Shulong Li et al.

Patent Trials and Appeals Board

Sep 24, 2019

14022883 - (D) (P.T.A.B. Sep. 24, 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.
14/022,883 09/10/2013 Shulong Li 6715A 4925
25280 7590 09/24/2019
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
TATESURE, VINCENT
ART UNIT PAPER NUMBER
1786
MAIL DATE DELIVERY MODE
09/24/2019 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 SHULONG LI,
J. TRAVIS GREER, and JAMES D. CLIVER
____________

Appeal 2018-009171
Application 14/022,883
Technology Center 1700
____________
Before GEORGE C. BEST, DONNA M. PRAISS, and
MICHAEL G. McMANUS, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6, 8–17, and 19–27 of Application
14/022,883. Final Act. (June 20, 2017). We have jurisdiction under 35
U.S.C. § 6(b).
For the reasons set forth below, 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 2018-009171
Application 14/022,883
2
BACKGROUND
The ’883 Application describes yarns, textile materials, and garments
exhibiting flame resistant properties. Spec. ¶ 1. In particular, the yarn
comprises a mixture of regenerated cellulose fiber comprising a flame
retardant compound and para-aramid fiber. Id. ¶ 4. The Specification further
describes textile materials and garments made from such yarns. Id. ¶¶ 5–9.
Claim 1 is representative of the ’883 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A yarn comprising:
(a) about 45% to about 85% by weight of regenerated
cellulose fibers, the regenerated cellulose fibers having a dry
tenacity of about 27 cN/tex or more, the regenerated cellulose
fibers comprising a flame retardant compound within the fiber,
wherein the flame retardant compound is a phosphorus-
containing flame retardant compound produced by reacting (i) a
tetrahydroxymethyl phosphonium salt, a condensate of a
tetrahydroxymethyl phosphonium salt, or a mixture thereof and
(ii) a cross-linking agent; and
(b) about 5% to about 25% by weight of para-aramid
fibers.
Appeal Br. 8.
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Application 14/022,883
3
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1–6, 8–17, and 19–27 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Gstettner2 and Li.3
Answer 4; Final Act. 2–4.
2. Claims 1–6, 8–17, and 19–27 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Gstettner, Li, and
Engineered Fibers Technology.4 Answer 4; Final Act. 4–6.
DISCUSSION
Appellant argues for reversal of the rejections of claims 1–6, 8–17,
and 19–27 as a group. Appeal Br. 4–6. We select independent claims 1 and
12 as representative of the claims on appeal. 37 C.F.R. § 41.37(c)(1)(iv).
Each dependent claim will stand or fall with its parent independent claim. Id.
Moreover, because Appellant’s arguments do not differentiate between
independent claim 1 and independent claim 12, we limit our discussion to
independent claim 1 with the understanding that it applies with equal force
to independent claim 12.
In rejecting claim 1, the Examiner relied upon Gstettner as describing
a yarn having the claimed fiber composition that has been treated with a
flame retardant composition. Final Act. 2–3. The Examiner further found
that Gstettner does not specifically describe the flame retardant composition

2 WO 2012/068600 A1, published May 31, 2012.
3 US 7,713,891 B1, issued May 11, 2010.
4 Engineered Fibers Technology, Tencel Lyocell Short-Cut Fiber (copyright
2010).
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Application 14/022,883
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as comprising a compound produced in the manner recited in claim 1. Id.
at 3.
The Examiner found that Li describes flame resistant fabrics which
are treated by a reaction product of tetrahydroxymethyl phosphonium salt or
its condensate and a cross-linking agent. Id. (citing Li Abstract; 8:15–35;
claim 1). The Examiner also found that “Li teaches that this flame retardant
improves the flame resistance and tear strength of such fabrics and provides
sufficient wrinkle resistance.” Id. (citing Li 19:11–20:45).
The Examiner further found that a person of ordinary skill in the art at
the time of the invention would have made Gstettner’s fabric and used a
tetrahydroxymethyl phosphonium salt-based flame retardant as described by
Li to form a conventional flame resistant fabric which has optimal flame
retardant effects also providing tear and wrinkle resistance. Id.
Appellant argues that the rejections’ proposed combination of
Gstettner and Li is improper because “this proposed combination ignores the
express teachings of the Gstettner PCT publication.” Appeal Br. 4.
According to Appellant, Gstettner teaches away from the use of Li’s flame
retardant compounds. Id. at 4–6. Gstettner specifically states that organic
phosphorus-containing compounds can be used as flame retardants and cites
Proban® and Pyrovatex® as examples.5 Gstettner 4. According to Gstettner,
these finishes . . . can be removed by harsh chemical treatments
and the level of finish reduces with the number of washing
cycles. The finish application has an adverse stiffening effect on
the fabric. Fabrics of this type are in use for protection from
flame, molten metal splash and electric arc. When exposed to

5 For the purpose of this opinion, we accept Appellant’s counsel’s
representation that Proban® and Pyrovatex® are commercial products based
upon tetrahydroxymethyl phosphonium compounds. See Appeal Br. 4.
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Application 14/022,883
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flame, molten metal or electric arcs, fabrics of this type will not
burn, but become highly embrittled and may break open leaving
the wearer’s skin exposed to the hazard.
Id.
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley, 27 F.3d 551, 553
(Fed. Cir. 1994). However, “[a] known or obvious composition does not
become patentable simply because it has been described as somewhat
inferior to some other product for the same use.” Id. at 553. “[O]bviousness
must be determined in light of all the facts, and there is no rule that a single
reference that teaches away will mandate a finding of nonobviousness.”
Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006). The
teachings of a reference that arguably teaches away from a claimed feature
must be weighed alongside the teachings of a cited reference that teaches the
propriety of employing that feature. Para-Ordnance Mfg., Inc. v. SGS
Importers Int’l, Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995).
In this case, we agree with Appellant that Gstettner teaches away from
the use of tetrahydroxymethyl phosphonium-based flame retardants in its
fabric.
The question before us, however, is not whether the single reference
teaches away from the proposed combination but whether all of the facts
weighed together mandate a finding of nonobviousness. Medichem, 437 F.3d
at 1165. Accordingly, we must consider that Li describes fabrics treated with
the condensed tetrahydroxymethyl phosphonium salt as having a soft hand,
good tear strength, and good arc protection performance. See Li 3:30–35;
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Application 14/022,883
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19:13–20:35. Li further states that the treated fabric is durable to repeated
washing. Id. at 18:55–19:10.
The prior art, therefore, describes advantages and disadvantages to the
use of tetrahydroxymethyl phosphonium salt-based flame retardants. On
balance, and considering all the teaching in the prior art, we determine that
Gstettner’s criticism of the properties of some organic phosphorus -
containing compounds—such as Proban® and Pyrovatex®—is not sufficient
to negate the prima facie case of obviousness. See Medichem, 437 F.3d at
1165 (“a given course of action often has simultaneous advantages and
disadvantages, and this does not necessarily obviate motivation to
combine”).
In view of the foregoing, we affirm the rejection of claims 1–6, 8–17,
and 19–27.
CONCLUSION
In summary:
Claims
Rejected Basis Affirmed Reversed
1–6, 8–17, and
19–27
35 U.S.C. § 103(a)
Gstettner and Li
1–6, 8–17, and
19–27
1–6, 8–17, and
19–27
35 U.S.C. § 103(a)
Gstettner, Li, and
Engineered Fibers
Technology
1–6, 8–17, and
19–27
Overall Outcome 1–6, 8–17, and 19–27
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