Ex Parte Wartmann

Patent Trial and Appeal Board

Apr 14, 2016

13430276 (P.T.A.B. Apr. 14, 2016)

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.
13/430,276 03/26/2012 Stephan Beat Wartmann 155.102CON 6553
22846 7590 04/15/2016
BRIAN ROFFE, ESQ
9206 Avers Avenue, Unit 2
Evanston, IL 60203-1502
EXAMINER
MUROMOTO JR, ROBERT H
ART UNIT PAPER NUMBER
3765
MAIL DATE DELIVERY MODE
04/15/2016 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 STEPHAN BEAT WARTMANN
____________
Appeal 2014-002242
Application 13/430,276
Technology Center 3700
____________

Before JOHN C. KERINS, STEFAN STAICOVICI and
MICHAEL C. ASTORINO, Administrative Patent Judges.

KERINS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Stephan Beat Wartmann (Appellant) seeks our review under
35 U.S.C. § 134(a) of the Examiner’s final rejection of claims 1, 3–11, and
13–20. Claims 2 and 12 are canceled. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.

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THE INVENTION
Appellant’s invention is directed to a protective net, especially for
rockfall protection or for verge securing. Spec. 1, ll. 6–7. Independent
claim 1, reproduced below, is illustrative:
1. Protective net which is formed by means of a diagonal
weave produced from wires and forming a three-dimensional,
mattress-like structure, wherein the diagonal weave is woven
from wire strands, from wire bundles, or from wire cables,
each of the wire bundles or wire cables incorporating two
or more wires or wire strands made of steel,
each of the wire bundles or wire cables of the diagonal
weave being spiral-shaped and consisting of straight sections that
alternate with bent sections, and
in each of the straight sections, the wires or wire strands
of the wire bundles or wire cables being twisted one about
another
wherein the wires, wire strands, wire cables, or wire
bundles are made from high tensile steel.

THE REJECTION ON APPEAL1
The Examiner has rejected claims 1, 3–11, and 13–20 under 35 U.S.C.
§ 102(b) as being anticipated by Eicher (US 6,279,858 B1, issued Aug. 28,
2001).
ANALYSIS
Appellant presents the same arguments directed to independent claims
1 and 11, and presents no arguments for the separate patentability of
dependent claims 3–8 and 13–20, nor for the separate patentability of

1 A rejection of claims 9, 10, 19, and 20 under 35 U.S.C. § 101 has been
withdrawn. Ans. 2. A rejection of claims 1–10, 19, and 20 under 35 U.S.C.
§112, second paragraph, has been withdrawn. Id.
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method claims 9 and 10. Accordingly, we will take claim 1 as
representative, and claims 3–11 and 13–20 stand or fall with claim 1.
Appellant contends that “Eicher does not disclose that a wire bundle
or wire cable, which itself includes two or more wires, has straight parts and
bent parts alternating with one another, and that in each of the straight
sections, the (two or more) wires or wire strands of the wire bundles or wire
cables are twisted one about another.” Appeal Br. 10. Appellant further
submits that the sentence at column 2, lines 56–58 of Eicher, stating that
“wires are used for these heavy-duty steel wires 11, 12, 13, 14 which are
twisted into stranded wires,” cannot imply that the straight sections of the
wires are twisted about one another. Id. Instead, Appellant argues, Figure 8
of Eicher shows a partial view of known wire netting with stranded wires
and such wires are only twisted about each other in the bent sections. Id.
The Examiner maintains that Eicher discloses “that the term wire can
and does include multiple strands twisted with themselves” as well as
“straight and bent sections of wire” and concludes that such straight and bent
sections of wire include multiple strands twisted together. Ans. 2. The
preponderance of the evidence supports the Examiner’s position.
First, Appellant’s reliance on Figure 8 of Eicher is misplaced. That
figure is referred to in several instances as “a known wire netting,” and not
as part of the Eicher invention. See, e.g., Eicher, col. 1, l. 12; col. 2, ll. 35–
36; col. 5, ll. 11–13. Further, although Eicher refers to the netting in Figure
8 as including the “stranding of two wires” together (col. 1, ll. 18–19) and
that the net has “stranded points” (col. 1, ll. 19–20), the term “stranded” is
used in a different context in relation to the Eicher structure, namely not in
reference to the net, as with Figure 8, but rather with reference to each wire.
Where Eicher refers to the individual wires being formed into a net, Eicher
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does not refer to “stranding,” but instead describes the wires as being “bent
into a spiral shape . . . and interwoven with one another.” Id. at col. 3,
ll. 35–37.2
Eicher discloses that the “wires . . . used for . . . wires 11, 12, 13, and
14 . . . are twisted into stranded wires.” Eicher, col. 2, ll. 56–58. That is,
Eicher refers to each of wires 11, 12, 13, and 14 as being a stranded wire
made up of plural wires twisted together. This is further evidenced in the
recitation in claim 2 of Eicher that the “heavy-duty steel wire . . . is
comprised of stranded steel wires or spring steel wire.” Such disclosure is
consistent with the Examiner’s determination that the straight sections of
Eicher’s individual wires, e.g., wires 11, 12, 13, and 14 of Figure 1, in at
least one embodiment each comprise multiple strands twisted about one
another.
In view of the foregoing, we are not apprised of Examiner error with
respect to the rejection of claim 1 as being anticipated by Eicher. We thus
sustain the rejection of claim 1, and claims 3–11, and 13–20 fall with claim
1.
DECISION
The decision of the Examiner to reject claims 1, 3–11, and 13–20
under 35 U.S.C. § 102(b) as anticipated by Eicher 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)(1)(iv).

2 The reference in Eicher to Figure 8 showing two wires stranded together is
of some value, in that it evidences that Eicher understands that “stranding”
involves the twisting together of two or more wires. See Eicher, Fig. 8;
col 1, ll. 14–21.
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AFFIRMED