Martin Wildeman et al.

Patent Trials and Appeals BoardOct 9, 2019

13275765 - (D) (P.T.A.B. Oct. 9, 2019)

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. 13/275,765 10/18/2011 Martin Wildeman TIE-014A 8682 99722 7590 10/09/2019 J.M. Robertson, LLC P.O. Box 131404 Birmingham, AL 35213 EXAMINER JUSKA, CHERYL ANN ART UNIT PAPER NUMBER 1789 MAIL DATE DELIVERY MODE 10/09/2019 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 MARTIN WILDEMAN, MICHELIS HARDEGREE, WILLIAM D. BELL, ROBERT A. JOHNSON, DAVID K. OSTEEN, and WADE WALLACE Appeal 2018-003394 Application 13/275,765 Technology Center 1700 Before MARK NAGUMO, JAMES C. HOUSEL, and BRIAN D. RANGE, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 2, and 12. We have jurisdiction under 35 U.S.C. § 6(b). 1 Heard September 26, 2019. The Official Transcript will be made of record in due course. 2 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 Tietex International, LTD. Appeal Brief (“Appeal Br.”) filed September 14, 2017, at 1. Appeal 2018-003394 Application 13/275,765 2 We REVERSE.3 CLAIMED SUBJECT MATTER The claims are directed to a cleaning textile sheet element comprising a plurality of ground and pile yarns stitched through a substrate layer. The ground yarns are stitched in spaced rows through the substrate layer and are filament yarns having a linear density between about 20 to about 300 denier with a denier per filament level greater than 1. The pile yarns comprise microdenier fibers and are stitched in surface loop construction through the substrate layer so as to define a discontinuous patterned arrangement of three dimensional surface elements projecting above the ground yarn stitches. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal: 1. A cleaning textile sheet element, the textile sheet element comprising: a substrate layer; and a plurality of ground yarns extending in stitched relation through the substrate layer to form an arrangement of ground yarn stitches disposed in spaced rows along the substrate layer, wherein the ground yarns are filament yarns having a linear density in the range of about 20 denier to about 300 denier and a denier per filament (dpf) level greater than 1; and a plurality of pile yarns comprising micro denier fibers, said pile yarns extending in stitched relation through the substrate layer in surface loop construction such that said pile yarns define a discontinuous patterned arrangement of three-dimensional surface elements projecting above the 3 Our Decision refers to the Specification (“Spec.”) filed October 18, 2011, the Examiner’s Non-Final Office Action (“Non-Final Act.”) dated November 16, 2016, the Examiner’s Answer (“Ans.”) dated December 12, 2017, and Appellant’s Reply Brief (“Reply Br.”) filed February 10, 2018. Appeal 2018-003394 Application 13/275,765 3 ground yarn stitches for wiping and cleaning a surface separate from the textile sheet element and wherein all three- dimensional surface elements projecting above the ground yarn stitches consist entirely of looped pile yarns comprising micro denier fibers, and wherein the pile yarns provide enhanced cleaning performance relative to yarns with a denier per filament (dpf) level greater than 1. Independent claim 2 similarly recites a cleaning textile sheet element comprising a substrate, a plurality of ground yarns stitched in spaced rows through the substrate and having a linear density in the range of about 20 denier to about 300 denier and a denier per filament (dpf) level greater than 1, and a plurality of microdenier fiber pile yarns stitched in surface loop construction through the substrate layer so as to define a discontinuous patterned arrangement of three dimensional surface elements projecting above the ground yarn stitches. REFERENCES Name Reference Date Truong et al. (“Truong”) WO 97/49326 A1 Dec. 31, 1997 Ferenc et al. (“Ferenc”) US 6,500,444 B1 Dec. 31, 2002 Wildeman et al. (“Wildeman”) US 2004/0115388 A1 June 17, 2004 REJECTIONS The Examiner maintains, and Appellant requests our review of, the following grounds of rejection under 35 U.S.C. § 103(a): 1. Claims 1 and 2 as unpatentable over Wildeman and Truong; and 2. Claim 12 as unpatentable over Wildeman and Truong, and further in view of Ferenc. Appeal 2018-003394 Application 13/275,765 4 OPINION Rejection 1: Obviousness over Wildeman and Truong The Examiner rejects claims 1 and 2 under 35 U.S.C. § 103(a) as unpatentable over Wildeman in view of Truong, or alternatively, Truong in view of Wildeman. Ans. 3–8. For the purposes of this appeal, we treat these rejections as a single obviousness rejection over the combination of Wildeman and Truong. See In re Bush, 296 F.2d 491, 496 (CCPA 1961) (“In a case of this type where a rejection is predicated on two references each containing pertinent disclosure which has been pointed out to the applicant, we deem it to be of no significance, but merely a matter of exposition, that the rejection is stated to be on A in view of B instead of on B in view of A, or to term one reference primary and the other secondary.”). After review of the Examiner’s and Appellant’s opposing positions, relative to the applied prior art, Appellant’s claims, and Specification disclosures, we determine that Appellant has identified reversible error in the Examiner’s obviousness rejection of claims 1 and 2. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Accordingly, we reverse this rejection for the reasons set forth in the Appeal and Reply Briefs. The Examiner finds that Wildeman discloses a patterned pile fabric having a stitchbonded construction substantially as claimed, except, among other things, that the pile yarns comprise microdenier fibers. Ans. 3–4. With regard to this missing limitation, the Examiner finds that the use of non- microdenier filaments as ground yarns and microdenier filaments as pile yarns is known in the pile textile art as evidenced by Truong. Id. at 4. The Examiner finds that Truong teaches a cleaning article as recited in claim 1 except for the fabric being a stitchbonded fabric having a discontinuous Appeal 2018-003394 Application 13/275,765 5 pattern of pile yarns. Id. In particular, the Examiner finds that Truong comprises a cloth layer and a support, wherein the cloth layer is a knit fabric comprising ground yarns with a linear density of 40–300 denier per yarn (or, e.g., 4.4 denier per filament) and pile yarns comprising microdenier fibers. Id. In addition, the Examiner finds that while Truong’s construction is circular knit, other fabric constructions may be employed. Id. The Examiner concludes that it would have been obvious to select macrodenier filament ground yarns and microdenier fiber pile loop yarns as taught by Truong for Wildeman’s ground and pile yarns in order to provide a pile fabric having substantial fabric integrity with predictable dimensional stability and microfiber pile yarns for a wiping surface of a cleaning cloth having improved cleaning properties. Id. at 5. Alternatively, the Examiner finds that it would have been obvious to select a stitchbonded construction as taught by Wildeman for Truong’s cloth to a durable cleaning article with substantial fabric integrity capable of withstanding increased scrubbing stress. Id. at 8. Appellant argues that it would not have been obvious to have combined Wildeman and Truong to arrive at the cleaning textile sheet element of claim 1 because, among other things, Truong’s teaching regarding the lack of integrity in its microfiber-containing pile yarns negates any reasonable expectation of success in subjecting such yarns to stitching through a substrate in a surface loop construction. Appeal Br. 5–6. Appellant notes that Truong teaches that these microfibers tend to delaminate or split such that the fiber and pile yarn structures may no longer be observable under a microscope and may be seen arranged in distinct bundles woven into the cloth supported by the ground yarns. Id. Appellant Appeal 2018-003394 Application 13/275,765 6 contends that such a result is inconsistent with Wildeman’s objective of providing a stitchbonded product having substantial fabric integrity. Id. at 6. In addition, Appellant contends that one of ordinary skill in the art would have had no reason to modify Truong to include a stitchbonded construction as taught by Wildeman because neither Truong nor Wildeman teaches any reason why a discontinuous patterned arrangement of surface elements formed by the pile yarn loops would be desired in a cleaning product. Id. at 7. Appellant’s arguments are persuasive of reversible error. Although the Examiner finds that Truong’s teaching that the microfibers delaminate or split is how the microdenier fibers are formed and is independent of the construction of the fabric (Ans. 10), we disagree. Truong expressly teaches that, instead of yarns or the original fibers, the individual microfibers are arranged in distinct side-by-side, substantially parallel bundles woven into the cloth and supported by the ground yarn. Truong 23:13–17. Such a construction is inconsistent with Wildeman’s teaching of providing loops of pile yarns stitched within a substrate having stitched ground yarn having substantial fabric integrity. As Appellant argues, the skilled artisan would not look to modify Wildeman’s pile yarn with Truong’s microfiber containing pile yarn with a reasonable expectation of success, because Truong’s teaching that the microfiber containing pile yarn delaminates or splits to form these distinct bundles of microfibers is contrary to Wildeman’s objective to provide a product suitable as automotive or residential upholstery having substantial fabric integrity. Conversely, the skilled artisan would not look to modify Truong’s circular knit fabric construction with Wildeman’s stitchbonded construction with a reasonable expectation of Appeal 2018-003394 Application 13/275,765 7 success because Wildeman’s use of macrodenier pile and ground yarns in such a construction results in a product with substantial fabric integrity (suitable, e.g., for upholstery: Wildeman ¶ 4), which is inconsistent with Truong’s resulting knitted cloth having distinct microfiber bundles, that is both oleophilic and hydrophilic (Truong 5: 8–9). Also, although Truong teaches that the cloth can be made by known knitting techniques as well as by weaving methods other than by circular knitting (Truong 23:18–19), the Examiner does not direct our attention to any evidence that Wildeman’s stitchbonding process is either a knitting or a weaving method to which the ordinary artisan would have looked for forming Truong’s pile cloth. Accordingly, upon consideration of the record, and for the reasons given above and in the Appeal and Reply Briefs, we do not sustain the Examiner’s obviousness rejections of claims 1 and 2 over the combination of Wildeman and Truong. Rejection 2: Obviousness over Wildeman, Truong, and Ferenc The Examiner rejects claim 12 under 35 U.S.C. § 103(a) as unpatentable over Wildeman and Truong, further in view of Ferenc. Ans. 9. Claim 12 depends from claim 2, and further requires that the substrate is a multi-layer structure comprising a substantially open-pore hydrophobic first layer and a substantially hydrophilic second layer. The Examiner does not rely on Ferenc to remedy the deficiencies in the combination of Wildeman and Truong discussed above. Therefore, for the same reasons that we do not sustain the Examiner’s obviousness rejections of claims 1 and 2, we likewise do not sustain the Examiner’s obviousness rejection of claim 12. Appeal 2018-003394 Application 13/275,765 8 CONCLUSION In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 1, 2 103(a) Wildeman, Truong, 1, 2 12 103(a) Wildeman, Truong, Ferenc 12 Overall Outcome 1, 2, 12 REVERSED