Ex Parte Bevan

Patent Trial and Appeal Board

Oct 10, 2018

14061058 (P.T.A.B. Oct. 10, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/061,058 10/23/2013
23908 7590 10/12/2018
RENNER OTTO BOISSELLE & SKLAR, LLP
1621 EUCLID AVENUE
NINETEENTH FLOOR
CLEVELAND, OH 44115
FIRST NAMED INVENTOR
Christopher Graham Bevan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
GUNNP0104USB 3817
EXAMINER
PIZIALI, ANDREW T
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
10/12/2018 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):
ipdocket@rennerotto.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER GRAHAM BEV AN
Appeal2017-010440
Application 14/061,058
Technology Center 1700
Before BRADLEY R. GARRIS, KAREN M. HASTINGS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
CASHION, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-010440
Application 14/061,058
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the Examiner's Final
Rejection of claims 1-21. We have jurisdiction under 35 U.S.C. § 6.
The invention is generally directed to making reconstituted leather
sheet material from a mixture of leather fibers and man-made bicomponent
fibers, where the bicomponent fibers have outer layers with a lower melting
point than the inner cores. Spec. ,r 17. In making the leather sheet material,
the web is formed by melting the outer layers of the bi component fibers so
they fuse at their intersections to form a three dimensional network
throughout the web from the mixture of fibers. Id. This network is said to
constrain the leather fibers when the web is undergoing hydroentanglement.
Id. The network is also said to provide structural reinforcement during
subsequent hydroentanglement. Id. ,r,r 19-20. Further, the network is said
to be able to take over part or all of the function of external screens used in
the method of the prior art. Id. ,r 21. Independent claim 2 best illustrates the
invention:
2. A method of forming a reconstituted leather sheet
material having a leather-like feel, comprising the steps of:
evenly distributing and compressing a mixture of
predominantly waste leather base fibres and additional synthetic
fibres to form a web, wherein the additional synthetic fibres
have meltable surface layers and the base waste leather fibres
comprise leather fibres having fibrillated branches,
heating the web to melt the surface layers of the
additional synthetic fibres so as to cause such fibres to fuse
together at intersections to form fused network intersections
within the web mixture, and
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subjecting the web mixture to successive
hydroentanglement stages to entangle the waste leather fibres
with each other while initially constrained by the network, such
that the increase in tensile strength arising from the
hydroentanglement of the fibers within the web is greater than
the tensile strength of the web prior to hydroentanglement.
Independent claim 1 is directed to a reconstituted leather sheet
material made by the process of claim 2.
Appellant1 (see generally App. Br.) requests review of the following
rejections from the Examiner's Final Office Action:
I. Claims 1-17, I9and21 rejectedunder35U.S.C. § I03(a)as
unpatentable over Addie (US 6,264,879 Bl, issued July 24, 2001) and either
Pirinen (US 6,007,653, issued December 28, 1999), Simpson (US 5,023,130,
issued June 11, 1991), Manning (US 5,106,457, issued April 21, 1992),
Lukemire (US 2,771,823, issued November 27, 1956), Bunting (US
3,493,462, issued February 3, 1970) or Mimura (US 4,251,587, issued
February 17, 1981).
II. Claims 3, 4, 9, 11, and 13 rejected under 35 U.S.C. § I03(a) as
unpatentable over Addie, Pirinen, Simpson, Manning, Lukemire, Bunting,
Mimura, and Takeuchi (US 6,699,806 Bl, issued March 2, 2004).
III. Claims 3, 4, 9, and 11 rejected under 35 U.S.C. § I03(a) as
unpatentable over Addie, Pirinen, Simpson, Manning, Lukemire, Bunting,
Mimura, and Milding (US 6,037,282, issued March 14, 2000).
IV. Claim 18 rejected under 35 U.S.C. § I03(a) as unpatentable
over Addie, Pirinen, Simpson, Manning, Lukemire, Bunting, Mimura, and
Greenway (US 6,442,809 Bl, issued September 3, 2002).
V. Claim 20 rejected under 35 U.S.C. § I03(a) as unpatentable
over Addie, Pirinen, Simpson, Manning, Lukemire, Bunting, Mimura, and
Ali Khan (US 4,488,928, issued December 18, 1984).
1 E-Leather Limited is the Applicant/ Appellant and is identified as the real
party in interest. App. Br. 2.
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Application 14/061,058
OPINION
After review of the respective positions provided by Appellant in the
Appeal and Reply Briefs and the Examiner in the Final Action and the
Answer, we AFFIRM the Examiner's rejections of claim 1-21 under 35
U.S.C. § 103 for the reasons presented by the Examiner. We add the
following for emphasis. 2
Claims 1, 2, 4, 10, 17, 19, and 21 3
The Examiner finds Addie discloses a method of forming a
reconstituted leather sheet material having a leather-like feel, comprising the
steps of evenly distributing and compressing a mixture of predominantly
waste leather base fibers and additional synthetic fibers to form a web,
wherein the additional synthetic fibers have meltable surface layers, heating
the web to melt the surface layers of the additional synthetic fibers so as to
cause such fibers to fuse together at intersections to form fused network
intersections within the web mixture. Final Act. 2; Addie col. 2, 11. 26-33,
col. 7, 11. 5-17, col. 9, 11. 46-63, col. 11, 1. 4---col. 12, 1. 10. The Examiner
finds Addie discloses optionally adding resin to the nonwoven web formed
after the bonding fibers have been bonded to provide improved strength and
2 A discussion of secondary references other than Pirinen and Lukemire is
unnecessary for disposition of this appeal.
3 We focus our attention on independent claim 2 with the understanding that
our discussion applies equally to independent claim 1. Further, Appellant
relies on the arguments presented for claim 2 to address the limitations of
claim 10. App. Br. 38-39. In addition, Appellant does not separately argue
claims 4, 1 7, 19, and 21. See generally App. Br. Accordingly, claims 1, 4,
10, 17, 19 and 21 stand or fall with claim 2.
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Application 14/061,058
cohesion between the fibers. Final Act. 3; Addie col. 7, 11. 37-55, col. 11, 1.
36-col. 12, 1. 16. The Examiner finds Addie does not disclose entangling
the fibers via hydroentanglement to provide the desired cohesiveness
between the fibers. Final Act. 3. The Examiner turns to Pirinen as
disclosing a hydroentanglement process ( spunlacing) as a known technique
for making air-laid nonwoven webs from natural fibers and synthetic
bonding fibers that results in improved strength between the fibers. Final
Act. 3; Pirinen col. 1, 1. 66-col. 2, 1. 9. The Examiner further finds that
Addie's process, being a dry process that seeks to minimize wasteful use of
water, and Lukemire, teaching the use of a high pressure water jet shower
system on a closed water system to eliminate waste byproduct, would have
led one skilled in the art to control the use of water during the
hydroentanglement process to minimize waste products. Final Act. 4; Addie
col. 1, 11. 43-56, see also col. 2, 11. 41--46; Lukemire col. 6, 11. 15-29, col. 9,
11. 40-74. In view of these teachings, the Examiner determines that it would
have been obvious to one having ordinary skill in the art to modify Addie's
process of making reconstituted leather material by substituting Pirinen' s
hydroentanglement process for Addie's resin to form a reconstituted leather
material with improved strength. Final Act. 3.
Appellant argues that Addie teaches away from hydroentanglement
because Addie's process is a dry process for making reconstituted leather.
App. Br. 11. According to Appellant, the claimed hydroentanglement
process is not an essentially dry process as required by Addie but, instead, is
a wet process that utilizes high pressure jets that force liquid through the
web to entangle the waste leather fibers. Id. at 13-14. Thus, Appellant
contends that this is contrary to Addie's teachings of a dry process. Id. at
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14. Appellant also argues that Lukemire's teachings do not cure the
fundamental deficiencies of Addie. Id. at 15-16.
We are unpersuaded by these arguments. There is no dispute that the
processes of Addie and Pirinen involve the use of water in making
nonwoven layers. App. Br. 12-14; Ans. 12-13. There is also no dispute
between Appellant and the Examiner that Addie is directed to an essentially
dry process for making reconstituted leather that minimizes the use of water
and recycles leather waste products. App. Br. 11; Final Act. 4; Addie col. 1,
11. 48-52. However, as the Examiner explains and Appellant acknowledges,
Addie defines the disclosed dry process in terms of the moisture content of
the leather fibers used throughout the reconstitution process, particularly
using enough water to maintain the moisture content of the leather material
to about 25% by weight or less. Ans. 12; App. Br. 13; Addie col. 6, 11. 13-
16, see also col. 2, 11. 41--44. That is, the Examiner determines that Addie
uses water but limits the amount of water used in the disclosed process only
to the extent that the moisture content of the leather fibers used in the
reconstitution process is maintained at a desired level. Further, the
Examiner points to Lukemire as supporting the limited use of water in the
nonwoven art for environmental reasons. Final Act. 4; Ans. 12-13;
Lukemire col. 6, 11. 15-29, col. 9, 11. 40-74. Given the guidance provided by
the prior art, Appellant has not adequately explained why one skilled in the
art, using no more than ordinary creativity, would not have been capable of
adapting Pirinen's hydroentanglement process in Addie's process to provide
the amount of water necessary to make an adequate reconstituted leather
product. KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,421 (2007) ("A person
of ordinary skill is also a person of ordinary creativity, not an automaton.");
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see also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (Skill is presumed
on the part of one of ordinary skill in the art.).
Appellant argues that Addie does not disclose that the cohesion of the
bonding fibers would form the claimed fused network of intersections within
the web mixture that is sufficient to initially constrain the waste leather
fibers for allowing subsequent hydroentanglement. App. Br. 20. Appellant
further argues that neither Addie nor Pirinen suggests any reasonable
expectation of success that hydroentanglement would provide a suitable
leather product having the look and feel of real leather. Id. at 22.
We find these arguments also unavailing because they do not take into
account the combined teachings of Addie and Pirinen. As noted above,
Pirinen discloses that using hydroentanglement after pre bonding of fibers
produces good strength in the web. Pirinen col. 2, 11. 6-9. Further, Pirinen
discloses that prebonding (i.e., forming a network of fibers) prevents fibers
from flushing (that is, constraining) during spunlacing (hydroentanglement).
Pirinen col 2, 11. 6-7. Thus, contrary to Appellant's contention that there is
no motivation to combine the teachings of the cited art (App. Br. 17-20), the
Examiner has provided a reasonable basis for a person of ordinary skill in
the art desiring to improve the characteristics of a reconstituted leather
material to have reasonably expected that modifying Addie's process to
include the use of Pirinen' s hydroentanglement, as proposed by the
Examiner, would lead to such an improvement. In re O'Farrell, 853 F.2d
894, 904 (Fed. Cir. 1988) ("For obviousness under§ 103, all that is required
is a reasonable expectation of success."). This expectation is further
supported by Pirinen's disclosure that using hydroentanglement after
pre bonding of fibers produces good strength in the web, a similar aim as
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Application 14/061,058
Appellant's invention. Pirinen col. 2, 11. 6-9; Spec. ,r,r 17-20. Thus,
Appellant has not adequately explained error in the Examiner's
determination of obviousness.
Claims 3, 5, 6, 12-14 and 16
Claims 3 and 13 require the waste leather base fibers to have a
maximum length of 6 mm or less than 3 mm, respectively. Claims 5, 6, 12,
14, and 16 require that the additional synthetic fibers constitute less than
about 10% by weight, up to about 5% by weight, less than 20% by weight ,
no more than 2% by weight, and 2-10% by weight, respectively, of the
formed sheet material.
We refer to the Examiner's Final Action for the statements of
rejection for these claims. Final Act. 6. Briefly, the Examiner points to
where the cited art either discloses the claimed features or establishes the
claimed features as a result effective variable. See Addie col. 4, 11. 1-18 (for
claims 3 and 13), col. 9, 11. 39---63 (for the remaining claims).
With respect to claims 3 and 13, Appellant argues that Addie uses a
limited amount (25%) of leather fibers having the claimed lengths. App. Br.
32-33. We are unpersuaded by this argument for the reasons presented by
the Examiner. Ans. 19-20. Moreover, we note that the language of the
claims does not require that all leather fibers must have the respectively
claimed fiber lengths.
We have also fully considered Appellant's arguments for claims 5, 6,
12, 14, and 16 concerning the amount of synthetic fibers used to make the
reconstituted leather material. App. Br. 34--35. However, given that Pirinen
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Application 14/061,058
discloses that bonding fibers can be used in the amounts of 0-50% in a
hydroentanglement process, we agree with the Examiner that the arguments
do not address the combined teachings of Addie and Pirinen. Ans. 23;
Pirinen col. 2, 11. 47-51.
Claims 7 and 8
Claims 7 and 8 require synthetic fibers having an inner core and outer
surface layer of specific materials.
The Examiner finds Pirinen discloses a bicomponent bonding fiber
having a polypropylene core and an outer polyethylene layer. Final Act. 6;
Pirinen col. 2, 11. 53---63. The Examiner determined that it would have been
obvious to one skilled in the art to use Pirinen's bonding fiber in the process
of Addie. Final Act. 6.
Appellant argues there is no reasonable expectation of success that
Pirinen's bicomponent fibers and materials would be suitable for use with
fibrillated waste leather fibers as claimed because Pirinen is concerned with
spunlacing different fibers which have different properties. App. Br. 36.
We are unpersuaded by these arguments because, as the Examiner
notes, they are unsupported by evidence that Pirinen's bonding fibers would
be unsuitable for Addie's purposes. Ans. 23. Appellant, at most, has
provided mere attorney arguments and such arguments of counsel cannot
take the place of evidence. See In re De Blauwe, 736 F.2d 699, 705 (Fed.
Cir. 1984); In re Payne, 606 F.2d 303,315 (CCPA 1979). Moreover, Addie
discloses the use of polyethylene fibers as synthetic bonding fibers. Addie
col. 7, 11. 14--16. Thus, based on this disclosure, and absent a showing to the
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contrary, one skilled in the art would have a reasonable expectation that
Pirinen's bicomponent fiber having a polypropylene core and an outer
polyethylene layer would have been suitable for Addie's purposes.
Claims 9 and 11
Claims 9 and 11 require synthetic fibers having a specific denier
value.
The Examiner finds Addie discloses synthetic fibers having a fiber
size of about 3 denier. Final Act. 7; Addie col. 7, 11. 18-22. The Examiner
determines that it would have been obvious to one having ordinary skill in
the art to vary the fiber size of the synthetic fibers based on the intended use
and the desired end product characteristics (e.g. appearance, touch, etc.).
Final Act. 7.
We have considered Appellant's argument with respect to these
claims, but are unpersuaded for reasons of record. App. Br. 36-38; Ans. 24.
Appellant directs us to no evidence as to the criticality of the fiber size.
Thus, Appellant has not adequately explained why one skilled in the art
using no more than ordinary creativity, would not have determined the
appropriate fiber size to achieve a desired leather feel.
Claim 15
Claim 15 requires having leather fibers penetrate a fabric layer.
The Examiner finds Pirinen discloses that it is known in the art for a
sheet to comprise a plurality of layers to obtain the desired thickness. Final
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Act. 7; Pirinen col. 2, 11. 29--52. The Examiner determines that it would
have been obvious to one having ordinary skill in the art to combine multiple
layers such that the base fibers of the top layer would penetrate the bottom
layer upon hydroentanglement, as taught by Pirinen, because some
applications require a greater thickness. Final Act. 7; Pirinen col. 2, 1. 29--
col. 3, 1. 15.
We have considered Appellant's arguments for this claim (App. Br.
39), however, we are unpersuaded because they are unsupported by
evidence. See De Blauwe, 736 F.2d at 705 (Fed. Cir. 1984).
Claim 18
Claim 18 requires using a collection device during
hydroentanglement.
The Examiner relies on Greenway to teach as known the use of a
liquid collection device in a hydroentanglement process. Final Act. 10;
Greenway col. 6, 11. 31-37 and Figure 3.
Appellant argues that Greenway's collection device does not catch
any liquid rebound as required by the claim. App. Br. 40.
We agree with the Examiner's reasoning that Appellant has not
adequately explained why Greenway' s collection device would be unable to
catch rebound liquid given Greenway's disclosure that the collection device
collects water from the jets of a manifold that impacts the fabric. Ans. 26;
Greenway col. 6, 11. 29--31.
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Claim 20
Claim 20 requires holding the web between porous belts during
passage of the hot air through the web during melting of the outer surface of
the synthetic fibers.
The Examiner relies on Ali Khan to teach it was known to hold a web
between porous belts during passage of the hot air through the web to make
a desired product. Final Act. 11 ; Ali Khan co 1. 1, 1. 5 7---co 1. 2, 1. 3 3.
Appellant appears to argue that using the belt/hot air arrangement of
Ali Khan would not result in the claimed network of fused fibers. App. Br.
42. However, Appellant directs us to no objective evidence in support of
this argument. Thus, Appellant has not adequately explained why one
skilled in the art would not have reasonably expected that using the belt/hot
air arrangement of Ali Khan in the process from the combined teachings of
Addie and Pirinen would not have resulted in a leather material comprising
the claimed network of fused fibers.
Declaration
Appellant directs our attention to the Declaration under 3 7 C.F .R §
1.132 by Jens Ole Brochner Andersen (Declaration) that was filed in the
parent Application No. 10/494,475 on February 8, 2008. App. Br. 23, n. 1.
We have considered the Declaration, but agree with the Examiner's
determination that it is insufficient to overcome a prima facie case of
obviousness because it does not consider that Pirinen is not limited to only
wood fibers. Ans. 18-19; Pirinen col. 1, 11. 9-12, 58-59.
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Accordingly we affirm the Examiner's prior art rejections of claims
1-21 under 35 U.S.C. § 103 (a) for the reasons presented by the Examiner
and given above.
ORDER
The Examiner's prior art rejections of claims 1-21 under 35 U.S.C.
§ 103(a) are affirmed.
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
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