Ex Parte Fujita et al

Patent Trial and Appeal Board

Jun 25, 2018

13990267 (P.T.A.B. Jun. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/990,267 05/29/2013
7055 7590 06/27/2018
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
FIRST NAMED INVENTOR
Kunio Fujita
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.
P43966 6734
EXAMINER
KURTZ, BENJAMIN M
ART UNIT PAPER NUMBER
1778
NOTIFICATION DATE DELIVERY MODE
06/27/2018 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):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte KUNIO FUJITA, HIDETAKA UJIKE, TAKAHIKO ISHIMARU,
and FUMIKATSU NAGAI
Appeal2017-009340
Application 13/990,267
Technology Center 1700
Before BEYERL YA. FRANKLIN, DONNA M. PRAISS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 seek our review under 35 U.S.C. § 134(a) of the
Examiner's final decision rejecting claims 1, 3, 4, and 6. We have
jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 In this Decision, we reference the Specification filed May 29, 2013
("Spec."), the Final Office Action dated August 22, 2016 ("Final Act."), the
Appeal Brief filed February 22, 2017 ("App. Br."), the Examiner's Answer
dated April 24, 2017 ("Ans."), and the Reply Brief filed June 26, 2017
("Reply Br.").
2 Ishigaki Company Limited is identified as the real party in interest. App.
Br. 3.
Appeal2017-009340
Application 13/990,267
STATEMENT OF THE CASE
Claims 1 and 4 are illustrative of the subject matter on appeal and are
copied below from the Claims Appendix to the Appeal Brief (disputed
limitations are italicized):
1. A filter medium comprising:
a core yam and a binder yam twisted together, at least
one of the core yarn or the binder yarn being weldable; and
a filament yarn being fuzzy and weldable, the filament
yam including first short fibers, the first short fibers twisted and
raised at ends thereof,
the filament yam being welded to at least one of the core
yam or the binder yam while being placed between the core
yam and the binder yam as twisted together, wherein
the at least one of the core yam or the binder yam
includes second short fibers,
weldability of the filament yarn is derived from fusing of
the first short fibers, and
weldability of the at least one of the core yarn or the
binder yarn is derived from fusing of the second short fibers,
and
the filament yam being welded to at least one of the core
yam or the binder yam comprises the first short fibers of the
filament yarn being/used to the second short fibers of the at
least one of the core yam or the binder yam.
4. A filtering device for filtering a liquid to be treated
with a filter medium layer provided in a filtration tank, wherein
the filter medium layer includes filter media, and
each of the filter media includes:
a core yam and a binder yam twisted together, at least
one of the core yarn or the binder yarn being weldable; and
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Application 13/990,267
a filament yarn being fuzzy and weldable, the filament
yam including first short fibers, the first short fibers twisted and
raised at ends thereof,
the filament yarn being welded to at least one of the core
yarn or the binder yarn while being placed between the core
yam and the binder yam as twisted together,
the at least one of the core yam or the binder yam
includes second short fibers,
weldability of the filament yarn is derived from fusing of
the first short fibers, and
weldability of the at least one of the core yarn or the
binder yarn is derived from fusing of the second short fibers,
and
the filament yam being welded to at least one of the core
yam or the binder yam comprises the first short fibers of the
filament yam being fused to the second short fibers of the at
least one of the core yam or the binder yam.
THE REJECTIONS
1. Claims 1 and 4 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by Kunio '362. 3
2. Claims 3 and 6 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Kunio '362 in view ofToichiro '196. 4
ANALYSIS
We need to address only independent claims 1 and 4 because each of
the rejections is based on the same disputed finding that Kunio '362
3 Kunio et al., JP 2005-103362, pub. Apr. 21, 2005 ("Kunio '362").
Citations herein are to the English language translation in the record.
4 Toichiro et al., JP 2005-092196, pub. Apr. 7, 2005 ("Toichiro '196").
Citations herein are to the English language translation in the record.
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Application 13/990,267
discloses filament yam and binder yam that are each weldable and
weldability is derived from fusing short fibers. Final Act. 2-3 (citing Kunio
'362 i-fi-18-10, Fig. 2); Ans. 4--5. The Examiner determines that the recited
claim term "weldable" means "capable of being united" and the recited term
"fusing" means "to unite or blend into a whole." Ans. 4 (citing
dictionary.com). Based on these claim interpretations, the Examiner
determines that yam melting is not required by the claims and that use of a
fusing agent as in Kunio '362 to weld/fuse/unite the core yam, binder yam,
and the filament yam is encompassed by the claim. Id.
Appellants contend that the Examiner erred in finding that
Kunio '362 discloses filament yam being welded to at least one of the
core yam or the binder yam comprising the first short fibers of the
filament yam being fused to the second short fibers of the at least one
of the core yam or the binder yam as required by claim 1. App. Br. 8.
Appellants argue that "the fusing of the fusing agent (in the prior art)
is not the same as the fusing of the yams, per se, as currently
claimed." Id. According to Appellants, in Kunio '3 62 the yams do
not melt and the reference does not disclose the yams as having their
own fusability, but, rather, that fusing is due to fusability of the fusing
agent. Id. Appellants rely upon these same arguments with respect to
the anticipation rejection of claim 4 and the obviousness rejection of
dependent claims 3 and 6. Id. at 16-1 7.
In the Reply Brief, Appellants contend "claims 1 and 4 recite
yam melting, yams having their own fusibility, and the yam being
fused due to its fusibility" based on the following recitations from the
claims: "the filament yam including first short fibers," "the at least
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Application 13/990,267
one of the core yam or the binder yam includes second short fibers,"
"weldability of the filament yam is derived from fusing of the first
short fibers," and "weldability of the at least one of the core yam or
the binder yam is derived from fusing of the second short fibers."
Reply Br. 5. Appellants contend that the fusing agent of the cited art
cannot be considered the first short fibers or the second short fibers
recited in claims 1 and 4, therefore, Kunio '362 fails to disclose
weldability of the filament yam is derived from fusing of the first
short fibers and that weldability of the core yam or the binder yam is
derived from fusing the second short fibers. Id. at 6.
We review the appealed rejections for error based upon the
issues identified by Appellants and in light of the arguments and
evidence produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072,
107 5 (BP AI 2010) (precedential) (cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has long been the Board's
practice to require an applicant to identify the alleged error in the
examiner's rejections")). For the reasons stated in the Final Office
Action and the Examiner's Answer, we are not persuaded by
Appellants that the Examiner reversibly erred in construing the claims
and determining that Kunio '362 anticipates claims 1 and 4. We add
the following primarily for emphasis.
During examination of a patent application, pending claims are
given their broadest reasonable construction consistent with the
specification. In re Prater, 415 F.2d 1393, 1404---05 (CCPA 1969); In
re Am. Acad. of Sci. Tech Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004).
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After considering the arguments and positions of both
Appellants and the Examiner, we find the Examiner's interpretation of
"weldability" and "fusing" reasonable and consistent with the
Specification.
Appellants do not dispute the common meanings of the words
"weldability" and "fusing" that the Examiner provides in the Answer.
See, generally, Reply Br. Appellants also do not direct us to any
portion of the Specification that specifically defines these terms.
Instead, Appellants rely upon the context in which they are used in
claims 1 and 4. Reply Br. 5. However, we determine that the manner
in which welding and fusing are accomplished is not limited by the
dictionary definitions provided by the Examiner, the context of the
claims themselves, nor the Specification because the Specification
does not specifically define weldability or fusing to require a
particular property or structure of the fiber that has "weldability."
Moreover, the Specification supports the Examiner's position that the
term as used in claims 1 and 4 is broader than the specific method
argued by Appellants. Spec. i-f 40 (describing an example as being
formed using "a heat welding step"). It follows then that weldability
and fusing as claim limitations do not require melting of the fibers
themselves as the means by which these structures are achieved, nor
do these limitations preclude the use of a fusing agent as disclosed by
Kunio '362.
Appellants' arguments distinguishing the disclosure of Kunio
'362 on the basis that the fibers lack the required weldability and
fusing because a fusing agent is used are not persuasive of error by the
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Examiner. As previously noted, claims 1 and 4 do not preclude the
presence of a fusing agent for providing "weldability" or "fusing" to
the required yams in the claimed filter medium. Limitations not
appearing in the claims cannot be relied upon for patentability. In re
Self, 671F.2d1344, 1348 (CCPA 1982).
In sum, we affirm the Examiner's rejection of claims 1 and 4 as
anticipated by Kunio '362 for the reasons presented by the Examiner
and given above. Because Appellants make the same arguments to
support the patentability of dependent claims 2 and 3 over the
combination of Kunio '3 62 and Toichiro '196, we, likewise, affirm
the Examiner's rejection of claims 2 and 3 for the same reasons
discussed above.
DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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