. 2, ll. 20–29). According to
Appellants, although Wetzel “suggest[s] an endless power transmission belt
that is covered with triaxial fabric” and “suggest[s] that three sets of yarns
are interwoven, the resulting triaxial fabric is not a woven fabric as known to
the skilled artisan, having a warp thread and a weft thread running in
perpendicular directions.” Id. at 16, 17; see also Reply Br. 4 (“[T]he skilled
artisan can readily ascertain that the triaxial fabrics of [Wetzel] are not
woven fabrics.”).
The Examiner responds that claim 1 of Wetzel “states that the yarns
are ‘interwoven’ which reasonably corresponds to the claim term ‘woven.’”
Ans. 7.
Appeal 2014-009204
Application 12/659,281

5
In reply, Appellants argue that the Specification “teaches that the
claimed textile material may be provided in the form of a knitted or woven
fabric.” Reply Br. 3 (citing Spec. 5, ll. 2–4). According to Appellants,
“[k]nitted and woven fabrics are terms of art and the recitation of a woven
fabric readily allows the skilled artisan to ascertain the scope of the
independent claims.” Id. Appellants contend that Wetzel is “aware of the
meaning of the terms knitted fabric and woven fabric” in that Wetzel “use[s]
the term knitted fabric at col. 1, lines 22 to 23, to describe a fabric of the
prior art” and, “[t]o distinguish the structurally distinct triaxial fabrics of
[Wetzel], the term interwoven is used.” Id. Appellants argue that
“interwoven does not reasonably correspond to the claim recitation woven”
because Wetzel “use[s] interwoven to describe the angled arrangement of
three sets of parallel courses of yarn” whereas “[a] woven fabric, by
contrast, comprises two sets of threads being arranged as a warp thread and a
weft thread, which are perpendicular to each other.” Id.
During examination, claims are given their broadest reasonable
interpretation consistent with the specification, reading the claim language in
light of the specification as it would be interpreted by one of ordinary skill in
the art. In re Sneed, 710 F.2d 1544, 1548 (Fed. Cir. 1983). Appellants do
not identify any language in claim 1 that limits the broadest reasonable
construction of “woven fabric” to the configuration identified—i.e., two sets
of threads perpendicular to each other—rather than the three-thread-set (i.e.,
“triaxial”) configurations disclosed in Wetzel (see, e.g., Wetzel, Figs. 2, 8).
Further, as to the citation to page 2, lines 20 to 29 of the Specification
(see Appeal Br. 16), Appellants have not shown that, with that passage, the
Specification limits “woven fabric” as asserted. Although the identified
Appeal 2014-009204
Application 12/659,281

6
passage uses the term “woven fabric,” Appellants have not, for example,
shown that the passage (1) provides a “special definition” of “woven fabric”
or (2) intentionally disavows or disclaims certain scope (such as, e.g.,
triaxial configurations). See, e.g., Phillips v. AWH Corp., 415 F.3d 1303,
1316 (Fed. Cir. 2005) (en banc) (discussing the use of specifications in claim
construction).
As to the assertions that one of ordinary skill in the art would not
consider “woven fabric” to include a triaxial configuration (see, e.g., Appeal
Br. 16, 17; Reply Br. 4), Appellants do not provide evidence—but rather
only attorney argument—for these assertions. See In re Pearson, 494 F.2d
1399, 1405 (CCPA 1974) (“Attorney’s argument in a brief cannot take the
place of evidence.”). Further, Appellants have not shown a distinction,
supported by evidence, between “interwoven”—used to describe the yarns in
claim 1 of Wetzel (see Ans. 7)—and “woven” as recited in Appellants’
claim 1.
As to the alleged distinction between “knitted” and “woven” fabrics
(Reply Br. 3–4), Appellants have not shown that distinction (even if
assumed to exist) supports excluding the triaxial configurations of Wetzel
from the “woven fabric” claimed. For example, Appellants have not shown
that one of ordinary skill in the art would consider a triaxial configuration to
be a “knitted” fabric rather than a “woven” fabric. Instead, Appellants
assert, again without evidence, that “woven fabric” distinguishes “not only
over knitted fabrics but also over the triaxial fabrics of Wetzel.” Id. at 4.
Claim 1 also recites, inter alia, “said textile overlay having an
elongation at tear in said longitudinal direction of at least 30% and an
elongation at tear in a transverse direction of at least 100%.” Appeal Br. 25
Appeal 2014-009204
Application 12/659,281

7
(Claims App.). In the rejection, the Examiner stated: “When the structure
recited in the reference is substantially identical to that of the claims,
claimed properties are presumed to be inherent (MPEP 2112.01). In this
case, [Wetzel] teaches all the claimed structural limitations and thus the
elongation at tear properties are considered inherent.” Non-Final Act. 3–4.
Referring to the arguments set forth above, Appellants contend that
Wetzel does not “suggest a woven fabric” and, thus, “given the structural
differences between the claimed subject matter and the applied references,
the triaxial fabrics of [Wetzel] cannot reasonably be presumed to inherently
possess the claimed properties.” Appeal Br. 18.3
When an examiner shows a sound basis for finding that the claimed
and prior art products are structurally identical or substantially identical, the
burden shifts to an appellant to show that the “prior art products do not
necessarily or inherently possess the characteristics of [the] claimed
product.” In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Here, the
Examiner’s explanation supports a prima facie case regarding the claimed
properties. See Non-Final Act. 3–4. Appellants do not dispute the inherency
aspect of the Examiner’s position, but rather, dispute the primary finding
regarding structural identity (i.e., that Wetzel satisfies the structural
limitations recited in claim 1). See id.; Ans. 7 (“The structural claim
limitations, including the woven fabric, are taught by [Wetzel] as set forth in
the rejection above, thus claimed properties can be considered inherent

3 Although Appellants also provide arguments regarding Beckh (see
Appeal Br. 18–20), as noted above (see supra note 2), the Examiner
withdrew the alternative reliance on Beckh to address claim 1.
Appeal 2014-009204
Application 12/659,281

8
(MPEP 2112.01).”). Because Appellants have not shown error in this
primary finding, we are not apprised of error based on this argument.
Claim 1 also recites, inter alia, “said staple fibers comprise cotton,
cellulose, or cotton and cellulose.” Appeal Br. 25 (Claims App.). To
address this limitation in the rejection, the Examiner relied on column 7,
lines 2–27 in Wetzel and stated “[t]he fabric can contain only cotton fibers.”
See Non-Final Act. 3.
Appellants discuss certain teachings in Wetzel regarding the selection
of materials for the three sets of yarns (X, Y, and Z) and then state, “[a]s an
alternative, [Wetzel] suggest[s], at col. 7, line 7, that cotton may be used as
one material for the triaxial fabric.” Appeal Br. 21 (discussing Wetzel,
col. 6, ll. 52–62). Appellants argue that Wetzel, however, “do[es] not
provide any guidance as to which of the yarns ‘X,’ ‘Y’ or ‘Z’ should be
selected from cotton” and “[a]s a result, and as discussed above, a skilled
artisan is not directed by the applied citations to select one or more of the
yarns of the triaxial fabric of [Wetzel] and provide a fabric” with the claimed
“elongation” properties. Id.
The Examiner responds that Wetzel “teaches that cotton may be used
in the yarns (Col. 7 lines 2–27)” and that “[t]his meets the claim requirement
that ‘staple fibers comprise cotton, cellulose, or cotton and cellulose.’” Ans.
7–8.
The passage relied on by the Examiner provides, in part: “In addition
to the constructions previously described, the triaxial fabric used to make
one or more portions of various belts of this invention may be made of yarns
comprised of any suitable material such as filaments or fibers of cotton, or
the like.” Wetzel, col. 7, ll. 3–7 (emphasis added). This passage and the rest
Appeal 2014-009204
Application 12/659,281

9
of the discussion relied on by the Examiner support the finding that Wetzel
teaches an embodiment in which all three sets of yarns (X, Y, and Z) are
cotton, and that this configuration satisfies the limitation at issue. See
Non-Final Act. 3; Ans. 7–8. Appellants have not shown error in these
findings and have not shown that the claim excludes such a configuration.
To the extent Appellants argue that the relied-upon teachings relate to a
nonpreferred embodiment, and are thus insufficient to address the limitation
at issue, we note that “[a]ll the disclosures in a reference must be evaluated,
including nonpreferred embodiments.” In re Mills, 470 F.2d 649, 651
(CCPA 1972). Further, Appellants have not shown that an embodiment in
which all three sets of yarns are cotton would not satisfy the “elongation”
properties discussed above.
For these reasons, we sustain the rejection of independent claim 1.
Claims 2–8, 24–26, 28, 31–38, 54–56, 58, and 61 fall with claim 1.
Rejections 2 through 7
Appellants do not separately argue Rejections 2 through 7, but rather,
argue that certain additional references relied on by the Examiner do not
cure the alleged deficiencies in Wetzel discussed above. See Appeal Br. 21–
23. Because we are not apprised of error based on the arguments regarding
Wetzel (see supra Rejection 1), we sustain the rejection of claims 12–16,
18–23, 27, 29, 30, 42–46, 48–53, 57, 59, and 60.

Appeal 2014-009204
Application 12/659,281

10
DECISION
We AFFIRM the decision to reject claims 1–8, 12–16, 18–38, 42–46,
and 48–61.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED