Ex Parte Leighton et al

Patent Trial and Appeal BoardJun 19, 2017

12490075 (P.T.A.B. Jun. 19, 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. 12/490,075 06/23/2009 Jay Philip Leighton 021007-000012 2776 24239 7590 06/21/2017 MOORE & VAN AT .TEN PLLC P.O. BOX 13706 3015 Carrington Mill Boulevard, Suite 400 Research Triangle Park, NC 27709 EXAMINER LIU, HENRY Y ART UNIT PAPER NUMBER 3654 NOTIFICATION DATE DELIVERY MODE 06/21/2017 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): iplaw @ mvalaw. com u sptomail @ m valaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JAY PHILIP LEIGHTON and SANDRA VAUSE CANIPE Appeal 2015-006848 Application 12/490,075 Technology Center 3600 Before STEFAN STAICOVICI, FREDERICK C. LANEY, and SEAN P. O’HANLON, Administrative Patent Judges. O’HANLON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Jay Philip Leighton and Sandra Vause Canipe (Appellants)1 appeal under 35 U.S.C. § 134 from the Examiner’s January 15, 2014 non-final decision (“Non-Final Act.”) rejecting claims 1—11 and 47.2 We have jurisdiction over this appeal under 35 U.S.C. § 6(b). 1 According to Appellants, the real party in interest is Forbo Siegling, LLC. Br. 1. 2 Claim 46 is canceled and claims 12—45 are withdrawn from consideration. Id. at 8—12 (Claims App.). Appeal 2015-006848 Application 12/490,075 SUMMARY OF THE DECISION We AFFIRM. SUMMARY OF THE INVENTION Appellants’ disclosure is related to “lubricated, endless belts for treadmills.” Spec. 1:9—10. Claim 1 is the sole independent claim and is reproduced below from page 7 (Claims Appendix) of the Appeal Brief: 1. A belt for use as an endless belt traveling relative to a frame structure, the belt comprising: a woven fabric, the woven fabric exposed for at least partially forming a bottom surface of the belt, the fabric including textured synthetic yams comprising crimps, loops, or a combination of crimps and loops along the length of the yams. REJECTIONS Claims 1—4 and 7—9 stand rejected under 35 U.S.C. § 102(b) as being anticipated by Eklund (US 5,298,124, iss. Mar. 29, 1994).3 Claim 6 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Eklund and Haller (US 3,366,355, iss. Jan. 30, 1968). Claims 5, 10, and 11 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Eklund and Christianson (US 5,584,897, iss. Dec. 17, 1996). Claim 47 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over Eklund and Watanabe (US 2004/0040685 Al, pub. Mar. 4, 2004). 3 We note that the Examiner mistakenly refers to this reference as “EKLAND” throughout the Non-Final Office Action. See, e.g., Non-Final Act. 3. 2 Appeal 2015-006848 Application 12/490,075 ANALYSIS Rejection Based on Eklund The Examiner finds that Eklund discloses a belt (transfer belt 60) as recited in independent claim 1. Non-Final Act. 3 (citing Eklund, 13:22-49, 13:60-14:20). Appellants traverse, arguing that because Eklund’s “lower weft yams 74 are encased within the fibrous web 76 or, alternatively, textile material or polymeric film” and “[t]he warp yams 70 of the woven base 62 are woven with the weft yams 72, 74 such that they are within the fibrous web 76 or other layer,” “Eklund does not teach the claimed feature of exposed woven fabric of textured yams. As a result, the yams in Eklund cannot form a bottom surface of the belt.” Br. 5. We are not persuaded by Appellants’ arguments. As correctly noted by the Examiner, Eklund discloses that “[t]he back side 64 of the base 62 may be needled with at least one layer of fibrous web 76,” and that “the reinforcing base, instead of taking the form of woven base 62, may be a non- woven fiber assembly, a knitted fiber assembly, or a polymeric film.” Eklund 14:14—21 (emphasis added); see also Non-Final Act. 7; and Ans. 3. Thus, a preponderance of the evidence supports the Examiner’s conclusion that fibrous web 76 (as well as the non-woven forms of the reinforcing base) is optional, and is not required as suggested by Appellants. See Ans. 3. In the embodiment relied upon by the Examiner, omitting fibrous web 76 from woven base 62, at least bottom weft yams 74 would be exposed as required by claim 1. See Ans. 3; Eklund Fig. 4. Accordingly, for the foregoing reasons, we sustain the Examiner’s rejection of claim 1, as well as of its dependent claims 2-4 and 7—9, which are not argued separately, as being anticipated by Eklund. 3 Appeal 2015-006848 Application 12/490,075 Rejection Based on Eklund and Haller With respect to the rejection of claim 6, Appellants solely rely on the arguments presented above in regard to the rejection of claim 1. Br. 5. Accordingly, for the same reasons as discussed above, we also sustain the rejection of claim 6 as being unpatentable over Eklund and Haller. Rejection Based on Eklund and Christianson With respect to the rejection of claims 5, 10, and 11, Appellants solely rely on the arguments presented above in regard to the rejection of claim 1. Id. Accordingly, for the same reasons as discussed above, we also sustain the rejection of claims 5, 10, and 11 as being unpatentable over Eklund and Christianson. Rejection Based on Eklund and Watanabe Claim 47 depends directly from claim 1 and further requires “an at least substantially solid lubricant composition impregnated in the fabric and at least partially forming the bottom surface of the belt.” Br. 12 (Claims App.). Appellants argue that “[t]he patents cited by the [Ejxaminer do not disclose or suggest this feature with its many advantages.” Id. at 5. Merely reciting features of a dependent claim and asserting that the prior art does not teach those features is not a separate argument for the patentability of those claims. See 37 C.F.R. § 41.37(c)(l)(iv); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board reasonably interpreted Rule 41.37 to require more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.”). Moreover, 4 Appeal 2015-006848 Application 12/490,075 Appellants’ arguments do not address the Examiner’s findings regarding Watanabe, and, therefore, fail to apprise us of error in the Examiner’s rejection based upon the combined teachings of Eklund and Watanabe. See Non-Final Act. 6; Ans. 4—5. Accordingly, for the foregoing reasons, we sustain the Examiner’s rejection of claim 47 as being unpatentable over Eklund and Watanabe. DECISION The Examiner’s decision to reject claims 1—11 and 47 is affirmed. 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)(iv). AFFIRMED 5