Milliken & Company

Patent Trials and Appeals Board

May 11, 2021

2020006449 (P.T.A.B. May. 11, 2021)

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.
14/201,996 03/10/2014 Dale R. Williams 6661A 7727
25280 7590 05/11/2021
Legal Department (M-495)
P.O. Box 1926
Spartanburg, SC 29304
EXAMINER
GILLETT, JENNIFER ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
05/11/2021 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):
patents@milliken.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DALE R.WILLIAMS, JOSEPH WALLEN, TY GRANT
DAWSON, NILS DAVID SELLMAN JR., DANIEL TAYLOR MCBRIDE,
JOSEPH R. ROYER, and JOHN L. SANCHEZ
Appeal 2020-006449
Application 14/201,996
Technology Center 1700
Before CHRISTOPHER C. KENNEDY, BRIAN D. RANGE, and
JANE E. INGLESE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL

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Application 14/201,996

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STATEMENT OF THE CASE1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 6, 8–10, and 13–16. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

CLAIMED SUBJECT MATTER3
Appellant describes the invention as relating to tufted floorcovering
articles including carpet tiles and broadloom carpet and, in particular, tufted
carpet tiles made from polyester that is fully end-of-life recyclable.
Spec. ¶ 2. Claim 6 is the only independent claim on appeal and is
illustrative:
6. A floorcovering article comprised of:
(a) a layer of polyester yarn selected from the group
consisting of loop pile, cut pile, or a combination of loop and
cut pile;
(b) a polyester primary backing layer having a
construction selected from the group consisting of spunbond
nonwoven, stitchbonded nonwoven, woven tape, and
needlepunch nonwoven, wherein the polyester primary backing
layer contains tufting holes;

1 We note that our decision in In re Williams, Appeal 2020-002432 (PTAB
March 18, 2021), affirms a rejection of related U.S. Patent Application No.
15/002,468. The claims and art at issue in that matter are not the same as the
claims and art at issue here.
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Milliken & Company. Appeal Br. 2.
3 In this Decision, we refer to the Final Office Action dated July 25, 2019
(“Final Act.”), the Appeal Brief filed December 26, 2019 (“Appeal Br.”),
and the Examiner’s Answer dated June 9, 2020 (“Ans.”).
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3
(c) a first layer of hot melt polyester adhesive having a
certain viscosity;
(d) a second layer of hot melt polyester adhesive
wherein the hot melt polyester adhesive forming the second
layer has a viscosity at least two times greater than the hot melt
polyester adhesive forming the first layer of polyester adhesive;
and
(e) a layer of polyester secondary backing layer in the
weight range of 200 grams per square meter to 850 grams per
square meter; and
wherein the article exhibits a solution intrinsic viscosity
of 0.50 dl/g to 1.0 dl/g when tested according to ASTM D4603
and an ash content of less than 0.25 mass% when tested
according to ASTM D5630.

REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Tillotson et al.
(“Tillotson”)
US 3,821,066 June 28, 1974
Reith US 4,844,765 July 4, 1989
Justesen et al.
(“Justesen”)
US 5,902,663 May 11, 1999
Smith et al. (“Smith”) US 6,060,145 May 9, 2000
Brandon Kuczenski & Roland Geyer, Material Flow Analysis of
Polyethylene Terephthalate in the U.S, 1996–2007, 54 Resources,
Conservation and Recycling 1161–1169 (2010) (“Kuczenski”)

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REJECTIONS
The Examiner maintains the following rejections on appeal:
A. Claims 6, 8–10, and 13–16 under 35 U.S.C. § 103 as obvious over
Justesen in view of Reith, Tillotson, and Kuczenski. Ans. 3.
B. Claim 9 under 35 U.S.C. § 103 as obvious over Justesen in view of
Reith, Tillotson, Kuczenski, and Smith. Ans. 3.

OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. 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) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error.
The Appellant does not, in substance, separately argue any dependent
claims. See Appeal Br. 3 (arguing claims subject to Rejection A as a group),
9–10 (arguing Rejection B based on claim 9 depending from claim 6 but not
offering any substantively distinct argument). Consistent with 37 C.F.R.
§ 41.37(c)(1)(iv) (2013), we limit our discussion to claim 6. All claims on
appeal thus stand or fall with claim 6.
The Examiner finds that Justesen teaches most of the structure of
claim 6’s article. Ans. 3–5 (citing Justesen). The Examiner finds that
Justesen teaches a second binder adhesive with higher viscosity than the
precoat adhesive but does not explicitly teach how much greater the second
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binder’s adhesive viscosity is. Id. at 5. The Examiner determines, however,
that it would have been obvious to optimize the viscosity of the second
binder based upon the teachings of Reith and Tillotson. Id. at 5–7 (citing
Reith and Tillotson).
The Examiner finds that Justesen does not require inorganic fillers
such as ash and that Justesen teaches ash is undesirable. Id. (citing Justesen)
The Examiner, thus, determines that it would have been obvious to minimize
ash content. Id.
The Examiner finds that Justesen is silent as to the specific intrinsic
viscosity of the floorcovering article solution when tested according to
ASTM D4603. Id. at 8. The Examiner finds, however, that Kuczenski
teaches that intrinsic viscosity is a result-effective variable associated with
tensile strength, rigidity, and economic value. Id. The Examiner determines
that it would have been obvious for a person of skill in the art to adjust
intrinsic viscosity, such as within the claimed range, to influence economic
value and tensile strength. Id. at 9.
Appellant presents seven arguments as to why the rejection is
improper. Appeal Br. 3–9. Each argument is unpersuasive for the reasons set
forth by the Examiner in the Answer, and we provide further emphasis
below.
First, Appellant argues, without elaboration, that the art does not teach
various recitations of claim 6. Appeal Br. 3–4. The Examiner addresses each
of these recitations while providing citations to the references. Ans. 3–9, 11–
15. For example, the Examiner explains in detail why Justesen’s holes
formed from stitching are substantially similar if not identical to “tuft holes.”
Id. at 13–15. Appellant’s bare argument does not identify error in the
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Examiner’s position. Cf. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
(holding that merely asserting that applied prior art does not teach a recited
limitation is not substantive argument for separate patentability).
Second and third, Appellant argues that Reith teaches away from
Justesen and that incorporating the teachings of Reith would improperly
change the operation of Justesen. Appeal Br. 4–6. The Examiner, however,
relies on Reith as teaching the importance of controlling the relative
viscosities of the two melt adhesives. Ans. 5–6. In other words, Reith is used
to establish that the relative viscosities are a result-effective variable. Id.
Appellant’s arguments do not persuasively dispute this point, and Appellant
does not persuasively establish that Reith discourages controlling the relative
viscosities of Justesen or that such control would change Justesen’s
operation. Indeed, Justesen itself teaches that the second binder adhesive has
a higher viscosity than its precoat adhesive. Ans. 4–5; Justesen 13:4–6.
Moreover, Appellant’s argument is based on the premise that
“Justesen does not contain tuft yarns.” Appeal Br. 5. The Examiner,
however, provides substantial explanation supported by a preponderance of
the evidence that Justesen’s pile yarns ensure tuft lock. See, e.g., Ans. 17;
see also Justesen 7:42–57 (explaining the importance of tuft lock). Appellant
does not persuasively explain why Justesen’s structure is distinct from tuft
yarns or claim 6’s recited “tufting holes.”
Fourth, Appellant argues that the Examiner provides “no reason or
rational[e] for why one having ordinary skill in the art would be motivated to
combine the teachings of Justesen with those of Reith, Tillotson, and
Kuczenski.” Appeal Br. 6. This is incorrect. The Examiner provides reasons
to combine the references’ teachings. Ans. 3–10; 18–19. Moreover, as
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explained above and contrary to Appellant’s arguments, the Examiner
persuasively explains why Justesen’s structure is the same or substantially
the same as the tufting taught by the secondary references.
Fifth, Appellant argues that “unfavorable temperature-viscosity
gradient” would not be a reason to combine Justesen with Reith’s teachings.
Appeal Br. 7. The preponderance of the evidence, however, supports the
Examiner’s finding that Reith teaches that unfavorable temperature-viscosity
gradients are problematic and teaches how to address this issue. Ans. 20; see
also Reith Abstract. A person of skill in the art would desire to avoid this
same problem in Justesen and would apply Reith’s teachings accordingly.
Sixth, Appellant argues that Kuczenski teaches polymer deformation
which, according to Appellant, is unsuitable. Appeal Br. 8. The Examiner,
however, does not rely on Kuczenski for its particular crystallization. Rather,
the Examiner relies on Kuczenski as generally teaching that intrinsic
viscosity has impact on economic value and properties such as strength. Ans.
8–9, 21. The preponderance of the evidence supports the Examiner’s
position and supports that intrinsic viscosity is a known result-effective
variable. Kuzenski 1162 (“PET resins with a higher IV tend to be more rigid
and have a higher tensile strength as well as higher economic value.”).
Seventh, Appellant argues the criticality of the adhesive forming the
second layer being at least two times greater than the viscosity of the
adhesive forming the first layer. Appeal Br. 8–9. The Examiner explains
why the Appellant’s evidence is lacking (Ans. 22), and Appellant does not
persuasively rebut this position. Moreover, Appellant does not argue or
establish unexpected results or superior results as compared to the prior art,
and Appellant does not present data sufficient to show criticality
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commensurate in scope with claim 6. The weight of the evidence before us,
after considering Appellant’s data, supports obviousness.
Because Appellant’s argument does not identify Examiner error, we
sustain the Examiner’s rejections.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
6, 8–10,
13–16
103 Justesen, Reith, Tillotson,
Kuczenski
6, 8–10,
13–16

9 103 Justesen, Reith, Tillotson,
Kuczenski, Smith
9
Overall
Outcome
6, 8–10,
13–16

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