Ex Parte Pourdeyhimi et al

Patent Trials and Appeals BoardMar 13, 2019

13423819 - (D) (P.T.A.B. Mar. 13, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/423,819 03/19/2012 26158 7590 03/15/2019 WOMBLE BOND DICKINSON (US) LLP ATTN: IP DOCKETING P.O. BOX 7037 ATLANTA, GA 30357-0037 FIRST NAMED INVENTOR Behnam Pourdeyhimi 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. N61824 l 112US.Cl (0124.1) CONFIRMATION NO. 1902 EXAMINER PIZIALI, ANDREW T ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 03/15/2019 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): IPDocketing@wbd-us.com BostonPatents@wbd-us.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BEHNAM POURDEYHIMI and STEPHEN R. SHARP Appeal2018-004629 Application 13/423,819 Technology Center 1700 Before LINDA M. GAUDETTE, MARK NAGUMO, and JENNIFER R. GUPTA, Administrative Patent Judges. Opinion for the Board by GAUDETTE, Administrative Patent Judge. NAGUMO, Administrative Patent Judge, concurs in the judgment. GAUDETTE, Administrative Patent Judge DECISION ON APPEAL 1 The Appellants2 appeal under 35 U.S.C. Â§ 134(a) from the Examiner's decision finally rejecting claims 15-20, 23-32, and 34 under 35 U.S.C. Â§ 103(a) as 1 This Decision includes citations to the following documents: Specification filed Mar. 19, 2012 ("Spec."); Final Office Action dated May 12, 2017 ("Final"); Appeal Brief filed Oct. 11, 2017 ("Br."); and Examiner's Answer dated Jan. 16, 2018 ("Ans."). 2 The Appellants identify the real party in interest as North Carolina State University. Br. 1. Appeal2018-004629 Application 13/423,819 unpatentable over Dugan3 in view of Anderson4 and Takeda5, and claim 21 under 35 U.S.C. Â§ I03(a) as unpatentable over Dugan in view of Anderson, Takeda, and Reynolds 6â€¢ We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. The claims on appeal relate to a nonwoven fabric manufactured from microdenier fibers. Spec. 1:9-10. According to the Specification, at the time of the invention, microdenier fibers typically were "produced utilizing a bicomponent fiber configured to split, such as 'pie wedge' or 'segmented pie' fibers." Id. at 1:21-23. According to the Specification, however, there was a need to form other fiber shapes. Id. at 3:31--4:5, 5:8-10. The Specification discloses that at the time of the invention, elastomers typically were used in only the core component of fibers due to the tendency of the elastomers to remain tacky, causing the fibers to stick together and form bundles during extrusion, resulting in poor fabric formation. Id. at 2: 10-13. According to the Specification, "there [was] a need for a process by which elastomers and additive-containing polymers [ could] be incorporated within a fiber and subsequently spunbonded to produce nonwoven fabrics." Id. at 5:21- 23. The invention is directed to addressing the aforementioned needs. See generally id. at 5:26-6:15. The Appellants rely on the Declaration under 3 7 C.F .R. Â§ 1.13 2 of Dr. Behnam Pourdeyhimi, executed January 14, 2014, and entered into the record on February 6, 2014 ("Deel."). See Br. 15. The Appellants' arguments in support of patentability of all claims on appeal are based on language recited in claim 15, 3 WO 00/20178, pub. Apr. 13, 2000. 4 US 2004/0029469 Al, pub. Feb. 12, 2004. 5 US 6,335,092 Bl, iss. Jan. 1, 2002. 6 US 2003/0106130 Al, pub. June 12, 2003. 2 Appeal2018-004629 Application 13/423,819 the sole independent claim on appeal. See generally id. at 3-18. Claim 15 is reproduced below. 15. A nonwoven fabric comprising a plurality of intertwined microdenier fiber components, the intertwined microdenier fiber components being in the form of fibrillated multicomponent fibers that included a contiguous core fiber component completely enwrapped by a multilobal sheath fiber component such that the sheath fiber component formed the entire outer surface of the multicomponent fiber prior to fibrillation, wherein the core fiber component and the lobes of the multilobal sheath fiber component each have a denier size no greater than one and wherein the modification ratio of the multicomponent fiber prior to fibrillation is about 1.5 to about 4, and wherein the fabric exhibits a tongue tear strength of at least about 5 lbs for a fabric with a basis weight of 135 gsm. Id. at 20 (Claims Appendix). Having considered the respective arguments and evidence advanced by the Appellants and the Examiner, we determine a preponderance of the evidence favors the Examiner's conclusion of obviousness as to claim 15 for the reasons stated in the Final Office Action and the Answer. Accordingly, we sustain the rejection of claims 15-20, 23-32, and 34. See 37 C.F.R. Â§ 4I.37(c)(iv) (2017). We also do not find these arguments persuasive of reversible error in the Examiner's conclusion of obviousness as to dependent claim 21, and, therefore, we sustain the rejection of claim 21. The Examiner found Dugan discloses a nonwoven fabric as recited in claim 15 with the exception of the fabric tongue tear strength recited in the final wherein clause. Final 3. The Examiner found Dugan's nonwoven fabric inherently would possess this feature, but relied on Anderson in the alternative to establish that it would have been obvious to modify Dugan's nonwoven fabric to achieve this feature. See id. The Examiner relied on Takeda "[i]n the event ... that Dugan 3 Appeal2018-004629 Application 13/423,819 fails to sufficiently teach the claimed nonwoven fabric due to the claimed product- by process enwrapped multicomponent fiber configuration limitation." Id. at 4. The Appellants' arguments (and, therefore, the Examiner's response to these arguments in the Answer) are directed primarily to the Examiner's combination of Dugan, Anderson, and Takeda. As indicated above, the Examiner has explained why these arguments are not persuasive of error. We add that, in general, many of the Appellants' arguments are not convincing because they are not supported by persuasive evidence and do not address the facts and reasons relied on by the Examiner. See, e.g., Br. 5 ( arguing, without citation to persuasive evidence, that the properties of Takeda's staple fibers are understood to be different than those of Dugan' s continuous fibers); Ans. 14--15 ( explaining that the Appellants' arguments are not directed to the embodiment in Dugan relied upon by the Examiner); discussion of Pourdeyhimi Declaration infra. In addition to determining that the Appellants have not shown error in the Examiner's conclusion that claim 15 is obvious over the combination of Dugan, Anderson, and Takeda, we determine the Examiner's fact finding and reasoning, as set forth in the Final Office Action, support the Examiner's conclusion that claim 15 would have been obvious over Dugan alone. We add the following comments regarding the Examiner's rejection based on Dugan alone. As indicated by the Examiner, the claim 15 language relied on by the Appellants to distinguish the claimed nonwoven fabric from Dugan's nonwoven fabric is a product-by-process limitation (see Final 4): "the intertwined microdenier fiber components being in the form of fibrillated multicomponent fibers that included a contiguous core fiber component completely enwrapped by a multilobal sheath fiber component such that the sheath fiber component formed the entire outer surface of the multicomponent fiber prior to fibrillation" ( claim 15 ( emphasis 4 Appeal2018-004629 Application 13/423,819 added)). The italicized language in claim 15 describes the process by which the intertwined microdenier fiber components of the claimed nonwoven fabric were formed. As explained by our reviewing court, "[t]he patentability of a product does not depend on its method of production. If the product in a product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 697 (Fed. Cir. 1985) (citations omitted). The Examiner identified in Dugan a disclosure of "a plurality of intertwined microdenier fiber components ... in the form of fibrillated multicomponent fibers," and core and sheath fiber components having the features recited in the first claim 15 wherein clause. Final 3. Therefore, the burden was shifted to the Appellants to show a difference between Dugan' s and the claimed microdenier fiber components. The Appellants argue there is a difference between the claimed and Dugan's microdenier fiber components, but do not cite to persuasive evidence to support these arguments. See, e.g., Br. 13 ("[T]he Dugan reference does not teach or suggest a fabric, e.g., with the recited constituent fibers and, as such, the fabric of the Dugan reference is not 'substantially identical' in terms of structure and materials, at least due to the fact that the fibers from which the claimed fabric is constructed are fundamentally different than those disclosed in the Dugan reference."); id. at 14--15 ("As the fibers from which the fabrics of the Dugan reference and the fibers from which the claimed fabrics are prepared are different in structure, it does not reasonably follow that the resulting fabrics are 'substantially identical' to one another."); Deel. ,r 5 (wherein Dr. Pourdeyhimi testifies that he "does not believe that one of ordinary skill in the art would view the Dugan reference as suggestive of use of a multi-lobal fiber as presently claimed 5 Appeal2018-004629 Application 13/423,819 to form a nonwoven fabric," but fails to explain how the claimed and Dugan microdenier fiber components differ). The Examiner also found that because "Dugan discloses a substantially identical non woven fabric in terms of structure ( fibrillated multicomponent multilobal fiber non woven fabric) and materials ( elastomeric first component and polyamide second component)," Dugan's fabric inherently would possess a tongue tear strength as claimed if constructed with a basis weight of 135 gsm. Id. This latter finding was reasonable because the Appellants have not identified, nor do we find, persuasive evidence indicating that the claimed tongue tear strength is a function of something other than the structure and materials of the claimed non woven fabric. See, e.g., Br. 2 ( citing Spec. 20:23-24 for a disclosure of the claimed tongue tear strength); Spec. 20: 16-21:5 (wherein the claimed tongue tear strength is said to be exhibited by exemplary embodiments); Br. 13-15 (citing the Pourdeyhimi Declaration); Deel. ,r 8 (wherein Dr. Pourdeyhimi testifies that the inventive nonwoven fabric has superior strength to certain commercially available fabrics, but fails to compare the claimed fabric to Dugan's fabric). In sum, for the reasons stated in the Final Office action, the Answer, and above, we sustain the rejections of claims 15-21, 23-32, and 34. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6 Appeal2018-004629 Application 13/423,819 NAGUMO, Administrative Patent Judge, concurs in the judgment. I join the majority in the findings that Appellants failed to come forward with adequate evidence supporting the arguments for harmful error, and in the judgment of affirmance. 7