Ex Parte Woods et alDownload PDFPatent Trial and Appeal BoardDec 12, 201713436200 (P.T.A.B. Dec. 12, 2017) Copy Citation 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). 2 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). 3 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 4 Copy with citationCopy as parenthetical citation