Ex Parte Martin Rivera et al

Patent Trial and Appeal Board

Aug 29, 2016

12280882 (P.T.A.B. Aug. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/280,882 03/11/2009
32692 7590 08/31/2016
3M INNOVATIVE PROPERTIES COMPANY
PO BOX 33427
ST. PAUL, MN 55133-3427
FIRST NAMED INVENTOR
Carmen Martin Rivera
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.
61701US008 5598
EXAMINER
JUSKA, CHERYL ANN
ART UNIT PAPER NUMBER
1789
NOTIFICATION DATE DELIVERY MODE
08/31/2016 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):
LegalUSDocketing@mmm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CARMEN MAR TIN RIVERA and
STEPHANE THIOLIERE
Appeal2015-001537
Application 12/280,882
Technology Center 1700
Before JEFFREY T. SMITH, MONTE T. SQUIRE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision2 finally rejecting claims 13, 16-19, 21, and 23-27. We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.
Appellants' claimed invention is directed to a scouring material
comprising flock fibers secured to a substrate web material by an adhesive.
1 Appellants identify the real party in interest as 3M Innovative Properties
Company. Appeal Brief filed June 10, 2014 ("App. Br."), 3.
2 Final Office Action mailed January 14, 2014 ("Final Act.").
Appeal2015-001537
Application 12/280,882
Spec. 2. Claims 13 and 25 are the independent claims on appeal. Claim 13,
reproduced below, is illustrative of the claims on appeal.
13. A scouring material comprising upstanding flock fibers
secured to a substrate web material by an adhesive to define a
flocked area, wherein the flock fibers and the adhesive are of
differing colors with the amount of the flock fibers in the flocked
area being sufficient to obscure the adhesive in an initial state of
the scouring material, and further wherein theflockfibers and
the adhesive are configured such that the color of the adhesive
in the flocked area becomes increasingly visible as the flock
fibers in the flocked area wear away during use of the scouring
material providing a visual indication that scouring action of the
scouring material has diminished, and further wherein the color
of the adhesive contrasts with the color of the substrate material,
and further wherein the substrate material is a liquid-absorbent
knitted, woven, or nonwoven textile material.
App. Br. (Claims Appendix) 17 (emphasis added to identify disputed
limitations). Claim 25 contains a similar limitation to that emphasized in
claim 13 above. See id. at 18-19.
REJECTIONS ON APPEAL
1. Claims 13, 16-19, 21, and 23-27 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Martin Rivera et al.
(WO 2004/021855 Al, published March 18, 2004 (hereinafter
"Martin Rivera") in view of Abrams (US 2006/0251852 Al,
published Nov. 9, 2006) (hereinafter "Abrams"); and
2. Claims 13, 16-21, and 23-27 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Martin Rivera in view of
Penzes (US 2007 /0022555 Al, published Feb. 1, 2007), Catalfamo
et al. (WO 2005/072594 Al, published Aug. 11, 2005), and
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Application 12/280,882
De Marse et al. (US 4,474,217, issued Oct. 2, 1984), and further in
view of Abrams.
ANALYSIS
After review of Appellants' arguments, we determine that Appellants
have not identified reversible error in the Examiner's rejections.
Accordingly, we affirm the rejections for reasons set forth below, and by the
Examiner in the Answer. See generally Ans. 2-23.
Appellants focus on limitations of independent claim 13, which are
common to independent claim 25 (see App. Br. generally). Accordingly, all
the claims on appeal stand or fall with claim 13.
Rejection 1
The Examiner finds that Martin Rivera teaches all the limitations of
independent claims 13 with the exception of: (a) "the amount of the flock
fibers in the flocked area being sufficient to obscure the adhesive in an initial
state of the scouring material;" (b) "the flock fibers and the adhesive
configured such that the color of the adhesive in the flocked area becomes
increasingly visible as the flock fibers in the flocked area wear away during
use of the scouring material providing a visual indication that scouring
action of the scouring material has diminished;" and ( c) "the color of the
adhesive contrasts with the color of the substrate material." Final Act. 9.
With regard to claim 13 's limitation (a), the Examiner finds, and
Appellants do not dispute, that Martin Rivera teaches the flock may be
applied evenly over the entire adhesive coated substrate, preferably in an
amount of 150-180 g/m2, which is the same amount as disclosed by
Appellants as sufficient to obscure the adhesive in an initial state of the
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scouring material (Spec. 6, 11. 12-17). Id. Thus, the Examiner finds, and
Appellants again do not dispute, that Martin Rivera inherently teaches the
amount of flock fibers in the flocked area being sufficient to obscure the
adhesive in an initial state of the scouring material, as recited in claim 13.
Id.
With regard to claim 13 's limitations (b) and ( c ), the Examiner finds
that Abrams evidences that it was known in the art to change the color of the
flock adhesives and flock fibers, for example, use different colors for the
flock adhesives and flock fibers to provide an aesthetic effect to a flocked
material (Abrams i-fi-15---6). Id. at 9, 10. Thus, the Examiner determines that,
"based on aesthetics alone," it would have been obvious to a skilled artisan
to select different colors for the adhesive and the flock fibers to provide a
desired aesthetic effect to Martin Rivera's scouring material. Id. Further,
the Examiner finds that Abrams teaches that as flock fibers are dislodged
during use, the adhesive will be revealed (Abrams i16). Id. Accordingly,
the Examiner determines that Abrams implicitly teaches the function
required by claim 13-the color of the adhesive becoming increasingly
visible as the flock fibers in the flocked area wear away during use providing
a visual indication of wear. Examiner's Answer mailed September 11, 2014
("Ans."), 20.
Appellants argue that Abrams is non-analogous art, and thus, is not
applicable as prior art. App. Br. 8. Specifically, Appellants argue that
Abrams is not in the same field of endeavor because Abrams is concerned
with flocked decorative articles whereas the claimed invention is directed to
flocked materials suitable for consumer use as scouring materials for
cleaning surfaces in domestic and other environments. Id. Additionally,
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Appellants argue that Abrams addresses providing decorative articles of a
unique and surprising rich, lustrous and attractive appearance (Abrams i-f 11 ),
whereas Appellants' claimed invention addresses the problems of users
recognizing when the usefulness of a scouring cleaning product has been
exhausted. Id.
A reference is analogous prior art if ( 1) it is from the same field of
endeavor, or (2) if it is reasonably pertinent to the particular problem with
which the inventor was involved. In re Clay, 966 F.2d 656, 658-59 (Fed.
Cir. 1992). The Federal Circuit counsels us to construe the scope of
analogous art broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238
(Fed. Cir. 2010) (citing KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 402
(2007) (''familiar items may have obvious uses beyond their primary
purposes, and a person of ordinary skill often will be able to fit the teachings
of multiple patents together like pieces of a puzzle")). Appellants' argument
defines too narrowly the scope of Abrams's disclosure to assert that Abrams
is non-analogous. Although Abrams may focus on flocked decorative
articles, Abrams also discloses flocked materials generally, and their use in a
variety of applications including patches, transfers, molded objects, and the
like (Abrams i-f 3). The field of flocked materials generally is relevant to the
field of flocked materials that are suitable as scouring materials for cleaning
surfaces in various environments. Moreover, Abrams teaches flocked
articles having a similar structure to the claimed scouring material, i.e.,
having flock fibers secured to a substrate (carrier sheet) by an adhesive
(Abrams i-f 60; Fig. 5). Thus, we are not persuaded that the Examiner erred
in finding that Abrams is analogous art, and thus, is available for an
obviousness rejection.
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Appellants argue that the Examiner's obviousness determination is
based on unsupported findings of fact (i.e., "aesthetics alone"), and improper
hindsight reasoning. App. Br. 9, 11. We disagree. The Examiner's obvious
determination is not based on "aesthetics alone." As the Examiner finds,
Abrams teaches that flocked fibers and adhesive layers of differing colors
were known to persons of ordinary skill in the art. (Abrams i-f 6). Ans. 16-
17. Abrams further discloses that the density of the fibers is increased to
conceal the different colored adhesive (Abrams i-fi-15-7). As set forth above,
Abrams also discloses that when the density of the flock fibers are reduced,
i.e., worn away, the adhesive becomes visible. Thus, contrary to Appellants'
argument, the Examiner's findings in this regard are supported by a
preponderance of the evidence.
Appellants argue that Martin Rivera and Abrams teach away from
using flock fibers and adhesives of different colors in flocked materials.
App. Br. 10-11. Martin Rivera's teaching that a decorative effect can be
achieved by varying the color of the substrate material does not teach away
from other ways for achieving a decorative effect (i.e., by differing the color
of flock fibers and adhesive). Similarly, although Abrams teaches that using
flock fibers and adhesives of similar color are preferred, Abrams also
teaches that using flocks fibers and adhesives of differing colors was known.
Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989)
("[T]he fact that a specific [embodiment] is taught to be preferred is not
controlling, since all disclosures of the prior art, including unpreferred
embodiments, must be considered."). Further, Abrams teaching that using
flock fibers and adhesive of different colors "do not enhance or amplify the
fiber color and are visually unappealing" (Abrams i-f 6), does not go as far as
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teaching that the different colors detrimentally affects the visual appeal, as
argued by Appellants (App. Br. 11 ). That is, the teaching of a visually
unappealing result would not tum one of ordinary skill in the art away from
using flock fibers and adhesives of differing color, especially if visual
appearance was not of particular concern as in Abrams. In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004) ("The prior art's mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed in the ... application.").
Rejection 2
Appellants rely on the same arguments discussed above regarding
Rejection 1 (i.e., that Abrams is non-analogous art, and that Martin Rivera
and Abrams teach away from the material of claim 13) in traversing the
Examiner's alternative Rejection 2. Accordingly, for the same reasons
explained above, we are not persuaded that these arguments establish
reversible error in the Examiner's rejection.
In addition, Appellants argue that Penzes, Catalfamo, and DeMarse do
not disclose differently colored adhesive to provide wear indication features.
See App. Br. 12-14. The Examiner does not find Penzes, Catalfamo, and
DeMarse teach differently colored adhesive, but instead finds that each
reference teaches examples of differently colored adjacent layers functioning
as a wear indicator. Id. at 19-21. The Examiner finds Abrams teaches that
it was known to use a flock adhesive that is colored differently than the flock
fibers, wherein upon wear the flock fibers are dislodged to expose the
adhesive color. Ans. 20; see also Abrams i-f 6. The Examiner further finds
that Abrams implicitly teaches the function that the adhesive color becomes
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visible as the flock fibers in the flocked area wear away providing visual
wear indication that the scouring material has diminished. See In re Keller,
642 F.2d 413, 426 (CCPA 1981) ("one cannot show non-obviousness by
attacking references individually where, as here, the rejections are based on
combinations of references."). We are not persuaded of error in the
Examiner's findings.
DECISION
For the above reasons, the Examiner's rejections of claims 13, 16-19,
21, and 23-27 are 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).
AFFIRMED
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