Ex Parte Chien

Patent Trial and Appeal Board

Feb 27, 2013

10751910 (P.T.A.B. Feb. 27, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/751,910 01/07/2004 Tomas Jung-Fu Chien CHIE3132/REF 3786
23364 7590 02/27/2013
BACON & THOMAS, PLLC
625 SLATERS LANE
FOURTH FLOOR
ALEXANDRIA, VA 22314-1176
EXAMINER
PATTERSON, MARC A
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
02/27/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TOMAS JUNG-FU CHIEN
____________

Appeal 2011-012890
Application 10/751,910
Technology Center 1700
____________

Before BRADLEY R. GARRIS, JEFFREY T. SMITH, and
MARK NAGUMO, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-012890
Application 10/751,910

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 32 through 44. We have jurisdiction under 35 U.S.C. § 6.
Appellant’s invention is directed to a flat tube batt structure. App. Br.
3. Claim 32 is illustrative of the subject matter on appeal and is reproduced
below:
32. A substantially uniform flat-tube batt structure
comprising at least one crimped and widened helically wrapped
continuous filaments tow band.
The Examiner relied on the following references in rejecting the
appealed subject matter:
Buettner US 4,761,872 Aug. 9, 1988
Raskin US 6.706393 B2 Mar. 16, 2004

Appellant, App. Br. 4, requests review of the following rejection from
the Examiner’s final office action:
Claims 32-44 rejected under 35 U.S.C. § 103(a) as unpatentable over
Buettner and Raskin.
OPINION1
The dispositive issue on appeal is: Did the Examiner err in
determining that Buettner discloses a batt structure comprising at least one

1 We will limit our discussion to independent claim 32.
Appeal 2011-012890
Application 10/751,910

3
widened helically wrapped continuous filaments tow band as required by the
subject matter of independent claim 32?2
After review of the respective positions provided by the Appellant and
the Examiner, we answer this question in the affirmative and REVERSE.
During examination, the Examiner bears the initial burden of
establishing a prima facie case of obviousness. In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992). “[R]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)).
We refer to the Examiner’s Answer for a statement of the rejection
(Ans. 3-5).
According to the Examiner, Buettner discloses a batt structure
comprising a continuous filament helically (spirally) wrapped around a core
that is initially a thin rectangle widened relative to a single fiber. Ans. 3-4.
The claimed invention is directed to a substantially uniform flat-tube
batt structure comprising at least one crimped and widened helically
wrapped continuous filaments tow band. Claim 32; App. Br. 3. Appellant
correctly argues that the difference between the claimed flat-tube batt of the
present invention and that cited in the prior art is that Buettner discloses a
roll-like filler for a cylindrical pillow formed by spirally wrapping a
rectangular piece of fiber batting (28) around a foam rubber core (16), to
form the scrolled filler. App. Br. 9-10; Buettner col. 2, ll. 25-26. Buettner’s

2 A discussion of the Raskin reference will be unnecessary for disposition of
the present appeal. The Examiner relied upon this reference for describing
features not related to the dispositive issue.
Appeal 2011-012890
Application 10/751,910

4
batting mass (28) is a material in the shape of a thin rectangle comprised of
one of many commercially available polyester fiber battings. Buettner col.
3, l. 67-col. 4, l. 2; Fig. 2. The length of the foam rubber core and the width
(dimension (31)) of the batting are said to be substantially equal to the
desired final length of the pillow. Id. at col. 4, ll. 2-4.) Thus, there is no
helical pitch to the spiral wrapping of batt (28) around core (16). We also
agree with Appellant that Buettner does a not provide a statement about the
orientation of the fibers making up the commercially available batting mass
and that one of ordinary skill in the art cannot rationally draw the conclusion
from Buettner’s disclosure that the fibers making up the batting mass are
helically wrapped around anything. App. Br. 6. Appellant also correctly
argues that Buettner discloses spirally winding the batting mass and not the
fibers making up the batting mass itself. App. Br. 7; Buettner col. 4, l. 5-9.
Contrary to the Examiner’s contention (Ans. 3-4), we find no disclosure in
Buettner describing how the batting mass 28 is made and the Examiner has
not directed us to a portion of Buettner that adequately supports this
contention.
Under these circumstances, we cannot conclude that the Examiner has
met the minimum threshold of establishing a prima facie case of obviousness
under 35 U.S.C. § 103(a). Accordingly, we reverse the prior art rejection of
claims 32-44.

ORDER
The rejection of claims 32-44 under 35 USC § 103(a) as unpatentable
over Buettner and Raskin is reversed.

Appeal 2011-012890
Application 10/751,910

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REVERSED

sld