Ex Parte Maples et al

Patent Trial and Appeal Board

Dec 28, 2018

14210247 (P.T.A.B. Dec. 28, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/210,247 03/13/2014 Allen Maples
157177 7590 01/02/2019
Greenberg Traurig, LLP (GORE)
500 Campus Drive, Suite 400
P.O. Box677
Florham Park, NJ 07932
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.
181429-010801/CIP
(FA/365
CONFIRMATION NO.
1041
EXAMINER
MCCONNELL, MARLA D
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
01/02/2019 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):
GOREIPMAIL@gtlaw.com
clairt@gtlaw.com
laffm@gtlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALLEN MAPLES,
MATTHEW DECKER, MUKESH JAIN,
and WILLIAM GORAK
Appeal2018-002847
Application 14/210,24 7 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, N. WHITNEY WILSON, and
BRIAND. RANGE, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellants filed an appeal under 35 U.S.C. § 134(a) from an Examiner's
decision finally rejecting claims 1---6, 8-13, 17-19, and 22-27. 2 We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The real party in interest, and the Applicant, is said to be W. L. Gore &
Associates Inc. Appeal Brief dated September 12, 2017 ("App. Br."), at 2.
2 Claims 7, 14--16, 20, 21, and 28 are also pending but have been withdrawn from
consideration.
Appeal2018-002847
Application 14/210,24 7
The claims on appeal are directed to a protective garment worn for
protection from a hazardous environment, and more particularly, to garments worn
by firefighters for protection from extreme heat, moisture, and abrasion. Spec. 1,
11. 7-10. The protective garment comprises an outer layer, an air permeable, liquid
water resistant membrane, an insulation layer, and an air impermeable,
liquidproof, moisture vapor permeable membrane.
The Appellants disclose:
As used herein, the term "air permeable, liquid water resistant
membrane" refers to a layer comprising a membrane or film which
has a minimum air permeability as measured by a Gurley of less than
200 seconds and a liquid water resistance as measured by a Suter
Hydrostatic Pressure Tester of greater than 0.5psi .... The air
permeable, liquid water resistant membrane will be moisture vapor
permeable.
Spec. 15, 11. 5-18.
The Appellants also disclose that:
The air impermeable, liquidproof, moisture vapor permeable
membrane has an air permeability as measured by Gurley of greater
than 200 seconds, a liquid entry pressure of greater than 70kPa to a
liquid having a surface tension of about 31 dynes/cm, and a moisture
vapor transmission rate of at least 1000 g/m2/day.
Spec. 15, 11. 25-30.
Representative claim 1 is reproduced below from the Claims Appendix to
the Appeal Brief. The limitation at issue is italicized.
1. A protective garment comprising:
an outer layer;
an air permeable, liquid water resistant membrane;
an insulation;
an air impermeable, liquidproof, moisture vapor permeable
membrane,
2
Appeal2018-002847
Application 14/210,24 7
wherein the air permeable, liquid water resistant membrane is
positioned closer to the outer layer than the air impermeable, liquid
proof, moisture vapor permeable membrane, and the insulation is
located between the air permeable, liquid water resistant membrane
and the air impermeable, liquidproof, moisture vapor permeable
membrane.
App. Br. 10.
The Examiner maintains the following grounds of rejection on appeal: 3
(1) claims 1-6, 13, 22, 26, and 27 under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Aldridge 4094 in view of Das et al., 5 John et al, 6 and Aldridge
913· 7 and
'
(2) claims 8-12, 17-19, and 23-25 under pre-AIA 35 U.S.C. § I03(a) as
unpatentable over Aldridge 409 in view of Das, John and Aldridge 913, and further
in view of Johnson et al. 8
B. DISCUSSION
The Examiner finds Aldridge 409 discloses a lightweight firefighter garment
comprising outer shell 26, thermal liner 28, moisture barrier 36, and face cloth 34.
3 The Examiner withdrew the final rejection of claims 13 and 27 under 35 U.S.C.
§ 112, second paragraph, as being indefinite. See Examiner's Answer dated
November 24, 2017 ("Ans."), at 3.
4 US 5,983,409, issued November 16, 1999, to Aldridge et al. ("Aldridge 409").
5 Brojeswari Das et al., Moisture Transmission through Textiles Part 1: Processes
involved in moisture transmission and the factors at play, 7 AUTEX Research J.
100-110 (June 2007) ("Das").
6 WO 2011/131675 Al, published October 27, 2011 ("WO 675"). The Examiner
relies on US 2013/0198941 Al, published August 8, 2013 ("John"), as evidence of
the WO 675 disclosure. The Appellants do not object. Therefore, in this Decision
on Appeal, we also rely on John as evidence of the WO 675 disclosure.
7 US 6,687,913 B2, issued February 10, 2004, to Aldridge ("Aldridge 913").
8 US 2010/0287680 Al, published November 18, 2010 ("Johnson").
3
Appeal2018-002847
Application 14/210,24 7
Final Act. 3. 9 The Examiner finds that moisture barrier 3 6 includes two layers
(i.e., layers 38 and 40), wherein layer 38 is a liquid impermeable, moisture vapor
permeable membrane. Final Act. 3.
The Examiner finds that in some embodiments (e.g., Aldridge 409, Figure
3), Aldridge 409 discloses that moisture barrier 36 is between thermal liner 28 and
face cloth 34, thereby protecting the membrane from excess heat and abrasion.
Final Act. 3. The Examiner also finds that in other embodiments ( e.g., Aldridge
409, Figure 4), Aldridge 409 discloses that moisture barrier 36 is between outer
shell 26 and thermal liner 28, thereby protecting the thermal liner from liquid
moisture penetration. Final Act. 3--4. The Examiner, however, does not find that
Aldridge 409 discloses a garment comprising two separate membranes as claimed.
The Examiner, nonetheless, concludes that it would have been obvious to
one of ordinary skill in the art "to have a moisture barrier on both sides of the
thermal insulation so as to provide protection from moisture to the insulation (the
teachings of Fig. 4) and so as to provide a protected membrane layer as well (the
teachings of Fig. 3)." Final Act. 4.
As for the air permeability of moisture barrier 36, the Examiner finds that
Aldridge 409 does not disclose that the moisture barrier is either air permeable or
air impermeable as claimed. Final Act. 4. The Examiner, however, finds Das
discloses that moisture transmission has a great influence on body comfort and
teaches moisture transfer via diffusion, absorption, adsorption, and convection.
Final Act. 4. As to the convection forces, the Examiner finds "Das teaches the rate
of transfer of heat is governed by Equation 2 (page 103) where the rate increases as
the rate of air flow across the swface increases (page 103, i-f2)." Final Act. 4
9 Final Office Action dated March 2, 201 7.
4
Appeal2018-002847
Application 14/210,24 7
(emphasis added). The Examiner also finds John discloses using an air
impermeable, water vapor permeable membrane in protective clothing to protect
against harmful gases. Final Act. 4.
The Examiner concludes:
It would have been obvious to the person having ordinary skill
in the art at the time of the invention to use an air permeable first
membrane (that is the membrane closest to the outer layer) [based on
the teachings of Das] so as to provide a means for air to penetrate to
the insulation layer thus increasing the evaporation rate of moisture
which has passed through the second membrane ( that is the
membrane closest to the skin side). It further would have been
obvious to the person having ordinary skill in the art at the time of the
invention to use an air impermeable second membrane ( that is the
membrane closest to the skin) [ as disclosed in John] so as to provide
protection from harmful gasses [sic] which have passed through the
first membrane (that is the membrane closest to the outer layer).
Final Act. 4--5 (emphasis added).
The Appellants argue that "Das fails to address membranes" and "addresses
only moisture vapor transmission through textiles." App. Br. 5. Moreover, the
Appellants argue that "moisture vapor transmission through a membrane does not
require or even suggest air permeability." App. Br. 5. As for the portion of Das
relied on by the Examiner (i.e., page 103, paragraph 2), the Appellants argue:
Das is referring to increasing moisture transfer "as the rate of air flow
across a surface increases." ... Das fails to teach ... air flow through
a material. Das only teaches ... air flow across the surface of (i.e.
adjacent to) a material that is moisture permeable. As explained
above, a membrane may be moisture permeable and air impermeable.
So Das' purported teaching of "Equation 2 (page 103) where the rate
increases as the rate of air flow across the surface increases (page
[ 103 10], ,r 2)," is irrelevant to whether the material is air permeable or
1° Final Act. 4.
5
Appeal2018-002847
Application 14/210,24 7
air impermeable, and fails to teach or provide motivation to increase
the evaporation rate of moisture by using an air permeable membrane.
App. Br. 5---6 (emphasis omitted); see also Reply Br. 4 (arguing that "there is no
disclosure in Das of air flow 'through' a textile[;] Das uses the word 'through' only
to describe moisture vapor transmission 'through' a textile" ( emphasis omitted)). 11
The Appellants' argument is persuasive of reversible error. The portion of
Das relied on by the Examiner does not discuss air permeability through a
membrane but rather describes moisture transmission through textiles. Das
discloses:
Convection is a mode of moisture transfer that takes place while air is
flowing over a moisture layer. This is known as the forced convection
method. The mass transfer in this process is controlled by the
difference in moisture concentration between the surrounding
atmosphere and the moisture source. The process is governed by
equation (2) [].
Qm = - A hm ( Ca - Ca)
Where Qm is the mass flow by convection through area A of the fabric
along the direction of the flow, Ca is the vapour concentration on the
fabric surface and Ca is the vapour concentration in the air. The flow
is controlled by the concentration difference (Ca - Ca) and the
convective mass transfer coefficient hm, which depends on the fluid
properties as well as on its velocity. In a windy atmosphere the
convection method plays a very important role in transmitting
moisture from the skin to the atmosphere [].
Das 103. 12
The Examiner has not directed us to any evidence establishing that the
moisture permeable textiles disclosed in Das would have suggested an air
11 Reply Brief dated January 24, 2018.
12 Similarly, page 101, paragraph 2 of Das, which is also relied on by the Examiner
(Ans. 6), discusses moisture transmission through fabrics or perspiration passing
through fabrics.
6
Appeal2018-002847
Application 14/210,24 7
permeable, liquid water resistant membrane as claimed. In that regard, the mere
fact that the textiles disclosed in Das permit the transmission of moisture does not,
without more, suggest an air permeable membrane as claimed. See John ,r 29
( disclosing a barrier layer that is air impermeable and water vapor permeable).
The Examiner does not rely on the remaining prior art of record to cure the
above-identified deficiency in Das. Thus, for the reasons set forth above, the
obviousness rejections on appeal are not sustained.
C. DECISION
The Examiner's decision is reversed.
REVERSED
7