Ex Parte Holland et al

Patent Trial and Appeal Board

Mar 21, 2013

10075786 (P.T.A.B. Mar. 21, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte JOHN E. HOLLAND and CONNIE W. HOLLAND
____________________

Appeal 2011-001359
Application 10/075,786
Technology Center 2800
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Before: MURRIEL E. CRAWFORD, JENNIFER D. BAHR, and
MICHELLE R. OSINSKI, Administrative Patent Judges.

BAHR, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
John E. Holland and Connie W. Holland (Appellants) appeal under
35 U.S.C. § 134 from the Examiner’s decision rejecting claims 1-3, 8-13,
27-29, and 34-39. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
The Claimed Subject Matter
Claim 1, reproduced below, is illustrative of the claimed subject
matter.
1. A protective sleeve for lengths of material such as electrical
cable, hoses, ropes, hydraulic lines, tethers, and lanyards used
in environments such as airports, docks, and construction sites
in which said lengths of material are moved back and forth
across abrasive surfaces and subjected to abrasion, chemicals,
moisture, and weather extremes,
said protective sleeve encasing said length of material,
having open ends and formed of an elongated sheet consisting
of a woven, lightweight fabric, with a thermoplastic film
bonded to at least one side thereof,
the fabric being made substantially of yarns formed
primarily of long chain polyethylene fibers having a tensile
modulus equal to or greater than 150 grams/denier, and a
tenacity equal to or greater than 20 grams/denier,
the yarns having a denier between 400 and 1000,
the fabric having a warp and fill density of between 30
and 36 ends per inch, and
the thermoplastic film selected from the group consisting
of polyethylene and ethylene vinyl acetate
wherein the protective sleeve not only protects the
lengths of material thereunder, but the fabric yarns themselves
are resistant to deterioration from chemicals, fuels, as well as
being highly resistant to abrasion, cuts, and the fabric of the
sleeve is resistant to heat build-up as a result of relative
movement between the sleeve and the length of material.

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Evidence
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Kite
Holt
Andrieu
Holland
Andrews
US 4,891,256
US 5,070,597
US 5,300,337
US 5,395,682
US 5,965,223
Jan. 2, 1990
Dec. 10, 1991
Apr. 5, 1994
Mar. 7, 1995
Oct. 12, 1999
Rejections
Appellants request our review of the following rejections.
I. Claims 1 and 27 under 35 U.S.C. § 112, second paragraph, as
indefinite;
II. claims 1-3, 8, 9, 27-29, 34, and 35 under 35 U.S.C. § 103(a) as
unpatentable over Andrieu, Holland, and Andrews;
III. claims 10-12 and 36-38 under 35 U.S.C. § 103(a) as unpatentable
over Andrieu, Holland, Andrews, and Kite;
IV. claims 13 and 39 under 35 U.S.C. § 103(a) as unpatentable over
Andrieu, Holland, Andrews, and Holt.
OPINION
Rejection I
The basis of the Examiner’s rejection of claims 1 and 27 under 35
U.S.C. § 112, second paragraph, is that “the phrase ‘or the like’ renders the
claim(s) indefinite.” Ans. 4. The Examiner states that “it is unclear whether
the claim limitations, following the phrase ‘or the like’ are included and
therefore the actually [sic] metes and bounds of the claim cannot be
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determined.” Ans. 22. We do not sustain this rejection, because claims 1
and 27 do not contain the phrase “or the like.”1
Rejection II
Independent claims 1 and 27 are directed to a protective sleeve and to
a cover system comprising a protective sleeve, wherein the sleeve is formed
of an elongated sheet consisting of a woven fabric and a thermoplastic film
bonded to at least one side of the fabric. The Examiner and Appellants
appear to agree that Andrieu lacks a thermoplastic film bonded to the fabric.
Ans. 8; App. Br. 13.
The Examiner found that Andrews discloses a composite protective
cover that is cut and abrasion resistant, and may be utilized as a tube of
jacketing material for tubing, hoses, and electrical wires. Ans. 9. The
Examiner also found that Andrews discloses a composite cover comprising
an inner layer of SPECTRA® fibers and an outer layer of polyethylene (PE)
or ethylene vinyl acetate (EVA) that provides a barrier to contaminants and
moisture. Id. The Examiner determined it would have been obvious to
modify Andrieu’s protective cover to include the fabric of the composite
cover of Andrews, because Andrews teaches using the fabric as a tube of
jacketing for tubing, hoses, and electrical wires; the fabric has minimal
weight, provides greater tactile sensitivity, improved comfort, and enhanced
freedom of motion; and adding a second inner layer to the SPECTRA®
fibers provides a barrier to contaminants and moisture. Id. at 9-10.
Additionally, the Examiner pointed out that it has been held to be within the

1 Appellants amended claims 1 and 27 in the Amendment filed January 7,
2010, to omit the phrase “and the like.” See App. Br. 24 (asserting that the
amendment overcomes the indefiniteness rejection); Advisory Action,
mailed January 21, 2010 (entering the Amendment filed January 7, 2010).
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general skill of a worker in the art to select a commercially available or
known material on the basis of its suitability for the intended use as a matter
of obvious design choice. Id. at 10.
Appellants argue that the modification of Andrieu proposed by the
Examiner would not have been obvious because Andrieu provides the
protective sleeve “with spacings between the warp monofilament yarns to
yield a relatively open structure, and was not at all concerned with the
resistance that a thermoplastic film bonded to a woven fabric would provide
against moisture, oil, and other chemicals.” App. Br. 16. According to
Appellants, adding a film to Andrieu’s fabric would be counter to the stated
purpose of Andrieu of forming a reliable closure. Id. The Examiner does
not appear to have responded to this line of argument.
Andrieu’s invention is a wraparound fabric sleeve having a closure
device for protection of elongated articles. Col. 1, ll. 10-15. Andrieu
provides a closure device for fastening the two marginal edges of the fabric
by having the sleeving material of monofilament warps and bulky multi-
filament yarn comprise the fill material, wherein the bulky filament yarn is
exposed and relatively unconfined on both the inner and the outer surface in
a band extending along one marginal edge of the fabric by decreasing the
density of the warp monofilaments. Col. 1, ll. 60-66; col. 4, ll. 11-14.
Andrieu provides hook type fastener elements extending along the opposite
marginal edge of the fabric. Col. 1, ll. 66-68. “The hook type fastener
elements penetrate and interengage with the fibers of the bulky yarn for
closure of the sleeve around the elongated articles.” Col. 1, l. 68 – col. 2, l.
2.
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Andrews discloses a multi-layer fabric comprising an inner primary
layer of cut-resistant material such as SPECTRA® fibers, an outer primary
layer of abrasive material, and a melt fusible thermoplastic material such as
PE or EVA melt fused down into the two primary layers. Col. 2, l. 51 – col.
3, l. 59. The materials of Andrews’ fabric “may be combined in many
fashions including but not limited to twisting, wrapping, spinning,
commingling, coating, coextruding, braiding, entangling, plying, and
others.” Col. 6, ll. 47-50.
Replacing Andrieu’s fabric with that of Andrews, comprising melt
fusible thermoplastic material such as PE or EVA melt fused into the layers,
as proposed by the Examiner, would seemingly result in loss of the exposed
and relatively unconfined bulky multi-filament yarns forming one element of
Andrieu’s closure device, which is one of the “important objectives” of
Andrieu’s invention (see col. 2, ll. 31-35). Thus, we agree with Appellants
that the proposed modification would not have been obvious to a person
having ordinary skill in the art.
Thus, we do not sustain the Examiner’s rejection of claims 1 and 27
and their dependent claims 2, 3, 8, 9, 28, 29, 34, and 35 under 35 U.S.C.
§ 103(a) as unpatentable over Andrieu, Holland, and Andrews.
In rejecting the remaining dependent claims, the Examiner does not
articulate any findings or reasoning that would make up for the deficiency in
the rejection of claims 1 and 27. Thus, we also do not sustain the
Examiner’s rejections of claims 10-12 and 36-38 as unpatentable over
Andrieu, Holland, Andrews, and Kite; and of claims 13 and 39 as
unpatentable over Andrieu, Holland, Andrews, and Holt.
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DECISION
The Examiner’s decision rejecting claims 1-3, 8-13, 27-29, and 34-39
is reversed.
REVERSED

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