Milliken & CompanyDownload PDFPatent Trials and Appeals BoardMar 13, 202014148876 - (D) (P.T.A.B. Mar. 13, 2020) 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. 14/148,876 01/07/2014 Dany Michiels 6455C 1081 25280 7590 03/13/2020 Legal Department (M-495) P.O. Box 1926 Spartanburg, SC 29304 EXAMINER FISCHER, JUSTIN R ART UNIT PAPER NUMBER 1749 MAIL DATE DELIVERY MODE 03/13/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte DANY MICHIELS, SHULONG LI, and SOFIE A. CHRISTIAENS1 ____________ Appeal 2019-005480 Application 14/148,876 Technology Center 1700 ____________ Before ROMULO H. DELMENDO, MICHELLE N. ANKENBRAND, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s decision rejecting claims 16–19. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND2 The subject matter on appeal relates to “tacky finishes and to . . . textile materials and articles treated with the tacky finishes.” E.g., 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). The Appellant identifies the real party in interest as Milliken & Company. See Br. 2. 2 Although the Appellant states that it is not aware of any related appeals, Appeal 2019-005480 Application 14/148,876 2 Spec. 1:13–14; Claim 16. The Specification discloses that “[t]he textile materials and articles may be used as rubber reinforcing materials, such as automotive tire cap ply, single end tire cord, carcass reinforcement and side wall reinforcement.” Spec. 1:16–18. Claim 16 is reproduced below from page 9 (Claims Appendix) of the Appeal Brief: 16. A tire 100 comprising a cap ply 300 wound over a steel belt ply 230, wherein the cap ply 300 comprises a textile substrate 310 having a tacky finish, said tacky finish comprising: (i) at least one tacky resin; (ii) at least one unvulcanized rubber; (iii) at least one adhesion promoter; and (iv) silica; wherein the tacky finish is in direct contact with an outer tread layer 500 and with steel belt ply layer 230. REJECTIONS ON APPEAL The claims stand rejected under 35 U.S.C. § 103(a) as follows: 1. Claims 16 and 18 over Uniroyal (GB 1,418,558, published Dec. 24, 1975); Collins (US 4,463,120, issued July 31, 1984); and Hartford Rubber (GB 259,540, dated June 9, 1927), Cole (US 3,608,605, issued Sept. 28, 1971), and/or Neville (US 3,956,546, issued May 11, 1976). Final Act. 2. 2. Claim 17 over Uniroyal; Collins; Hartford Rubber, Cole, and/or Neville; and Ando (EP 1 371 618 A1, published Dec. 17, 2003). Final Act. 3. Br. 2, we observe that Appeal No. 2019-000601 involved Application No. 14/580,325, which is a continuation of the application at issue in this case (No. 14/148,876). Appeal 2019-005480 Application 14/148,876 3 3. Claim 19 over Uniroyal; Collins; Hartford Rubber, Cole, and/or Neville; and Davis (US 5,563,217, issued Oct. 8, 1996) and/or Smith (EP 0 775 719 A2, published May 28, 1997). Final Act. 4. ANALYSIS After review of the cited evidence in the appeal record and the opposing positions of the Appellant and the Examiner, we determine that the Appellant has not identified reversible error in the Examiner’s rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action dated October 4, 2018, and in the Examiner’s Answer. The Appellant presents separate arguments for claims 16 and 17. We address those claims below. The remaining claims on appeal will stand or fall with claim 16, from which they depend. Claim 16. The Examiner’s rejection of claim 16 appears at pages 2–3 of the Final Action. The Examiner finds, inter alia, that Uniroyal teaches or suggests most elements of claim 16, but that “Uniroyal is silent with respect to the inclusion of an adhesive or tacky finish” on its cap ply. Final Act. 2. The Examiner finds that “it is extremely well known and conventional to include an adhesive with tire reinforcing cords, as shown for example by Collins.” Id. The Examiner finds that the specific tacky finish of claim 16 would have been obvious in view of Collins, and that a person of ordinary skill in the art would have included it “in the tire of Uniroyal to provide improved adhesion (consistent with conventional tire design).” Id. at 2–3. The Appellant first argues that Uniroyal teaches that its tread layer is in direct contact with its belt ply, which allegedly falls beyond the scope of claim 16’s requirement that “the tacky finish is in direct contact with an outer tread layer 500 and with steel belt ply layer 230.” Br. 3. Appeal 2019-005480 Application 14/148,876 4 That argument is unpersuasive. A cropped portion of Uniroyal’s Figure 1 is reproduced below. The Examiner finds, and the Appellant does not dispute, that layers 21 and 23, formed with steel cords, correspond to the claimed “belt ply,” and that layer 27 corresponds to the claimed “cap ply.” Final Act. 2. Uniroyal identifies layer 15 as a tread and item 19 as the “shoulder” of the tire. Uniroyal at 2:128, 3:2. It is adequately clear from Figure 1 and the accompanying text in Uniroyal, see id. at 2:122–3:54, that cap ply layer 27 is sandwiched between and in direct contact with tread 15 and belt ply 23. In support of its argument, the Appellant relies on the following quote from Uniroyal: “. . . and said tread in direct circumferentially surrounding contact to said radially outermost belt ply . . . .” Br. 3 (quoting Uniroyal at 2:49–52). The Appellant takes that quotation out of context and thereby misreads Uniroyal. The quoted portion of Uniroyal appears in context below: a cap band including at least one layer of textile cords and being interposed between the radially outermost one of said belt plies and said tread in direct circumferentially surrounding contact to said radially outermost belt ply said cap band being wider than any of said belt plies Appeal 2019-005480 Application 14/148,876 5 Uniroyal at 2:46–53. Although the lack of punctuation makes Uniroyal somewhat difficult to read, the quotation above is best understood as stating that the “cap band” (i.e., cap ply) is “interposed between the . . . belt plies and said tread,” and that the “cap band”—not the “tread”—is “in direct circumferentially surrounding contact to said radially outermost belt ply.” See id. That reading of the quoted language is also most consistent with other portions of Uniroyal, such as Figure 1 and the accompanying text, see id. at 2:122–3:54. In the Answer, the Examiner identifies the above as the correct reading of Uniroyal. Ans. 4 (“The portion of Uniroyal cited by the Applicant (Page 2, Lines 45+) refers to the positioning of the cap ply, and not the tread, in relationship to the radially outermost belt ply.”). The Appellant did not file a Reply Brief to contest that understanding of Uniroyal. On this record, we are not persuaded of error in the Examiner’s finding that Uniroyal teaches a cap ply that is in direct contact with a belt ply and a tread. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections . . . .”). The Appellant also argues that “the Examiner has given no reason or rational[e] for why one having ordinary skill in the art would be motivated to combine the teachings of Collins with those of Hartford Rubber, Cole, and/or Neville.” Br. 4. That argument is unpersuasive. The Examiner proposes the addition of an adhesive to Uniroyal’s cap ply in view of Collins. Final Act. 2. The Examiner relies on Hartford Rubber, Cole, and Neville in support of the Appeal 2019-005480 Application 14/148,876 6 Examiner’s finding that “it is extremely well known and conventional to use adhesive coated cords in belt/crown layers with or without skim or coating rubbers.” Id. at 3. The Examiner determines that it would have been “obvious to form the cap ply of Uniroyal without a topping rubber layer,” resulting in a cap ply is in direct contact with the tread and belt ply, in view of Hartford Rubber, Cole, and Neville. Id. The Examiner is not proposing any modification to Collins in view of Hartford Rubber, Cole, or Neville; the Examiner is proposing the use of the “well known and conventional” structure of Hartford Rubber, Cole, and Neville, i.e., no topping rubber layer on a cap ply, in the tire of Uniroyal. Id. The use of known elements according to their established functions typically does not result in nonobvious subject matter. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416–21 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.”); see also id. at 416 (“[W]hen a patent claims a structure already known in the prior art that is altered by the mere substitution of one element for another known in the field, the combination must do more than yield a predictable result.”). The Appellant’s argument concerning the combination of Collins with Hartford Rubber, Cole, and/or Neville is not persuasive of reversible error in the rejection. See Jung, 637 F.3d at 1365. The Appellant also argues that Neville “teach[es] away” from the claimed invention because Neville teaches a device that weakens the yarns of a belted tire at specific points, while the Appellant’s Specification teaches that strength is desirable. Br. 4–5. Appeal 2019-005480 Application 14/148,876 7 That argument is not persuasive because the Appellant does not identify any portion of any claim that arguably excludes plies with weakened portions. See id. Additionally, the Examiner is not proposing the use of Neville’s weakened yarns, and a person of ordinary skill in the art would have been capable of choosing whether or not to include that feature of Neville in the tire of Uniroyal based on desired application. We are not persuaded of error in the Examiner’s rejection on the basis of the Appellant’s argument that Neville teaches away. See Jung, 637 F.3d at 1365. We affirm the Examiner’s rejection of claim 16. Claim 17. Claim 17 depends from claim 16 and recites: “wherein the cap ply further comprises a resorcinol-formaldehyde-latex [RFL] layer disposed between the textile substrate and the tacky finish.” The Examiner acknowledges that “Collins fails to suggest the inclusion of a first RFL coating composition,” but the Examiner finds that “it is extremely well known and conventional to apply adhesive compositions directly to a fabric structure or apply an initial RFL composition prior to application of said adhesive, as shown for example by Ando.” Final Act. 3– 4. The Examiner states that “such an arrangement is consistent with conventional tire fabric constructions and provides a high degree of adhesion.” Id. at 4. The Appellant argues that “the instant claims” require “the following items in order from outer tread to inner belt ply: Outer tread layer -> tacky finish layer -> RFL layer -> textile substrate -> tacky finish -> inner belt ply layer.” Br. 7. The Appellant argues that Ando does not teach that layer structure. Id. Appeal 2019-005480 Application 14/148,876 8 That argument is unpersuasive because it attacks Ando alone, whereas the Examiner relies on Ando in combination with Uniroyal and other references as rendering the tire structure of claim 17 obvious. See In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot show non- obviousness by attacking references individually where, as here, the rejections are based on combinations of references.”). The Appellant does not argue that, if an RFL layer were added to the tire of Uniroyal as modified by Collins as the Examiner proposes, the resulting structure would fall beyond the scope of claim 17. We are not persuaded of reversible error in the Examiner’s rejection. See Jung, 637 F.3d at 1365. CONCLUSION In summary: Claims Rejected 35 U.S.C. § References Affirmed Reversed 16, 18 103(a) Uniroyal, Collins, Hartford Rubber, Cole, Neville 16, 18 17 103(a) Uniroyal, Collins, Hartford Rubber, Cole, Neville, Ando 17 19 103(a) Uniroyal, Collins, Hartford Rubber, Cole, Neville, Davis, Smith 19 Overall Outcome 16–19 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED Copy with citationCopy as parenthetical citation