Ex Parte Fukunishi et alDownload PDFBoard of Patent Appeals and InterferencesFeb 17, 201210565836 (B.P.A.I. Feb. 17, 2012) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE BOARD OF PATENT APPEALS AND INTERFERENCES ____________________ Ex parte NORIKI FUKUNISHI and YOSHIHIRO MATSUI ____________________ Appeal 2010-003057 Application 10/565,836 Technology Center 3700 ____________________ Before: JENNIFER D. BAHR, WILLIAM V. SAINDON, and MICHAEL C. ASTORINO, Administrative Patent Judges. SAINDON, Administrative Patent Judge. DECISION ON APPEAL Appeal 2010-003057 Application 10/565,836 2 STATEMENT OF THE CASE Appellants appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1, 2, 5-8, 11-17, and 21-25 under 35 U.S.C. § 103(a) as unpatentable over New type sportswear fabrics “Zebra” from Toyobo and Itochu, JTN Monthly, 1-4 (Dec. 1, 2000) (http://www.allbusiness.com/manufacturing/textile-product-mills/1103515- 1.html) (last visited: Jan. 14, 2008) (hereinafter Zebra) in view of Appellants’ Background of Invention. We have jurisdiction under 35 U.S.C. § 6(b). The Claimed Subject Matter Claim 1, reproduced below with added emphasis, is illustrative of the claimed subject matter. 1. A fabric having a thickness of 0.07 mm or less and comprising a rip stop weave wherein the rip widths of the longitude and latitude thereof are each 5 mm or less wherein the tear strength in the warp cut direction and that in the weft cut direction according to the pendulum method are each from 10 to 50 N, the weight per square-meter is 50 g/m2 or less, the air permeability is 1.5 cm3/cm2·s or less, and the yarn linear density is 25 dtex or less. SUMMARY OF DECISION We REVERSE. OPINION The Examiner found that the Zebra fabric contains warp and weft fibers of 33 dtex and 41 dtex yarn linear density, respectively. Ans. 3. The Examiner found that the “yarn linear density taught by Zebra [is] only Appeal 2010-003057 Application 10/565,836 3 slightly different than those recited in the claims,” only requiring “an obvious variation” (Ans. 5). Appellants argue that the linear density values are much higher than claimed. App. Br. 4. Indeed, the linear density values of the yarns in the Zebra fabric do not meet the claim limitations. The Examiner alludes to the difference being a mere “change[] in size/proportion” (Ans. 5-6) but provides no evidence or technical reasoning suggesting that varying the thickness of the yarn is merely a change in size or proportion. Instead, as suggested by Appellants, a change in the linear density would likely be understood by one of ordinary skill in the art as affecting other parameters of the yarn, such as tear strength. See App. Br. 5-6. As such, the change in density is likely more than a mere change in size or proportion but a change in other properties as well. Accordingly, the Examiner has not articulated a reason supported by rational underpinning explaining why it would have been obvious to modify the yarns of the Zebra fabric to have the claimed yarn linear density and maintain the other properties of the fabric within the ranges recited by claim 1. The Examiner’s rejection includes the above error and cannot be sustained. As such, we reverse the Examiner’s decision regarding claims 1, 2, 5-8, 11-17, and 21-25. REVERSED hh Copy with citationCopy as parenthetical citation