Ex Parte Schindzielorz et al

Board of Patent Appeals and Interferences

Jun 24, 2009

10897126 (B.P.A.I. Jun. 24, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
_______________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________

Ex parte MICHAEL SCHINDZIELORZ
and PAUL RISEN
______________

Appeal 2008-006240
Application 10/897,126
Technology Center 1700
_______________

Decided:1 June 24, 2009
_______________

Before CHARLES F. WARREN, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

WARREN, Administrative Patent Judge.

DECISION ON APPEAL
Applicants appeal to the Board from the decision of the Primary
Examiner finally rejecting claims 1, 2, 4, 5, and 7 in the Office Action

1 The two month time period for filing an appeal or commencing a civil
action specified in 37 C.F.R. § 1.304, begins to run from the Decided date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
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Application 10/897,126
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mailed May 2, 2006. 35 U.S.C. §§ 6 and 134(a) (2002); 37 C.F.R.
§ 41.31(a) (2006).
We affirm-in-part the decision of the Primary Examiner.
Independent claims 1, 4, and 7 illustrate Appellants’ invention of an
airbag fabric, and are representative of the claims on appeal:
1. A coated woven fabric wherein the elongation of the fabric in the
warp and weft directions is balanced so that the difference between the
tensile strength of the fabric in the warp and weft directions is less than or
equal to about ten percent
further comprising a coating comprising silicone.
4. An airbag comprising a woven fabric having warp and weft
threads, wherein the average tensile strength of the warp threads is within
about ten percent of the average tensile strength of the weft threads
further comprising a silicone coating.
7. An airbag fabric woven in a process having a machine direction,
wherein the crimp of the fabric in the machine direction is within about ten
percent of the crimp of the fabric in the cross machine direction, wherein the
fabric has a compressed structure in the machine direction.
The Examiner relies upon the evidence in this reference (Ans. 2):
Matsui US 6,784,980 B2 Jun. 15, 2004
Appellants request review of the ground of rejection of appealed
claims 1, 2, 4, 5, and 7 under 35 U.S.C. § 102(e) as anticipated by Matsui.
App. Br. 3; Ans. 2
Appellants argue claims 1, 4, and 7 as representative of the claims on
appeal. App. Br., e.g., 3, 4, 5, and 7. We decide this appeal based thereon.
37 C.F.R. § 41.37(c)(1)(vii) (2006).

Issues
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The issues in this appeal is whether Appellants have shown that the
evidence in Matsui does not support the Examiner’s findings of prima facie
anticipation with respect to the claimed fabrics encompassed by each of
claims 1, 4, and 7.
Claim Interpretation
In order to consider the issues raised in this appeal, we first interpret
independent claims 1, 4, and 7 by giving the terms thereof the broadest
reasonable interpretation in their ordinary usage in context as they would be
understood by one of ordinary skill in the art in light of the written
description in the Specification unless another meaning is intended by
Appellants as established therein, and without reading into the claim any
disclosed limitation or particular embodiment. See, e.g., In re ICON Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007); In re Am. Acad. of
Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004), and cases cited
therein; In re Morris, 127 F.3d 1048, 1054-55 (Fed. Cir. 1997).
The plain language of claim 1 specifies any woven fabric comprising
at least any amount of any coating comprising at least any amount of
silicone. The difference in tensile strength in the warp and weft directions of
the coated woven fabric is less than or equal to about ten percent.
The plain language of claim 4 specifies any airbag comprising at least
any woven fabric in any part thereof in which the average tensile strength of
the warp threads is within about ten percent of the average tensile strength of
the weft threads. The airbag further comprises at least any amount of any
coating comprising at least any amount of silicone, and there is no
requirement that the specified woven fabric must be so coated.
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The plain language of claim 7 specifies any woven fabric capable of
use for any purpose in an airbag, which is characterized as formed by any
process which compresses the structure of the fabric in the machine direction
to any extent. The woven fabric is further characterized in that the
difference in crimp in the machine and cross machine directions of the
woven fabric is within about ten percent. See generally, In re Thorpe,
777 F.2d 695, 697 (Fed. Cir. 1985), and cases cited therein (“even though
product-by-process claims are limited by and defined by the process,
determination of patentability is based on the product itself”); In re
Bridgeford, 357 F.2d 679, 680-83 (CCPA 1966).
Findings of Fact
We find Matsui would have disclosed to one of ordinary skill in this
art a base fabric for a hollow-woven air bag, wherein the base fabric
comprises the following:
a bag portion (multiple fabric portion) formed by connecting a
plurality of cloth pieces by hollow weaving;
a fastened portion A connected to the bag portion (multiple
fabric portion); and
a fastened portion B of a weave structure different from that of
the fastened portion A, which is formed in a boundary portion
between the bag portion (multiple fabric portion) and the
fastened portion A.
Matsui col. 2, ll. 10-27. In the depiction of the structure of the hollow-
woven air bag in Matsui Figure 1, which does not show “a complicated
shape of a bag,” “1 denotes a hollow-woven portion (multiple fabric
portion), 2 indicates a fastened portion B and 3 denotes a fastened portion
A.” Matsui col. 5, ll. 31-37.
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Matsui discloses “[p]referably, the fastened portion B has 1 to 20
warps and/or wefts,” wherein, “[p]referably, the weave structure . . . is that
warps and/or wefts of at least one line existing in the boundary face with the
bag portion are interlaced in the order opposite to that of the end of the bag
portion.” Matsui col. 2, ll. 37-38 and 42-45; see also col. 5, ll. 63-64.
Matsui discloses that considering air bag quality “including warp tension
and crimp caused by warp, more preferably, 1 to 10 yarns, and further more
preferably, 1 to 5 yarns are inserted, and yarns perpendicularly crossing the
inserted yarns are adjusted according to weave density.” Matsui col. 5, l. 65
to col. 6, l. 3.
Matsui discloses a base fabric for a hollow-woven air bag wherein the
bag portion is formed by connecting a plurality of cloth pieces each made by
warps and wefts by hollow weaving, wherein “a rate of variation in a crimp
ratio of all of the warps is 40% or less.” Matsui col. 2, ll. 51-58.
Matsui discloses “[w]ith the [base fabric] configuration, the rate of
variation in the crimp ratio between the warps in the portions of different
weave structures is low,” and “[p]referably, a rate of variation in a crimp
ratio of all of the warps is 30% or less, more preferably, 15% or less, and
most preferably, 10% or less.” Matsui col. 2, ll. 59-62, and col. 3, ll. 10-12.
Matsui discloses “[p]referably, a rate of variation in thickness in the width
direction of the bag fabric for an air bag is 3% or less.” Matsui col. 3,
ll. 1-2. Matsui discloses that “[w]ith such configuration, flatness of the base
fabric is achieved.” Matsui col. 3, ll. 3-5; see also col. 3, ll. 61-66.
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Matsui discloses “[a]s long as the performance of the air bag is
satisfied, the base fabric does not have to be subjected to coating or
laminating but may be uncoated.” Matsui col. 5, ll. 10-14; see also col. 3,
ll. 5-6, and col. 4, ll. 1-3. Coatings can contain silicone. Matsui col. 5,
ll. 5-9.
Matsui discloses in Example 1:
Nylon 66 filament yarns of 35(D dtex/108f [sic, 350 dtex/108f]
were used as warps and wefts to form the portion 1 in FIG. 1 by
plain weave by employing an air jet loom and an electronic
jacquard machine so as to form a double bag portion having 60
warps/2.54 cm and 60 wefts/2.54 cm by hollow weave. After
that, the resultant woven fabric was subjected to a boiling water
shrinking process and, subsequently, drying and setting
processes, thereby forming a finished fabric. In the border
portion 2 [(fastened portion B] in FIG. 1 of the sample, one line
of warps and wefts interlaced in the order opposite to that of the
end line of the bag portion (double portion) was inserted. FIG.
4 shows an example of the structure of 3 (fastened portion b)
[sic (fastened portion A)] in FIG. 1 at this time.
Matsui col. 6, l. 59 to col. 7, l. 4.
We find that the base fabrics prepared in Matsui’s Examples 1-4 are
not coated. Matsui col. 6, l. 59 to col. 7, l. 52, and col. 8, ll. 51-67.
Matsui discloses in Examples 5-8, hollow-woven air bags using the
base fabric as illustrated in Figure 11, omitting bag shape, wherein
“10 denotes a bag portion (double fabric portion) and . . . 30 indicates a
fastened portion.” Matsui col. 9, ll. 40-48. Matsui discloses:
The crimp ratio of yarns of unrolled fabric was measured in
conformity with JIS-L-1096(8.7.2). Since the weave structure
in the bag portions in all samples is the same, by employing the
sample used in Example 1, sampling was made and
measurement was conducted. To calculate the rate of variation
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in the crimp ratio, the crimp ratio of 10 warps in the fastened
portion of each of Examples and Comparative Examples was
measured and the average value of the measurement values was
obtained.
Matsui col. 9, ll. 56-64. The base fabrics in Examples 5-8 were prepared in
similar manner to the base fabrics in Examples 1-4, including subjecting the
woven fabric “to a boiling water shrinking process and, subsequently, drying
and setting process, thereby forming a finished fabric.” Matsui col. 10, l. 25
to col. 11, l. 9.
Matsui discloses in Table 2, among other things, the “Rate of variation
(%)” in the “Crimp ratio (%)” between “Bag portion” and “Fastened
portion,” as well as the “Crimp” in the “Finish fabric (the number/100 m).”
Matsui reports with respect to Example 5, the “Crimp ratio (%)”of the “Bag
portion” is “9.3” and of the “Fastened portion” is “9.4,” resulting in a “Rate
of variation (%)” of “1.” Matsui Table 2. According to Matsui, “in
Example 5, the rate of variation in thickness of the base fabric . . . is low, the
rate of variation in the crimp ratio of warps is very low, so that flatness of
the base fabric for forming the air bag was achieved;” “[s]ince the crimp
ratio of the warps is almost equal to that in the bag portion, warps are not
loosened, and the weaving performance is very high;” and “[t]he coatability
is also excellent.” Matsui col. 11, ll. 54-67.
Matsui reports the ““Rate of variation (%)” of “15,” “22,” and “35”
and the “Crimp” in the “Finish fabric (the number/100 m)” of “1,” “1,” and
“2” for Examples 6, 7, and 8, respectively. Matsui Table 2. According to
Matsui, in Examples 6 through 8, “the rate of variation in the crimp ratio
between the warps in the bag portion and the fastened portion” are higher
than in Example 5, resulting in an inferior weave. Matsui col. 12, ll. 1-25.
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Opinion
We considered the totality of the record in light of Appellants’
arguments with respect to claim 1 and the ground of rejection advanced on
Appeal. See, e.g., In re Kahn, 441 F.3d 977, 985-86 (Fed. Cir. 2006) (“‘On
appeal to the Board, an applicant can overcome a rejection by showing
insufficient evidence of prima facie obviousness or by rebutting the prima
facie case with evidence of secondary indicia of nonobviousness.”) (quoting
In re Rouffet, 149 F.3d 1350, 1355 (Fed. Cir. 1998); In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992) (“After evidence or argument is submitted by
the applicant in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration to
persuasiveness of argument.”) (citing, inter alia, In re Spada, 911 F.2d 705,
707 n.3 (Fed. Cir. 1990)).
The Examiner must establish a prima facie case of anticipation under
§ 102(e) by showing, as a matter of fact, that a single reference describes to
one skilled in this art each and every limitation of the claimed invention
encompassed by the claims, arranged as required therein, either explicitly or
inherently. See, e.g., In re Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997),
and cases cited therein; In re Bond, 910 F.2d 831, 832-33 (Fed. Cir. 1990),
and cases cited therein.
Claim 7
The Examiner relies on the evidence “with respect to the crimp of the
fabric” reported Matsui’s Table 2, contending the evidence “shows the crimp
of the fabric to be within ten percent.” Ans. 3. The Examiner takes the
position
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that since no value of crimp is specifically given for the weft,
the most preferred value, that is the mean deviation of the
warp/weft is provided in the Table and since the warp meets the
limitation of being less than 10%, so does the weft. Or in the
alternative, since no value is given, it could be assumed that the
value is zero, and this would still meet Appellant [sic] desire to
have a compared value of less than 10%.
Ans. 3-4.
Appellants submit the Examiner does not identify disclosure in Matsui
of a fabric having a compressed structure in the machine direction or that
difference in crimp in the machine and cross machine directions of the
woven fabric is within about ten percent, as claimed. Appellants further
argue Matsui does not compare the warp and weft crimp values of the fabric.
App. Br. 2-3; Reply Br. 1-2. Appellants further point out, with respect to the
difference in crimp in the machine and cross machine directions, Matsui’s
disclosure of crimp values of the fabric in one direction does not establish a
relationship between the crimp of the fabric in two directions as claimed.
Reply Br. 2. Appellants argue that thus Matsui contains no evidence
supporting the Examiner’s proposition that the reference inherently discloses
a fabric meeting the claimed difference in crimp in the machine and cross
machine directions. Reply Br. 2-3.
It is well settled that in order to establish that a claim element is
inherent in a single prior art reference, it must be established by evidence
that such limitation is necessarily present in the description in the reference,
and that it would be recognized as such by one of ordinary skill in the art.
Continental Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir.
1991) (silence in a reference about an inherent characteristic may be
explained by extrinsic evidence which “must make clear that the missing
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descriptive matter is necessarily present in the thing described in the
reference, and that it would be so recognized by persons of ordinary skill”);
In re Oelrich, 666 F.2d 578, 581 (CCPA 1981)(“Inherency . . . may not be
established by probabilities or possibilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.”); see
also, e.g., Transclean Corp. v. Bridgewood Serv., Inc., 290 F.3d 1364, 1372-
73 (Fed. Cir. 2002); MEHL/Biophile Int’l Corp. v. Milgram, 192 F.3d 1362,
1365 (Fed. Cir. 1999); In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999).
We determine Appellants have established that the evidence in Matsui
does not support the Examiner’s finding of prima facie anticipation with
respect to the claimed article encompassed by claim 7 as we interpreted this
claim above. See above p. 4. The evidence on which the Examiner relies is
the data reported in Matsui’s Table 2 based on the “finished fabric” of
Example 5. See above p. 7. In obtaining the “finished fabric” of this
example, the woven fabric is subjected “to a boiling water shrinking process
and, subsequently, drying and setting process,” wherein the bag portion and
the fastened portion of the woven fabric are of different structures. See
above pp. 6-7. It is the differences in the crimp of the warps in the two
different structures that results in the reported “Rate of variation (%)” of the
“Crimp ratio (%)” of “1” reported in Table 2. See above pp. 6-7. We agree
with Appellants that Matsui does not disclose any information with respect
to the weft of any woven or finished fabric.
In the absence of evidence with respect to the crimp of the finished
fabric in the machine and cross machine directions, and indeed, in the weft
as opposed to the warp, the Examiner must provide scientific reasoning or
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evidence establishing as a matter of fact that one skilled in this art would
necessarily find in Matsui’s Example 5 a description of an airbag fabric as
claimed in claim 7, including all of the limitations thereof arranged as
specified therein. The Examiner has not advanced any such reasoning or
evidence to support the position that the crimp in the weft direction of the
finished fabric of Example 5 can be ascertained from the information of the
crimps in the warp direction and would correspond to the limitations in
claim 7.
Accordingly, in the absence of evidence that prima facie, as a matter
of fact, Matsui’s Example 5 describes an embodiment falling within
appealed claim 7, we reverse the ground of rejection of this claim under
35 U.S.C. § 102(e).
Claim 1
The Examiner takes the position “[t]he working example from column
6 onwards show that (Example 1) the sett of the fabric is 60 in the warp and
60 in the weft, thereby meeting the limitation of tensile strength being less
than or equal to about 10 percent.” Ans. 3. The Examiner submits “the type
of yarn (chemical makeup) chosen as well as the denier and ply determine
the amount of potential elongation and tensile strength of first the fiber and
then the fabric as a whole.” Ans. 4. The Examiner further submits that
“[e]longation and tensile strength of a fiber or yarn depends upon the
following criteria: its chemical make up, whether it is a monofilament or a
multifilament (yarn structure), then specific weave – whether it be a plain
weave or not and lastly whether the final fabric has a coating or a film.”
Ans. 4-5. The Examiner points out how a coating affects elongation. Ans.
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5. Thus, the Examiner contends Matsui discloses “a balanced elongation in
the warp and the weft and chemically and structurally use the same type of
yarns, therefore it would only be readily apparent that the elongation or
tensile strength would be equal if not slightly different.” Ans. 5.
Appellants submit the fact that a fabric has an equal number of the
same threads or yarns in the warp and weft directions does not necessarily
establish that Matsui’s fabric would meet the claimed difference in tensile
strength of less than or equal to about ten percent in the warp and weft
directions. App. Br. 4; Reply Br. 3. Appellants argue that, as the Examiner
points out, “tensile strength depends on many criteria (e.g., chemical
makeup, monofilament vs. multifilament makeup, specific weave type, film
coating, etc.),” and thus “tensile strength in the warp and weft directions
may vary substantially.” Reply Br. 3.
We determine Appellants have established that the evidence in Matsui
does not support the Examiner’s finding of prima facie anticipation with
respect to the claimed article encompassed by claim 1 as we interpreted this
claim above. See Reply Br. 3.
Matsui describes the woven fabric formed by a “plain weave by
employing an air jet loom and an electronic jacquard machine so as to form a
double bag portion having 60 warps/2.54 cm and 60 wefts/2.54 cm by
hollow weave,” as the Examiner point out. See above p. 6. However,
Matsui further discloses that “the resultant woven fabric was subjected to a
boiling water shrinking process and, subsequently, drying and setting
process, thereby forming a finished fabric.” See above p. 6. The finished
fabric further includes fastened portions A and B. See above p. 6.
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Thus, the woven, finished fabric of Matsui’s Example 1 constitutes a
more complex structure than merely the same number and type of warp and
weft yarns as relied on by the Examiner. Indeed, the Examiner does not
provide scientific reasoning or evidence establishing as a matter of fact that
one skilled in this art would necessarily find in Matsui’s Example 1 a
description of a finished fabric which would meet the tensile strength
limitation of claim 1. Indeed, the Examiner and Appellants agree that a
number of factors affect the tensile strength of a fabric, and these factors
have not been accounted for by the Examiner’s position.
Accordingly, in the absence of evidence that prima facie, as a matter
of fact, Matsui’s Example 1 describes an embodiment falling within
appealed claims 1 and 2, we reverse the ground of rejection of these claims
under 35 U.S.C. § 102(e).
Claim 4
The Examiner relies on the evidence of “the sett of the fabric is
60 in the warp and 60 in the weft” wherein the warp and weft threads are the
same filament yarns as described in Matsui’s Example 1. Ans. 3.
We determine Appellants have not established that the evidence in
Matsui does not support the Examiner’s finding of prima facie anticipation
with respect to the claimed article encompassed by claim 4. We interpreted
claim 4 to require that at least any woven fabric in the airbag has warp and
weft threads or yarns wherein the average tensile strengths of the warp and
weft threads or yarns is within about ten percent. See above p. 3. Indeed,
the description of the woven fabric in Matsui’s Example 1 includes the
double bag portion which would provide at least a part of the woven fabric
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having threads or yarns in the warp and weft directions which satisfies the
claim limitation.
In this respect, we find no basis in claim 4 for Appellants’ contention
that “[t]he Examiner’s argument is flawed because a fabric having the same
type of yarns in the warp and weft directions would not have equal
elongation and tensile strength in both directions.” App. Br. 6. Indeed, the
subject limitation of claim 4 involves only the tensile strength of the threads
or yarns and not the woven fabric per se.
Accordingly, based on our consideration of the totality of the record
before us, we have weighed the evidence of anticipation found in Matsui
with Appellants’ countervailing evidence of and argument for non-
anticipation and conclude, by a preponderance of the evidence and weight of
argument, that the claimed invention encompassed by appealed claims
4 and 5 would have been anticipated as a matter of fact under 35 U.S.C.
§ 102(e).
We have affirmed the ground of rejection with respect to claims 4 and
5, and reversed the ground of rejection with respect to claims 1, 2, and 7.
The Primary Examiner’s decision is affirmed-in-part.

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)(v).
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AFFIRMED-IN-PART

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