HEXONIA GMBH

Patent Trials and Appeals Board

Mar 14, 2022

2022000090 (P.T.A.B. Mar. 14, 2022)

UNITED STATES PATENT AND TRADEMARK OFFICE 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 APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 15/329,373 01/26/2017 Gerd Hexels 37217.0003 6113 23427 7590 03/14/2022 Randall Danskin, PS 601 West Riverside Suite 1500 Spokane, WA 99201 EXAMINER KANE, KATHARINE GRACZ ART UNIT PAPER NUMBER 3732 NOTIFICATION DATE DELIVERY MODE 03/14/2022 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): ip@randalldanskin.com mac@randalldanskin.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte GERD HEXELS Appeal 2022-000090 Application 15/329,373 Technology Center 3700 ____________ Before CHARLES N. GREENHUT, MICHAEL J. FITZPATRICK, and WILLIAM A. CAPP, Administrative Patent Judges. Opinion for the Board filed by FITZPATRICK, Administrative Patent Judge Opinion Concurring filed by CAPP, Administrative Patent Judge FITZPATRICK, Administrative Patent Judge. DECISION ON APPEAL Appellant, HEXONIA GmBH,1 appeals under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1-18, 20, 21, 24, and 25. We have jurisdiction under 35 U.S.C. § 6(b). An oral hearing was held February 24, 2022. We affirm. 1 “Appellant” refers to the applicant as defined in 37 C.F.R. § 1.42 and identifies itself as the sole real party in interest. Appeal Br. 3. Appeal 2022-000090 Application 15/329,373 2 STATEMENT OF THE CASE The Specification The Specification’s disclosure “relates to a textile item of clothing with ballistic protection.” Spec. ¶2. The Claims Claims 1-18, 20, 21, 24, and 25 are rejected. Final Act. 1. The only other pending claims, namely claims 19, 22, and 23, have been withdrawn from consideration. Id. Claim 1 is representative and reproduced below. 1. A textile item of clothing with ballistic protection comprising: an item of clothing having at least one knitted fabric, which forms a plurality of differently protected zones and wherein at least two of the differently protected zones are connected seamlessly to one another and at least one first zone is formed from a yarn which inhibits the penetration of fragments. Appeal Br. 14. The Examiner’s Rejections The rejections before us are as follows: 1. claims 1, 2, 4, 9-12, 14, 16, 20, and 25 under 35 U.S.C. § 102(a)(1) as anticipated by Sweeney2 (Final Act. 2); 2. claims 5-8 under 35 U.S.C. § 103 as unpatentable over Sweeney (id. at 4); 3. claims 3, 15, 21, and 24 under 35 U.S.C. § 103 as unpatentable over Sweeney and Garcia3 (id. at 6); 2 US 2010/0275342 A1, published Nov. 4, 2010 (“Sweeney”). 3 US 2011/0167545 A1, published July 14, 2011 (“Garcia”). Appeal 2022-000090 Application 15/329,373 3 4. claim 13 under 35 U.S.C. § 103 as unpatentable over Sweeney and Rebouillat4 (id. at 8); and 5. claims 17 and 18 under 35 U.S.C. § 103 as unpatentable over Sweeney and Northrup5 (id.). DISCUSSION Rejection 1 (Anticipation) Appellant argues patentability of the rejected claims together. Appeal Br. 6-11. We choose claim 1 as representative of these claims, namely claims 1, 2, 4, 9-12, 14, 16, 20, and 25. 37 C.F.R. § 41.37(c)(1)(iv). The Examiner found that Sweeney discloses a textile item of clothing (a glove) with ballistic protection having all of the recited features of claim 1. Final Act. 2 (citing Sweeney ¶¶7, 67, 70, 72, 73, 93, Figs. 1-2). Appellant argues that Sweeney fails to disclose that its glove provides “ballistic protection” and thus also fails to disclose “a plurality of differently [ballistically6] protected zones.” Appeal Br. 6-11. Sweeney is directed to safety/work gloves for use by carpenters, electricians, HVAC technicians, laborers, masons, and plumbers. Sweeney ¶2. Appellant correctly points out that Sweeney does not expressly disclose that its glove provides ballistic protection. Appeal Br. 6. Rather, Sweeney discloses that its gloves/liners provide, among other things, “cut resistance, puncture resistance.” Sweeney ¶67. As the Examiner points out, “although 4 US 2004/0011087 A1, published Jan. 22, 2004 (“Rebouillat”). 5 US 2,434,809, issued Jan. 20, 1948 (“Northrup”). 6 According to Appellant, “the phrase, ‘differently protected zones[,]’ . . . is specifically referring to ‘different levels of ballistic protection’ as described in Appellant’s para. [0027].” Appeal Br. 11 (quoting both claim 1 and Spec. ¶27). Appeal 2022-000090 Application 15/329,373 4 Sweeney does not specifically disclose ‘ballistic protection’, Sweeney uses the same exact material that is disclosed by the application.” Final Act. 9-10; Ans. 3 (same). This is true. Sweeney discloses using “a cut resistant yarn such as an ultra high molecular weight polyethylene (UHMWPE) (sold, for example, under the trade name Dyneema®) or a para-aramid (sold, for example, under the trade name Kevlar®) or any other cut resistance yarn.” Sweeney ¶72. Not only does Appellant’s own Specification use some of these same yarns in the claimed invention (i.e., UHMWPE and Aramid), but the Specification further admits that they are “known to provide ballistic protection.” Spec. ¶29. Appellant argues that “ballistic protection is different from cut or abrasion resistance,” citing Garcia as evidence. Appeal Br. 8 (citing Garcia ¶¶8-10). But, even assuming that is correct, that fact does not show error in the Examiner’s rejection. The portion of Garcia cited by Appellant merely provides a brief discussion of “stab resistance,” “puncture resistance,” “cut resistance,” and “ballistic properties.” Garcia ¶¶8-10. The cited portion of Garcia, however, fails to show why Sweeney’s textile item that is cut resistant and puncture-resistant would not also provide at least some degree of ballistic protection. To the contrary, as discussed above, Appellant’s own Specification concedes that some of the yarns used by Sweeney are “known to provide ballistic protection.” Spec. ¶29. Appellant argues that “UHMWPE and Aramid may be used in many different ways to provide different levels of protection to their wearers,” including “in a manner that does not provide any protection to the wearer against cuts or punctures, let alone the requisite level of protection Appeal 2022-000090 Application 15/329,373 5 associated with ballistic protection.” Reply Br. 4. To support this argument, Appellant characterizes its Specification as teaching that UHMWPE and Aramid are “material[s] that may be used in a particular manner that will provide the requisite ballistic protection.” Id. at 4-5. These arguments are not persuasive. First, paragraph 29 of the Specification explicitly attributes ballistic protection to both UHMWPE and Aramid yarn and does so without qualification. Spec. ¶29. Second, Appellant has not pointed to any disclosure in the Specification or cited other evidence describing the “particular manner” that is allegedly required of the claim per Appellant’s argument. Thus, for purposes of a prior-art analysis on the record presently before us, it is fair to presume that the “particular manner” to which Appellant refers is not essential for achieving the recited “ballistic protection.” Appellant, in effect, seeks to overcome the Examiner’s prior art rejection by arguing claim 1 does not comply with the requirements of 35 U.S.C. § 112(a) and/or (b). See MPEP §§ 2174, 2172.01.7 Although the Board is authorized to reject claims on such grounds, we merely analyze the prior art rejections on the evidence presently before us, which evidence does not support Appellant’s argument.8 7 Citing In re Simon, 302 F.2d 737 (CCPA 1962) (finding no supporting written description for claims directed to a subcombination omitting essential elements); In re Mayhew, 527 F.2d 1229, 1233 (CCPA 1976) (Claims do not comply with the enablement requirement when they omit subject matter, without which, the invention as claimed could not produce the product or result recited); In re Venezia, 530 F.2d 956, (CCPA 1976) (Omission of essential elements may raise issues of indefiniteness); In re Collier, 397 F.2d 1003, (CCPA 1968) (Omission of essential elements may raise issues of failing to claim that which is regarded as the invention). 8 No inference should be drawn when the Board elects not to enter new grounds of rejection. See MPEP § 1213.02. Appeal 2022-000090 Application 15/329,373 6 In reaching this conclusion, we note that Appellant’s use of the term “ballistic protection” does not require absolute protection. Rather, the Specification states: The term ‘ballistic protection” is understood, in particular, to mean personal protection provided by items of clothing worn close to the body, as result of which the person wearing the item of clothing should be protected against the effects of an explosion and the resulting fragments, or the effects thereof on the wearer should be reduced. Spec. ¶4 (emphasis added). The Examiner’s finding that Sweeney’s glove, meets Appellant’s “ballistic protection” limitation is adequately supported by the evidence. As mentioned above, Appellant also argues that Sweeny’s glove lacks “a plurality of differently protected zones,” as recited in claim 1. Appeal Br. 10-11. Appellant’s argument in this regard, however, is premised on Appellant’s unpersuasive argument that Sweeney’s glove fails to provide any level of ballistic protection. See id. at 11 (“Sweeney does not disclose any zone with any level of ballistic protection, let alone two or more differently protected zones giving rise to different levels of ballistic protection.”). We have considered Appellant’s arguments but they do not apprise us of error in the rejection of claim 1. Accordingly, we affirm the rejection of claim 1, as well as that of claims 2, 4, 9-12, 14, 16, 20, and 25, which fall therewith. 37 C.F.R. § 41.37(c)(1)(iv). Rejections 2-5 (Obviousness) Appellant argues against these rejections on the sole basis that Garcia does not cure the purported deficiency of Sweeney failing to disclose ballistic protection. Appeal Br. 12-13. However, as discussed above, Appeal 2022-000090 Application 15/329,373 7 Appellant fails to show error in the Examiner’s finding that Sweeney’s glove does provide ballistic protection. Accordingly, we affirm all of the obviousness rejections, collectively of claims 3, 5-8, 13, 15, 17, 18, 21, and 24. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 2, 4, 9- 12, 14, 16, 20, 25 102(a)(1) Sweeney 1, 2, 4, 9- 12, 14, 16, 20, 25 5-8 103 Sweeney 5-8 3, 15, 21, 24 103 Sweeney, Garcia 3, 15, 21, 24 13 103 Sweeney, Rebouillat 13 17, 18 103 Sweeney, Northrup 17, 18 Overall Outcome 1-18, 20, 21, 24, 25 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Appeal 2022-000090 Application 15/329,373 8 CAPP, Administrative Patent Judge, concurring. I concur in the result reached by the panel in all respects. I write separately to comment on the scope and breadth and definiteness of Appellant’s claim term “ballistic protection.” Appellant’s Specification states that “ballistic protection” merely means that that the effects of an explosion and fragments that result therefrom should be “reduced.” Spec. ¶ 1. Appellant declares that explosive devices produce “primary” and “secondary” fragments that can cause bodily injury. Id. Appellant notes that particles of sand, dust, and dirt are accelerated by explosion. Id. Appellant further notes that explosive devices also give rise to pressure waves and fire. Id. Appellant provides little or no guidance as to how much “reduction” in effect is required to achieve “protection.” Explosive devices may be encased in steel or another metal that may become airborne shrapnel when the device explodes. Explosive device may also impart motion to surrounding objects, either in whole or in some state of destruction. As explicitly acknowledged by Appellant, an explosion may generate other debris such as airborne sand and dust. Furthermore, a practitioner and almost any lay member of the military or law enforcement understands that the force of an explosive blast and the concentration of flying debris generated by an explosion dissipate as a function of distance from the point of the explosion. Moreover, certain objects can have motion imparted to them by means other than an explosion. Arrows can be propelled by bows. Bullets can be shot from guns. Rocks or other objects can be thrown. It is not entirely clear from reading Appellant’s disclosure as to the scope of objects that, Appeal 2022-000090 Application 15/329,373 9 when given flight by a propelling force, are encompassed by the term “ballistic” from which a wearer needs protection. In other words, the scope of “ballistic” is somewhat uncertain. The foregoing problem is exacerbated by Appellant’s explanation that “ballistic protection” just requires that the damaging effects of ballistic material be “reduced.” Appellant does not explain, much less provide any objective criteria, as to the amount or degree of protection that is required to satisfy the claim language regarding “inhibiting” - the “penetration” - of “fragments.” What qualifies as a “fragment?” Are dust particles that are generated by the explosion of a firecracker with a paper or cardboard casing considered “fragments?” Next, what does it mean to “inhibit” - “penetration?” If the fragment fully passes through the fabric, but has its velocity reduced as it penetrates, does such qualify as “inhibiting” - “penetration?” Does the size of the fragment matter? If smaller fragments penetrate the fabric, but larger fragments do not penetrate the fabric, is penetration thereby “inhibited?” In view of the foregoing vagueness and ambiguity in Appellant’s disclosure and claims, I do not find persuasive Appellant’s argument that Sweeney does not provide “ballistic protection.” Sweeney is designed to protect the wearer from injury from, among other things, cuts and punctures. Sweeney ¶ 67. In the absence of Appellant providing more detailed disclosure and more definitive claim limitations related to the force of ballistic objects impinging on the claimed textile, or the size of the objects, or the relative sharpness of the objects, we are given no objective criteria from which to patentably distinguish Appellant’s textile from Sweeney’s. I am mindful that Appellant bears the burden of drafting precise claim Appeal 2022-000090 Application 15/329,373 10 language. See In re Morris, 127 F.3d 1048, 1056-57 (Fed. Cir. 1997). Here, Appellant has failed to draft claim language that patentably distinguishes over the prior art. Otherwise, I fully concur with the majority decision.