Ex Parte Woods et al

Patent Trial and Appeal Board

Dec 12, 2017

13436200 (P.T.A.B. Dec. 12, 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.
13/436,200 03/30/2012 William Thomas Woods II 4516-00200 4197
30652 7590
CONLEY ROSE, P.C.
5601 GRANITE PARKWAY, SUITE 500
PLANO, TX 75024
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
12/13/2017 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 WILLIAM THOMAS WOODS II,
ANTHONY MICHAEL TAVARES,
DOUGLAS STANLEY LUMB, and
DANIEL L. ENGLISH
Appeal 2017-004399
Application 13/436,200
Technology Center 1700
Before, KAREN M. HASTINGS, AVELYN M. ROSS, and
SHELDON M. McGEE, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
final rejection of claims 1—20 under 35 U.S.C. § 103(a) over at least the
basic combination of Brown (US 3,452,411 issued July 1, 1969), Stanhope
1 SWNR Development, LLC, and Gehring-Tricot Corporation are stated to
be the real parties in interest (Br. 3).
Appeal 2017-004399
Application 13/436,200
(US 5,694,981 issued Dec. 9, 1997), and Goff (US 3,965,943 issued June 29,
1976 ).2 We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is representative of the claimed invention:
1. A multi-direction stretch fabric, comprising:
a warp formed from first wrapped elastic fibers immediately
adjacent to one another; and
a weft formed from two different fibers, one of the two different
fibers consisting of a nonstretch fiber and a second of the two
different fibers comprising a second wrapped elastic fiber, the non­
stretch fiber interlaced through the warp in a repeating half basket
pattern alternating with the second wrapped elastic fiber interlaced
through the warp in a repeating plain weave pattern such that each of
the non-stretch fibers has the second wrapped elastic fibers
immediately adjacent thereto on both sides.
Appellants rely upon the arguments for claim 1 for all the claims,
including those separately rejected (Br. 11).
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusion that the subject matter of
Appellants’ independent claim 1 is unpatentable over the applied prior art.
We sustain the Examiner’s 103(a) rejections based on the findings of fact,
conclusions of law, and rebuttals to arguments expressed by the Examiner in
the Answer.
2 The Examiner additionally applied Irwin (US 4,125,922, issued Nov. 21,
1978) to claims 11—13, 15, and 19 (Final Action 8). Appellants rely upon
the arguments for claim 1 for all the claims (Br. 11).
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Appeal 2017-004399
Application 13/436,200
We add the following for emphasis.
There is no dispute that Brown exemplifies a fabric wherein the weft
is formed of both wrapped elastic fibers and nonstretch fibers that may be
woven in a pattern as exemplified in Goff (generally Ans., Br.). Rather,
Appellants’ argue that Brown teaches away from the present invention
having all its warp fibers being wrapped elastic fibers because Example 1
therein states there are no elastic yams in the warp direction of the fabric
(Br. 5) and that any modification to Brown renders Brown unsatisfactory for
its intended purpose (Br. 6). Appellants further argue that there is no
motivation to combine Brown with Stanhope absent use of impermissible
hindsight (Br. 7—10). These arguments are not persuasive of error for the
reasons well stated by the Examiner (Ans. 7—11).
Whether the prior art teaches away from the claimed invention is a
question of fact, In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). It is
well established that a prior art reference must be considered in its entirety,
i.e., as a whole, when determining if it would lead one of ordinary skill in
the art away from the claimed invention. IV. L. Gore & Assoc, Inc. v.
Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983). See Syntex (U.S.A.)
LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005) (“A statement that
a particular combination is not a preferred embodiment does not teach away
absent clear discouragement of that combination.”). As pointed out by the
Examiner, and contrary to Appellants’ position, Brown explicitly states the
“stretch properties can be in warp, weft, or in both directions of the cloth”
(Brown col. 2,11. 1—2). Stanhope also exemplifies that wrapped elastic
fibers may be in both warp and weft directions of a fabric, or used in either
direction (Stanhope col. 3,11. 35—45).
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Appeal 2017-004399
Application 13/436,200
The Examiner’s position that the artisan of ordinary skill would weigh
the advantages and disadvantages of stretch provided by wrapped elastic
fibers in both warp and weft directions based on Brown’s and Stanhope’s
teachings is reasonable (generally Ans. 8, 9). “The fact that the motivating
benefit comes at the expense of another benefit, however, should not nullify
its use as a basis to modify the disclosure of one reference with the teachings
of another. Instead, the benefits, both lost and gained, should be weighed
against one another.” Winner Int'l Royalty Corp. v. Wang, 202 F.3d 1340,
1349 n. 8 (Fed. Cir. 2000).
Furthermore, under the flexible inquiry set forth by the Supreme
Court, the PTO must take account of the “inferences and creative steps,” or
even routine steps, that an ordinary artisan would employ. Ball Aerosol and
Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed.
Cir. 2009) (citation omitted). It is well settled that a reference stands for all
of the specific teachings thereof as well as the inferences one of ordinary
skill in the art would have reasonably been expected to draw therefrom. See
In re Fritch, 972 F.2d 1260, 126A-65 (Fed. Cir. 1992).
In light of these principles, a preponderance of the evidence supports
the Examiner’s rejections of the claims. “A person of ordinary skill is also a
person of ordinary creativity, not an automaton.” KSR Int’l. Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007).
The decision of the Examiner 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).
AFFIRMED
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