Ex Parte Fukunishi et al

Board of Patent Appeals and Interferences

Feb 17, 2012

10565836 (B.P.A.I. Feb. 17, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte NORIKI FUKUNISHI and YOSHIHIRO MATSUI
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Appeal 2010-003057
Application 10/565,836
Technology Center 3700
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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

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