Ex Parte Gardner et al

Patent Trial and Appeal Board

Nov 26, 2013

11343494 (P.T.A.B. Nov. 26, 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.
11/343,494 01/31/2006 Hugh C. Gardner 4977-108548 6569
24628 7590 11/27/2013
Husch Blackwell LLP
Husch Blackwell Sanders LLP Welsh & Katz
120 S RIVERSIDE PLAZA
22ND FLOOR
CHICAGO, IL 60606
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
11/27/2013 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 HUGH C. GARDNER and CARROLL M. YAWN
____________

Appeal 2012-009871
Application 11/343,494
Technology Center 1700
____________

Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/343,494

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Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
rejection of claims 19, 23-26, and 28-30. We have jurisdiction under
35 U.S.C. § 6.
STATEMENT OF THE CASE
Claim 19 is representative of the subject matter on appeal and is set
forth below:
19. A carpet consisting of:
a tufted primary carpet backing;
a binder layer;
a secondary carpet backing laminated to the tufted
primary backing with the binder layer, said secondary carpet
backing comprising a core-spun fill yarn interwoven with warp
tapes of polypropylene into a leno weave, said core-spun fill
yarn comprising;
a total denier, determined according to ASTM D-1907, of
about 800 to 3000;
a tenacity, determined according to ASTM D-2256, of
about 3 grams per denier to about 7 grams per denier; and
an elongation at peak load, determined according to
ASTM D2256, between 8% and 30%;
a structure of the core-spun fill yarn consisting of:
a sheath; and
a core component inside of the sheath, the core
component comprising a continuous filament polyester yarn
with a denier, determined according to ASTM D-1907, of 50%
or less of the total denier for the core-spun fill yarn, the core
component comprising the continuous filament polyester yarn
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further having a tenacity of at least 7g per denier, and having a
shrinkage of about 8% or less;
wherein a total extension for the carpet after cyclic
loading, according to British Standard 4682, Part 1, is at least
about 10% less than a total extension of a like carpet employing
a secondary backing fill yarn selected from the group consisting
of an open-end polypropylene spun yarn, an open-end polyester
spun yarn, and a core-spun yarn with a polypropylene tape core;
and
an unrecovered extension for the carpet after cyclic
loading according to British Standard 4682, Part 1, is at least
about 5% less than an unrecovered extension of a like carpet
employing a secondary backing fill yarn selected from the
group consisting of an open-end polypropylene spun yarn, an
open-end polyester spun yarn, and a core-spun yarn with a
polypropylene tape core.
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gardner et al. US 2004/0142142 A1 July 22, 2004
Manfred Gsteu, Yarn Production from Polypropylene Fibers for
Secondary Carpet Backings as an Alternative to Jute, INTERNATIONAL
TEXTILE BULLETIN, YARN FORMING 1/85, January 1985.

THE REJECTION
1. Claims 19, 23-26, and 28-30 are unpatentable under 35 U.S.C. § 103
as obvious over Gsteu in view of Gardner.

ANALYSIS
As an initial matter, Appellants have not presented separate arguments
for all of the rejected claims. Rather, Appellants’ arguments are principally
directed to claim 19. Any claim not separately argued will stand or fall with
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the argued claims from which it depends. See 37 C.F.R.
§ 41.37(c)(1)(vii)(2007).
We adopt the Examiner’s findings pertinent to the issues raised by
Appellant, and sustain the above rejection based on the findings of fact,
conclusions of law, and rebuttals to arguments expressed by the Examiner in
the Answer. We add the following for emphasis only.
In the most basic terms, we summarize each position as follows. It is
the Examiner’s position that it would have been obvious to have substituted
the polyester core of the core-spun yarns of Gtseu with the polypropylene
core of the core-spun yarns of Gardner to arrive at Appellants’ claimed
subject matter. Ans. 4-10. It is Appellant’s position that the claimed subject
matter is directed to a specific class of polyester yarn in a leno weave
secondary backing. Br. 15. Appellant argues, inter alia, that Gardner’s
teachings are in the context of a flat weave and that Gardner teaches away
from use in leno weaves for the reasons expressed in the Brief and Reply
Brief, which we do not repeat herein, but have fully considered.
In reply, the Examiner disagrees that Gardner’s teachings of core
materials are limited to only secondary carpet backings having a flat weave
construction. Ans. 10-11. We agree. While Appellants are correct that
paras. [0030] and [0031] discuss “invented backings” of Gardner (see, e.g.,
Reply Br. 9), Gardner indicates that dimensional stability-imparting
properties of the invented secondary backings are at least comparable to
those of leno weave from “like warp tapes and multifilament picks”
(indicative that same materials have been used for both flat and leno weave
construction). Gardner, para. [0017]. Hence, as the Examiner points out in
the paragraph bridging pages 11-12 of the Answer, types of yarns are not
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limited to a single fabric construction. In fact, as stated, supra, Gardner
teaches that “like” materials have been used for both types of weaves.
Gardner, para. [0017]. Hence, we are not convinced that Gardner teaches
away from the claimed invention. See, e.g., Para-Ordnance Mfg., Inc. v.
SGS Importers Int’l., Inc., 73 F.3d 1085, 1090 (Fed. Cir. 1995) (to teach
away, a reference must state that it “should not” or “cannot” be used in
combination with other features in the prior art.).
We thus are not persuaded of error by Appellants’ position and affirm
the rejection.

CONCLUSIONS OF LAW AND DECISION
The rejection is 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)(1).
AFFIRMED

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