Alfatex NV

Patent Trials and Appeals Board

May 3, 2021

2020006188 (P.T.A.B. May. 3, 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.
16/423,241 05/28/2019 Jonathan Verstraete 05918-0634002
VGCP 10971
2128
26201 7590 05/03/2021
FISH & RICHARDSON P.C. (AU)
P.O BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
SAN, JASON W
ART UNIT PAPER NUMBER
3677
NOTIFICATION DATE DELIVERY MODE
05/03/2021 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte JONATHON VERSTRAETE,
JOHAN MARIE ALBERT LECLUYSE, and
TERRY BERNARD JACQUES RAEPSAET
____________

Appeal 2020-006188
Application 16/423,241
Technology Center 3600
____________

Before JENNIFER D. BAHR, JEREMY M. PLENZLER, and
LISA M. GUIJT, Administrative Patent Judges.

GUIJT, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellant1 seeks our review under 35 U.S.C. § 134(a) of the rejection
of claims 17–22 and 25–36. We have jurisdiction under 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. Appellant identifies Alfatex NV and Velcro Industries B.V.
as real parties in interest. Appeal Br. 2.
Appeal 2020-006188
Application 16/423,241
2
THE INVENTION
Appellant’s invention relates to “fasteners, and more particularly to
fastener tapes of the self-engaging type, and to methods of their
manufacture.” Spec. 1:3–4. Claim 17, reproduced as the sole independent
claim on appeal, is illustrative of the subject matter on appeal.
17. A fastener comprising:
a flexible base sheet; and
an array of discrete fastener elements projecting from a
broad side of the base sheet, each fastener element comprising a
stem extending from the base sheet and a head at a distal end of
the stem, the head overhanging the base sheet on multiple sides
of the stem;
wherein the ratio of Self-Engaged Lift Resistance to Head
Coverage is greater than 45 N/cm2.

THE REJECTIONS2,3
The Examiner relies upon the following as evidence in support of the
rejections:
NAME REFERENCE DATE
Wollman US 4,454,183 June 12, 1984
Hattori US 5,625,929 May 6, 1997
Gallant US 2004/0172793 A1 Sept. 9, 2004
Tolan US 2005/0081345 A1 Apr. 21, 2005
Tuma US 2013/0067702 A1 Mar. 21, 2013

2 The Examiner’s objection to Figures 2, 2A, 4, and 7–10A is a petitionable,
not appealable, matter. Final Act. 2.
3 The Examiner finds claim 24 “objected to as being dependent upon a
rejected base claim, but . . . allowable if rewritten in independent form
including all of the limitations of the base claim and any intervening
claims.” Final Act. 9.
Appeal 2020-006188
Application 16/423,241
3
The following rejections are before us for review:
I. Claims 17–19 and 25–30 stand rejected under 35 U.S.C.
§ 103 as unpatentable over Tuma.
II. Claims 17, 19, 21, 22, 25–29, and 31–35 stand rejected
under 35 U.S.C. § 103 as being unpatentable over
Wollman and Hattori.
III. Claim 20 stands rejected under 35 U.S.C. § 103 as
unpatentable over Wollman, Hattori, and Gallant.
IV. Claim 36 stands rejected under 35 U.S.C. § 103 as unpatentable
over Wollman, Hattori, and Tolan.

OPINION
“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.” In re Aller, 220 F.2d 454, 456 (CCPA 1955). This rule is
limited to cases in which the optimized variable is a “result-effective
variable.” In re Antonie, 559 F.2d 618, 620 (CCPA 1977). A recognition in
the prior art that a property is affected by a variable is sufficient to find the
variable result-effective. See In re Applied Materials, Inc., 692 F.3d 1289,
1297 (Fed. Cir. 2012).
Rejection I
Appellant argues claims 17–19 and 25–30 as a group. Appeal Br.
6–12. We select independent claim 17 as representative, and claims 18, 19,
and 25–30 stand or fall therewith. See 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Tuma discloses an array of discrete fastener
elements projecting from a base sheet, each element having a stem as well as
a head that overhangs the base sheet. Final Act. 4–5.
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Application 16/423,241
4
The Examiner notes that the claimed ratio (i.e., Self-Engaged Lift
Resistance to Head Coverage) is “Appellant’s own test by Appellant’s
created terms.” Ans. 4. Nevertheless, the Examiner finds that “Lift
Resistance” (defined by the Examiner as “a force to separate two fastener
sheets”) is “known and inherently demonstrated” in Tuma, and also that
“Head Coverage” (defined by the Examiner, according to Appellant’s
Specification, as “‘the proportion of the area of the product covered by the
heads’” (citing Spec. 8:1)) is disclosed in Tuma. Id. (citing Tuma, Fig. 1).
The Examiner further finds that Tuma evidences that the claimed
relationship between Lift Resistance and Head Coverage is recognized in the
prior art, by disclosing that “[h]ead coverage is a known [variable] . . .
affecting holding strength.” Id. at 4–5 (citing, e.g., Tuma, Figs. 1, 2a–2d).
The Examiner reasons that it would have been obvious “to have a
ratio of Self-Engaged Lift Resistance to Head Coverage greater than 45
N/cm2,” because it has been held that where the general conditions of a
claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation. Ans. 5 (citing
MPEP § 2144.05(II), In re Aller, 220 F.2d 454, 456 (CCPA 1955)). The
Examiner also concludes that “[a] ratio of known variables as claimed by
Appellant is ‘the product not of innovation but of ordinary skill and common
sense.’” Id. at 7 (citing MPEP § 2144.05 (II)(B)). The Examiner further
determines that “Appellant has not demonstrated unexpected results,” nor
“describe[d] why the value of 45 N/cm2 is uniquely critical.” Id.
Appellant argues that the prior art “does not disclose a value of any
kind for the claimed Self-Engaged Lift Resistance to Head Coverage ratio;
nor does the art provide any disclosure that could be used to derive such a
Appeal 2020-006188
Application 16/423,241
5
value.” Appeal Br. 8. Appellant submits that the Examiner’s Answer “does
not identify where the prior art discloses the ‘general conditions’ of the
claims” or “where the prior art recognized Appellant’s claimed ratio as a
result-effective variable,” and further, “does not adequately explain how or
why routine experimental activity would have produced the claimed range.”
Reply Br. 1. Appellant maintains that a showing of criticality is, therefore,
“premature.” Id. Appellant concludes that
the prior art lacks disclosure of a fastener with the identical
structure and function. Appellant’s ratio is what defines the
structure of the claimed fastener, and Appellant’s ratio has never
been disclosed. . . . This case is about a new type of fastener
described and claimed through a ratio of Self-Engaged Lift
Resistance to Head Coverage that the prior art fails to teach.
Id.
We are not persuaded by Appellant’s arguments.
First, Appellant does not dispute that Tuma discloses all of the
structure of the fastener required by claim 17, apart from the claimed ratio:
a flexible base sheet; and an array of discrete fastener elements
projecting from a broad side of the base sheet, each fastener
element comprising a stem extending from the base sheet and a
head at a distal end of the stem, the head overhanging the base
sheet on multiple sides of the stem.
Thus, we are not apprised of error in the Examiner’s determination that
Tuma discloses the general conditions of claim 17.
Additionally, Tuma discloses that “[p]ortions of the contact surface
[(i.e., the heads of Tuma’s fastener elements)] can have a weaker separation
force in order to facilitate an initial opening of the adhesive connection,
while other portions require a stronger separation force.” Tuma ¶ 2. Even in
Appeal 2020-006188
Application 16/423,241
6
view of Appellant’s test protocol,4 Appellant does not explain why Tuma’s
“separation force” is not analogous to the claimed “Self-Engaged Lift
Resistance,” which is described in the Specification as a peak load to cause
separation of engaged fastener strips. See Tuma ¶ 2; Spec. 12:13–17.
Appellant also does not provide persuasive argument or evidence as to why
Tuma’s “common contact surface” is not analogous to the claimed “Head
Coverage.” See, e.g., Tuma ¶ 2 (“each projection is dimensioned in such a
way that all of the end faces have the same vertical height above the surface
and form a common contact surface that is interrupted by a mutual spacing
between the end faces”). Thus, we agree with the Examiner that Tuma
discloses both the numerator and denominator of the claimed ratio as
recognized variables or parameters of fasteners of the type claimed.
Tuma further evidences a recognition in the prior art that separation
force (i.e., Self-Engaged Lift Resistance) is affected by common contact
surface (i.e., Head Coverage): “the object of the present invention is to
enhance the adhesion and separation properties” by designing facing fastener
tapes wherein
the edge of at least one of the head parts has, connected thereto,
at least one connecting section, which projects beyond the edge
of said head part in at least one direction in such a way that the
result is a change in the effective size of the contact surface for
the corresponding head part, the contact surface of at least one
head part is modified in such a way that it is enlarged or

4 Because the Specification discloses, with respect to the Self-Engaged Lift
Resistance (SELF) testing protocol that “[t]he product is then cut into
lengths of 5 cm and two lengths are completely overlapped and pressed to
engage over the entire overlapped area,” we construe the claimed ratio of
SELF to Head Coverage to require a length of the claimed fastener to be
engaged with a length of the claimed fastener to derive the record peak load
to cause separation. Spec. 12:13–16.
Appeal 2020-006188
Application 16/423,241
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decreased, and at least one tear-off edge is defined on the at least
one connection section; and this tear-off edge facilitates the
separation of the contact surface from a second or third
components.
Tuma ¶¶ 4, 5. This recognition in Tuma is sufficient to find the variable of
common contact surface (i.e., Head Coverage) result-effective.
Thus, we are not apprised of error in the Examiner’s finding that
Tuma teaches that the surface area of the heads (i.e., Head Coverage) is a
result-effective variable, affecting separation force (i.e., Self-Engaged Lift
Resistance), and that such a relationship may be stated as a ratio. Appellant
has not made a showing of criticality. Appeal Br. 12; Reply Br. 1–2; see In
re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (pointing out that it has
been consistently held that, where the only difference between the claimed
invention and the prior art is some range or other variable, the applicant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range).
Accordingly, we sustain the Examiner’s rejection of claim 17, and
claims 18, 19, and 25–30 fall therewith, under 35 U.S.C. § 103, as
unpatentable over Tuma.
Rejection II
Appellant argues claims 17–19, 21, 22, 25–30, and 31–35 as a group.
Appeal Br. 6–12. We select independent claim 17 as representative, and
claims 18, 19, 21, 22, 25–30, and 31–35 stand or fall therewith. See 37
C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Wollman discloses an array of discrete
fastener elements projecting from a base sheet, each element having a stem
as well as a head that overhangs the base sheet. Final Act. 6. As with
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Application 16/423,241
8
Rejection I, the Examiner notes that the claimed ratio (i.e., Self-Engaged Lift
Resistance to Head Coverage) is “Appellant’s own test by Appellant’s
created term,” and nevertheless that “Lift Resistance” is “known and
inherently demonstrated” by the combination of Wollman and Hattori.
Ans. 4. Notably, Wollman also implies “Head Coverage” is a known
variable by discussing the effect of the density of the stems having the
heads. See Wollman 4:67–5:5. The Examiner further finds that Hattori
evidences that the relationship between Lift Resistance and Head Coverage
is recognized in the prior art, by expressly teaching that “disengagement
force may be increased due to the pattern of the headed stems of the fastener
member.” Ans. 4. The Examiner reasons that it would have been obvious
“to have a ratio of Self-Engaged Lift Resistance to Head Coverage greater
than 45 N/cm2,” because it has been held that where the general conditions
of a claim are disclosed in the prior art, it is not inventive to discover the
optimum or workable ranges by routine experimentation. Ans. 5 (citations
omitted). The Examiner further determines that “Appellant has not
demonstrated unexpected results,” nor “describe[d] why the value of 45
N/cm2 is uniquely critical.” Id.
Appellant’s arguments supra are directed to both Rejections I and II.
In sum, Appellant argues that the prior art does not disclose values for the
variables comprising the claimed ratio, nor does the prior art demonstrate
that the Head Coverage is recognized as a variable effecting Lift Resistance
results. Appeal Br. 6–12.
Again, we are not persuaded by Appellant’s arguments.
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Application 16/423,241
9
As with Tuma supra, Wollman discloses the general conditions of
claim 17.5 Appellant does not explain why Hattori fails to disclose that the
relationship between Lift Resistance and Head Coverage is recognized in the
prior art, when Hattori expressly teaches that it is known to increase
disengagement force (i.e., Lift Resistance) by changing the headed stems
pattern (i.e., Head Coverage). Hattori, Abstract. Additionally, Wollman
discloses that the surface area of the heads (i.e., Head Coverage) is
recognized as a variable affecting the separation force (i.e., Self-Engaged
Lift Resistance): “by selecting the proper density of and spacing between
the stem portions” (i.e., adjusting the contact area of the head surfaces), “the
heads should be capable of engaging each other with a desired degree of
engagement.” Id. at 4:67–5:5; see also Hattori, Abstract (albeit with respect
to a shear direction).
Thus, we are not apprised of error in the Examiner’s finding that
Wollman, in view of Hattori, teaches that the surface area of the heads (i.e.,
Head Coverage) is a result-effective variable, affecting separation force (i.e.,
Self-Engaged Lift Resistance), and that such a relationship may be stated as
a ratio. Appellant has not made a showing of criticality. Appeal Br. 12;
Reply Br. 1–2.
Accordingly, we sustain the Examiner’s rejections of claims 17–21,
22, 25–29, and 31–36, under 35 U.S.C. § 103, as unpatantable over Wollman
and Hattori.

5 Notably, although Wollman discusses that “[i]t is well known in the
fastener art that the heads of . . . strip material will releasably engage with
loops” (Wollman 1:31–33 (emphasis added)), Wollman also discloses that
“two lengths of the strip material [comprising heads] could be used together
to form a fastener” (i.e., heads engaging heads, without loops) (id. at 5:3–5).
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Application 16/423,241
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Rejections III and IV
Appellant chose not to present arguments for the patentability of
claims 20 and 36 apart from the arguments presented for independent claim
17 in Rejection II, and therefore, for essentially the same reasons stated
supra, we also sustain the Examiner’s rejections of claims 20 and 36.
Appeal Br. 6–12.

CONCLUSION
In summary:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
17–19, 25–
30
103 Tuma 17–19, 25–
30

17–19, 21,
22, 25–29,
31–35
103 Wollman, Hattori 17–19, 21,
22, 25–29,
31–35

20 Wollman, Hattori, Gallant 20
36 Wollman, Hattori, Tolan 36
Overall
Outcome
17–22, 25–
36

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