Ex Parte Fukui

Patent Trial and Appeal Board

Mar 16, 2018

13767289 (P.T.A.B. Mar. 16, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
131767,289 02/14/2013
85530 7590 03/20/2018
TECHNO LINKS INTERN A TI ON AL, INC.
C/O KEA TING & BENNETT, LLP
1800 Alexander Bell Drive
Suite 200
Reston, VA 20191
FIRST NAMED INVENTOR
TakaoFUKUI
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.
90925.10 4455
EXAMINER
LYNCH, MEGAN E
ART UNIT PAPER NUMBER
3765
NOTIFICATION DATE DELIVERY MODE
03/20/2018 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):
uspto@kbiplaw.com
jkeating@kbiplaw.com
epreston@kbiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TAKAO FUKUI
Appeal2017-000620
Application 13/767,289
Technology Center 3700
Before BRETT C. MARTIN, LISA M. GUIJT, and
JEFFREY A. STEPHENS, 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
Examiner's decision2 rejecting claims 1-9. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies the real party in interest as Okamoto Corporation.
Appeal Br. 2.
2 Appeal is taken from the Final Office Action dated August 6, 2015.
Appeal2017-000620
Application 13/767,289
THE CLAIMED SUBJECT MATTER
Claim 1, reproduced below as the sole independent claim on appeal,
is illustrative of the claimed subject matter on appeal, with disputed
limitations italicized for emphasis.
1. A knitting machine capable of changing a pile
length, comprising:
a cylinder arranged to hold knitting needles so that the
knitting needles extend in a vertical direction parallel or
substantially parallel to an axis of the cylinder;
a sinker bed including a disk-shaped horizontal surface
arranged perpendicular or substantially perpendicular to the axis
of the cylinder;
a plurality of sinkers including a low-pile sinker and a
high-pile sinker arranged on the sinker bed to radially extend and
to be movable in a radial direction of the cylinder, the low-pile
sinker and the high-pile sinker being opposed to each other, the
low-pile sinker including a low-pile nib to hold a pile yam when
a low-pile stitch is formed, the high-pile sinker including a high-
pile nib to hold the pile yam when a high-pile stitch in which a
sinker loop length of the pile yam is longer than that in the low-
pile stitch is formed;
a plurality of selector jacks arranged on the sinker bed
radially outside the sinkers to correspond thereto, respectively,
and to extend radially, the selector jacks including a low-pile
selector jack and a high-pile selector jack arranged to be
opposed to each other and be selectively movable in the radial
direction to act on the low-pile sinker and the high pile sinker
corresponding thereto;
an actuator arranged to selectively act on the selector
jacks so that, when one of the knitting needles draws in the pile
yam and a ground yam, a first control in which the actuator acts
on the low-pile selector jack, a second control in which the
actuator acts on the high-pile selector jack, and a third control in
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which none of the low-pile selector jack and the high-pile
selector jack is subjected to an action of the actuator are
selectively performed;
a sinker cap arranged above the sinker bed to cover the
sinker bed, the sinker cap including a cam arranged to act on the
sinkers and the selector jacks selectively, the cam being arranged
to move at least one of the selector jacks which is subjected to
the action of the actuator radially inward to bring the at least one
selector jack into contact with a corresponding sinker and to
move the corresponding sinker to an area between the knitting
needles; wherein
at least one of the low-pile sinker and the high-pile sinker
includes a small nib to hold the ground yam during stitch
formation, a distance between the high-pile nib and the small nib
being larger than a distance between the low-pile nib and the
small nib in the vertical direction;
a distance between the low-pile nib and the high-pile nib
in the vertical direction is from about 0.5 mm to about 2.5 mm;
when the low-pile sinker is pushed out by the first control,
the pile yam and the ground yam are drawn in by one of the
knitting needles while the pile yam is held by the low-pile nib
and the ground yam is held by the small nib;
when the high-pile sinker is pushed out by the second
control, the pile yam and the ground yam are drawn in by one of
the knitting needles while the pile yam is held by the high-pile
nib and the ground yam is held by the small nib; and
when none of the low-pile sinker and the high-pile sinker
is pushed out by the third control, the pile yam and the ground
yam are drawn in by one of the knitting needles while both the
pile yam and the ground yam are held by the small nib.
THE REJECTIONS
I. Claim 9 stands rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite.
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Application 13/767,289
II. Claims 1-9 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Plath (US 2003/0154747 Al; published Aug.
21, 2003).
ANALYSIS
Rejection I
Claim 9 recites:
A knitting machine according to claim 1, wherein the
actuator includes a flat planar head including a top end and is
arranged to act on one of the selector jacks which is to be selected
by bringing the top end of the head into contact with the one of the
selector jacks; and
the head includes a main surface which is perpendicular or
substantially perpendicular to the one of the selector jacks and
symmetric about a center line extending vertically across the main
surface of the head.
Appeal Br. 25 (Claims App'x) (emphasis added).
The Examiner concludes that claim 9 is indefinite because "it [is]
unclear how the main surface is symmetric about a centerline if the
centerline extends across the main surface." Final Act. 2. The Examiner
determines, however, that one interpretation of claim 9 is that "a line
extending in the exact center of the main surface would have
equal/symmetric main surface portions on either side of the line." Id. at 2-3.
Appellant argues that the Specification discloses that "top ends 51 b-
56b of the actuator are symmetrical about a vertically extending line."
Appeal Br. 20 (citing Spec. iJ 84). Appellant provides an annotated Figure
7B from the Specification, which is reproduced below.
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Application 131767,289
Figure 7B, as annotated by Appellant, depicts a front view of a head
included in the actuator depicted in Figure 7 A, wherein Appellant has drawn
a vertical line bisecting a surface of the exemplary head having a top end
(i.e., 5lb to 56b), wherein the surface is symmetric on either side of the line.
Spec. ii 36.
The Examiner responds that although "such a limitation may be seen
in Appellant's Drawings, it is not clearly detailed in the claims what the
orientations of the main surface and the center line are in such a way as to
convey their relationship to one another and define how the surface is
symmetric about a center line." Ans. 8-9.
Appellant replies that "[ o ]ne having ordinary skill in the art ... , after
reviewing the originally filed Specification and Drawings, would not have
had any difficulty in reviewing, for example, [paragraph 84 and Figure 7B]
and understanding that the top ends 51 b-56b of the actuator are symmetrical
about a vertically extending line." Reply Br. 7. Appellant concludes that
"[t]here is nothing indefinite about the symmetry about the vertically
extending line shown in [the] marked-up portion ofFig[ure] 7B." Id.
(referencing Appellant's annotated Figure 7B, supra).
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Claims, when read in light of the Specification, must "reasonably
apprise those skilled in the art both of the utilization and scope of the
invention" using language "as precise as the subject matter permits." In re
Packard, 751F.3d1307, 1313 (Fed. Cir. 2014). In determining whether a
claim is definite under 35 U.S.C. § 112, second paragraph, "[t]he USPTO, in
examining an application, is obliged to test the claims for reasonable
precision according to ... [this principle]." Id.
As set forth supra, independent claim 1, from which claim 9 depends,
does not recite any limitations regarding the geometrical relationship
between the actuator and the selector jacks upon which the actuator is
arranged to selectively act, or regarding the actuator and any other structure
of the claimed knitting machine. However, claim 1 provides an orientation
with respect to a vertical direction of the knitting machine, in that the
cylinder is "arranged to hold knitting needles so that the knitting needles
extend in a vertical direction parallel ... to an axis of the cylinder." See
claim 1, set forth supra ("an actuator arranged to selectively act on the
selector jacks ... "). Claim 1 also specifies, as set forth supra, that "a sinker
bed includ[es] a disk-shaped horizontal surface arranged perpendicular ...
to the axis of the cylinder" and that the selector jacks are "arranged on the
sinker bed ... to extend radially."
Claim 9 requires the actuator to have a head that is flat and planar, and
which includes a top (or upper) end arranged to act on, by contacting, one of
the selector jacks. Claim 9 specifies, in relevant part, that the head also has
"a main surface" perpendicular to one of the selector jacks, and we know
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from claim 1 that selector jacks extend radially from the horizontal sinker
bed with respect to the cylinder that has a vertical axis. Claim 9 further
specifies that the main surface is symmetric about a center line extending
vertically across the main surface of the head. An ordinary meaning of the
claim term "center line," consistent with the Specification, is "a straight or
curved line that continuously bisects a plane figure" (WEBSTER'S THIRD
NEW INT'L DICTIONARY 362 (1993)), and an ordinary meaning of the claim
term "symmetric," consistent with the Specification, is "having or involving
symmetry," wherein the term "symmetry" means, in relative part,
"correspondence in size, shape, and relative position of parts that are on
opposite sides of a dividing line or median plane ... " (id. at 2317). Thus,
claim 9 specifies, with reasonable precision, that a main surface of the flat,
planar head is symmetric (or has correspondence in shape) about a center
line, which extends vertically across (or bisects) the main surface, wherein
the vertical orientation is in the same orientation as the vertical axis of the
cylinder of the knitting machine.
Accordingly, we do not sustain the Examiner's rejection of claim 9
under 35 U.S.C. § 112, second paragraph, as being indefinite.
Rejection II
Appellant argues claims 1-9 as a group. Appeal Br. 8-20; Reply Br.
2-8. We select claim 1 as representative, with claims 2-9 standing or falling
with claim 1. See 37 C.F.R. § 41.37(c)(l)(iv).
Regarding independent claim 1, the Examiner finds, inter alia, Plath
discloses the claimed knitting machine including a cylinder (i.e., needle
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cylinder 1 ), a sinker bed (i.e., disk-shaped sinker ring 18), sinkers (i.e.,
sinkers 25), selector jacks (i.e., selection jacks 26), an actuator (i.e., springs
32, selection devices 33), and a sinker cap (i.e., sinker can 19), as claimed.
Final Act. 4-5 (citations omitted). The Examiner determines that Plath's
sinkers 25 disclose both the claimed low- and high-pile sinkers (citing Plath
iJ 47) and also that Plath's selection jacks 26 disclose both the claimed low-
and high-pile selector jacks. Id. at 4. The Examiner also determines that at
least one of the low and high-pile sinkers includes a small nib (i.e., hold-
down throat 25b) to hold a ground yam, wherein a distance between the
high-pile nib (i.e., high sinker edge 25d) and the small nib (i.e., hold-down
throat 25b) is larger than a distance between the low-pile nib (i.e., lower
sinker edge 25c) and the small nib (i.e., 25b) in the vertical direction, as
claimed. Id. at 5 (see, e.g., Plath iii! 47, 49, Fig. 5).
The Examiner determines that Plath fails to disclose "a distance
between the low-pile nib and the high-pile nib in the vertical direction is
from about 0.5 mm to about 2.5 mm," and the Examiner reasons that it
would have been obvious "to have provided the low-pile and high-pile nibs
at such a distance as is claimed, since discovering the optimum or workable
range involves only routine skill in the art." Id. at 5-6 (citing In re Aller,
220 F.2d 454, 456 (CCPA 1955)).
First, Appellant argues that the Examiner erred by relying on Plath's
sinkers 25 and selection jacks 26 as corresponding to both the claimed low-
and high-pile sinkers and both the low- and high-pile selector jacks. Appeal
Br. 11. Appellant submits that claim 1 requires two different sinkers and
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Application 13/767,289
selection jacks, and that Plath "teaches only one single sinker 25 which is
used to knit both low-pile and high-pile fabrics by being controlled to have
different positions and arrangements based on the first through third pattern
devices" and "a single selection jack 26 which is used to choose and arrange
... [Plath's] single sinker 25." Id. (citations omitted). Appellant contends
that, with respect to the claimed invention, "the low-pile sinker and the high-
pile sinker must be provided with different structures and arrangements to
perform different critical features" and "the low-pile ... and high-pile
selector jack must also be provided with different structures and
arrangements to be able to respectively select the low-pile sinker and ...
high-pile sinker." Id. at 13 (citing Spec. iii! 6, 7). Appellant also argues that
any optimization of Plath's sinkers 25 to have different dimensions is
"entirely unsupported by any teaching or suggestion[ s] anywhere in the prior
art" and improperly relies on hindsight reasoning. Id. at 14.
The Examiner responds that Plath "teaches that a single sinker is used
to make one stitch at a time and that the stitches may be varied between
low-pile and high-pile such that a sinker may make a low-pile stitch
and another sinker may make a high-pile stitch." Ans. 4 (citing Plath
iii! 56-66, Figs. 13-18). The Examiner determines that the claims do not
require structural differences between low- and high-pile sinkers and
selector jacks, only functional differences, such that the same structure may
perform the different functions to disclose the claimed subject matter. Id.
Appellant replies that the claims "explicitly require that: (i) a low-pile
sinker includes a low-pile nib, (ii) a high-pile sinker includes a high-pile nib,
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Application 13/767,289
and (iii) a distance between the low-pile nib and the high-pile nib in the
vertical direction is from about 0.5 mm to about 2.5 mm," and that "[t]hese
are clear structural differences which are not taught or suggested in Plath as
each of ... [Plath's] single universal type of sinkers 25 ... have identically
located nibs." Reply Br. 3. Appellant also argues that
Id.
claim 1 also includes the features of "at least one of the low-pile
sinker and the high-pile sinker includes a small nib to hold the
ground yam during stitch formation" and "a distance between the
high-pile nib and the small nib being larger than a distance
between the low-pile nib and the small nib in the vertical
direction," which are additional clear structural features which
cannot be met by alleging that two different ones of identically
shaped sinkers may be broadly interpreted as corresponding to
Appellant's claimed high-pile sinker and low-pile sinker.
Plath discloses that
sinkers 25 act as knock-over, hold-down and plush sinkers. As
shown, for example, in FIGS. 6 and 7, the sinkers 25, on the one
hand, each have a knock-over edge 25a and hold-down throat
25b which are conventional in knock-over and hold-down
sinkers. On the other hand, the sinkers 25 are provided with two
plush-forming edges 25c and 25d arranged one above the other
and above the knock-over edge 25a, the higher-lying plush-
forming edge 25d being set back somewhat in the direction of
the butt 27 of the sinker 25, as FIG. 7 clearly shows.
Plath iJ 36. Figure 6 of Plath is reproduced below.
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Application 131767,289
Figures 6 and 7 of Plath depict various possible needle and sinker positions.
Plath iJ 26. Plath further discloses that
tracks 77, 79[,] and 80 are designed in such a way that, starting
from the fully retracted position 75a or 76a, the sinkers 25 are
pushed forwards to a different extent in the region of the take-up
track 72. In the first track 77, the sinkers 25 are pushed forward[]
only a little and only the knock-over edges 25a are used for the
stitch forming operation, that is to say the ground and also the
plush threads 39, 41 are formed into loops via the knock-over
edges 25a only. This means that a two-thread double stitch is
formed, and no plush loops projecting beyond the fabric top side
are obtained. By contrast, in the second track 79, the sinkers 25
are pushed forwards to ... [a] great[ er] extent and in such a way
that the ground threads 39 are again formed into loops via the
knock-over edges 25a whereas the plush threads are drawn over
the high sinker edges 25d and are thereby provided with long
plush loops. Finally, when the sinkers 25 are steered into the third
track 80, the ground threads 39 are again formed into stitches via
the knock-over edges 25a, whilst medium-length loops are
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formed with the plush threads 41 by means of the lower sinker
edges 25c. The length of the shorter or longer loops may in this
case be determined by the distance of the edges 25c, 25d from
the knock-over edge 25a.
Plath iJ 47. Appellant does not dispute that Plath's sinkers are radially
opposed to one another, or that plush-forming edges 25c and 25d are low-
and high-pile nibs. 3
Thus, we are not apprised of error in the Examiner's finding that one
of Plath's sinkers 25 may correspond to a low-pile sinker having a low-pile
nib 25c and be opposed to another of Plath's sinkers 25 having a high-pile
nib 25d, as claimed. In other words, the claims do not exclude a low-pile
3 Although Appellant argues that Plath's hold-down throats 25a are not
small nibs, as claimed, Appellant presents this argument for the first time in
the Reply Brief. Reply Br. 5 ("One ... [of] ordinary skill in the art ...
would have been well aware that [Plath's] hold-down throat 25b ... is not a
nib, let alone a small nib to hold the ground yam during stitch formation").
We decline to consider Appellant's argument, which is deemed waived,
absent good cause as to why the argument was not presented in the Appeal
Brief and without the benefit of the Examiner's response. See 37 C.F.R.
§ 41.4l(b)(2) (2012); In re Hyatt, 211F.3d1367, 1373 (Fed. Cir. 2000)
(noting that an argument not first raised in the brief to the Board is waived
on appeal); Ex parte Nakashima, 93 USPQ2d 1834, 1837 (BPAI 2010)
(explaining that arguments and evidence not timely presented in the
Principal Brief, will not be considered when filed in a Reply Brief, absent a
showing of good cause explaining why the argument could not have been
presented in the Principal Brief); Ex parte Borden, 93 USPQ2d 1473, 1477
(BP AI 2010) (informative) ("Properly interpreted, the Rules do not require
the Board to take up a belated argument that has not been addressed by the
Examiner, absent a showing of good cause").
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sinker from also having a high-pile nib and vice versa. The Examiner is not
relying on a single sinker 25 in Plath to meet two distinct structures in the
claims, as argued by Appellant, but rather, the Examiner is relying on one
(or a first) sinker 25 to meet the claim limitation of a low-pile sinker and on
another (or second) sinker 25 (opposed to the first sinker 25) to meet the
claim limitation of a high-pile sinker. See also Ans. 3 ("A separate structure
was clearly pointed out for each of the two sinkers and each of the two
selector jacks recited in claim l "). The fact that the two sinkers have
identical structures, while meeting the claimed structural limitations of low-
and high-pile sinkers, does not apprise us of Examiner error.
Additionally, we are not apprised of Examiner error in the Examiner's
finding, as set forth supra, that each of the two sinkers (i.e., two structurally
identical sinkers 25 located in radially opposed tracks), which are identified
by the Examiner as corresponding to opposed low- and high-pile sinkers,
have a small nib (i.e., hold-down throat 25a), as claimed, wherein a distance
between the high-pile nib (i.e., high sinker edge 25d) and the small nib (i.e.,
hold-down throat 25b) is larger than a distance between the low-pile nib
(i.e., lower sinker edge 25c) and the small nib (i.e., 25b) in the vertical
direction, as claimed.
For the same reasons discussed supra, with respect to the claimed
low- and high-pile sinkers, we are not apprised of error in the Examiner's
finding that each of Plath's selection jacks 26 act on individual sinkers 25,
which function as a low-pile sinker or a high-pile sinker, such that Plath
discloses low- and high-pile selection jacks as claimed. In other words, the
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claims do not exclude a single selection jack from meeting the limitations of
both a low- and high-pile selection jack, and where Plath discloses multiple
selection jacks 26, at least one may meet the claim limitations of the low-
pile selection jack, while another separate selection jack 26 may meet the
claim limitations of the high-pile selection jack.
Regarding Appellant's argument that "the Examiner's allegation that
one having ordinary skill in the art ... would have modified [Plath's] ...
sinkers 25 with different dimensions between low-pile nibs and high pile
nibs through 'optimization' is entirely improper and unsupported by any
prior art teaching or suggestion," we disagree. See also Appeal Br. 15; see
also id. at 15-19; Reply Br. 4-6. It is well settled 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." In re
Aller, 220 F.2d 454, 456 (CCPA 1955). Further, "[t]he law is replete with
cases in which the difference between the claimed invention and the prior art
is some range or other variable within the claims" and that "[i]n such a
situation, 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." In re Woodruff, 919 F.2d 1575, 1578 (Fed.
Cir. 1990) (emphasis added). As set forth supra, Plath discloses that "[t]he
length of the shorter or longer loops may in this case be determined by the
distance of the edges 25c, 25d from the knock-over edge 25a." Plath iJ 47.
In other words, Plath specifically recognizes that the distance between low-
pile nib (i.e., lower-lying plush-forming edge 25c) and high-pile nib (i.e.,
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higher-lying plush-forming edge 25d) in the vertical direction relative to a
small nib (i.e., hold-down throat 25b) is a variable that effects the resulting
length of the loops. Here, Appellant has not presented any evidence that
discovering an optimum value (i.e., the claimed range of from about 0.5 mm
to about 2.5 mm) involves more than only routine skill in the art, for
example, by establishing a criticality of the claimed range. Moreover, the
Examiner has not relied on Official Notice,4 as alleged by Appellant,5 and
the additional reference to Kawase6 is unnecessary to establish that the prior
art (namely, Plath) expressly recognizes that the distance between low- and
high-pile nibs, with respect to a small nib or hold-down throat (as
determined by the Examiner7) is a result effective variable.
We also do not agree with Appellant that "[t]he Examiner is
improperly relying on Appellant's own disclosure as providing motivation
for modifying the identical sinkers 25 of [Plath] to have different structures,"
because this is not the rejection as articulated by the Examiner. Appeal Br.
14. In other words, the Examiner finds that individual sinkers 25 each meet
the claim limitations of low- and high-pile sinkers; the Examiner is not
proposing to modify Plath's sinkers 25 to be either low- or high-pile sinkers.
4 Final Act. 5-6; Ans. 7 ("Official Notice was not taken ... [, h]owever, for
the sake of clarity extrinsic evidence is presented[;] ... [ s Jee Kawas[ e] (US
5,010, 744).").
5 Appeal Br. 15-19.
6 US 5,010,744; issued Apr. 30, 1991.
7 Final Act. 5 ("small nib (25b )").
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Appellant further argues that the Examiner erred by relying on Plath's
springs 32 and selection devices 33 as disclosing "a single type of actuator
which is able to select two different types of sinkers and selections jacks," as
claimed. Appeal Br. 14 (citing Plath iJ 39, Fig. 4). In particular, Appellant
submits that
unlike in Appellant's presently claimed invention which includes
a single type of actuator which is able to select two different
types of sinkers and selection jacks, [Plath] requires a plurality
of springs 32 and selection devices 33 ... to select and arrange
specific ones [of] the single type of selection jack 26 . . . in
different manners according to the requirements of the first
through third pattern devices . . . . The actuators in [Plath] are
provided by a plurality of components 33, 33a, and 33b which
selectively affect only some of the sinkers 25 ... depending on
the requirements of the first through third pattern devices ....
Id. 14 (citing Plath iJ 39, Fig. 4).
The Examiner responds that claim 1 merely requires "an actuator"-
not a single actuator, and also that there is no structure recited in claim 1 that
limits the actuator. Ans. 5. The Examiner also determines that
Plath discloses an actuator 33,32 is arranged to selectively act on
the selector jacks 26 so that, the actuator 33,32 acts on the low-
pile selector jack (26 that moves 25 creating a low-pile stitch),
and the actuator 33,32 acts on the high-pile selector jack (26 that
moves another one of 25 creating a high-pile stitch).
Id. at 5-6 (citing Plath iii! 37-38, 47, Fig. 2).
Appellant replies that
Appellant[] was not arguing that the actuator must be a single
actuator per se, but rather that the actuator must be able to
selectively act upon both low-pile selector jacks or high-pile
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selector jacks depending on what type of stitch is to be made, as
... recited in Appellant's claim 1. The springs 32 of Plath ...
are permanently fixed to the multiple selector jacks 26 ... [and,
thus, springs 32] cannot be an actuator for multiple selector jacks
because each spring 32 is connected to only one jack 32. Further,
... Plath ... is completely silent with respect to different low-
pile sinkers and low-pile selector jacks and high-pile sinkers and
high-pile selector jacks.
Reply Br. 4.
As set forth supra, claim 1 requires, in relevant part,
an actuator arranged to selectively act on the selector jacks
[including] a first control in which the actuator acts on the low-
pile selector jack, a second control in which the actuator acts on
the high-pile selector jack, and a third control in which none of
the low-pile selector jack and the high-pile selector jack is
subjected to an action of the actuator are selectively performed.
Plath discloses that "knitting system 2 contains pattern devices which
are assigned to the knitting needles 4 and selection jacks 5" (Plath ii 37) and
that "a third pattern device," which is "assigned to ... cam portion 37 and
... sinkers 25 and selection jacks 26," has "cam-part 51 for the butts 29 of
the selection ... jacks 26, a cam-part 52 ... for the butts 27 of the sinkers
25, two fourth or fifth selection devices 33a and 33b arranged one behind the
other in the running direction v, and two offering cam-parts 54 and 55"
(Plath ii 38 (emphasis added)). Plath further discloses that "selection jacks
26 are ... brought into a selection position by means of the offering cam-
part 54 and are then retained or released according to the pattern by the
fourth selection device 33a." Id. ii 46 (emphasis added). Thus, we are not
apprised of error in the Examiner's finding that at least Plath's fourth
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selection device 33a is "an actuator arranged to selectively act on the
selector jacks," as claimed.
Further, Plath discloses that
retained selection jacks 26 remain in their position, so that the
high sinker edges 25d of the sinkers 25 which are assigned to
them and the butts 27 of which move in the clearance 53, come
into a first track 77, along which they are initially pushed
forward[] only a little . . . . By contrast, the butts 29 of the
released selection ... uacks] 26 run onto a drive-out edge 78 of
the cam-part 51, with the result that the associated sinkers 25 are
pushed forward[] to a greater extent . . . [and] the high sinker
edges 25d are controlled into a second track 79 and
correspondingly, the lower sinker edges 25c into a portion 76b
of the track 76. Finally, with the aid of the fifth selection device
33b ... , the sinker edges 25d running along the first track 77 can
be controlled in such a way that the sinker edges 25d selectively
remain in the first track 77 or are fed into a third track 80 in
which they are pushed forwards ... to a lesser extent than in the
second track 79. This is achieved by means of a drive-out edge
81 of the cam-part 51 for the selection jacks 26, since this drive
out edge 81 rises to a lesser height than the drive-out edge 78 in
the region of the fourth selection device 33a.
Id. ii 46 (emphasis added), Fig. 5.
As discussed supra, Plath also discloses that sinkers 25 are pushed
forward to different extents depending on the track (i.e., tracks 77, 79, and
80) into which the individual sinker is guided, and specifically, that sinkers
25 are pushed forwards "only a little" in first track 77 to form stitches via
knock-over edges 25a, to the greatest extent in second track 79 to form high-
pile stitch via high sinker edges 25d, and to a lesser extent in third track 80
to form medium-length loops via lower sinker edges 25c. Id. ii 47.
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Appeal2017-000620
Application 13/767,289
Moreover, Plath discloses that an actuator (i.e., selection devices 33a, 33b,
in combination with springs 32, as determined supra by the Examiner) acts
on individual selector jacks 26 (which individually include the structures to
function as low, high, and normal pile selector jacks, as discussed supra), so
that a first control (i.e., drive-out edge 81 of cam-part 51 for selection jack
26) guides a sinker into track 80 for forming a low-pile yam, a second
control (i.e., butts 29 of released selection jacks 26 run onto a drive-out edge
78 of the cam-part 51) guides a sinker into track 79 for forming a high-pile
yam, and a third control "in which none of' the low- and high-pile selector
jack "is subjected to an action," because, in Plath, when knock-over edge
25a is used, the selector jack remains in its position.
Thus, a preponderance of the evidence supports the Examiner's
finding that the claimed actuator and first, second, and third controls read on
Plath's third pattern device. Nor have Appellant's arguments addressed with
specificity Plath's third pattern device apprising us of any Examiner error.
In other words, we are not persuaded by Appellant's argument that Plath's
actuator is not "able to selectively act upon both low-pile selector jacks or
high-pile selector jacks depending on what type of stitch is to be made," as
set forth supra.
Accordingly, we sustain the Examiner's rejection of independent
claim 1, and claims 2-9 falling therewith.
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Appeal2017-000620
Application 13/767,289
DECISION
The Examiner's rejection of claim 9 under 35 U.S.C. § 112, second
paragraph, as being indefinite, is reversed.
The Examiner's rejection of claims 1-9 under 35 U.S.C. § 103(a) as
being unpatentable over Plath is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l .136(a)(l )(iv).
AFFIRMED
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