Ex Parte Tucker et al

Board of Patent Appeals and Interferences

Jan 22, 2009

10454416 (B.P.A.I. Jan. 22, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JOHN LARRY TUCKER, JR.,
WILLIAM O. BOYD, JR.,
IAIN RITCHIE TAYLOR,
DEREK A. SHARP, and
DAVID MICHAEL BROWN
____________

Appeal 2008-4718
Application 10/454,416
Technology Center 1700
____________

Decided: January 22, 2009
____________

Before EDWARD C. KIMLIN, TERRY J. OWENS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the
Examiner’s rejection of claims 1-10, which are all of the pending claims.
We have jurisdiction under 35 U.S.C. § 6(b).
Appeal No. 2008-4718
Application 10/454,416

The Invention
The Appellants claim a fabric which, the Appellants state, has
“internal connecting elements or fibers which serve to stabilize the fabric
construction” (Spec. 1:8-9). Claim 1 is illustrative:
1. A fabric comprising:

(a) a plurality of interconnected base zones, said base zones having
a single layer comprising a plurality of interlaced or interlooped base yarns
and blister yarns,

(b) a plurality of blister zones positioned among said base zones,
said blister zones comprising at least the following:

i) a lower base layer comprised of a plurality of interlaced
or interlooped base yarns, said base yarns being comprised of a plurality of
bundled fibers; and

ii) an upper blister layer comprised of a plurality of
interlaced or interloped blister yarns, said blister yarns being comprised of a
plurality of bundled fibers; and

(c) a plurality of connecting fibers extending between at least a
portion of said base yarns in said lower base layer of the blister zones and
said blister yarns in said upper blister layer of the blister zones.

The References
Heaton US 667,699 Feb. 12, 1901
Kitayama (as translated) JP 10273849 Oct. 13, 1998
Haneda (as translated) JP 11117141 Apr. 27, 1999
The Rejections
Claims 1-10 stand rejected under 35 U.S.C. § 103 over either Haneda
or Kitayama, each in view of Heaton.
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Appeal No. 2008-4718
Application 10/454,416

OPINION
We affirm the Examiner’s rejections.
The Appellants argue the claims as a group (Br. 4-9). We therefore
limit our discussion to one claim, i.e., claim 1. See 37 C.F.R. § 41.37(c)
(1)(vii) (2008).
Issue
Have the Appellants shown reversible error in the Examiner’s
determination that one of ordinary skill in the art would have been motivated
to combine the teachings of Heaton with those of Haneda and Kitayama?
Findings of Fact
Haneda discloses a woven fabric comprising thermal shrinkable
yarns (1), as warps and wefts, surrounding sweat absorptive yarns (2) (e.g.,
cotton or hemp yarns) (¶¶ 0005, 0010; Figs. 1, 3). The sweat absorptive
yarns are formed into bumps for contacting and absorbing sweat from the
skin by thermally shrinking the thermal shrinkable yarns (¶¶ 0005, 0013;
Fig. 2).
Kitayama discloses “a two-sided pile woven material which is a
corduroy with many ribs, that is not flat, and has a bulging texture, in a
two-sided pile woven material where the pile is raised on both the front and
back by pulling out pull-out weft threads on the back of a two-sided pile
woven material using a double cloth weave” (¶ 0001).
Heaton discloses a fabric “made up of two separate pieces of knit
goods the fibers of which are united or intermixed by means of barbed
needles, after which the goods are fulled, thus making a fabric which is
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Appeal No. 2008-4718
Application 10/454,416

much stronger than a felt fabric of the same material and when made up into
felt boots or analogous articles is much stronger than the material used in the
manufacture of felt boots as known to the trade” (ll. 17-25). The two fabric
pieces also can be woven fabric (ll. 27-28). Heaton teaches that “[a]fter the
pieces have been thus united the fabric will lose to a great extent the
appearance of a woven fabric, Fig. 3, and the fabric so constructed will be
stronger than the ordinary felted goods” (ll. 39-44).
Analysis
The Appellants argue that one of ordinary skill in the art would not
have been motivated to combine Heaton with either Haneda or Kitayama
because Haneda and Kitayama require maintaining two independent layers
in certain areas of the fabric, whereas Heaton’s needling would unite the two
layers such that they become indistinguishable (Br. 5-6, 8-9). Heaton, the
Appellants argue, can only be fairly considered to teach that the disclosed
increase in strength would require extensive needling and uniting of the two
fabrics which would destroy their desired properties (Br. 6-7, 9).
Heaton does not disclose that the fabric layers are needled such that
they become indistinguishable. Although the appearance of a woven fabric
is lost “to a great extent” (ll. 40-43), as shown by a comparison of Figure 3
with Figures 1 and 2, the woven fabric appearance also is maintained to a
great extent. Moreover, “the [obviousness determination] analysis need not
seek out precise teachings directed to the specific subject matter of the
challenged claim, for a court can take account of the inferences and creative
steps that a person of ordinary skill in the art would employ.” See KSR Int’l.
Co. v. Teleflex Inc., 127 S. Ct. 1727, 1741 (2007). Through no more than
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Appeal No. 2008-4718
Application 10/454,416

ordinary creativity in view of Heaton, one of ordinary skill in the art would
have needled the fabric layers in Haneda and Kitayama sufficiently to
strengthen them as disclosed by Heaton (ll. 39-44), but not sufficiently to
destroy the desired fabric properties.
Conclusion of Law
The Appellants have not shown reversible error in the Examiner’s
determination that one of ordinary skill in the art would have been motivated
to combine the teachings of Heaton with those of Haneda and Kitayama.
DECISION/ORDER
The rejections of claims 1-10 under 35 U.S.C. § 103 over either
Haneda or Kitayama, each in view of Heaton are affirmed.
It is ordered that the Examiner’s decision 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).
AFFIRMED

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