The North Face Apparel Corp.

Patent Trials and Appeals Board

Feb 23, 2022

2021001615 (P.T.A.B. Feb. 23, 2022)

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. 15/125,925 09/13/2016 Ryan Taylor Massey NOR2016PCTUS 9126 22874 7590 02/23/2022 GANZ POLLARD, LLC P O BOX 2200 HILLSBORO, OR 97123 EXAMINER LOPEZ, RICARDO E. ART UNIT PAPER NUMBER 1786 NOTIFICATION DATE DELIVERY MODE 02/23/2022 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): docketing@ganzlaw.com mail@ganzlaw.com uspto@ganzlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte RYAN TAYLOR MASSEY and CORY MICHAEL OLSON Appeal 2021-001615 Application 15/125,925 Technology Center 1700 ____________ Before LINDA M. GAUDETTE, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. REN, 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 1-9, 11-13, 15, 17, 18, 20, 21, 24, 25, 30-40, 44, 46-48, 50 and 51, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “The North Face Apparel Corp. of Wilmington, DE.” Appeal Br. 3. Appeal 2021-001615 Application 15/125,925 2 CLAIMED SUBJECT MATTER Claims 1, 8, and 44, reproduced below, are illustrative of the claimed subject matter: 1. A baffle construct, comprising: a drapable, pliable multilayer construction of a first layer, one or more interlayers, and a third layer, the interlayer being disposed between the first and third layers, the layers all being part of a unitary, seamlessly woven fabric construct, the layers being joined so as to define a plurality of baffles, and wherein an elongate flat woven section comprising a closure is disposed in the baffle construct, the closure comprising sections that can separate from one another, thereby dividing multiple rows of baffles into two sections of baffles on either side of the closure, with the closure sections and the baffle sections being seamlessly woven with each other, the closure being suitable for forming an opening in the construct on separation of the separable closure sections. 8. A baffle construct, comprising: a drapable, pliable three-layer construction of a first layer, a second interlayer below the first layer, and a third layer below the interlayer, the layers all being part of unitary, seamlessly woven fabric construct, the layers being joined so as to define at least four expandable baffles, the baffles being expandable from a first collapsed configuration to a second expanded configuration; the baffle construct having a theoretical longitudinal cross- sectional profile such that the first, second, and third layers each have a sinusoidal form with maxima or peaks and minima or troughs, with the first layer and third layer generally being in phase with each other, and the interlayer being out of phase by about 180 degrees; for the first and third layers, the minima or troughs of the first layer merging with maxima or peaks of the interlayer to form joints, and the maxima or peaks of the third layer merging with minima or troughs of the interlayer to form joints; and Appeal 2021-001615 Application 15/125,925 3 wherein the first, second, and third layers are disconnected between the joints so as to define the expandable baffles; and wherein at least one layer is downproof or fiberproof and one of the interlayers has an overall fabric density that is lower than the overall fabric density of the first and/or the third layers, the first layer and/or the third layer being downproof or fiberproof based on its overall fabric density. 44. A baffle construct comprising: a drapable, pliable multilayer construction of a first layer, one or more interlayers, and a third layer, the one or more interlayers being disposed between the first and third layers, the layers all being part of a unitary, seamlessly woven fabric construct, the layers being joined so as to define a plurality of baffles, and wherein the baffles are expandable from a first collapsed configuration to a second expanded configuration; and wherein at least one layer is downproof or fiberproof, and one of the interlayers has an overall fabric density that is lower than the overall fabric density of the first and/or the third layers, the first layer and/or the third layer being downproof or fiberproof based on its overall fabric density. Claims Appendix (Appeal Br. 34, 35, 40). REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Roether US 2013/0051706 Al Feb. 28, 2013 Moriarty US 2013/0177731 Al July 11, 2013 Appeal 2021-001615 Application 15/125,925 4 REJECTIONS Claims Rejected 35 U.S.C. § Reference(s)/Basis 1 102 Roether 2-9, 11-13, 15, 17, 18, 20, 21, 24, 25, 30-40, 44, 46-48, 50, 51 103 Roether, Moriarty OPINION Anticipation Rejection of Claim 1 Appellant argues that Roether does not disclose a baffle construct having “an elongate flat woven section comprising a closure . . . disposed in the baffle construct, the closure comprising sections that can separate from one another, thereby dividing multiple rows of baffles into two sections of baffles on either side of the closure” as claim 1 requires. Appellant argues that to the extent the prior art pocket organizer insert 110 may be removed from the body of the backpack, Roether does not disclose separation amongst the pocket inserts which the Examiner finds as the baffles. Appeal Br. 19. The Examiner acknowledges that the separation connection is at the edge of the pocket organizer but finds Roether discloses that “the woven pocket organizer insert may be affixed within, or on a bag by for example a zipper along at least a top edge of the pocket organizer insert” and “thus, teach[es] more than one connection.” Final Act. 7 (emphasis omitted). [U]nless a prior art reference discloses within the four corners of the document not only all of the limitations claimed but also all of the limitations arranged or combined in the same way as recited in the claim, it cannot be said to prove prior invention of the thing claimed and, thus, cannot anticipate under 35 U.S.C. § 102. Appeal 2021-001615 Application 15/125,925 5 Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d 1359, 1371 (Fed. Cir. 2008). “Every element of the claimed invention must be literally present, arranged as in the claim.” Richardson v. Suzuki Motor Co., Ltd., 868 F.2d 1226, 1236 (Fed. Cir. 1989). In this case, Roether undisputedly discloses that the pocket organizer inserts may be separated from the body of the backpack. Compare Appeal Br. 19, with Final Act. 7. To the extent that Roether’s disclosure is not limited to a single separation connection between the insert and the backpack, the Examiner’s findings do not support that Roether teaches a “closure comprising sections that can separate from one another, thereby dividing multiple rows of baffles into two sections of baffles on either side of the closure” as claim 1 requires. We do no sustain the anticipation rejection of claim 1. Obviousness Rejection of Claim 8 The dispositive issue for the rejection of claim 8 is whether the combined prior art teaches or suggests “the baffle construct having a theoretical longitudinal cross-sectional profile such that the first, second, and third layers each have a sinusoidal form with maxima or peaks and minima or troughs, with the first layer and third layer generally being in phase with each other, and the interlayer being out of phase by about 180 degrees” as recited. The Final Rejection does not analyze this claim limitation. Final Act. 5-6, 8-9 (responding to Appellant’s argument regarding this claim limitation by stating that Moriarty teaches “a thermal insulating structure, and products made therefrom” and describing the “insulation material, such Appeal 2021-001615 Application 15/125,925 6 as down or loose synthetic material” that may be included in the layers without more). In the Examiner’s Answer, the Examiner finds that Figure 2 of Moriarty teaches this limitation. Ans. 11. As Appellant points out, however, Figure 2 shows a construct having only two layers that may be considered as each having a sinusoidal form. Reply Br. 5. The record before us does not support the Examiner’s findings and we do not sustain the rejection of claim 8. Obviousness Rejection of Claim 44 The dispositive issue for the rejection of claim 44 is whether the combined prior art teaches or suggests “one of the interlayers has an overall fabric density that is lower than the overall fabric density of the first and/or the third layers” as recited. The Examiner does not analyze this particular limitation with regard to claim 44. See Final Act. 5-6 (rejecting claim 44 among other claims without addressing this particular limitation). The Examiner, however, in rejecting claims 32, 34, 35, 46-48, 50, and 51, finds that “Moriarty teaches that the intermediate layer is a batting of insulation, such as fiberfill or fleece.” Id. at 6. The Examiner accordingly concludes: “Therefore, it would have been obvious . . . to select a yarn having higher [density] for the interlayer in modified Moriarty's multi-layer textile constructs as a means to produce an interlayer having density lower than the density of the outer layers.” Id. The record before us does not support the Examiner’s conclusion that a skilled artisan would have arrived at “one of the interlayers has an overall fabric density that is lower than the overall fabric density of the first and/or Appeal 2021-001615 Application 15/125,925 7 the third layers” based on the prior art teaching that the intermediate layer includes insulation. We do not sustain the rejection of claim 44. The rejection of those claims dependent from claim 44 is likewise reversed. See 37 C.F.R. § 41.37(c)(1)(iv). The rejection of claim 17 reciting this particular limitation, as well as the rejection of claims dependent from claim 17 are also reversed. Obviousness Rejection of Claims 30 & 31 Independent claim 30 recites: 30. A baffle construct, comprising: a drapable, pliable multilayer construction of a first layer, one or more interlayers, and a third layer, the one or more interlayers being disposed between the first and third layers, the layers all being part of a unitary, seamlessly woven fabric construct, the layers being joined so as to define a plurality of baffles, and wherein the baffles are expandable from a first collapsed configuration to a second expanded configuration; and wherein one of the layers has an overall yarn density that varies from the overall yarn density of another layer. Independent claim 31 recites: 31. A baffle construct, comprising: a drapable, pliable multilayer construction of a first layer, one or more interlayers, and a third layer, the one or more interlayers being disposed between the first and third layers, the layers all being part of a unitary, seamlessly woven fabric construct, the layers being joined so as to define a plurality of baffles, and wherein the baffles are expandable from a first collapsed configuration to a second expanded configuration; and wherein one of the layers has a majority or major component of yarn size that varies from that of another layer. Claims Appendix (Appeal Br. 37-38). Appeal 2021-001615 Application 15/125,925 8 As with claim 44, the Examiner does not analyze the limitation of “one of the layers has an overall yarn density that varies from the overall yarn density of another layer” required by claim 30, or the limitation of “one of the layers has a majority or major component of yarn size that varies from that of another layer” required by claim 31. See Final Act. 5-6 (rejecting claims 30 and 31 among other claims without addressing this particular limitation). The Examiner, however, in rejecting claims 32, 34, 35, 46-48, 50, and 51, finds that “Moriarty teaches that the intermediate layer is a batting of insulation, such as fiberfill or fleece.” Id. at 6. The Examiner accordingly concludes: “Therefore, it would have been obvious . . . to select a yarn having higher [density] for the interlayer in modified Moriarty's multi-layer textile constructs as a means to produce an interlayer having density lower than the density of the outer layers.” Id. The Examiner additionally finds that “one of ordinary skill in the art would immediately recognize that the density of a down or synthetic material, and the density of the fiber fill or fleece have a yarn density which varies from the overall yarn density of the outer waterproof layer.” Id. at 9 (specifically addressing claims 30 and 31); Ans. 13-14 (specifically addressing claims 30 and 31). Appellant disagrees with these findings and the record before us does not show that the inclusion of insulation in the intermediate layer of the prior art necessarily results in “one of the layers has an overall yarn density that varies from the overall yarn density of another layer” as claim 30 requires or “one of the layers has a majority or major component of yarn size that varies from that of another layer” as claim 31 requires. The rejection of claims 30 and 31 is not sustained. Appeal 2021-001615 Application 15/125,925 9 CONCLUSION The Examiner’s rejections are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1 102 Roether 1 2-9, 11-13, 15, 17, 18, 20, 21, 24, 25, 30-40, 44, 46-48, 50, 51 103 Roether, Moriarty 2-9, 11-13, 15, 17, 18, 20, 21, 24, 25, 30-40, 44, 46-48, 50, 51 Overall Outcome 1-9, 11-13, 15, 17, 18, 20, 21, 24, 25, 30-40, 44, 46-48, 50, 51 REVERSED