Ex Parte Lunsford et al

Patent Trials and Appeals BoardJun 21, 2019

14099341 - (D) (P.T.A.B. Jun. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/099,341 12/06/2013 25570 7590 06/25/2019 Roberts Mlotkowski Safran Cole & Calderon, P.C. 7918 Jones Branch Drive Suite 500 McLean, VA 22102 David Lunsford 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. 400018-23301 8523 EXAMINER JUSKA, CHERYL ANN ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 06/25/2019 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): lga11augher@rmsc2.com docketing@rmsc2.com secretaries@rmsc2.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DAVID LUNSFORD, RAJEEV F ARW AHA, and REBEKAH STUART Appeal 2018-005469 Application 14/099 ,341 Technology Center 1700 Before JAMES C. HOUSEL, N. WHITNEY WILSON, and JANEE. INGLESE, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's September 20, 2017 decision rejecting claims 1-23 ("Non-Final Act."). We have jurisdiction over the appeal under 35 U.S.C. Â§ 6(b). We affirm. 1 Appellant is the Applicant, Celanese Sales Germany GMBH, who is also identified as the real party in interest (Appeal Br. 1 ). Appeal 2018-005469 Application 14/099 ,341 CLAIMED SUBJECT MATTER Appellant's disclosure relates to carpet products made using a first copolymer precoat adhesive to secure carpet fibers to a carpet backing or substrate in combination with a second copolymer skipcoat adhesive for securing a carpet scrim or other layer to a carpet backing (Abstract). The first copolymer is a copolymer of a vinyl ester and ethylene and a cross- linking monomer (id.). Details of the claimed invention are set forth in independent claim 1, which is representative of the claimed invention, and is reproduced below from the Claims Appendix to the Appeal Brief ( emphasis added): 1. A carpet product, comprising: a primary carpet layer comprising carpet fiber tufted into a primary backing and a precoat adhesive adhering said carpet fiber to said primary backing, wherein the adhesive is formed from a latex adhesive comprising a first copolymer of an alkanoic acid having from 1 to 13 carbon atoms, ethylene and a cross-linking co-monomer, wherein a film formed from the first copolymer exhibits an elongation value greater than 125% at 110Â° C.; and a secondary backing adhered to said primary backing with a skipcoat adhesive comprising styrene/butadiene second copo 1 ymer. REJECTION Claims 1-23 are rejected under 35 U.S.C. Â§ 103(a) as unpatentable over Lunsford. 2 2 Lunsford et al., WO 2011/139267 Al, published November 10, 2011. 2 Appeal 2018-005469 Application 14/099 ,341 DISCUSSION Appellant does not offer arguments for any specific claims (see, Appeal Br. 3-6). Accordingly, we select claim 1 as representative and will focus our analysis on the rejection of claim 1 as obvious over Lunsford. The remaining claims will stand or fall with claim 1. The Examiner finds that Lunsford discloses carpet coating compositions for binding carpet fibers to a primary backing or to attach a secondary carpet scrim to the back of a precoated carpet (Non-Final Act. 3, citing Lunsford, Abstract, ,i,i 9, 48, 57). The Examiner further finds that the coating compositions are based on interpolymers of vinyl esters, ethylene, and a multifunctional crosslinking comonomer (Non-Final Act. 3, citing Lunsford, Abstract). The Examiner finds that Lunsford does not specifically disclose (a) that the latex binder exhibits an elongation value greater than 125% at l 10Â°C, or (b) a secondary backing adhered to the primary backing with a skip coat adhesive comprising an SBR copolymer (Non-Final Act. 5). With regards to missing limitation (b) above, the Examiner determines that because Lunsford teaches the use of SBR as a carpet backing layer, it would have suggested to a person of skill in the art that SBR be used to adhere a secondary backing because Lunsford teaches that SBR and its interpolymer have excellent compatibility (Non-Final Act. 5-6). Appellant does not challenge this determination (see, Appeal Br. 4-6) and, therefore, does not show reversible error in it. With regards to missing limitation (a) above, the Examiner finds that Lunsford teaches that a film made from its interpolymer "exhibits an 3 Appeal 2018-005469 Application 14/099 ,341 elongation value of less than about 125% at l 10Â°C" (Non-Final Act. 5, citing Lunsford ,i 10): while Lunsford teaches the crosslinking comonomer alters the interpolymer such that a film made therefrom exhibits an elongation value of less than about 125% at l 10Â°C, said claims are rejected as being obvious over the Lunsford reference due to the overlapping of applicant's "greater than 125%" with Lunsford's "less than about 125%." In cases where claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prim a facie case of obviousness exists. Specifically, Lunsford's range of "less than about 125%" includes values that approximate 125%. For example, Lunsford's range encompasses "less than 125.1 %," "less than 125.4%," and even "less than 126%," all of which overlap "greater than 125%." Additionally, note the composition of Lunsford meets applicant's claimed compositional limitations. Hence, it is reasonable that said Lunsford composition is capable of having an elongation of about 126%, which reads on applicant's claimed invention. (Non-Final Act. 5, internal citations omitted). Appellant argues that Lunsford's disclosure of an elongation value "of less than about 125%" does not overlap with the claimed range of an elongation value of "greater than 125%." While at first glance this argument may appear to have merit for the reasons set forth by the Appellant (Appeal Br. 4 and 5), we ultimately agree with the Examiner's interpretation of the evidence of record. In particular, Lunsford specifically states that the elongation value is "less than about 125%." The use of the modifier "about" means that the upper boundary of this range is at least somewhat above 125%. Otherwise, the disclosure would state that the elongation value was "less than 125%." Therefore, if the upper bound of Lunsford's range is at least somewhat above 125% (for purposes of this analysis, whether the upper 4 Appeal 2018-005469 Application 14/099 ,341 bound is 125.1 % or 126% is not critical), then that range overlaps with the claimed range of "greater than 125%." While, as noted by Appellant (Appeal Br. 5), Lunsford does describe the range of elongation values in some spots as "less than 125% ), it explicitly states (,-J 10), that the elongation value is less than about 125%. Moreover, even ifwe agreed with Appellant's argument that there is no overlap between the claimed range of elongation values (greater than 125%) and the disclosed elongation value (less than about 125%), the claim would still have been obvious over Lunsford. Our reviewing court has held that a prima facie case of obviousness exists when the claimed range and the prior art range do not overlap but are close enough such that one skilled in the art would have expected them to have the same properties. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (citing Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed.Cir.1985)). In this instance, even were we to agree with Appellant that there was no overlap in the claimed and disclosed ranges, they are close enough that a person of skill in the art would have expected them to have the same properties. Certainly Appellant has not pointed to persuasive evidence or proffered an argument that a person of skill in the art would have expected materially different properties in a material with an elongation value of just over 125% versus one with an elongation value of just below 125%. In fact, as noted by Appellant, the claimed carpet adhesives are believed to have the same desirable processing characteristics identified by Lunsford. In view of the foregoing, we determine that the preponderance of the evidence of record does not demonstrate reversible error in the obviousness rejection on appeal. 5 Appeal 2018-005469 Application 14/099 ,341 CONCLUSION We AFFIRM the rejection of claims 1-23 under 35 U.S.C. Â§ 103(a) as unpatentable over Lunsford. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ l .136(a)(l )(iv). AFFIRMED 6