Matthias Schwender et al.Download PDFPatent Trials and Appeals BoardOct 15, 201913261514 - (D) (P.T.A.B. Oct. 15, 2019) Copy Citation 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. 13/261,514 02/22/2013 Matthias Schwender 59876 6041 513 7590 10/15/2019 WENDEROTH, LIND & PONACK, L.L.P. 1025 Connecticut Avenue, NW Suite 500 Washington, DC 20036 EXAMINER AN, MICHAEL J ART UNIT PAPER NUMBER 1779 NOTIFICATION DATE DELIVERY MODE 10/15/2019 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): eoa@wenderoth.com kmiller@wenderoth.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MATTHIAS SCHWENDER, ANDREAS SCHMITZ, and EDWIN KOCH Appeal 2018-007832 Application 13/261,514 Technology Center 1700 BEFORE KAREN M. HASTINGS, MICHAEL G. MCMANUS, and SHELDON M. MCGEE, Administrative Patent Judges. MCGEE, 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 11–16, 18–26, and 28–48. We have jurisdiction. 35 U.S.C. § 6(b). We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Hydac Filtertechnik GmbH. Appeal Br. 1. Appeal 2018-007832 Application 13/261,514 2 CLAIMED SUBJECT MATTER The subject matter on appeal concerns fluid filter materials and filter elements having a support structure comprising a specific arrangement of warp and weft threads. Claim 11, reproduced below, is illustrative of the claimed subject matter: 11. A filter material for fluids, comprising: at least one first layer of filter medium; and a support structure resting flatly on at least one side of said filter medium and formed of at least a first individual fabric having a set of warp threads and a set of weft threads, at least one of said sets forming a long weave with each of said threads thereof passing over at least three adjacent threads of the other set and then over a single thread of the threads of the other set in sequence, all of said warp threads and said weft threads being of a plastic material. The prior art relied upon by the Examiner is: Name Reference Date Pall US 3,057,481 Oct. 9, 1962 Haerle US 5,266,279 Nov. 30, 1993 Kahlbaugh US 5,672,399 Sept. 30, 1997 Hansson US 7,059,361 B1 June 13, 2006 Schindelin US 2010/0224554 A1 Sept. 9, 2010 Miyagi EP 0139822 A2 May 8, 1985 The Examiner’s rejections are set forth at pages 3–19 of the Non-Final Action dated August 30, 2017. Each rejection was maintained by the Examiner in the Answer dated June 15, 2018. Ans. 4. Appeal 2018-007832 Application 13/261,514 3 OPINION We review appealed rejections for reversible error based on the arguments and evidence the appellant provides for each issue the appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv) (2017); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (Explaining that even if the Examiner had failed to make a prima facie case, “it has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejections of claims 11–16, 18–26, and 28–48 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action, the Answer, and below. We address the claims separately to the extent they are so argued by Appellant. Independent Claims 11, 21, 31, and 40 The Examiner rejected independent claims 11 and 21 over the combined disclosure of Miyagi and Schindelin. Final Act. 3–4, 7–8. In rejecting independent claims 31 and 40, the Examiner relied on this same combination of references, along with Pall for claims 31 and 40. Id. at 10– 12, 14–16. Appellant argues limitations recited in each of the independent claims 11, 21, 31, and 40, focusing mainly on the Examiner’s reliance on Schindelin. Appeal Br. 4–7. Relevant to this appeal, the Examiner finds that Schindelin discloses a filter “support structure formed with a twill weave wherein one weft thread run[s] over every two warp threads,” and “suggests that one of ordinary skill in the art can modify the twill weave of Appeal 2018-007832 Application 13/261,514 4 the support structure under at least one warp thread and over at least two warp thread[s]. . . which would include a twill weave comprising a warp thread over three warp threads.” Final Act. 4 (citing Schindelin ¶¶ 11, 48; Fig. 4) (emphasis added). Appellant asserts that such disclosure of “at least two warp threads” is not enabling for the recited limitation of “at least three threads.” Appeal Br. 5. That argument amounts to little more than a naked assertion of the prior art’s non-enablement and is, therefore, unpersuasive. Here, Appellant offers no explanation regarding Schindelin’s disclosure to persuasively establish it is not enabled, particularly in view of our reviewing court’s holding “that a prior art printed publication cited by an examiner is presumptively enabling barring any showing to the contrary by a patent applicant.” In re Antor Media Corp., 689 F.3d 1282, 1288 (Fed. Cir. 2012). We also are unpersuaded by Appellant’s assertion that the Examiner’s rejection lacks the requisite motivation that would have led the skilled artisan to arrive at the claimed invention. Appeal Br. 5. On the record before us, the Examiner provides ample explanation and evidence to support the obviousness conclusion. See Final Act. 4 (citing Schindelin ¶¶ 28, 53). Specifically, the Examiner correctly finds that Schindelin suggests its “twill weave increases the mechanical load bearing capacity of the filter and lowers the through flow resistance by allowing fluid to flow with relatively little flow loss from the pleated filter medium.” Id. Claims 12, 22, 32, and 41 Appellant contests the rejection of these claims, asserting that the Examiner’s reliance on Haerle “for teaching a satin weave” is improper because “the [Haerle] satin weave is for the filter medium and not for a Appeal 2018-007832 Application 13/261,514 5 supporting structure to be used on a side of a filter medium layer.” Appeal Br. 7. This argument is not persuasive for several reasons. First, it is directed to the Haerle reference individually, and does not address the relevant obviousness inquiry––i.e., what the disclosure of Haerle would have taught, or suggested to, the person of ordinary skill. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.”). Furthermore, Appellant’s assertion appears to be technically incomplete because Haerle’s woven fabric, which can be in the form of a satin weave, is a component part of “a substantially homogenous woven fabric.” Haerle 1:66–67, 3:59–63. Haerle’s filter has “a multilayer woven or knitted fabric [] used as the base material, wires or fibres being placed flat on top of one another in several layers.” Id., 1:14–16. That “woven fabric is in the form of a twilled wire fabric,” and then sintering material, such as “powder, granules, fibre fragments or chips” is introduced into the twilled wire fabric meshes. Id. at 1:9–11, 51–55. Haerle discloses “[t]he twilled wire fabric moreover provides a spatial structure in which the sintering material can be embedded.” Id. at 2:25–26 (emphasis added); see also id. at 2:53–60 (discussing how certain design parameters of “the wires or fibres of the woven fabric” provides “an even better spatial structure for a layer and even more sintering material can be introduced.”). Based on such disclosure, we are unpersuaded by Appellant’s assertion that Haerle’s twill weave is “not for a supporting structure.” Appeal Br. 7. Rather, the skilled Appeal 2018-007832 Application 13/261,514 6 artisan would have understood that Haerle’s twill weave—of which the satin weave is a “special form” (Haerle 3:59–63)––provides structural support to the embedded sintering material. Claims 13–16, 18, 23–26, 28, 33–37, and 42–46 For these claims, Appellant argues that the Examiner’s reliance on Hansson is erroneous because Hansson’s multi-layer fabrics “only form the filter medium and not a support structure for a filter medium.” Appeal. Br 7–8. Appellant’s argument against the rejection of these claims is unpersuasive because it does not squarely address the rejection as set forth by the Examiner. Specifically, the Examiner does not rely on Hansson to disclose multiple fabric layers, but rather for its disclosure of binding threads connecting multiple layers. Final Act. 5; see also Ans. 6 (“The combination of Miyagi, Schindelin, with Pall, and/or Haerle further discloses a support structure with a first individual fabric and a second individual fabric” (citing Schindelin, Fig. 5)). Notably, Appellant does not contest this finding. See Reply Br. 4. Instead, Appellant again focuses on the teachings of the applied reference individually, rather than what the reference would have taught or suggested to the skilled artisan when combined with the other references discussed in the rejection. Id.; Appeal Br. 7–8. Appellant’s argument, therefore, reveals no reversible error in the Examiner’s reliance on Hansson’s disclosure of a binding thread to connect individual fabric layers for the purpose of increasing the forming layers’ structural stability. Final Act. 5; Ans. 6–7. Claims 19, 29, 38, and 47 The Examiner relies on Kahlbaugh to evince lamination of a nonwoven to an individual fabric. Final Act. 6; Kahlbaugh 16:65–17:17. Appeal 2018-007832 Application 13/261,514 7 Appellant argues that Kahlbaugh does not specifically mention lamination. Appeal Br. 8. This argument is unpersuasive. The Examiner finds that the skilled artisan would have understood Kahlbaugh’s disclosure of adhering layers using hot melt spray or hot melt sheets as the recited lamination. Ans. 8. This finding is not contested by Appellant. See Reply Br., generally. Thus, Appellant has failed to identify reversible error in the rejection. Claims 20, 30, 39, and 48 The Examiner relies on Kahlbaugh’s disclosure of coarse polyester fibers (Kaulbach 18:41–42) which are taught to be secured to fine fibers by an adhesive, such as “wet-laid water soluble or solvent based resin systems” (id. at 17:2–11). Appellant argues that Kahlbaugh fails to disclose “a coated polyester nonwoven.” Appeal Br. 8. Appellant also asserts that the cited portions of Kahlbaugh relied on by the Examiner “do not necessarily result in a coated polyester non-woven or a support resting flatly on one side of a filter medium as required by these claims.” Reply Br. 4. These arguments are not persuasive. Appellant again addresses the teachings of Kahlbaugh in a vacuum, and also fails to explain how Kahlbaugh’s “coarse support compris[ing] polyester fibers” is not evidence that a “coated polyester nonwoven” was known in the prior art. Kahlbaugh 18:41–42. Kahlbaugh discloses “the coarse fiber layer may comprise . . . a non-woven substantially continuous fiber matrix,” and that “[w]et-laid materials may be utilized for the non-woven support.” Id. at 16:3–9. Such wet-laid adhesives may be applied to the coarse fiber layer. Id. at 17:2–9. Thus, the preponderance of evidence supports the Examiner’s position that Kahlbaugh discloses the disputed limitation. Appeal 2018-007832 Application 13/261,514 8 CONCLUSION Because Appellant fails to identify reversible error in any of the rejections, we affirm the decision of the Examiner to reject claims 11–16, 18–26, and 28–48. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 11, 21 103(a) Miyagi, Schindelin 11, 21 12, 22 103(a) Miyagi, Schindelin, Haerle 12, 22 13–16, 18, 23–26, 28 103(a) Miyagi, Schindelin, Haerle, Hansson 13–16, 18, 23–26, 28 19, 20, 29, 30 103(a) Miyagi, Schindelin, Kahlbaugh 19, 20, 29, 30 31, 40, 41 103(a) Miyagi, Schindelin, Pall 31, 40, 41 32, 41 103(a) Miyagi, Schindelin, Pall, Haerle 32, 41 38, 39, 47, 48 103(a) Miyagi, Schindelin, Pall, Kahlbaugh 38, 39, 47, 48 33–37, 42– 46 103(a) Miyagi, Schindelin, Pall, Haerle, Hansson 33–37, 42– 46 Overall Outcome 11–16, 18– 26, 28–48 TIME PERIOD FOR RESPONSE 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 Copy with citationCopy as parenthetical citation