Ex Parte Keuchel et al

Patent Trial and Appeal Board

Nov 30, 2012

10792483 (P.T.A.B. Nov. 30, 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.
10/792,483 03/03/2004 Kenneth Keuchel 2004/01 5012
7590 12/03/2012
ANDREW F. SAYKO JR.
1014 CROOKED OAKS LANE
SEABROOK ISLAND, SC 29455-6502
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
12/03/2012 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 KENNETH KEUCHEL and HERBERT WILLIE REUCHEL
____________

Appeal 2011-010293
Application 10/792,483
Technology Center 1700
____________

Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and
DONNA M. PRAISS, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

Appeal 2011-010293
Application 10/792,483

2
DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting:
1. Claims 1, 3, 5, 6, 8-15 and 17-20 under 35 USC §103(a) as unpatentable
over Kent (US 5,380,477 issued Jan. 10, 1995) in view of Kidder (US
3,985,714 issued Oct. 12, 1976), and
2. Claims 10-12 as unpatentable over Kent in view of Kidder and further in
view of King (US 4,330,659 issued May 18, 1982), Varma (US 4,421,820
issued Dec. 20, 1983) or Ogura (US 5,302,672 issued Apr. 12, 1994).2
We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to “a thermoplastic nylon polymeric adhesive matrix
that can be made up of polymer particles, a film, a nonwoven fibrous web or a non-
fibrous stereo reticulated web.” (Spec.3 1.) Claim 1 is representative of the
invention and is reproduced below from the Claims Appendix to the Appeal Brief
(italics added):4
1. A polymeric adhesive matrix consisting essentially of a substantially
uniform thickness fibrous or non-fibrous matrix that consists
essentially of a substantially uniform thickness matrix of either:
polymer particles, a film, a nonwoven web or a non-fibrous stereo
reticulated web, said matrix consisting essentially of a thermoplastic

1 Final Office Action mailed Jan. 30, 2009 (“Final”).
2 Appeal Brief filed Sept. 7, 2010 (“App. Br.”).
3 Specification filed Mar. 3, 2004.
4 Appellants do not present separate arguments for claims 1, 3, 5, 6, 8-15 and 17-20
on appeal from the rejection over Kent in view of Kidder. Accordingly, claims 3,
5, 6, 8-15 and 17-20 stand or fall with claim 1.
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Application 10/792,483

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polymeric material that consists of an amine-terminated polyamide,
consisting essentially of an amine-terminated Nylon 12 or amine-
terminated Nylon 11 polymer, or blends thereof with at least five (5)
and up to forty (40) weight percent of another thermoplastic
polymeric material.
Kent evidences that at the time of Appellants’ invention, a polymeric
adhesive matrix was known in the art to consist essentially of a thermoplastic
polymeric material that consists of Nylon 12 or Nylon 11 polymer or blends
thereof, with 20-85 weight percent of another compatible thermoplastic polymeric
material, and that the fabric sheets may have a uniform thickness (Ans. 4; Kent,
Col. 4, ll. 29-38, 52- 68, col. 5, ll. 1-42, 53-61, col. 6, ll. 5-22, col. 7, ll.59-68, col.
8, ll. 1-2).
The Examiner acknowledged that Kent does not disclose the use of an
amine-terminated nylon (polyamide), but does disclose coloring the fibers. Ans. 5;
Kent, Col. 5, ll. 62-68, Col. 6, ll. 1-5. Therefore the Examiner combined the
disclosures of Kent and Kidder on the basis that Kidder evidences that at the time
of Appellants’ invention, it was known in the art to form amine ends to improve
dyeability and/or viscosity (Ans. 5; Col. 2, ll. 4-13).
Based on the above findings of fact, the Examiner concluded it would have
been obvious to one of ordinary skill in the art “to use amine-terminated
polyamide, motivated by a desire to produce a polyamide with improved dyeability
and/or viscosity.” (Ans. 5.)
Appellants do not dispute that Kent discloses the addition of pigments to
color the thermoplastic materials. App. Br. 5. Instead, Appellants contend the
Examiner reversibly erred in rejecting the claims because “[o]ne skilled in the art
of producing composite laminates would never look to the art for improving
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Application 10/792,483

4
dyeability [Kidder] when considering the choice and characteristics of an internal
layer of a multi-layer laminate.” App. Br. 6. Appellants assert “[i]n appellants[’]
claimed invention, the Nylon 11 or Nylon 12 polyamides utilized have amine end
groups, but Appellant’s claimed invention is not concerned in any way with
uniform dyeability.” Id. at 7. The flaw in Appellants’ argument is that it is not
necessary for the Examiner’s rationale for combining Kent and Kidder to be
identical to that of the applicant to establish obviousness. KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 419 (2007); In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996).
Appellants further argue that the polyamide disclosed by Kidder “will have a
substantial number of both amine and acid end groups.” App. Br. 7. The
preponderance of the evidence supports the Examiner’s finding that Kidder
discloses that some or all of the produced polyamide may have amine ends. Ans.
10; Kidder, col. 2, ll. 14-29. Moreover, Appellants’ argument is flawed in that the
claim language “consisting essentially of” defines a composition comprising the
recited ingredients and those that do not materially affect the basic and novel
characteristics of the claimed composition. In such cases, the burden is on the
applicant to demonstrate that the inclusion of an ingredient not recited in the claim
would alter the basic and novel characteristics of the composition. In the present
case, Appellants have not discharged this duty by presenting an argument
supported by evidence that the inclusion of some amount of acid-terminated rather
than entirely amine-terminated Nylon 11 and Nylon 12 as disclosed by Kidder
results in a material change in the claimed polymeric adhesive matrix. Hence, in
the absence of such a factually-supported argument, the Examiner’s determination
that the appealed claims do not exclude some portion of the Nylon 11 and Nylon
12 being acid-terminated stands unrebutted. Moreover, Appellants’ Specification
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Application 10/792,483

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indicates the presence of carboxyl groups would not materially change the claimed
polymeric adhesive matrix. Spec. 16-17.
Appellants further contend that Kent does not disclose “a substantially
uniform thickness nonwoven web” because “[t]he fact that [Kent’s webs] can be
calendared or comprise flat sheets does not necessarily mean that such webs or
sheets will have a substantially uniform thickness.” App. Br. 6. This argument is
unpersuasive because, as noted by the Examiner, Appellant’s Specification states
that calendaring results in uniform thickness (Ans. 8; Spec. p. 12, ll. 382-86, p. 13,
ll. 397-400). Moreover, Appellant’s actual claim language is “consists essentially
of a substantially uniform thickness matrix.” Claims Appendix, Claim 1.
For the reasons stated above and in the Answer, we affirm the Examiner’s
decision to reject claims 11, 3, 5, 6, 8-15 and 17-20 under 35 USC §103(a).
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).
AFFIRMED
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