Milliken & Company

Patent Trials and Appeals Board

Jan 14, 2022

2020006716 (P.T.A.B. Jan. 14, 2022)

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. 15/624,758 06/16/2017 Daniel T. McBride 6660B 5245 25280 7590 01/14/2022 Legal Department (M-495) P.O. Box 1926 Spartanburg, SC 29304 EXAMINER KHAN, AMINA S ART UNIT PAPER NUMBER 1761 NOTIFICATION DATE DELIVERY MODE 01/14/2022 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): patents@milliken.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL T. McBRIDE, JENNY S. KIMBRELL, SIMON X. ZHANG, and TAMMY WALKER Appeal 2020-006716 Application 15/624,758 Technology Center 1700 Before TERRY J. OWENS, LILAN REN, and SHELDON M. McGEE, Administrative Patent Judges. REN, 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 1-5 and 7. See Final Act. 3, 5. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 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 Milliken & Company. Appeal Br. 2. Appeal 2020-006716 Application 15/624,758 2 CLAIMED SUBJECT MATTER Claims 1 and 2, reproduced below, are illustrative of the claimed subject matter: 1. A printing process comprising selective and pre- determined placement of color that results in at least two colors on a single yarn bundle incorporated into a textile substrate, wherein the bundle is comprised of yarns having differential uptake of dye, and wherein the placement of color occurs after the yarn bundle has been incorporated into the textile substrate. 2. A process for manufacturing a printed carpet tile comprising the following steps: a. Providing a tufted carpet tile with two or more yarn types having differential uptake of dye; b. Printing the tufted carpet tile with at least one of an acid dye and a basic dye wherein the dye has a viscosity of less than 15 cp; and c. Steaming the printed carpet tile. Claims Appendix (Appeal Br. 11). REFERENCES The Examiner’s rejections rely on the following prior art references: Name Reference Date Magee US 2002/0012764 Al Jan. 31, 2002 Kang US 2004/0172773 Al Sept. 9, 2004 Bohrn US 4,222,740 Sept. 16, 1980 Evans US 5,958,118 Sept. 28, 1999 Appeal 2020-006716 Application 15/624,758 3 REJECTIONS2 The Examiner maintains the following rejections: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis 1 102(a)(1)/(a)(2) Magee 1 103(a) Kang 1 103(a) Bohrn 2-5, 7 103(a) Kang, Evans 2-5, 7 103(a) Bohrn, Kang, Evans OPINION We review the appealed rejections for error based upon the issues Appellant identifies and in light of the arguments and evidence produced thereon. Cf. 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 having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner’s rejections under 35 U.S.C. §§ 102 and 103 for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. 2 The Examiner withdraws the rejection of claim 1 under section 103 over Kang and Evans and the rejection under section 103 over Bohrn, Kang, and Evans. Ans. 9. The Examiner enters a new ground of rejection of claim 1 under section 103 over Kang and a new ground of rejection of claim 1 under section 103 over Bohrn. Id. at 7, 8. Appeal 2020-006716 Application 15/624,758 4 Obviousness Rejection of Claim 1 (Kang) The Examiner enters a new ground of rejection of claim 1 over Kang. Ans. 6. Appellant does not argue against this new ground of rejection. No reply brief was filed. We therefore summarily sustain the rejection of claim 1 over Kang. Obviousness Rejection of Claim 1 (Bohrn) The Examiner enters a new ground of rejection of claim 1 over Bohrn. Ans. 8. Appellant does not argue against this new ground of rejection. No reply brief was filed. We therefore summarily sustain the rejection of claim 1 over Bohrn. Anticipation Rejection of Claim 1 (Magee) Appellant argues that the Examiner reversibly erred in finding that Magee anticipates claim 1 because paragraphs 55 and 88 of Magee do not disclose the recited process which “results in at least two colors on a single yarn bundle incorporated into a textile substrate, wherein the bundle is comprised of yarns having differential uptake of dye, and wherein the placement of color occurs after the yarn bundle has been incorporated into the textile substrate.” Appeal Br. 4-5. Appellant’s argument is unpersuasive because the argument does not address - and therefore does not dispute - the bulk of the fact findings on which the Examiner relies in support of the rejection. For example, the Examiner cites paragraphs 18, 51-59, 79, 87, 88, 90-92 as well as the abstract and various claims and figures of Magee in support of the rejection. Final Act. 3, 6-7; Ans. 10. Appellant’s argument, based solely on paragraphs 55 and 88 of Magee, does not identify reversible error in the Examiner’s fact findings as a whole and is unpersuasive. Appeal 2020-006716 Application 15/624,758 5 Obviousness Rejection of Claims 2-5 & 7 (Kang & Evans)3 Appellant argues that the Examiner reversibly erred in rejecting claims 2-5 and 7 over Kang and Evans because “Kang teaches away from low viscosity dyes” whereas “Evans teaches low viscosity dyes” and a skilled artisan would not have combined the references. Appeal Br. 6-7 (citing paragraphs 47 and 72 of Kang). Appellant’s argument is unpersuasive. Under the proper legal standard, a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant’s invention. A statement that a particular combination is not a preferred embodiment does not teach away absent clear discouragement of that combination. Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005) (citations omitted). As the Examiner in this case points out, “Kang does not prohibit the use of low viscosity dyes in cases where some in situ blending is desired . . . .” Final Act. 7. The Examiner’s finding is supported by Kang’s teaching. More specifically, Kang teaches certain embodiments of a viscosity range of about 50 to 1000 centipoise or about 800 to 5000 centipoise, depending on the device used and operating conditions. Kang ¶ 72 (cited on Appeal Br. 6). Kang also provides: “In order to enhance in situ blending it is generally 3 Appellant argues against the obviousness rejection of claims 2-5 and 7 as a group with respect to the rejection over Kang and Evans. See Appeal Br. 6- 7. Appellant does not present arguments specific to any particular one of the claims. See generally id. We select claim 2 as the representative claim for the rejection over Kang and Evans. Claims 2-5 and 7 stand or fall together with respect to the rejection over Kang and Evans. See id. Appeal 2020-006716 Application 15/624,758 6 known that the viscosity of the dye solution may be reduced so as to promote pixel to pixel dye migration.” Kang ¶ 47 (cited on Appeal Br. 6). To the extent that Kang also states that “such reduced viscosity may also lead to the inability to achieve substantial definition or high relief in regions of the applied pattern” and other potential issues (Kang ¶ 47), such a teaching of the effect of viscosity on certain aspect of yarn production does not “criticize, discredit, or otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). We also emphasize that “a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine.” Medichem, S.A. v. Rolabo S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006). Moreover, the Examiner finds that whereas “[p]aragraph 0072 [of Kang] only indicated viscosity ranges for a particular device and is a preferred embodiment and not limiting,” other portions of Kang teach to “allow for optimization to values of thickener to adjust viscosity for optimal ejection performance . . . .” Ans. 11 (citing Kang ¶¶ 70-72); see also Final Act. 7. Appellant does not address these findings by the Examiner. Appeal Br. 6-7. The Examiner finds that Evans teaches various advantages of using a viscosity of lower than 10. Ans. 11; Final Act. 4-5 (providing a rationale to combine the references based on the prior art teachings). Appellant does not address these findings based on Evans. Appeal Br. 6-7. “Non- obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). No reversible error has been identified in this aspect of the obviousness analysis. Appeal 2020-006716 Application 15/624,758 7 Obviousness Rejection of Claims 2-5 & 7 (Bohrn, Kang, & Evans)4 Appellant argues that the Examiner reversibly erred in rejecting claims 2-5 and 7 over Bohrn, Kang, and Evans because “Bohrn teaches away from low viscosity dyes” whereas “Evans teaches low viscosity dyes” and a skilled artisan would not have combined the references. Appeal Br. 9 (citing Example III of Bohrn). Appellant’s argument is unpersuasive. As noted above, “a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant’s invention. A statement that a particular combination is not a preferred embodiment does not teach away absent clear discouragement of that combination.” Syntex (U.S.A.) LLC, 407 F.3d at 1380. As the Examiner in this case points out, Bohrn’s teachings are not limited to one particular embodiment. Final Act. 7; Ans. 12. Bohrn teaches various embodiments and a range of viscosities. For example, Example V of Bohrn teaches a process using a viscosity of about 30 centipoise. Bohrn 7:34 (Example V). Bohrn also provides: “One skilled in the pile fabric art will readily recognize from the following examples that the following criteria -viscosity of the gelable composition, viscosity of the gelling agent composition, percent pickup of the compositions, methods of application, pile fabric construction, etc. - can be separately or 4 Appellant argues against the obviousness rejection of claims 2-5 and 7 as a group with respect to the rejection over Bohrn, Kang, and Evans. See Appeal Br. 8-9. Appellant does not present arguments specific to any particular one of the claims. See generally id. We select claim 2 as the representative claim for the rejection over Bohrn, Kang, and Evans. Claims 2-5 and 7 stand or fall together with respect to the rejection over Bohrn, Kang, and Evans. See id. Appeal 2020-006716 Application 15/624,758 8 collectively chosen to provide the desired amount of pile penetration” and other effects. Bohrn 4:55-61. The record therefore supports the Examiner’s finding that adjusting the viscosity for a particular result is within the ordinary skill. See Final Act. 6 (providing a rationale to combine Bohrn, Kang, and Evans); Ans. 12 (“Bohrn is combined with the teachings of Kang and Evans . . . for optimization of the viscosity and known effectiveness of viscosities of less than 15 cps providing treated textiles with improved print quality, lightfastness, optical density, reduced clogging of the print head and jets, and improved color.”). Certain examples in Bohrn which use higher viscosities does not “criticize, discredit, or otherwise discourage the solution claimed.” Fulton, 391 F.3d at 1201. As with the rejection based on Kang and Evans, Appellant does not address the Examiner’s findings with regard to Evans’s teachings of the advantageous use of a lower viscosity. See Appeal Br. 8-9. “Non- obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” Merck, 800 F.2d at 1097. We are thus unpersuaded that reversible error has been identified. CONCLUSION The Examiner’s rejections of all claims are is affirmed. DECISION SUMMARY In summary: Appeal 2020-006716 Application 15/624,758 9 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 102(a)(1)(a)(2) Magee 1 1 103(a) Kang 1 1 103(a) Bohrn 1 2-5, 7 103(a) Kang, Evans 2-5, 7 2-5, 7 103(a) Bohrn, Kang, Evans 2-5, 7 Overall Outcome 1-5, 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