WELSPUN INDIA LIMITED

Patent Trials and Appeals Board

Mar 2, 2022

2021001743 (P.T.A.B. Mar. 2, 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. 15/616,204 06/07/2017 Dipali Goenka 04840001.00058 7847 103199 7590 03/02/2022 OFFIT KURMAN 401 Plymouth Road Suite 100 Plymouth Meeting, PA 19462 EXAMINER MCKINNON, LASHAWNDA T ART UNIT PAPER NUMBER 1789 NOTIFICATION DATE DELIVERY MODE 03/02/2022 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): patentdocket@offitkurman.com patents@offitkurman.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DIPALI GOENKA and SUBRATA PALIT Appeal 2021-001743 Application 15/616,204 Technology Center 1700 Before JEFFREY B. ROBERTSON, JAMES C. HOUSEL, and JANE E. INGLESE, Administrative Patent Judges. ROBERTSON, 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, 5-10, 12, 13, 20-28, 30, and 32-38.3 See Appeal Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 This Decision includes citations to the following documents: Specification filed June 7, 2017 (“Spec.”); Non-Final Office Action entered October 3, 2019 (“Non-Final Act.”); Appeal Brief filed July 1, 2020 (“Appeal Br.”); and Examiner’s Answer entered October 6, 2020 (“Ans.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Welspun India Limited as the real party in interest. Appeal Br. 3. 3 Appellant lists claim 22 as cancelled in the Claims Appendix to the Appeal Brief. Appeal Br. 21. However, we find no record of claim 22 having been canceled. The last amendment to the claims appears to have been filed with Appeal 2021-001743 Application 15/616,204 2 CLAIMED SUBJECT MATTER Appellant states the invention relates to a hydroentangled woven fabric. Spec. 2. Claim 1 is reproduced below and is illustrative of the claimed subject matter (Appeal Br. 19, Claims App.): 1. A hydroentangled woven fabric bedding article, comprising: a plurality of warp yarns; a plurality of weft yarns interwoven with the plurality of warp yarns to define the hydroentangled woven fabric bedding article having a first side and a second side opposite the first side, wherein two or more weft yarns are co-inserted through the warp yarns in a group such that the group of two or more weft yarns extends across the entirety of a width of the woven fabric bedding article, wherein at least one of A) the plurality of warp yarns and B) the plurality of weft yarns are staple cotton yarns; a plurality of interstitial spaces between the plurality of warp yarns and the plurality of weft yarns, wherein the plurality of warp yarns and the plurality of weft yarns are hydroentangled around the interstitial spaces, the plurality of warp yarns and the plurality of weft yarns each comprising broken fibers; and a thickness that extends in a direction from the first side of the hydroentangled woven fabric bedding article to the second side of the hydroentangled woven fabric bedding article, wherein the thickness and hydroentangled warp and weft yarns give rise to a moisture wicking hydroentangled woven fabric bedding article having a wicking distance of at least 5.0 the Request for Continued Examination on September 13, 2019 and still lists claim 22 as pending. Therefore, we treat claim 22 as still pending in deciding this appeal. Appeal 2021-001743 Application 15/616,204 3 centimeters during a time period of five minutes according to test method AATCC 197, wherein the hydroentangled woven fabric bedding article has a thermal resistance (Rt) of at least 0.23. Claims 23 and 28 are also independent and recite hydroentangled woven fabrics. Appeal Br. 21-23, Claims App. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Greenway et al. (“Greenway”) US 6,557,223 B2 May 6, 2003 Lightman US 2011/0250425 A1 Oct. 13, 2011 Tang et al. (“Tang”) CN 105568474 A, English translation of record May 11, 2016 JTN Monthly Issue 542-553, p. 60 2000 REJECTIONS 1. Claim 22 is rejected under 35 U.S.C. § 112(d) as being of improper dependent form for failing to further limit the subject matter of the claim from which it depends. Non-Final Act. 2-3. 2. Claims 1, 2, 7-10, 12, 13, 22-24, 27, and 32-35 are rejected under 35 U.S.C. § 103 as being unpatentable over Lightman, Greenway, and JTN Monthly. Non-Final Act. 3-5. 3. Claims 5, 6, 20, 21, 25, 26, 28, 30, and 36-38 are rejected under 35 U.S.C. § 103 as being unpatentable over Lightman, Greenway, JTN Monthly, and Tang. Non-Final Act. 5-6. Appeal 2021-001743 Application 15/616,204 4 OPINION We confine our discussion largely to independent claims 1, 23, and 28, which are representative of the separate arguments made by Appellant with respect to the rejections on appeal, and we address the dependent claims to the extent necessary as discussed below. 37 C.F.R. § 41.37(c)(1)(iv)(2013). Rejection 1 The Examiner rejected claim 22 under 35 U.S.C. § 112(d) for failing to further limit claim 1. Non-Final Act. 2-3; Ans. 3-4. Appellant does not argue this rejection. Accordingly, we summarily affirm the Examiner’s rejection of claim 22. Rejections 2 and 3 The Examiner’s Rejection In rejecting claims 1 and 23 as unpatentable over Lightman, Greenway, and JTN Monthly,4 the Examiner found Lightman discloses a bedding article comprising a plurality of warp and weft yarns, but Lightman is silent as to the recited hydroentanglement and fabric weight. Non-Final Act. 3-4. The Examiner found Greenway discloses hydroentangling woven fabric using a plurality of warp yarns and weft yarns that comprise broken fibers in order to improve fabric coverage, have adequate thickness, and reduce fabric shrinkage. Id. at 4. The Examiner determined it would have 4 Because Appellant does not contest the Examiner’s reliance on JTN Monthly, we need not further discuss this reference. Appeal 2021-001743 Application 15/616,204 5 been obvious to have employed hydroentanglement and fabric weight in Lightman for the benefits disclosed in Greenway. Id. As to the recited wicking distance (claims 1 and 23), thermal resistance (claim 1), and durable press rating (claim 23), the Examiner found the combination of prior art is silent as to these properties, but because the prior art combination discloses a similar article (bedding) made from similar yarns (cotton) by a similar method (hydroentangling), these properties would be met. Id. at 4-5. For independent claim 28, which recites a hydroentangled fabric bedding article similar to claims 1 and 23 with a recited wicking distance, thermal resistance, and durable press rating, the Examiner similarly relied on the combination of Lightman, Greenway, and JTN as discussed above, further citing Tang for the warp and weft densities recited therein. Non-Final Act. 5-6. Appellant’s Arguments For independent claims 1, 23, and 28, Appellant argues the Examiner has not considered all the factors necessary to achieve the claimed wicking distance, thermal resistance, and durable press ratings recited in the claims, these factors including thread count, type of warp and weft yarns, and construction. Appeal Br. 8, 11-12. Appellant argues that simply hydroentangling any fabric would not result in the recited properties. Id. at 9. Appellant argues that because Lightman discloses optimizing yarn strength of waste cotton, one of ordinary skill in the art would not modify Lightman with the hydroentanglement process disclosed in Greenway. Id. In particular, Appellant argues that Lightman discloses fabrics that greatly increase the twist of fibers, whereas the claimed invention’s hydroentangled Appeal 2021-001743 Application 15/616,204 6 woven fabric produces low-twist yarn in the final fabric construction. Id. at 9-10. Thus, Appellant argues Lightman teaches away from fabric with low twist and broken fibers. Id. at 10, 12. Accordingly, Appellant argues one of ordinary skill in the art would not start with Lightman’s high-twist fabrics made from waste cotton and use Greenway’s process to successfully and predictably arrive at the recited wicking distance, thermal resistance, and durable press rating. Id. Discussion We are not persuaded by Appellant’s arguments that the Examiner has ignored other factors besides hydroentanglement (thread count, type of warp and weft yarns, and construction of the fabric) that contribute to the specific claimed ranges for wicking distance, thermal resistance, and durable press rating. Appeal Br. 8. Appellant has not addressed the Examiner’s position that Lightman discloses thread counts, types of warp and weft yarns, and weaves that render such fabric characteristics obvious. Ans. 8-9, citing Lightman ¶¶ 13, 61, 88. In addition, as the Examiner points out, Appellant has not offered any evidence to support the position that such factors would produce different results. Id. In this regard, Greenway discloses hydroenhancement technology is used to improve properties of woven fabrics and causes yarns to bloom. Greenway, col. 1, ll. 18-28; col. 5, ll. 60-63. Appellant’s Specification discloses that added bulk is caused by fiber breakage or bending imparted by the hydroentangling process as well as de-twisting of the yarn structure resulting in the yarn structure being able to absorb more water (increased wicking distance), entrap more air (improving the thermal resistance), and Appeal 2021-001743 Application 15/616,204 7 leaves fibers in a more relaxed state leading to less wrinkles (improved durable press (DP) values). Spec. ¶¶ 19, 40, 49. Thus, although Greenway does not specifically discuss the recited properties, we are of the view that the Examiner has provided sufficient support that the wicking distance, durable press rating, and thermal resistance recited in claims would have naturally resulted from the similar treatment performed on similar fabrics absent evidence to the contrary. Persion Pharm. LLC v. Alvogen Malta Operations Ltd., 945 F.3d 1184, 1191 (Fed. Cir. 2019)(holding that in the obviousness context, inherency renders a claimed limitation obvious if the limitation is “the natural result of the combination of elements explicitly disclosed by the prior art.” (quoting PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1195-96 (Fed. Cir. 2014)); see In re Best, 562 F.2d 1252, 1255 (CCPA 1977)(“[w]here, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on ‘inherency’ under 35 U.S.C. 102, on ‘prima facie obviousness’ under 35 U.S.C. 103, jointly or alternatively, the burden of proof is the same . . . [footnote omitted].”). Further, we are not persuaded by Appellant’s arguments that Lightman discloses specific categories of waste cotton and producing fabrics that greatly increase the twist of fibers, such that the Examiner’s combination destroys Lightman’s principle of operation. Lightman discloses that when spinning yarns comprising waste fibers, the twist multiples set for the waste fibers “can be different from what is normally expected for Appeal 2021-001743 Application 15/616,204 8 specific sizes of yarns.” Lightman ¶ 18. Thus, Lightman does not require a specific level of twisting. In addition, Lightman discloses that desired characteristics of the yarns may be selected according to the end product, which includes bed sheets. Id. ¶¶ 62-64, 67. Lightman is consistent with the portions of the Specification identified by the Examiner, which indicate the yarn’s twist level is optimized based on the desired characteristics, such as softness, in the final woven products. Ans. 9-10; citing Spec. ¶ 67. Accordingly, we are not persuaded that one of ordinary skill in the art would have been dissuaded from combining Greenway with Lightman because producing a fabric with low-twist or broken fibers would be contrary to Lightman’s purpose. Regarding dependent claims 2, 12, 13, 24, and 27 (Rejection 2) and dependent claims 5, 6, 20, 25, 26, and 38 (Rejection 3), although Appellant lists these claims under separate headings, Appellant relies on similar arguments that the recited wicking distance, durable press rating, and thermal resistance recited in the claims would not have been obtained. Appeal Br. 13-18. We are not persuaded by this argument for similar reasons as discussed above. Regarding claim 2, Appellant also contends that there is no hydroentangled woven fabric bedding article in the cited art having a thickness range recited therein. Appeal Br. 13. However, Appellant does not specifically address how the Examiner’s position regarding the thicknesses is deficient, nor does Appellant address the Examiner’s findings that the cited art discloses thickness within the claimed range. Non-Final Act. 4; Ans. 10-11, citing Greenway, and Sternlieb et al., US 4,967,456, Appeal 2021-001743 Application 15/616,204 9 issued Nov. 6, 1990, incorporated by reference in Greenway (col. 1, ll. 25-27). Accordingly, we affirm the Examiner’s rejection of claims 1, 2, 5-10, 12, 13, 20-28, 30, and 32-38. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 22 112(d) Improper dependent form 22 1, 2 ,7-10, 12, 13, 22- 24, 27, 32- 35 103 Lightman, Greenway, JTN Monthly 1, 2 ,7-10, 12, 13, 22-24, 27, 32-35 5, 6, 20, 21, 25, 26, 28, 30, 36-38 103 Lightman, Greenway, JTN Monthly, Tang 5, 6, 20, 21, 25, 26, 28, 30, 36- 38 Overall Outcome 1, 2, 5-10, 12, 13, 20-28, 30, 32-38 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