adidas AG

Patent Trials and Appeals Board

Sep 24, 2020

2019006909 (P.T.A.B. Sep. 24, 2020)

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.
15/366,821 12/01/2016 Hans-Peter N¿rnberg 2483.2970001 6564
63504 7590 09/24/2020
STERNE, KESSLER, GOLDSTEIN & FOX P.L.L.C.
1100 NEW YORK AVENUE, N.W.
WASHINGTON, DC 20005
EXAMINER
WONG, STEVEN B
ART UNIT PAPER NUMBER
3711
NOTIFICATION DATE DELIVERY MODE
09/24/2020 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):
e-office@sternekessler.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HANS-PETER NÜRNBERG
____________

Appeal 2019-006909
Application 15/366,821
Technology Center 3700
____________

Before JOHN C. KERINS, JILL D. HILL, and GEORGE R. HOSKINS,
Administrative Patent Judges.

HOSKINS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3, 5–8, 10–13, and 15–21 in this
application.
A telephonic hearing was held on September 10, 2020. See Transcript
(entered Sept. 21, 2020).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies adidas AG as the real party in
interest. Appeal Br. 3.
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CLAIMED SUBJECT MATTER
Claim 1 is the sole independent claim on appeal, and it recites:
1. A ball comprising:
a bladder having a majority weight component of a
material of a first material class;
at least one intermediate layer arranged exterior to the
bladder and having a majority weight component of the material
of the first material class; and
at least one exterior layer arranged exterior to the at least
one intermediate layer and having a majority weight component
of the material of the first material class,
wherein the first material class is selected from a group
consisting of thermoplastic polyurethane, polyvinyl chloride,
polyethylene, polyamide, and polypropylene.
Appeal Br. 15 (Claims App.).
REJECTIONS ON APPEAL
Claims 1–3, 5–8, 10, 11, and 17–21 are rejected under 35 U.S.C.
§ 103 as unpatentable over Ou ’795 (US 6,206,795 B1, iss. Mar. 27, 2001),
Ou ’018 (US 6,348,018 B1, iss. Feb. 19, 2002), and Lin (US 2010/
0144470 A1, pub. June 10, 2010).
Claim 12 is rejected under § 103 as unpatentable over Ou ’795,
Ou ’018, Lin, and Taniguchi (US 2006/0084536 A1, pub. Apr. 20, 2006).
Claim 13 is rejected under § 103 as unpatentable over Ou ’795,
Ou ’018, Lin, and Swiszcz (US 2014/0100067 A1, pub. Apr. 10, 2014).
Claim 15 is rejected under § 103 as unpatentable over Ou ’795,
Ou ’018, Lin, and Lo (US 8,622,857 B2, iss. Jan. 7, 2014).
Claim 16 is rejected under § 103 as unpatentable over Ou ’795,
Ou ’018, Lin, and Dobrounig (US 6,306,054 B1, iss. Oct. 23, 2001).
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OPINION
A. Obviousness over Ou ’795, Ou ’018, and Lin
(Claims 1–3, 5–8, 10, 11, and 17–21)
Appellant argues claims 1–3, 5–8, 11, and 17–21 as a first group, and
argues claim 10 separately as a second group. Appeal Br. 6–12. We select
claim 1 to decide the appeal as to the first group, then we address claim 10
separately as the second group. See 37 C.F.R. § 41.37(c)(1)(iv) (2018).
1. Claims 1–3, 5–8, 11, and 17–21
The issues presented here revolve around claim 1’s requirement for all
three layers of the ball to include the same material class. The Examiner’s
rejection focuses on thermoplastic polyurethane as the material class.
Specifically, the Examiner finds Ou ’795 discloses, in Figures 2 and 3,
a ball (i.e., basketball 20) comprising a bladder (i.e., spherical bladder
carcass 30), an intermediate layer (i.e., cushion layer 42), and an exterior
layer (i.e. cover layer 41). See Final Act. (mailed Sept. 7, 2018), 2;
Non-Final Act. (mailed Mar. 7, 2018), 3; Ans. 3; Ou ’795, 2:66–3:2, 3:14–
15, 3:20–22. The Examiner finds Ou ’795 discloses bladder 30 is made
from rubber, intermediate layer 42 is made from polyurethane foam, and
exterior layer 41 is made from polyurethane. See Non-Final Act. 3 (citing
Ou ’795, 3:1–2, 3:10–38); Ans. 3. Appellant does not contest these findings,
which we determine are supported by a preponderance of the evidence. See
Ou ’795, 3:1–2 (“spherical bladder carcass 30 . . . is a hollow rubber ball”),
3:14–16 (“cover layer 41 [is] made of leather or synthetic leather such as
polyurethane (PU) or polyvinyl chloride (PVC)”), 3:21–39 (“cushion
layer 42 [is] made of foam material . . . such as EVA, PU foam, or sponge”).
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Appellant argues the Examiner employs improper hindsight in
selecting polyurethane as the material for intermediate layer 42 and exterior
layer 41. See Appeal Br. 6, 7, 9. We disagree. Ou ’795 discloses three
specific materials for intermediate layer 42, and three specific materials for
exterior layer 41. Ou ’795, 3:14–16, 3:21–39. A person of ordinary skill in
the art would understand Ou ’795 thereby discloses any respective
combination of the specific materials identified in each list of possibilities,
including polyurethane foam for intermediate layer 42 and polyurethane for
exterior layer 41. Id. This is not a hindsight modification or addition to the
disclosure of Ou ’795; it is simply a reading of the disclosure by a person of
ordinary skill in the art. Thus, we find Ou ’795 discloses a basketball in
which the bladder is made of rubber, and the intermediate layer and the
exterior layer are made of polyurethane.
Next, the Examiner finds “Ou ’018 reveals that it is known in the art
of inflatable game balls to form the bladder from rubber or polyurethane.”
Final Act. 2, 3 (citing Ou ’018, 2:61–62); Ans. 3 (citing Ou ’018,
2:61–3:14). The Examiner finds the ball of Ou ’018 also has a cover made
from polyurethane. Final Act. 4 (citing Ou ’018, 2:31–35, 2:61–62). Based
on these disclosures, the Examiner determines “[i]t would have been
obvious . . . to form the bladder of Ou ’795 from polyurethane in order to
take advantage of that material’s well known physical characteristics.” Id.
at 2, 3–4 (referring further to “the teaching of Ou [’795] to form his bladder
from rubber and Ou [’018] teaching that the use of rubber and polyurethane
are equally well known in the art of sports balls”); Ans. 3–4.
Appellant argues the Examiner employs improper hindsight in
modifying the bladder of Ou ’795 to be made of polyurethane instead of
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rubber, based on the “conclusory rationale . . . to take advantage of the
material’s ‘well known physical characteristics.’” Appeal Br. 6, 7, 9–10;
Reply Br. 5. Appellant faults the Examiner for not identifying the physical
characteristics that were well known, or how the characteristics were not
already present in Ou ’795 without replacing its rubber bladder with a
polyurethane bladder. Appeal Br. 9–10. Further, according to Appellant:
“Ou ’018 fails to disclose or suggest that a polyurethane inflatable bladder is
used with a polyurethane ball cover,” because “Ou ’018 only connects a
polyurethane bladder with a leather ball cover.” Id. at 7 (citing Ou ’018,
1:17–19, 2:31–35, 2:61–62); Reply Br. 3–4.
We conclude a preponderance of the evidence supports the
Examiner’s determination of obviousness, which is based on an articulated,
rational underpinning. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006),
cited with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). “The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR, 550 U.S. at 416. For example: “[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.” Id.
We agree with the Examiner’s application of these principles to this
case. We do not find anything unpredictable in substituting polyurethane for
rubber as the bladder material in the basketball of Ou ’795, given the
disclosure in Ou ’018 that an inflatable game ball bladder may be “generally
made of rubber or polyurethane.” Ou ’018, 2:55–62 (emphasis added). That
disclosure reflects the understanding of a person of ordinary skill in the art
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that rubber and polyurethane are known to be predictable, alternative
materials for forming an inflatable bladder in a game ball. Appellant
provides no persuasive reason why a person of ordinary skill in the art could
not have implemented such a substitution, or any persuasive reason why the
results of the substitution would have been unpredictable. Thus, we
conclude the Examiner’s obviousness rejection permissibly relies on a
predictable substitution of art-recognized equivalent bladder materials.
We, further, agree with the Examiner’s finding that Ou ’018 discloses
American football 1 having at least two layers, ball cover 10 and inflatable
bladder 20, both made of polyurethane. See Ans. 8–9, 11; Ou ’018, Fig. 1,
2:23–39, 2:55–62, 3:3–6. This is not hindsight; it is simply reading the
disclosure of Ou ’018. We flatly reject Appellant’s contention that the
description of a “conventional” ball in the background of Ou ’018 being
formed by a polyurethane bladder and a leather cover reveals that the entire
disclosure of Ou ’018, including its inventive ball, is limited to using a
polyurethane bladder only with a leather cover. See id. at 1:13–19. For
example, Ou ’018 discloses that even conventional balls could have a
polyurethane cover, rather than a leather cover. See id. at 1:25–28.
Thus, the combination of Ou ’795 and Ou ’018 rationally leads,
without hindsight, to a ball having a polyurethane bladder, a polyurethane
intermediate layer, and a polyurethane exterior layer. Claim 1 specifically
requires “thermoplastic polyurethane” in all three layers. Appeal Br. 15
(Claims App.) (emphasis added). The Examiner correspondingly finds “Lin
reveals that it is known in the art of inflatable game balls to use
thermoplastic polyurethane as the material for the game ball.” Final Act. 2,
4 (citing Lin ¶ 11); Ans. 4 (citing Lin ¶¶ 11, 24–25).
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The Examiner determines it would have been obvious “to use
thermoplastic polyurethane as the material for the game ball of Ou ’795 as
modified by Ou ’018 in order to take advantage of that material’s well
known physical characteristics.” Final Act. 4–5; Ans. 4. The Examiner
finds Lin particularly discloses thermoplastic polyurethane “facilitates
recycling and manufacture,” and has good shock-absorbing properties and a
high resistance to impact and abrasion, providing a rational basis for
obviousness. Final Act. 5 (citing Lin ¶¶ 29, 37); Ans. 4.
Appellant argues the Examiner employs improper hindsight in relying
on Lin for the obviousness of using thermoplastic polyurethane in all three
layers of the basketball of Ou ’795, based on the “conclusory rationale . . . to
take advantage of the material’s ‘well known physical characteristics.”
Appeal Br. 6, 8–10. Appellant asserts Lin’s disclosure is limited to using
thermoplastic polyurethane only in an exterior layer, so Lin does not disclose
or suggest using thermoplastic polyurethane to make the bladder. Id. at 6, 8
(citing Lin ¶¶ 25, 35). Thus, according to Appellant, the rejection is
deficient because the three cited references do not disclose or suggest using
thermoplastic polyurethane to make the bladder. Id. at 8–10. Appellant
asserts that, even if the Examiner is correct that Lin discloses using
thermoplastic polyurethane in an exterior layer to facilitate manufacturing
and recycling of a game ball, and advantageously provides a high resistance
to impact and abrasion, still there is no reason for forming the bladder from
thermoplastic polyurethane. Id. at 9–10.
We conclude a preponderance of the evidence supports the
Examiner’s determination of obviousness, which is based on an articulated,
rational underpinning. “It is well-established that a determination of
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obviousness based on teachings from multiple references does not require an
actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322,
1332 (Fed. Cir. 2012) (citations omitted). “Rather, the test for obviousness
is what the combined teachings of the references would have suggested to
those having ordinary skill in the art.” Id. at 1333; see also In re Merck &
Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (each prior art reference “must be
read, not in isolation, but for what it fairly teaches in combination with the
prior art as a whole”).
As discussed above, the combination of Ou ’795 and Ou ’018 leads
rationally to a basketball having all three components (bladder, intermediate
layer, and exterior layer) made of polyurethane. We agree with the
Examiner’s finding that Lin discloses making a ball (i.e., soccer ball 4) using
thermoplastic polyurethane to form an intermediate layer (i.e., foamed
layer 412) and an exterior layer (i.e., non-foamed layer 411), in combination
with air bladder 43 having an unspecified material composition. See Lin,
Fig. 8, ¶¶ 24–25, 35. We also agree with the Examiner’s finding that Lin
discloses thermoplastic polyurethane layers 411, 412 provide at least two
advantages: (1) “it is not necessary to separate the two layers when
recycling” the ball, and (2) the ball “has good shock-absorbing properties
and high resistance to impact and abrasion.” Id. ¶¶ 7–8, 29, 37.
A person of ordinary skill in the art would readily appreciate that
making all three polyurethane layers of the ball, which results from
combining Ou ’795 and Ou ’018, out of thermoplastic polyurethane as
disclosed by Lin for the intermediate and exterior layers, would achieve the
same recycling and performance advantages discussed in Lin. See
Ans. 10–11. Appellant does not provide any reason why this would not
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occur, and we perceive none. There is, therefore, a rational basis for the
obviousness of claim 1, despite that none of the three references discloses a
bladder made of thermoplastic polyurethane.
We acknowledge Appellant’s point that Lin does not disclose forming
a bladder from thermoplastic polyurethane. Nonetheless: “A person of
ordinary skill is also a person of ordinary creativity, not an automaton,” and
“in many cases a person of ordinary skill will be able to fit the teachings of
multiple patents together like pieces of a puzzle.” KSR, 550 U.S. at 420,
421. Here, a person of ordinary skill in the art would appreciate that
forming all three polyurethane ladders of the ball of Ou ’795 and Ou ’018
(including the bladder) out of thermoplastic polyurethane would obtain the
recycling, biodegradability, and performance characteristic advantages
described in Lin. Lin ¶¶ 29, 37. In particular, this would avoid the need to
separate the bladder from the other layers when recycling. Id. ¶ 29. Further,
while the bladder may perhaps play a smaller role than the intermediate and
exterior layers in providing shock-absorbing and impact resistance
properties to the ball, the bladder still plays a role in providing these
properties. Id. ¶ 37.
Appellant finally argues Ou ’795, Ou ’018, and Lin, whether taken
individually or collectively, do not disclose or suggest using the same
material for all three layers in a ball, as is required in claim 1. Appeal
Br. 6–8; Reply Br. 2–3. Here, Appellant asserts the respective balls
disclosed in each reference each include layers of different materials, and no
single reference discloses a ball having three layers of the same material.
Appeal Br. 6–8; Reply Br. 2–3.
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This argument is not persuasive because it attacks the respective
disclosures of the three cited prior art references separately, rather than
considering the Examiner’s proposed combination as a whole. See Ans. 8;
Mouttet, 686 F.3d at 1332–33; Merck, 800 F.2d at 1097. For the reasons
provided above, we determine the combined disclosures of Ou ’795,
Ou ’018, and Lin lead to the obviousness of claim 1, despite that none of the
references individually discloses a ball having three layers made from the
same material.
For the foregoing reasons, we sustain the rejection of claims 1–3, 5–8,
11, and 17–21 as unpatentable over Ou ’795, Ou ’018, and Lin.
2. Claim 10
Claim 10 recites: “The ball of claim 1, further comprising at least one
protection layer arranged between the bladder and the at least one
intermediate layer and made of the material of the first material class.”
Appeal Br. 16 (Claims App.).
The Examiner finds Ou ’795, in Figure 4, correspondingly illustrates
“additional layers (320) and (43)” that “define protection layers” arranged
between bladder 30 and intermediate layer 42. Non-Final Act. 4; Final
Act. 2 (incorporating Non-Final Office Action); Adv. Act. (mailed Dec. 26,
2018). The Examiner finds layer 320 is “part of the bladder carcass,” along
with bladder 30, but is separated from bladder 30 by reinforcing lining
layer 301. Ans. 5, 12 (citing Ou ’795, 3:1–5). Therefore, the Examiner
determines it would have been obvious to change the material of layer 320
from rubber to thermoplastic polyurethane, along with bladder 30, for the
reasons discussed above in connection with claim 1. Adv. Act.; Ans. 5,
12–13.
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Appellant contends the Examiner’s rejection of claim 10 “is guided by
improper hindsight for similar reasons as discussed . . . with respect to
claim 1.” Appeal Br. 11–12; Reply Br. 6. Appellant specifically objects to
the Examiner’s reasons for modifying bladder 30 of Ou ’795 to be made of
thermoplastic polyurethane in light of Ou ’018 and Lin. Appeal Br. 11–12.
Appellant characterizes the Examiner’s position as being that “if a material
is disclosed for any part of a ball, it would be obvious to use it for any other
part of the ball,” and “because Lin discloses the same material for two layers
of an outer shell, it would be obvious to make every layer of the entire b[a]ll
out of that material.” Id. Appellant further argues the “Examiner has not
shown a known instance of thermoplastic polyurethane as a protective
layer.” Reply Br. 6.
For substantially the same reasons provided above in connection with
claim 1, we do not discern error in the Examiner’s rejection of claim 10. In
particular, we agree with the Examiner’s finding that Ou ’795’s reinforcing
lining layer 301 bifurcates bladder carcass 30 into an inner layer and an
outer layer, which are made of the same material. See Ou ’795, Figs. 3–4,
3:1–3. Appellant does not dispute this finding.
As discussed above, it would have been obvious to use thermoplastic
polyurethane as the bladder carcass material, creating a bladder layer (the
inner layer of bladder carcass 30) and a protection layer (the outer layer of
bladder carcass 30), both made of thermoplastic polyurethane. Thus, we
sustain the rejection of claim 10 as unpatentable over Ou ’795, Ou ’018, and
Lin.
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B. Obviousness over Ou ’795, Ou ’018, Lin, and
one of Taniguchi, Swiszcz, or Lo
(Claims 12, 13, and 15)
The Examiner rejects dependent claims 12, 13, and 15 as unpatentable
over Ou ’795, Ou ’018, Lin, and one of Taniguchi, Swiszcz, or Lo. See
Final Act. 3. In response, Appellant relies on arguments we have considered
above. See Appeal Br. 12. For the reasons provided above, we sustain these
rejections.
C. Obviousness over Ou ’795, Ou ’018, Lin, and Dobrounig
(Claim 16)
Claim 16 recites: “The ball of claim 1, wherein the first material class
is polyvinyl chloride or polyethylene.” Appeal Br. 16 (Claims App.). Here,
the Examiner’s focus shifts away from thermoplastic polyurethane which is
contemplated in claim 1 but not in claim 16, to the polyvinyl chloride class
recited in claim 16.
Specifically, the Examiner relies on the combination of Ou ’795 and
Ou ’018 leading to a ball having a bladder, an intermediate layer, and an
exterior layer, all made from polyurethane, as described above. Non-Final
Act. 6–7; Final Act. 2, 3 (incorporating Non-Final Office Action); Ans. 7.
The Examiner then finds “Dobrounig teaches the equivalence between
polyurethane and polyvinyl chloride in a sports ball setting.” Adv. Act.
(citing Dobrounig, 4:40–44); Ans. 7, 13–14. In the Examiner’s view, the
same is true of Ou ’795 and Ou ’018, both of which disclose polyurethane
and polyvinyl chloride as alternative materials for the cover layer of a game
ball. Non-Final Act. 7 (citing Ou ’795, 3:13–16); Ans. 7, 13 (citing
Ou ’018, 3:3–8). The Examiner determines it would have been obvious,
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based on these teachings, “to use polyvinyl chloride instead of the
polyurethane in order to take advantage of that material’s physical
characteristics.” Adv. Act.; Ans. 7, 13–14.
Appellant contends “Dobrounig only references polyvinyl chloride
once,” where it states: “The next layer 50 in the sequence of layers involves
the syntactic foam layer according to the invention,” and “polyurethane is
used as matrix material 52 into which hollow spheres 54 are mixed” but
“[p]olyurethane foams or PVC [polyvinyl chloride] can also be used.”
Appeal Br. 13 (quoting Dobrounig, 4:40–44). Appellant asserts this
disclosure is “that PVC can be used for a specific application in place of
polyurethane,” which “does not suggest that it would be appropriate in all
situations,” so the Examiner has relied on improper hindsight. Id.; Reply
Br. 6–7.
We agree with the Examiner’s finding that the disclosures of Ou ’795,
Ou ’018, and Dobrounig all reflect the understanding of a person of ordinary
skill in the art that polyurethane and polyvinyl chloride are known
substitutes for each other as a layer material in a sport ball. See Ou ’795,
3:13–16 (“Each of the cover panels 40 comprises a cover layer 41 made of
leather or synthetic leather such as polyurethane (PU) or polyvinyl
chloride (PVC).”); Ou ’018, 3:3–8 (“The cover skin 23 of each of the cover
pieces 11 is made of leather, or synthetic leather such as polyvinyl
chloride (PVC) or polyurethane (PU) with or without foaming material for
backing . . . .”); Dobrounig, 4:40–44 (“The next layer 50 in the sequence of
layers involves the syntactic foam layer,” in which “[p]olyurethane foams or
PVC can . . . be used.”).
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Based on this understanding, it would have been obvious to substitute
polyvinyl chloride for polyurethane in the ball of Ou ’795 and Ou ’018. We
do not find anything unpredictable in making this substitution given the cited
prior art disclosures, which instead indicate polyurethane and polyvinyl
chloride are known to be predictable, alternative materials in this regard.
Appellant provides no persuasive reason why a person of ordinary skill in
the art could not have implemented such a substitution, or any persuasive
reason why the results of the substitution would have been unpredictable.
Thus, we conclude the Examiner’s obviousness rejection permissibly relies
on a predictable substitution of art-recognized equivalent ball layer
materials.
For the foregoing reasons, we sustain the rejection of claim 16 as
unpatentable over Ou ’795, Ou ’018, Lin, and Dobrounig.
DECISION SUMMARY
In summary, we affirm the Examiner’s decision to reject claims 1–3,
5–8, 10–13, and 15–21, as summarized in this table:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s) /
Basis
Affirmed Reversed
1–3, 5–8, 10,
11, 17–21
103 Ou ’795, Ou ’018,
Lin
1–3, 5–8, 10,
11, 17–21

12 103 Ou ’795, Ou ’018,
Lin, Taniguchi
12
13 103 Ou ’795, Ou ’018,
Lin, Swiszcz
13
15 103 Ou ’795, Ou ’018,
Lin, Lo
15
16 103 Ou ’795, Ou ’018,
Lin, Dobrounig
16
Overall
Outcome
1–3, 5–8,
10–13, 15–21

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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