Voim Companies, Inc.

Patent Trials and Appeals Board

Mar 25, 2021

2020004628 (P.T.A.B. Mar. 25, 2021)

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.
15/275,647 09/26/2016 Robert Frei 2028.025 9280
23598 7590 03/25/2021
BOYLE FREDRICKSON S.C.
840 NORTH PLANKINTON AVENUE
MILWAUKEE, WI 53203
EXAMINER
ATTEL, NINA KAY
ART UNIT PAPER NUMBER
3734
NOTIFICATION DATE DELIVERY MODE
03/25/2021 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):
docketing@boylefred.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ROBERT FREI and CORBETT HEFNER
Appeal 2020-004628
Application 15/275,647
Technology Center 3700
Before JILL D. HILL, LEE L. STEPINA, and ARTHUR M. PESLAK,
Administrative Patent Judges.
PESLAK, 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 1–40. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

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 Volm Companies,
Inc. Appeal Br. 3.
Appeal 2020-004628
Application 15/275,647

2
THE CLAIMED SUBJECT MATTER
Appellant’s invention relates to a synthetic mesh reinforced multilayer
material and bags made therefrom. Claims 1, 17, 21, and 36 are
independent. Claims 1 and 17, reproduced below, are illustrative of the
claimed subject matter:
1. A reinforced multilayer material comprising:
a layer of an open mesh material having first and second
opposed surfaces, the open mesh material including filaments
that intersect one another, at least some of the filaments being
composite filaments having a carrier portion of a relatively high
melting point and a bonding portion of a relatively low melting
point, the bonding portion of each composite filament being
thermally bonded to other filaments in at least some points of
intersection; and
a layer of film material applied to the first surface of the
layer of open mesh material, wherein the multilayer material has
a mass per unit area of less than 9.0 oz/yd2 and a bursting strength
to mass per unit area ratio of at least 9.0 lbs/(oz/yd2), where
bursting strength is measured in accordance with ASTM-D37 86.
17. A reinforced multilayer material comprising:
a layer of an open mesh material having first and second
opposed surfaces, the open mesh material including filaments
that intersect one another, at least some of the filaments being
composite filaments having a carrier portion of a relatively high
melting point and a bonding portion of a relatively 1ow melting
point, the bonding portion of each composite filament being
thermally bonded to other filaments at least some points of
intersection; and
a layer of film material applied to the first surface of the
layer of open mesh material, wherein the multilayer material has
a breaking elongation in the warp direction of at least 5% when
breaking elongation is measured in accordance with ASTM-D37
86.
Appeal 2020-004628
Application 15/275,647

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REFERENCE
The prior art relied upon by the Examiner is:
Name Reference Date
Frei US 2011/0085749 A1 Apr. 14, 2011
REJECTION
Claims 1–40 are rejected under 35 U.S.C. § 102(a)(1) as being
anticipated by Frei.
ANALYSIS
The Examiner directs us to paragraphs 10–26 and 73–234 of Frei in
support of the finding that independent claims 1, 17, 21, and 36 are
anticipated by Frei. Final Act. 2–3, 6, 9. The Examiner finds Frei inherently
discloses the mass per unit area ratio recited in claims 1, 21, and 36 and the
breaking elongation threshold recited in claim 17. Id. at 12.
Appellant contends “the Examiner failed to meet her burden of
providing objective reasoning to support a conclusion that the claimed
limitations regarding the mass per unit area and . . . breaking elongation . . .
are inherently disclosed by Frei.” Appeal Br. 20. For example, Appellant
argues that the claimed mass per unit area ratio recited by the claims 1, 21,
and 36 is not necessarily present in Frei’s multilayer material because adding
“a film layer to the open mesh material disclosed in Frei necessarily would
increase the mass per unit area of the open mesh materials of Frei by an
amount that is dependent on the density of the chosen film material and the
thickness of the film layer.” Appeal Br. 19. According to Appellant, the
resultant multilayer material is heavier on a mass per unit area basis than the
mesh component of that material, and would not necessarily have a mass per
unit area of less than 9.0 oz/yd2. Id. at 19–20.
Appeal 2020-004628
Application 15/275,647

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The Examiner responds that because “Frei expressly discloses a
multilayer material having the same material layers as the multilayer
material disclosed by Appellant, one having ordinary skill in the art would
expect the material properties of the multilayer material as claimed to be
inherently present in the multilayer material disclosed by Frei.” Ans. 5.
Appellant replies that the Examiner’s rejection based on inherency
fails because Frei does not disclose the same material layers as used by
Appellant. Reply Br. 3.
For the following reasons, we do not sustain the rejection.
Initially, we note:
To anticipate a claim, a single prior art reference must expressly or
inherently disclose each claim limitation . . . But disclosure of each
element is not quite enough –– this court has long held that
“[a]nticipation requires the presence in a single prior art disclosure of
all elements of a claimed invention arranged as in the claim.”

NetMoneyIn, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008).
In the rejection, the Examiner does not direct us to a single embodiment of
Frei with the elements arranged as in the claim, but, rather, cites the same
large portion of Frei for each independent claim without sufficient
explanation of where the claim elements are disclosed in Frei. See Final
Act. 3 (citing Frei ¶¶ 10–26; 73–254). For example, paragraph 77 of Frei
discloses “a first embodiment of an open mesh material” is shown in Figures
1–3. Frei ¶ 77. Paragraph 91 discloses that the fabric illustrated in “FIGS.
4–7 differ from the fabric illustrated in FIGS. 1–3.” Id. ¶ 91; see also id. at
¶ 127 (“an alternate embodiment . . . of the bag 20 is shown”). The
Examiner’s anticipation rejection of claims 1, 17, 21, and 36 is, thus,
deficient because a preponderance of the evidence does not support a finding
Appeal 2020-004628
Application 15/275,647

5
that Frei discloses “the presence . . . of all elements of a claimed invention
arranged as in the claim.” NetMoneyIn, Inc., 545 F.3d at 1371.
However, even if the Examiner had met this initial burden, we are also
not persuaded by the Examiner’s assertions in support of the inherency
finding that Frei discloses the same materials as Appellant.
In particular, the Examiner finds that Appellant’s Specification
discloses that the outer film layer includes “PET, BOPP, CPP, and
polyethylene based film and that the outer layer may have a thickness of 10–
100 micron.” Ans. 4 (citing Spec. ¶ 35). The Examiner also finds that the
inner layer includes “a co-ex film with an MLLDPE seal surface and a core
for strength properties and that the inner layer may have a thickness of 25–
200 microns. Id. at 5 (citing Spec. ¶ 36).
Although the Examiner finds that Frei also discloses the use of PET,
Frei discloses “a so-called PET laminate having a thin layer of a relatively
high melting point polyester material, serving as a print surface, laminated
onto a relatively thick layer of a relatively low melting point linear low
density polyethylene (LLDPE) material.” Frei ¶ 157; see also Ans. 6. The
Examiner does not explain adequately why one of ordinary skill in the art
would consider a PET film (see Spec. 42), i.e., a film made of PET to be the
“same material” as Frei’s PET laminated with LLDPE.
Accordingly, we do not sustain the Examiner’s rejection of
independent claims 1, 17, 21, and 36 as well as the claims depending
therefrom.
CONCLUSION
The Examiner’s rejection is reversed.
Appeal 2020-004628
Application 15/275,647

6
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–40 102(a)(1) Frei 1–40
Overall
Outcome:
1–40

REVERSED