Ex Parte Rubin et al

Patent Trial and Appeal Board

Oct 31, 2012

11411406 (P.T.A.B. Oct. 31, 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.
11/411,406 04/26/2006 Craig A. Rubin HIT 0159 PUS 6636
22045 7590 10/31/2012
BROOKS KUSHMAN P.C.
1000 TOWN CENTER
TWENTY-SECOND FLOOR
SOUTHFIELD, MI 48075
EXAMINER
SALVATORE, LYNDA
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
10/31/2012 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 CRAIG A. RUBIN and CHARLES G. HADFIELD
____________

Appeal 2011-008699
Application 11/411,406
Technology Center 1700
____________

Before BRADLEY R. GARRIS, CHARLES F. WARREN
and JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-008699
Application 11/411,406

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 2 through 28. We have jurisdiction under 35 U.S.C. § 6.
Appellants’ invention is directed to methods of disinfecting a non-
porous treated textile fabric. App. Br. 2. Claim 6 is illustrative of the
subject matter on appeal and is reproduced below:
6. A method for disinfecting a non-porous treated
textile fabric, the method comprising:
providing an untreated textile fabric having a first side
and a second side;
topically treating the untreated textile fabric to obtain a
topically treated fabric with an aqueous primary treatment
composition including a fluorochemical textile treating agent;
drying and curing the topically treated fabric at an
elevated temperature to obtain a non-porous treated textile
fabric comprising a barrier system having a fluid barrier
property capable of blocking the passage of harmful
microorganisms through the non-porous treated textile fabric;
selecting a disinfectant such that the disinfectant (i) does
not substantially diminish the fluid barrier property of the
barrier system upon application to the non-porous treated textile
fabric and (ii) kills the harmful microorganisms to obtain a
substantially noncorrosive disinfectant relative to the barrier
system; and
applying the substantially non-corrosive disinfectant to
the non-porous treated textile fabric to kill the harmful
microorganisms residing on the surface of the non-porous
treated textile fabric.
Appeal 2011-008699
Application 11/411,406

3
The Examiner relied on the following references in rejecting the
appealed subject matter:
Peterson US 5,851,457 December 22, 1998
Bullock US 6,251,210 B1 June 26, 2001
Cusack US 2005/0159321 A1 July 21, 2005
Mason Chemical Company (Mason), Material Safety Data Sheet -
Maquat® 86-M (2006)

Appellants, App. Br. 4, request review of the following rejections
from the Examiner’s non-final office action:
I. Claims 2-6, 15-17, 22, and 24-26 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bullock and Cusack.

II. Claims 7-14, 18, 19, 23 and 28 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Bullock, Cusack and Mason.

III. Claims 20, 21 and 27 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Bullock, Cusack and Peterson.

OPINION 1
After thorough review of the respective positions provided by
Appellants and the Examiner, we AFFIRM for the reasons presented by the
Examiner and add the following.
The Examiner found that Bullock discloses a method of making a
non-porous textile fabric water repellent by treating the fabric with an
aqueous primary composition comprising a fluorochemical and
antimicrobial component. Ans. 3-4. The Examiner found that Bullock does

1 We limit our discussion to independent claim 6. However, claims argued
separately will be addressed separately.
Appeal 2011-008699
Application 11/411,406

4
not disclose further disinfecting the treated fabric with a disinfectant
solution. Id. at 4. The Examiner found that Cusack teaches the use of
disinfecting composition to disinfect fabric and textile surfaces to kill
bacteria, fungi and viruses as known. Id.; Cusack, [0001], [0013], and
[0149]. The Examiner concluded that it would have been obvious to one of
ordinary skill in the art to disinfect Bullock’s treated fabric with the
disinfectant composition of Cusack to eliminate the presence of bacteria,
fungi or viruses. Ans. 4.
Appellants argue that, while Cusack discloses the use of disinfectants
on fabrics, Cusack does not contemplate the effects of disinfectants on
treated fabric surfaces, including loss of fluid barrier properties. App. Br. 6.
We are unpersuaded by this argument and agree with the Examiner’s
reasoning. Ans. 8. Appellants have not adequately explained why Cusack’s
disinfectant would substantially diminish the barrier properties of Bullock’s
treated fabric. Appellants have not pointed to a section of Cusack or
directed us to other evidence to support this argument. As set forth above,
Cusack discloses the use of disinfectants for treatment of fabrics. Moreover,
one skilled in the art would not desire to select a composition that would
damage a treated fabric and therefore would have selected a disinfectant that
would not damage (diminish) the treated fabric. See In re Sovish, 769 F.2d
738, 743 (Fed. Cir. 1985) (skill is presumed on the part of one of ordinary
skill in the art); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969).
Accordingly, we sustain the Examiner’s rejection of independent
claim 6 under 35 U.S.C. § 103(a) as unpatentable over Bullock and Cusack.
Appeal 2011-008699
Application 11/411,406

5
We note that the Examiner addresses the limitations of independent
claim 22 and dependent claims 2-5, 15-17 and 24-262 on page 4 of the
Answer. Appellants’ arguments for these claims simply state that Bullock
and Cusack do not disclose certain claim limitations. App. Br. 8-10. We are
unpersuaded by these arguments and agree with the Examiner’s reasoning in
support of the rejection. Ans. 4. Appellants have not established error in the
Examiner’s rejection by identifying portions of Bullock and Cusack that do
not teach or suggest the claimed invention. Thus, we also sustain the
rejection of claims 2-5, 15-17, 22, and 24-26 under 35 U.S.C. § 103(a) as
unpatentable over Bullock and Cusack for the reasons given above.
The Examiner rejected dependent claims 7-14, 18, 19, 23 and 28
under 35 U.S.C. § 103(a) as unpatentable over Bullock, Cusack and Mason.
Id. at 5. The Examiner also rejected claims 20, 21 and 27 under 35 U.S.C.
§ 103(a) as unpatentable over Bullock, Cusack and Peterson. Id. at 6.
Mason and Peterson were cited to meet respective limitations of the
respective sets of dependent claims. Appellants did not substantively
address or further distinguish the cited secondary references based on the
additional limitations of the rejected claims. Id. at 5-6. Therefore, we also
affirm these rejections for the reasons given above and by the Examiner.
ORDER
The rejection of claims 2-6, 15-17, 22, and 24-26 under 35 U.S.C.
§ 103(a) as unpatentable over Bullock and Cusack is affirmed.
The rejection of claims 7-14, 18, 19, 23 and 28 under 35 U.S.C.
§ 103(a) as unpatentable over Bullock, Cusack and Mason is affirmed.

2 We note that Appellants erroneously referred to dependent claim 14 in
arguing this rejection.
Appeal 2011-008699
Application 11/411,406

6
The rejection of claims 20, 21 and 27 under 35 U.S.C. § 103(a) as
unpatentable over Bullock, Cusack and Peterson is affirmed.

TIME PERIOD
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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