Forest Edward. Bolton

Patent Trials and Appeals BoardDec 10, 2020

2018005999 (P.T.A.B. Dec. 10, 2020)

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. 14/695,371 04/24/2015 Forest Edward Bolton N016 P02827-US1 8268 3017 7590 12/10/2020 BARLOW, JOSEPHS & HOLMES, LTD. 40 WESTMINSTER STREET 3RD FLOOR PROVIDENCE, RI 02903 EXAMINER LE, NINH V ART UNIT PAPER NUMBER 1744 NOTIFICATION DATE DELIVERY MODE 12/10/2020 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): drj@barjos.com patent@barjos.com sjh@barjos.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FOREST EDWARD BOLTON Appeal 2018-005999 Application 14/695,371 Technology Center 1700 Before JAMES C. HOUSEL, MONTÉ T. SQUIRE, and JANE E. INGLESE, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, and 5–7. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.2 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Corona Curtain Mfg. Co., Inc. Appeal Brief (“Appeal Br.”) filed December 4, 2017, 1. 2 This Decision also cites to the Specification (“Spec.”) filed April 24, 2015, and the Examiner’s Answer (“Ans.”) dated March 19, 2018. Appeal 2018-005999 Application 14/695,371 2 CLAIMED SUBJECT MATTER The invention relates to a fabric processing method for reducing thermal energy transfer through the fabric. Spec. ¶ 2. Appellant discloses that it would be beneficial to have an insulative window covering without any appreciable increase in thickness and weight, or impact on aesthetics and processability. Id. ¶ 7. In addition, Appellant discloses that, if properly processed, the resulting material may be transparent or translucent. Id. As such, Appellant discloses a method for processing fabrics to enhance thermal performance while maintaining their light and sheer decorating value and aesthetic appearance. Id. ¶ 9. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the claimed subject matter: 1. A method for improving the thermal resistance of a sheer fabric, comprising: providing a sheer fabric; passing the sheer fabric between a first steel roller and a second opposing composition roller; and compressing said sheer fabric using controlled heat and pressure to partially flatten and fuse fibers forming said fabric, wherein said flattened and fused fibers reduce interstitial voids within the fabric thereby enhancing a thermal resistance of said fabric said fabric remaining sheer and translucent. Appeal 2018-005999 Application 14/695,371 3 REFERENCES The Examiner relies on the following prior art: Name Reference Date DeFranks US 7,827,637 B2 Nov. 9, 2010 Rouanet et al. (“Rouanet”) US 2006/0125158 A1 June 15, 2006 Goldberg US 2008/0096450 A1 Apr. 24, 2008 Clarke et al. (“Clarke”) US 2014/0196194 A1 July 17, 2014 Nielsen Interior Textiles: Fabrics, Application, and Historic Style, John Wiley & Sons, pp. 50, 183– 184. July 10, 2007 Majumdar et al. (“Majumdar”) Process Control in Textile Manufacturing, Elsevier, pp. 380, 383. Nov. 27, 2012 Nononsense http://www.nononsense.com/by - opacity/sheer-30-denier.htm REJECTION The Examiner maintains, and Appellant requests our review of, the rejection of claims 1, 3, and 5–7 under 35 U.S.C. §103 as unpatentable over Goldberg in view of DeFranks, Nielson, Majumdar, and Rouanet, and as evidenced by Nononsense and Clarke. OPINION We review the appealed rejection for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”). After considering the Appeal 2018-005999 Application 14/695,371 4 argued claims and each of Appellant’s arguments, we are not persuaded of reversible error in the Examiner’s obviousness rejection. Therefore, we affirm the stated rejection for substantially the fact findings, reasoning, and conclusion of obviousness set forth in the Examiner’s Answer, which we adopt as our own. We offer the following for emphasis only. Appellant argues all the claims together. We select claim 1 as representative; claims 3 and 5–7 stand or fall with claim 1. 37 C.F.R. §41.37(c)(1)(iv) (2017). The Examiner finds that Goldberg teaches a method for improving thermal resistance of a sheer fabric as recited in claim 1, except wherein the calendaring is performed with a first steel roller and a second opposing composition roller, the fabric’s fibers are fused, and the fabric is translucent. Ans. 4–5. The Examiner finds that Goldberg teaches that the fabric’s yarn may have a denier of 30, which the Examiner finds is a denier that is well-known in the textile industry to be sheer, as evidenced by Nononsense and Clarke. Id. at 4. In addition, the Examiner finds that Goldberg teaches that the fabric density may be controlled to a desired level and that the fabric is breathable and waterproof to resist allergen transmission, which makes it suitable for mattress protectors. Id. at 5. Next, the Examiner finds DeFranks teaches that both mattress covers and window treatments can be provided with waterproofing and antimicrobial properties. Ans. 5. The Examiner finds that Nielson teaches window treatments are known to be sheer and lightweight translucent for screening out bright light to decrease or eliminate irritating glare and the harshness and temperature intensity of direct sunlight to make the interior more comfortable, and to provide daylight privacy. Id. at 5–6. The Examiner Appeal 2018-005999 Application 14/695,371 5 also finds Nielson teaches that such fabrics are known to be embossed using heat and pressure to enhance aesthetic appeal. Id. at 6. Further, the Examiner finds Majumdar teaches that fabrics are known to be embossed using an embossed calendar comprising a hardened steel top metal roller and a softer composition roller. Id. Finally, the Examiner finds that Rouanet teaches the temperature of hot calendaring is a result effective variable that affects the fabric density and enables the fabric fibers to be thermally bonded, i.e., fused, when compressed. Id. The Examiner concludes that it would have been obvious to modify Goldberg’s process to use 30 denier yarn for a sheer and translucent fabric, wherein the hot calendaring is performed using a hardened steel embossing roller and opposing softer composition roller while controlling the temperature, so as to improve the fabric’s aesthetic appeal and strength. Ans. 6–7. Appellant argues that Goldberg uses yarn having from 30–150 denier at a high density of between 75–205 yarns/inch2, whereas sheer fabrics are “defined as being formed from yarns between 3 denier and 30 denier using a very low density knit.” Appeal Br. 3, 4. Appellant contends that both Clarke and Nononsense contradict the Examiner’s finding that Goldberg teaches sheer fabrics because Clarke and Nononsense identify that sheer linear density must be less than 30 denier, whereas Goldberg discloses fabrics greater than 30 denier. Id. at 4. As such, Appellant contends that the Examiner erred in finding Goldberg teaches sheer fabrics. Id. This argument is not persuasive of reversible error because it mischaracterizes the teachings of Goldberg, Clarke, and Nononsense. As the Examiner finds (Ans. 16), Goldberg teaches that the yarns used to make the Appeal 2018-005999 Application 14/695,371 6 fabric may have a denier “ranging from 30 to 150.” Goldberg ¶ 30. Goldberg also teaches that relatively small denier yarns aid in decreasing the vacant spaces in between the intersection of the yarns. Ans. 16; Goldberg ¶ 30. Goldberg clearly contemplates the use of yarns of 30 denier, not just yarns greater than 30 denier. Moreover, we note that Appellant fails to identify any evidentiary support for the assertion that sheer fabrics are defined to have a very low density knit. Ans. 18. Notwithstanding this fact, as the Examiner notes (id. at 16), neither the Specification nor the claims provide any description, much less definition, of a sheer fabric, and in particular, the density of the fabric or its weave. Also, the Examiner finds that Goldberg does not teach that the density of the fabric, and specifically a fabric using 30 denier yarn, is high or that a 75 yarn/inch2 fabric has a high density. Id. at 16. Appellant does not rebut or otherwise address this finding. To the contrary, the Examiner also finds that Goldberg teaches that “other suitable densities may be employed” (id. at 5; Goldberg ¶ 31), suggesting that density may be controlled to achieve a desired fabric density. Although Appellant urges that Clarke and Nononsense teach that sheer fabrics use yarns of less than 30 deniers, Clarke teaches “[i]n the apparel industry, a material is generally considered to be sheer if it has linear fiber density of about 30 denier or less” (Clarke ¶ 23), and Nononsense teaches “Sheer 30 Denier (/By-Opacity/Sheer-30-Denier.Htm)” (Nononsense). Contrary to Appellant’s contentions, neither reference excludes 30 denier yarns within their definitions of sheer fabrics. Therefore, a preponderance of the evidence supports the Examiner’s determination that Goldberg’s teaching encompasses sheer fabrics as it teaches using 30 denier yarns. Appeal 2018-005999 Application 14/695,371 7 Appellant further argues the Examiner’s finding that Goldberg teaches a sheer fabric with improved thermal resistance is unsupported. Appeal Br. 4–6. Appellant contends that although the Examiner determines that the proposed combination of prior art provides an embossed drapery by embossing patterns into the drapery while controlling fabric density to eliminate glare, filter harsh sunlight, and enhance fabric strength, none of these benefits provides a method for improving the thermal resistance of a sheer fabric. Id. at 6. This argument is not persuasive of reversible error because Goldberg’s method, as modified in light of the teachings of the remaining applied prior art, compresses fabrics, including a sheer fabric, using controlled heat and pressure to partially flatten and fuse fibers forming the fabric, such that interstitial voids with the fabric are reduced. As the Examiner finds (Ans. 19), Goldberg specifically teaches that the fabric, which as discussed above may be sheer, is hot calendared, which entails compressing the fabric with heat and pressure to flatten and widen the yarns, thereby reducing interstitial voids within the fabric. Goldberg ¶ 40. Although Goldberg does not appear to recognize that the result of this compression is an improvement in thermal resistance, the Examiner reasonably concludes (Ans. 19) that there would necessarily be some improvement in thermal resistance in the fabric since Goldberg’s process achieves the same flattening of the yarns or fibers and reduction of interstitial voids which Appellant attributes the improvement in thermal resistance. With regard to Appellant’s contention that the benefits the Examiner finds in the prior art are not related to thermal resistance, as the Examiner explains (Ans. 13–15), these benefits would have motivated those of Appeal 2018-005999 Application 14/695,371 8 ordinary skill in the art to have combined the teachings of the prior art to arrive at the claimed invention. It is well settled that the reason for combining references need not be identical to that of the applicant in order to establish obviousness. See In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996); In re Dillon, 919 F.2d 688, 693 (Fed. Cir. 1990), cert. denied, 500 US 904 (1991). “As long as some motivation or suggestion to combine the references is provided by the prior art taken as a whole, the law does not require that the references be combined for the reasons contemplated by the inventor.” In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). The Supreme Court has articulated this same sentiment when emphasizing that the patentee’s motivation and purpose do not control an obviousness determination: In determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Appellant next argues that the Examiner’s finding regarding Rouanet has been taken out of context and is in error. Appeal Br. 5. In particular, Appellant contends that Rouanet teaches that permanent bonds between the fibers are achieved with an adhesive, rather than via thermal fusion. Id. Appellant also contends that Rouanet’s addition of adhesives, binders, aerogels, or latex rubber to Goldberg’s fabric would make the fabric denser and heavier, which is inconsistent with the use of a sheer fabric. Id. This argument is not persuasive of reversible error because Rouanet teaches, as an alternative to adhesive bonding, fusion bonding of the fabric Appeal 2018-005999 Application 14/695,371 9 fibers in a process similar to that of Goldberg. As the Examiner explains (Ans. 19–20), Rouanet teaches that a fabric may be hot calendared using a hot calendar roll, which applies sufficient temperature and pressure to produce a fabric of desired density. Rouanet ¶ 54. Rouanet further teaches that “permanent bonds are formed when the fibers touch each other as a result of heat treatment, especially when the fibers are thermoplastic.” Id. ¶ 56. In addition, Rouanet reinforces that, when using thermoplastic fibers, the fibers are fused together. Id. ¶ 33. Thus, the fact that Rouanet teaches adhesive bonding as an alternative does not negate Rouanet’s fusion bonding teaching. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We have considered Appellant’s remaining arguments and find none that warrant reversal of the obviousness rejection for the reasons clearly articulated by the Examiner in the Examiner’s Answer, which we adopt herein as our own. Cf. In re Antor Media Corp., 689 F.3d 1282, 1294 (Fed. Cir. 2012). Accordingly, we sustain the Examiner’s § 103 of the claims on appeal over the applied prior art. CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Examiner’s Answer, the Examiner’s decision to reject claims under 35 U.S.C. § 103 is affirmed. Appeal 2018-005999 Application 14/695,371 10 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 5–7 103 Goldberg, DeFranks, Nielson, Majumdar, Rouanet, Nononsense, Clarke 1, 3, 5–7 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED